Charles Bizilj took his two sons, Christopher, age 8, and Colin, age 11 to the 2008 Machine Gun Shoot and Firearms Expo in Westfield, Massachusetts. Those attending the Machine Gun Shoot and Firearms Expo were allowed to shoot machine guns at pumpkin targets. All ages were allowed to participate, although Massachusetts law prohibited those under 18 from using machine guns. Dr. Bizilj allowed Christopher to shoot a 9-millimeter Micro Uzi submachine gun, thinking that a small gun would be easier for the eight year old to shoot. The first two times Christoper attempted to shoot the gun it jammed. The fifteen year old who was supervising the shoot then checked the gun and reloaded it. Christopher put his finger on the trigger and then attempted to balance the gun on his shoulder. But as he was balancing the gun it went off, killing him.

Former Pelham Police Chief Edward B. Fleury who sponsored the event and two other men who provided the weapons are charged with involuntary manslaughter. Hampden District Attorney William M. Bennett did not charge Dr. Bizilj although at a minimum it seems that he may be guilty of child endangerment. ¹

During the shoot Dr. Bizilj videotaped the incident, dropping the camera when his son was shot. The trial was scheduled for last week but it was continued when Fleury got sick. In pretrial motions the defense requested that the prosecution be prevented from playing the video before the jury. The prosecution argued that the video was necessary “to show to the jury ‘how dangerous, how lethal’ the machine gun was in the hands of an 8-year-old boy.” But the defense attorney, Rosemary Curran Scapicchio, argued that there was no question that Christopher was shot or that he died and therefore it is not relevant. The question before the judge was whether the video’s probative value outweighed by it’s predjudicial effect upon the jury. The video is a strong tool and may take the emphasis off whether or not Fleury ² is quilty of manslaughter and place it on the horrendous nature of the death. To prove manslaughter District Attorney William M. Bennett will have to show “an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless.” The Court ruled that in this case the probative value of the tape which will show the effects of allowing the child to shoot the gun and the lack of control over the child’s use of the gun makes it sufficiently probative that the evidence ought to come in. But at the same time the court withheld deciding whether the auditory part of the tape after the camera was dropped in which the father is heard telling his son that he loves him and praying will be used. The judge indicated that that portion of the tape may be excluded.

In a rare case the Ninth Circuit reversed a conviction for the judge’s refusal to grant a two day mid-trial continuance. By a two to one vote the court reversed the conviction of Garth Kloehn for tax evasion when the trial judge refused the defense’s request for a two day continuance so that the defendant could spend the time with his dying son.

Kloehn was the sole defense witness. On the fifth day of his testimony he learned that his son who was at home in Las Vegas, suffering from end stage melanoma had a massive seizure and in the doctor’s words “ha[d] very little life expectancy.” His lawyer moved for a continuance. He argued that Kloehn was unable to concentrate on his testimony. The prosecutor argued that

if he wanted to be with his son, he could just “finish his testimony, and . . . go back to Las The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . . go back to Las Vegas.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial

The motion was denied. The next day Kloehn finished his testimony and the prosecutor put on a IRS agent for rebuttal. When it became clear that the rebuttal would not be completed that day, Kloehn’s attorney asked for permission for his client to catch an afternoon flight from Los Angeles to Las Vegas. The judge ended testimony for the day and permitted Kloehn to miss the remainder of the trial.

An hour after Kloehn arrived at the hospital his son died.

The next day the issue came up as to what to tell the jury about Kloehn’s absence. His attorney suggested that they be told that he had a death in the family. The judge suggested telling the jury that their was a family emergency, The prosecutor want the jury to be told that Kloehn chose not to be in the courtroom. The judge gave the following instruction:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right ot to be present. He is not required to be here, so you shouldn’t infer anything from the fact that he is not able to be here today.

The appellate court ruled that:

1.The defense had been diligent in its preparations, made the motion in a timely manner and the purpose of the motion was not purely for delay.

2. If the motion would have been granted the defense would have accomplished its goal in that Kloehn would have been able to spend the last hours of his life with his son.

3. The prosecution and the court would not have been inconvenienced by the delay. It questioned the good faith of the prosecutor for arguing that the jury might forget the facts of the case during a two day delay since the court had taken four days off at Thanksgiving and three day weekends.

4. Finally it found that Kloehn was prejudiced by the denial of the motion since he had not been able to focus and since the judge’s instruction allowed the jury to believe that Kloehn did not believe the trial was important and that he was going to be found guilty.

Judge Trott dissented arguing that any error was harmless. There was no hard evidence that Kloehn was hurt by any error. But since the government did not argue that the error was harmless in the trial court Judge Reinhardt writing for the majority found the issue waived.

The conviction is reversed and a new trial is ordered.