At the 1:31 mark of this CBS-3 Philadelphia newscast from June 1, 2006, DA Jim Martin inadvertently admits on camera that Robert LaBarre committed third degree murder against my daughter, Sheena. Click on this blue hyperlink and have a look ... At the 1:31 mark, an uncharacteristically unscripted DA Jim Martin nervously states: "I think that there will be evidence that, that, will indicate that both he [i.e., a surviving backseat passenger] and Miss Villa, uh, cautioned LaBarre to slow down."
Readers, in ignoring his two passengers' "cautionings" that he slow down (from a speed determined by the police crash reconstruction to have been a minimum of 85 miles per hour on a 35MPH-zoned residential street, i.e., an unjustified and extremely high risk speed), Robert LaBarre nailed not only a tree on the opposite side of the road on Parkway Boulevard in Allentown, LaBarre also nailed the well-settled legal definition of malice, the presence of which is required for a charge of third degree murder.
See Commonwealth v. Levin for the well-settled legal definition of malice.
Malice consists of a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured...." Malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury.
On June 1, 2006, to CBS-3 Philadelphia, DA Jim Martin admitted on camera that, despite the "cautionings" of his two passengers to slow down, Robert LaBarre had consciously disregarded an unjustified and extremely high risk that his actions [i.e., not slowing down] might cause serious bodily injury.
FYI: the surviving backseat passenger told the police, and DA Jim Martin, that his and Sheena's "cautionings" to LaBarre to slow down involved screaming for their lives, at the top of their lungs, for approximately 30 seconds. Reader, try screaming for your life, as loudly as you can, for 30 seconds. It's a long time. That's how my daughter Sheena spent the last 30 seconds of her life.
In the months after Sheena's March 24, 2006 murder, using the law library across the hall from DA Jim Martin's office on what was then the 4th floor of the Lehigh County Courthouse, I was able to find five (5) precedent Pennsylvania cases where drunk drivers had been charged with third degree murder after killing someone while driving drunk; all five defendants were successfully convicted by their county's DA; all five convictions successfully withstood subsequent appeals; and all five cases were then, and still are, "good law."
Commonwealth v. Kling
Commonwealth v. Urbanski
Commonwealth v. Pigg
Commonwealth v. Scales
Commonwealth v. Levin
Just 3 years old in 2006, and from right down the road in Philadelphia County, Commonwealth v. Levin was especially fresh and relevant at the time. More on this case later.
At the only meeting Sheena's family had w/ the DA's office, on May 15, 2006, Assistant District Attorney A. Renee Smith told me that a) the DUI/third degree murder cases I was showing her were all "outdated," b) that there was a then current "trend" in Pennsylvania jurisprudence whereby third degree murder convictions for DUI homicides were being "routinely reversed on appeal," and c) if the jury didn't convict on a charge of third degree murder, "LaBarre would walk, scott-free."
After this meeting, I researched, thoroughly, Pennsylvania appellate court rulings, going back several years, objectively looking for Assistant DA Renee Smith's "trend" of appellate court reversals of third degree murder convictions for DUI homicides. I couldn't find even one conviction that was reversed, let alone a "trend" of them. I did, however, find a trend (5 cases) where third degree murder convictions for DUI homicides had been affirmed, and upheld, and were all still good law ...
Commonwealth v. Kling
Commonwealth v. Urbanski
Commonwealth v. Pigg
Commonwealth v. Scales
Commonwealth v. Levin
Enclosing hard copy of all 5 cases, I clearly stated Sheena's family's position regarding the appropriate charge of third degree murder we wanted in several mailings each to DA Jim Martin and the assigned Judge Robert L. Steinberg.
I was also "in-loop" copying The Morning Call "newspaper" "reporter" Manny Gamiz on all of this, as it was happening. At one point, Manny Gamiz told me he had found additional precedent Pennsylvania cases I had missed that further strengthened my argument for a charge of third degree murder. But Manny wouldn't tell me the case names. And later, while painting me as a vengeful grieving father frothing at the mouth about third degree murder in their "reporting," curiously (very curiously), Manny Gamiz and The Morning Call "newspaper" never mentioned the precedent PA third degree murder cases for DUI homicide we all had found:
Commonwealth v. Kling
Commonwealth v. Urbanski
Commonwealth v. Pigg
Commonwealth v. Scales
Commonwealth v. Levin
Not only did I "have a case" for third degree murder, I had five of them. And I wasn't vengeful or frothing. I merely wanted Robert LaBarre charged with the crime he had committed so cruelly and brutally against my daughter Sheena, which we believed was third degree murder. We also believed that DA Jim Martin had a responsibility to the Commonwealth, to Lehigh County, and to Sheena Villa and her family to at least TRY to get a conviction for third degree murder. And contrary to Assistant DA Renee Smith's outright LIE litany that included LaBarre "walking scott-free" if the jury didn't buy DA Jim Martin's case for a third degree murder conviction, the truth is that the jury would have then likely convicted LaBarre on the next charge in line, i.e., the lesser charge that DA Jim Martin eventually opted to file against LaBarre, the charge LaBarre pled guilty to on FEB 2, 2007, Vehicular Homicide While Driving Under The Influence.
As we saw it, DA Jim Martin had nothing to lose in trying for a third degree murder conviction against Robert LaBarre-- except, possibly, his standing among, and his campaign contributions from, attorneys at the law firm of Gross McGinley LaBarre and Eaton. [Source: Lehigh County Voter Registration Campaign Contribution Records]
Regarding what happened next, I'll tell it via this excerpt from my "Victim Impact Statement" that I delivered at Robert LaBarre's sentencing on April 17, 2007 in Judge Robert L. Steinberg's courtroom. Incredibly, my Victim Impact Statement drew 4 instances of, "Objection, Your Honor," 2 from LaBarre's "defense" attorney Phil Lauer, and 2 from "our lawyer," Assistant DA Richard Director.
