Movement under way to end shock probation in Kentucky for fatal DUIs - wave3.com-Louisville News, Weather & Sports

Movement under way to end shock probation in Kentucky for fatal DUIs

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By Connie Leonard
WAVE 3 Investigator

LOUISVILLE (WAVE) -- Shock probation: it's been on the books in Kentucky since the early 1970s. It gives a judge the power to decide whether an offender should be released from their prison sentence. But an effort is now in the works to change the law. WAVE 3 Investigator Connie Leonard has the story.

In most states, a person convicted of a crime has to serve time before being eligible for parole.  But in Kentucky, thousands of guilty verdicts and pleas over the years have turned into freedom.

For one group of offenders, however, that could soon change -- we've learned a movement is under way in Frankfort to stop that practice when it comes to deadly DUIs.

That's good news to the families of the victims.

"A week, exactly one week," said Charlotte Mahuron. That's how long Mahuron's daughter, 21-year-old Louisvillian Sarah Berry, was married before she died. 

The day her daughter died Charlotte's world "just came crashing down." 

Prosecutors say Sarah was on her way home from work in 2003 and was driving on Old Third Street Road when 26-year-old James Midkiff, passed out drunk behind the wheel, slammed head-on into Sarah's Nissan. 

Charlotte says her daughter "was crushed between the steering wheel and the seat." She continued: "James woke up before everybody got there and managed to get out of his truck and run away." 

Hours later, K9's found Midkiff in a field. Knowing the evidence was stacked against him, Midkiff entered an Alford plea.  A few months later, he asked a judge for shock probation.

For Charlotte and countless other families of victims like Sarah, "shock" is the ultimate legal slap in the face.  Charlotte questioned Midkiff's motive. "You say you've changed and you've seen the light and we'll let you go?" she asked.

Shock is the legal theory that the crime itself was so shocking, so traumatic that the offender has already been scared straight.

Angela Criswell, Executive Director of the Kentucky Chapter of Mothers Against Drunk Driving doesn't buy it. "Really, what it does, it teaches people that the law doesn't take their crime seriously."

In Sarah's case, the judge eventually denied Midkiff request for shock probation. 

Debbie Moskwa wasn't so lucky. "We were absolutely devastated!" she told WAVE 3 News.  Moskwa's husband and her son, Ricky, were traveling through the Bluegrass state after visiting family in Tennessee in 2002. 

Police say 31-year-old Vincent Rutlege and 49-year-old Mathew Scott Burton had been to the Kentucky Derby and were drunk as they drag raced on Interstate 71. Police said Rutlege hit a car in front of him, causing Burton to swerve his BMW. 

"Burton careened into the median and he hit my husband head-on, killed my son and killed his passenger," Moskwa said. For the two deaths, Rutlege got 13 years, but a few months later a Kentucky judge gave the deadly DUI driver shock probation.

Moskwa questions Kentucky's justice system. "It's like my son's life meant nothing and this guy gets a slap on the wrist and he walks away?" 

Mothers Against Drunk Driving is working with Moskwa and Kentucky lawmakers to end shock probation when a death occurs as the result of a DUI.

As Criswell put it: "It's not an accident. This is a decision that they made, and it cost someone's life. They need to pay the consequences of that."

Defense Attorney Bart Adams tells us that getting rid of shock probation would be the real crime. "Let the judge make up his mind about what's right and what's wrong." Adams said. 

Adams and other defense attorneys argue shock probation is vital for many young defendants who have no criminal history. For Adams, there's no better example than Andrea Kowalczyk. The 19-year-old UofL student athlete was sentenced to 10 years in 1999 for killing an elderly couple on the Watterson Expressway after a night of drinking.

She was given shock probation after serving just two months in jail. Adams contends it was the right decision, because she's been a model citizen ever since.  "She graduated from college and is doing quite well, she's helping people."

Adams claims people lobbying for a change in the law would do an about-face if their child suddenly became a defendant in a DUI death. "The shoe fits both ways, and people need to realize that."

Adams continued: "These hard and fast, black and white rules aren't always the best thing for society." 

But supporters of the legislation to abolish shock probation for DUI offenders point to the case of 24-year-old Doug Miller:another seemingly perfect candidate for shock probation. Miller is the former Spalding University basketball player who drove drunk in 2004, killing a man.

A judge let Miller out, and just last week, he was back in court facing another DUI charge. More evidence for moms like Moskwa.

"If any one of those legislators ever lose a son, a daughter, a mother, a sister, a brother, or any family member, this law would be changed in a blink of an eye, just like my son lost his life in a blink of an eye," Moskwa said. "So walk a mile in my shoes. It has got to stop. "

Opponents of shock probation say they have no problem with misdemeanor crimes being shocked, but they contend once someone is charged with a felony it shouldn't be used. 

Senator Jack Westwood of Kenton is working with MADD Kentucky on the bill as well as with the families of many victims. He says he plans to pre-file the bill in December.

Besides Kentucky, Texas, Ohio, and Missouri are the only other states with shock probation laws.

Online Reporter: Connie Leonard

Online Producer: Michael Dever