Under the facts and law of the case, Parker should be charged with a felony. That he isn't suggests someone in authority is trying to protect law enforcement in Madison, Alabama, from even more embarrassment than it's already received because of the Patel incident.
Who might be trying to cover up for Officer Parker? Well, news reports indicate Lt. Terrell Cook, of the Madison Police Department, had something to do with the charge of third-degree assault, a misdemeanor. We contacted Lt. Cook via e-mail to ask if he made the determination that the assault on Patel should be classified as a misdemeanor--and if he didn't, could he refer us to the individual who did? Lt. Cook has not responded to our query.
Meanwhile, al.com seems to be indirectly participating in a cover-up, with assistance from a University of Alabama law professor. That comes in a February 20 article titled "Why wasn't Madison police officer charged more harshly in Indian grandfather assault case? A former judge explains," by Anna Claire Vollers.
There is a slight problem with the article. Vollers chose as her "expert" a former circuit judge and current UA law professor named Joseph Colquitt--and he doesn't know what he's talking about, or he's intentionally trying to mislead the public.
Colquitt proves an adage I've known for some time--if you want to know the actual law in a particular situation, the last person to ask is a judge or former judge.
To be sure, Colquitt does a good job of sounding authoritative, as Vollers writes:
"We aren't dealing with what we think the law should be or ought to be, but what the law is," says Judge Joseph Colquitt, who spent 20 years as an Alabama circuit court judge and is now a law professor at the University of Alabama School of Law where he teaches criminal law, capital litigation, criminal procedure and criminal sentencing.
"You have to analyze the facts you have, and see where those facts could fit amongst the charges."
At this point, Colquitt is on solid footing, and his statement supports what I did in preparing my post (see link in first paragraph) that shows the misdemeanor charge is wrong--under the law, as it is.
Where does the al.com article go wrong? Well, the article is written in a peculiar manner, but it seems to go off track in two ways:
(1) The issue of "serious physical injury"-- Under Alabama law, misdemeanor assault (third degree) applies only in cases involving "physical injury," which can be as minor as a cut, bruise, or abrasion. Patel sustained a spinal injury that required surgery and caused partial paralysis. Based on the most recent reports, his condition is improving, but it's still not clear he will regain full use of all his limbs. Under Alabama law, that easily fits the definition of "serious physical injury"--and that means a third-degree, misdemeanor charge does not fit.
(2) The issue of "intent"-- Colquitt correctly states that a felony assault (second or first degree) requires a showing of intent--and, per Vollers, he states:
"The difference (between second- and third-degree assault) is in the nature of the injuries," said Colquitt. "Assault in the second degree is not only that a person suffered serious physical injury, but it has to be proved that the (perpetrator) intended serious physical injury. That's a little more difficult to prove."
Actually, it's not that difficult to prove in this case, or any other case, under Alabama law. And even if it were, that's not grounds for classifying the Patel case as a misdemeanor. In fact, a third-degree charge automatically is excluded because we are dealing here with a "serious physical injury." Colquitt seems to be violating his earlier statement about dealing with what the law is. At this point, he seems to say we should go with the charge that's easiest to prove, regardless of what the law says.
As for what the law says about intent, it is spelled out in a case styled Wells v. State, 768 So. 2d 412 (Ala. Crim. App., 1999). From the Wells decision:
Intent may be presumed from the use of a deadly weapon, the character of the assault, and other attendant circumstances surrounding the assault . . .
"Further, `"[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."'
Under Alabama law, various body parts, such as hands and fists, can be classified as deadly weapons. (See Hollis v. State, 417 So. 2d 617 (Ala. Crim. App., 1982.) That would seem to be especially true in this case, where Officer Parker apparently was trained in self defense and martial arts.
Intent can be proved in two ways:
(1) Use of a deadly weapon--Parker's hands qualify under the law, and those are what he used to inflict "serious physical injury" upon Patel.
(2) The character of the assault--The video makes it clear that Parker said he was going to "put you on the ground" if any jerking action continued. The video does not show Patel jerking away, but Parker body slammed him head-first to the ground anyway. It can be inferred from those facts that Parker planned in advance to use a violent technique on Patel--and it resulted in "serious physical injury."
Back to our original question--who made the decision to classify the Patel assault as a misdemeanor? A February 17 article at al.com points toward Lt. Terrell Cook:
In the criminal complaint against Parker, Lt. Terrell Cook of the Madison Police Department states there is probable cause for believing that Parker "recklessly caused physical injury" to Patel by slamming him to the ground.
Based on that article, I sent the following e-mail to Lt. Cook
I am a journalist with the Alabama-based blog Legal Schnauzer. Al.com yesterday (2/17/15) quoted you as stating there is "probable cause for believing Parker recklessly caused physical injury" to Mr. Sureshbhai Patel, from India.
Did you make the determination that Officer Parker should be charged with a misdemeanor, as opposed to a felony? If not, do you know who made that determination?
If Cook had responded and said he made the decision to charge a misdemeanor, I was going to ask if he was aware of the difference under Alabama law between "physical injury" and "serious physical injury." I also was going to ask if he seriously thought Patel's spinal injury was equivalent to a cut or bruise. Alas, I have not heard back from Lt. Cook.
As for the Anna Claire Vollers article, it's . . . well, it's strange. Prof. Colquitt never actually says the misdemeanor charge is correct; he performs a peculiar dance around the subject and more or less says, "Well, it would be easier to prove the misdemeanor, so that's the way to go."
But that's not what Alabama law says. It says that a misdemeanor charge is proper only in a case resulting in "physical injury." A case involving "serious physical injury," as both Vollers and Colquitt seem to admit is present in the Patel case, must be charged as a felony, either second- or first-degree assault.
On top of that, actual Alabama law makes it clear that intent is not particularly difficult to prove.
The Vollers/Colquitt article mainly serves to muddy the waters on an issue that is not all that complicated--Eric Parker cannot lawfully be charged with a misdemeanor; he left a man with "serious physical injuries," so the charge has to be a felony.