Del Rey Case Could Help Set Legal Precedent

John D. McKinnon Herald Columnist

• Miami Herald, The (FL)
• February 2, 1994
• Section: LOCAL
• Edition: FINAL
• Page: 5B
• Memo:LEGAL AFFAIRS

Assembly-line justice is a phrase you hear a lot, because it happens a lot. But every once in a while, prosecutors confront a case so awful, so bizarre, that they have to pull it off the conveyor belt and give it the custom treatment.

Right now, Francisco Del Rey is getting custom treatment from prosecutors. As a result, he's facing a potential penalty far greater than what's customary in traffic fatality cases. In fact, because of Dade prosecutors' creativity, the Del Rey case could even become an important precedent.

Ordinarily, someone who's suspected of causing a fatal auto accident faces two possible charges. One is vehicular homicide, a third-degree felony punishable by up to five years in prison. The other is man-slaughter. It's a second-degree felony punishable by up to 15 years in prison.

Dade prosecutors apparently decided those charges weren't sufficient in young Del Rey's case, however. According to police accounts, Del Rey -- who's reportedly only 15 -- was racing down U.S. 1 in a 1994 Corvette when he T-boned a Chevette containing three young men. All three died.

So last week, prosecutors filed a virtually unprecedented case against Del Rey, charging him among other things with three counts of manslaughter with a deadly weapon -- the Corvette.

"Weapon" is the key word here. Under state law, use of a weapon increases the severity of many crimes. In this case, it could increase manslaughter from a second-degree felony to a first-degree felony, punishable by a maximum of 30 years. Prosecutors didn't want to comment this week on the case against Del Rey. But some local defense attorneys questioned whether prosecutors would be able to make a "deadly weapon" charge stick. Not surprisingly, a few also grumbled about grandstanding.

"In all the years I worked as a prosecutor, I never saw any language describing an automobile as a deadly weapon" in an accident case, said Jose Quinon, a former president of the Florida Association of Criminal Defense Lawyers. Quinon accused prosecutors of manipulating the law, using a legal "back door" to try to reach a higher penalty range. He said prosecutors should have charged Del Rey with second-degree murder if they really thought the case was worse than manslaughter. Second-degree murder -- so-called "depraved mind" murder -- is a first-degree felony punishable by life in prison.

Others weren't so critical of the prosecutors' decision, however. Said Benedict Kuehne, chairman--elect of the Florida Bar's criminal law section: "It is certainly pushing the edge of the envelope, but I think we will see it much more frequently," especially in drag-racing cases.

Robert S. Reiff, another defense lawyer who has handled high-profile car-crash cases, agreed that the "deadly weapon" charge isn't necessarily unjustifiable. Reiff faced the issue hmself five years ago, when prosecutors charged one of his clients with second-degree murder with a deadly weapon -- in that case, his pickup truck.

The man, Gilberto Ruiz, drove the wrong way on a Rickenbacker Causeway ramp, colliding with another vehicle and killing a 15-year-old girl. [Ultimately the 2nd degree murder charges were dropped.] Reiff said the Del Rey case likely will present the question of whether the Legislature intended for cars to be considered weapons. "If it's my case, my argument is that that's not what the Legislature intended," Reiff said. "My argument would be that the Legislature intended to prevent people from using guns and weapons of that sort -- not a motor vehicle."