April 17, 2007
Your Honor, although I’m relieved that none of the significant charges against Mr. LaBarre were plea-bargained away behind closed doors, I believe District Attorney Martin cut Robert LaBarre and his family the break of a lifetime by not charging him with third degree murder.
And then Your Honor, in a scene possibly indicative of Divine Intervention, on February 2nd, in this courtroom, during his guilty plea hearing before you, I heard Robert LaBarre confess to malice and third degree murder.
He told you that he knew he was a blackout drinker and that he was in a blackout during his drunk driving crash that killed Sheena.
In 'Commonwealth v. Levin,' right down the road in Philadelphia County, Joseph Levin told the police that he knew he was a blackout drinker and that he was in a blackout during his drunk driving crash that killed pedestrian Christine Schofield.
Your Honor, in upholding Mr. Levin’s conviction of third degree murder in 2003, the Pennsylvania Superior Court cited Mr. Levin’s knowledge of being a blackout drinker—and yet still getting behind the wheel drunk—as the qualifying malice required for a charge of third degree murder.
The judges ruled:
"This knowledge (that is, knowing he was a blackout drinker) and his action in light of this knowledge (that is, he got behind the wheel drunk knowing he was a blackout drinker) constitutes a recklessness of consequences and a disregard for social duty.
Mr. Levin did indeed disregard that his actions would cause serious bodily injury. Accordingly, we find that there was sufficient evidence to conclude that he possessed the requisite malice for conviction of third degree murder. Judgment of sentence affirmed."
Mr. Levin is currently serving the sentence he got right down the road in Philadelphia County: 12 and one-half to twenty-five years in a Pennsylvania State Penitentiary.
Your Honor, if Robert LaBarre had been charged with third degree murder, you would have had the opportunity here today to sentence him to a maximum of 20 to 40 years in prison.
By not charging third degree murder, District Attorney Martin has managed to successfully contain the damage for the defendant and the defendant’s family to a maximum possible sentence of 9.5 to 19 years.
Your Honor, please sentence Robert LaBarre to serve that maximum sentence.
And then Your Honor, in a scene possibly indicative of Divine Intervention, on February 2nd, in this courtroom, during his guilty plea hearing before you, I heard Robert LaBarre confess to malice and third degree murder.
He told you that he knew he was a blackout drinker and that he was in a blackout during his drunk driving crash that killed Sheena.
In 'Commonwealth v. Levin,' right down the road in Philadelphia County, Joseph Levin told the police that he knew he was a blackout drinker and that he was in a blackout during his drunk driving crash that killed pedestrian Christine Schofield.
Your Honor, in upholding Mr. Levin’s conviction of third degree murder in 2003, the Pennsylvania Superior Court cited Mr. Levin’s knowledge of being a blackout drinker—and yet still getting behind the wheel drunk—as the qualifying malice required for a charge of third degree murder.
The judges ruled:
"This knowledge (that is, knowing he was a blackout drinker) and his action in light of this knowledge (that is, he got behind the wheel drunk knowing he was a blackout drinker) constitutes a recklessness of consequences and a disregard for social duty.
Mr. Levin did indeed disregard that his actions would cause serious bodily injury. Accordingly, we find that there was sufficient evidence to conclude that he possessed the requisite malice for conviction of third degree murder. Judgment of sentence affirmed."
Mr. Levin is currently serving the sentence he got right down the road in Philadelphia County: 12 and one-half to twenty-five years in a Pennsylvania State Penitentiary.
Your Honor, if Robert LaBarre had been charged with third degree murder, you would have had the opportunity here today to sentence him to a maximum of 20 to 40 years in prison.
By not charging third degree murder, District Attorney Martin has managed to successfully contain the damage for the defendant and the defendant’s family to a maximum possible sentence of 9.5 to 19 years.
Your Honor, please sentence Robert LaBarre to serve that maximum sentence.
--------
Judge Steinberg sentenced Sheena's killer to serve 5.5 to 12 years in State Prison.
Judge Steinberg sentenced Sheena's killer to serve 5.5 to 12 years in State Prison.
At the FEB 2 guilty plea hearing, when Robert LaBarre had confessed to third degree murder (See: Commonwealth v. Levin) by telling Judge Steinberg he knew he was a blackout drinker, I had immediately stood up and yelled "LEVIN" (i.e., one of the 5 precedent cases I had mailed Judge Steinberg months earlier), TWICE, in open court.
Curiously, Morning Call "reporter" Manny Gamiz somehow did not hear me yell, "LEVIN" (a court ruling Manny was very familiar w/ also) twice, in open court.
My timely and relevant yelling of "LEVIN" never got reported in the "newspaper."
Manny Gamiz did, however, somehow hear me wish defendant LaBarre a sarcastic, "Happy Birthday," under my breath, as they took poor Bobby away in handcuffs.
My "Happy Birthday" got reported in the "newspaper," as did numerous other Pro-LaBarre sympathy string-pullers and clever "colorings" of yours truly as being unstable and falling apart (they wish, eh?).
Most curiously, the Honorable Judge Robert L. Steinberg is quoted in Manny Gamiz's article (see: page 3) as saying, and dead-wrong erroneously, that the most recent third degree murder charge in Pennsylvania for a DUI traffic fatality was "more than 12 years old."
Apparently, and sadly, just like DA Jim Martin in the Michael Eric Ballard case ...
Judge Robert L. Steinberg doesn't read his mail either.
Readers, this is the fourth post in an ongoing series of LVS blog posts on "Facts The Morning Call "newspaper" refused to cover." See our right sidebar for more revelations.
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