The story is almost a week old now, and for the news media it is an open and shut case: Cowboy nose tackle kills best friend and fellow teammate in a drunk-driving accident. With public opinion, the desire to spread condemnation seems to impair the ability to reject or even explore the basis of the foregone conclusions that are haphazardly thrown to the masses. This sort of phenomenon is no more harmful than in the context of a criminal allegation where an arrested person is supposed to be presumed innocent.
Josh Brent’s case is a typical scenario described above. With incredibly scarce information, the media has all but obliterated the constitutional right to be presumed innocent. Currently available facts demonstrate one thing: the burden of proof in the court of public opinion is a low one.
Here is a breakdown of what we actually know:
- The officer responded to an accident severe enough that it resulted in one fatality.
- The officer smelled a moderate odor of alcohol.
- The officer had Brent perform field sobriety tests to evaluate physical and mental impairment.
- The officer observed “sufficient clues to indicate [Brent] lost the use of his mental and physical faculties.
- The officer took a blood sample.
What we don’t know:
- We don’t know the results of the blood test.
- We don’t know how serious his injuries were.
Some things worth considering:
- Officers are trained to look for red bloodshot watery eyes, slurred speech and unsteady balance. In DWI cases, eyes, speech and balance are the three most consistently remarked upon observations in police reports and affidavits. No such observations were referenced in the publicly available affidavit in Brent’s case.
- The National Highway Traffic Safety Administration (NHTSA) field sobriety training manual instructs officers that individuals with head, neck, back or leg problems are bad candidates for field sobriety testing.
- In addition to any physical injuries, the mental and emotional impact of being involved in a fatal car accident could have also played a role in Brent’s performance on field sobriety tests.
- The officer’s decision to arrest Brent was based on probable cause. Probable cause is a standard which requires only “reasonably trustworthy information.” Probable cause is one of the lowest legal burdens in our system.
Take all of this and distill it, Joshua Brent was arrested because he smelled like alcohol and had a tough time performing field sobriety tests after a serious accident. The officer did his job properly when he arrested a person based on reasonably trustworthy information, but at this point, it is anything but a foregone conclusion that this is an open and shut intoxication manslaughter case.