Opening statements have begun in Hot Springs in the trial of Circuit Judge Wade Naramore on a misdemeanor negligent homicide charge in the 2015 death of his 18-month-old son, Thomas, who was left in a carseat for about half a July day when the temperature reached over 100 degrees.

These things are  indisputable: The child died because his father forgot he was in the car when he drove to work. Such accidents happen around the country. Results of such cases vary across the country. Some cases are successfully prosecuted. Some are not. I've heard no one argue that  the Naramore family hasn't suffered a permanent and unimaginably crushing loss.

It will be up to the jury to hear about all this and decide if a crime punishable by up to a year in prison jail has been committed. They will undoubtedly weigh both the Naramores' loss and Wade Naramore's position in judgment of others in juvenile matters in their deliberations. (Or, if not weigh them, be aware of them.)

I thought it might be useful to see what instructions will guide the jury when the reckoning comes. What follows are the model jury instructions for a negligent homicide case . The defense lawyers want the judge to include a "blameworthy" element in the instructions. Judge John Langston said he'll decide that after testimony. My criminal defense consultant thinks such a change in instructions unlikely, though defense lawyers will undoubtedly work to plant the idea of whether a terrible accident is indeed blameworthy.

What the instructions say (edited to omit inapplicable parts, such as a DUI charge and with amplification):

NEGLIGENT HOMICIDE

_________________ (Defendant) is charged with the offense of negligent homicide. To sustain this charge the State must prove beyond a reasonable doubt that:
...
[_________________ (Defendant) negligently caused the death of _________________ (victim).]

[The term "negligently" as used in this criminal case means more than it does in civil cases. To prove negligence in a criminal case the State must show beyond a reasonable doubt that _________________ (defendant) should have been aware of a substantial and unjustifiable risk that the death would occur. The risk must have been of such a nature and degree that his failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involved a gross deviation from the standard of care that a reasonable person would have observed in his situation.]
...

COMMENT
......

5-2-202:
(4) "Negligently." (A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.

(B) The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.

________

See, e.g., Gill v. State, 2015 Ark. 421

Drew Petrimoulx of KARK has given via Twitter the shape of opening statements from Prosecutor Gina Knight and defense lawyer Erin Cassinelli:

Cassinelli for the defense:

* "We don't convict people of crimes because of accidents."

* "Wade did not do or fail to do anything. His brain failed him."

* "If you're capable of misplacing your cellphone or leaving coffee on top of car, potentially capable of this.

*  Judge was tired from staying up w teething son, thinking about violent defendant and anniversary.

*  Thomas "was their world... Took every precaution" to ensure his safety.

* "Wade was an amazing and very attentive father." 

Prosecutor Knight: 

*  "The defendant put himself first that day." 

* He went to work, spa for gift certificate, lunch, meat market, Kroger, liquor store and home w child in back seat.

* "He failed to protect his 18-month old son."

* "you're gonna hear excuses" as to why judge left son in car. 

KARK reports that people, including jurors, teared up when the defense played a police recording of the initial response when Naramore called authorities after discovering to his horror his child was in the car and unresponsive.

Naramore wept and was shaking as the recording played and held a prayer book. In the gallery, family members were also crying, as was Cassinelli.

The judge and several jurors also wiped away tears as they heard
Naramore cry out on the recording "I killed my baby."

Testimony included accounts from officers who worked that day and a neighbor where Naramore took his child when he discovered him in his car. A cold shower didn't revive him. The audio recordings of officers who arrived had prolonged crying by Naramore and his wife, who'd been called.