Columnist Jeff German: ‘Due care’ cases to get day in court

Tuesday, Dec. 3, 2002 | 11:04 a.m.

Remember the classic comedy line when Oliver Hardy turns to Stan Laurel and quips, "Well that's another fine mess you've gotten me into?"

City Attorney Brad Jerbic must have that feeling every time he thinks about his chief criminal prosecutor, Ben Little.

In July, you'll recall from reading this space, Jerbic found fault with a misdemeanor statute that allows police to cite motorists for failing to exercise "due care" on the roadways. Officers often hand out the citation when they believe a driver's speed contributed to an accident.

Jerbic concluded the statute was bad after Little -- while departing from his prosecutor's duties to defend himself on a due care traffic violation -- showed him a 1984 Washington state Supreme Court case that tossed out a similar law in that state.

Little ended up persuading Municipal Judge Jesse Walsh, who once worked for him in the city attorney's office, to dismiss his misdemeanor case. And Jerbic, not wanting to make it appear as though Little got special treatment, decided to suspend hundreds of due care prosecutions against other motorists until he had a chance to sort out the mess.

Jerbic asked the attorney general's chief criminal prosecutor, Gerald Gardner, for his opinion on the constitutionality of the Nevada law in what looked like an effort to give Little and himself more cover.

Recently, however, Gardner came back with a five-page legal missive that didn't exactly cover the city prosecutors.

Gardner concluded the Nevada law is a good one.

It means that prosecutions against average citizens who don't have Little's clout in Municipal Court now will move forward. Jerbic estimated that about 1,100 cases have been on hold.

The good news is that Little, who is back to overseeing due care cases in the city attorney's office now that his citation has been thrown out of court, will have the final say on those prosecutions.

And we know what he thinks of the state law.

Jerbic, meanwhile, is taking the AG's opinion in stride.

"I thought the Washington case was persuasive enough that we had to stop and find out," he said. "We stopped and found out."

In his opinion Gardner concluded that officers should apply the law only when there's evidence of speeding and negligence on the part of a motorist.

Police, he said, should not use the statute as a "catch-all offense" when they have no other reason to issue a citation.

Metro Police Lt. Vincent Cannito, however, said officers already know that they can't charge a motorist with failing to exercise due care without supporting evidence. They've been handing out due care citations with that understanding for ages, before and after the controversy with Little.

So you've got to wonder what was accomplished by seeking the attorney general's opinion other than to shield Little and Jerbic from public criticism over the way Little worked the system to win his traffic case.

Jerbic insisted that Metro Police still don't fully understand how to use the law.

But if that's true, you can't fault the cops for their ignorance when prosecutors themselves can't agree on the merits of the statute.

You can fault Little for getting his boss into another fine mess.