Powell wasn't in the car when a soused Pangle drove it head-on into another car, killing himself and one of the two occupants of the other vehicle. Powell didn't own the car either, and virtually every argument prosecutors made against Powell during the course of the long trial could just as easily have been made against the New Jersey state troopers who smartly apprehended and then incredibly released Pangle on the night of the accident.
Powell criminally responsible for driving Pangle to his own car and giving him back his car keys knowing that Pangle was drunk? Okay. But then what about the police-- experts in evaluating drunk driving situations-- who released Pangle in the first place into Powell's custody, giving them both the keys to Pangle's car, and then telling Powell how to reach that car?
During closing arguments, Assistant Salem County prosecutor Michael Ostrowski likened Powell and Pangle's actions that night to a game of Russian roulette. "Ken Powell put that bullet in, spun it, cocked the hammer back, handed that gun to Mike Pangle and said, 'Here, shoot it down the road, if it hits somebody so what?'" That's an evocative mental image but it ignores the fact that the police themselves handed the so-called "gun" to Powell in the first place.
If Powell made a poor decision allowing his friend to drive drunk, what should we think about the decision state troopers made to allow Pangle back into public in the first place? Aren't there drunk tanks in New Jersey like there are in every other state in the Union? If not, why not? And if so, why wasn't Pangle allowed to sleep it off before being allowed back into the world? This whole sorry, tragic episode could have been avoided if only the troopers had been as cautious and as lawsuit-wary as are most of their law enforcement counterparts across the country.
Powell may have been reckless, but at least he had ignorance and inexperience and a friend's loyalty as an excuse. The cops who put Pangle back out onto the street had no such excuses. So prosecutors mainly argued, because they had to, that once Powell assumed custody and control of his drunk buddy he implicitly assumed a legal duty to act carefully -- to not put his friend behind the wheel of the same car the police had hauled him from hours earlier. It's the "duty" part of the equation that had some people proclaiming that the case possessed the makings of a legal "landmark" case that would have forever changed the scope of liability in drunk driving cases.
A guilty verdict, some thought, would have heralded countless more prosecutions around the country of people who, like Powell, somehow by circumstance became involved in the doomed life of a drunk driver. I don't think that would have happened, incidentally, but now we'll probably never know. I think it's far more likely that prosecutors in the few and growing-fewer counties where the police still do not "ice" drunk drivers overnight in a drunk tank will think twice before trying to extend culpability in this fashion. I also happen to think that the case will simply cause buddies like Powell to think twice when their drunk friends call in the middle of the night and ask to be bailed out of jail.
This was a case that just as easily could have been brought against the police officers who let Pangle go as it was against Powell. It's also a case that was made necessary, politically at least if not legally, when it became clear that there was no one alive who could be held responsible for such a needless accident. And if you were particularly cynical about the whole thing you might even go as far as to say that prosecutors went after Powell on the theory that the best defense is a good offense -- that the best way to take the heat off the decisions made by troopers that night was to point a finger at Powell and blame the whole thing on him.
I would be willing to bet that, immediately after the accident, more legal experts would have predicted a civil lawsuit against the cops by the victims' families than a lawsuit by prosecutors against Powell. Now that a jury has gotten Powell off the hook on the most serious charge against him, I think we will see that civil lawsuit after all. And if and when that happens, it will be fascinating to hear how the police explain away the same duties and responsibilities the state sought to impose against Powell.
By Andrew Cohen