"A Dover man accused of driving drunk and killing two teenage pedestrians in Kinnelon nearly two years ago is pursuing a rarely-used legal defense called "pathological intoxication."
The concept claims that someone regularly became so intoxicated that they had no control over their alcohol or drug addictions and became oblivious to their actions.
Eugene Baum had been hospitalized three times before the crash for "his illness" of alcoholism, and on the night of the crash was functioning as if on "autopilot" with no awareness of his actions, his defense attorney, John Iaciofano, claims.
"This case is not the equivalent of some fool who went to a bar and tied one on," Iaciofano said during a hearing on the case on Jan. 27 in Superior Court in Morristown. After the hearing, Iaciofano added, "Mr. Baum is a sick individual who suffers from a medical condition of pathological intoxication."
However, attorney Richard Pompelio of the New Jersey Crime Victims' Law Center was dubious of the pathological intoxication defense.
"It's what I call a gimmick defense. The only time you see it is on (the television show) 'Law and Order,'" Pompelio said. "I don't think it's a valid defense and I'm not sure a jury would buy it. I'm not sure it should even get to a jury."
John Kip Cornwell, an associate dean and professor of law at Seton Hall Law School, also cast doubt on the strategy, which he said was akin to an insanity defense.
"It's a very rare defense," he said. "He's trying to thread a needle that would link all of these things together."
Baum is charged with two counts of first-degree aggravated manslaughter in the April 20, 2006, deaths of 15-year-old Mayada Jafar of Kinnelon and her cousin, 16-year-old Athear Jafar of Jefferson. At the time of his arrest, Baum had a blood-alcohol level of 0.305, nearly four times the state's legal limit of 0.08.
Raising a defense of pathological intoxication is roughly akin to raising an insanity defense. An attorney could pursue such a defense at trial, after which it would be up to a judge to decide if it applies and how to instruct the jury on it.
Iaciofano, an attorney for 30 years, could not recall a case that raised pathological intoxication as a defense in a trial. The main reason it's rare is because, under law, voluntary intoxication is prohibited from being raised as a defense.
Involuntary intoxication is not prohibited as a defense, and that's where the pathological intoxication concept comes in.
"The essence of it is that medically or psychologically these people can't stop drinking, so is it volitional?" Iaciofano said.
But Pompelio countered, "What does it mean? If I do it once (become intoxicated and drive) then I can be held liable, but if I do it every day, then I should be excused?"
Iaciofano also contends the legal application of the concept has not kept pace with advances in modern medical science that now "recognizes that these people are legitimately ill," Iaciofano said.
Baum has been examined by a psychologist for the defense who determined that Baum's intoxication at the time of the crash was "pathological by any standard," and that his "consumption of alcohol was not a conscious act due to the effects of his alcoholism and the ingestion of Librium on his cog nitive state," according to that report.
A psychiatrist also has been retained by the defense. The prosecutor's office also is having its own psychiatrist examine Baum.
Ultimately, the claim of pathological intoxication may become moot if a plea arrangement is reached to avoid a trial.
"I'm still hopeful we can resolve it to everyone's satisfaction and there won't be a trial," Iaciofano said.
The prosecutor's office has made a plea offer of 10 years in prison on each of the two charges, or a total of 20 years, with a minimum of 85 percent served before parole ineligibility.
Iaciofano has not made a counteroffer, he said.
Iaciofano also has filed two pre- trial motions in the case. The first motion is to suppress Baum's statements to police given an hour after the blood-alcohol test was taken, because his the blood-aco hol level would have been more than three times the legal limit and he would have been "incapable of knowingly and voluntarily waiving his Miranda right" to remain silent; and because he also was taking psychotropic drug Librium to help him kick alcoholism and Paxil, an anti-depressant, according to court documents.
The second motion seeks to suspend the criminal proceedings because Baum supposedly cannot participate in his defense due to having no recollection of the crash.
The prosecutor's office has opposed both motions. In a formal legal response, the prosecutor's office said Baum's rights were "scrupulously honored" by police; his waiver of his Miranda right was voluntary and knowing; and he can intelligently participate in his defense even if he claims he cannot recall every detail of the incident, court documents state."
I can't seem to embed the link, but google "eugene baum+NJ+drunk driving" and you should be able to find it.
Here' the link I used but it comes up blank
"http://www.nj.com/news/index.ssf/2009/02/defendant_in_dwi_deaths_claims.html"
(Thanks for the heads-up, AW.)
