Another Murder by Car, Another Slap on the Wrist

FamilySnapshotOfTheVictimBoHu
A family snapshot of hit-and-run victim Bo Hu

Three years ago, Spencer Freeman Smith was living in San Ramon and working in San Francisco as a labor attorney. After a night of drinking with a paralegal, he got in his car, drove towards his home, and ran over Bo Hu, a 57-year-old financial advisor visiting from China, on Dougherty Road in Dublin. Hu was either riding or walking his bike.

Smith didn’t stop or call 911. He just drove home, leaving Hu to die on the side of the road. He parked his damaged Mercedes in his garage. Police tracked him down from car parts on the scene.

Long story short, Smith’s punishment came down a couple of weeks ago: he will spend thirty days in jail after a year of probation—meaning there’s a good chance he’ll never actually go to jail. In the meantime, he keeps driving.

Oh yeah, and Smith only has one eye. Apparently it’s legal to drive with only one eye in California. The defense even used that as an excuse for why he might not have noticed that he killed a man.

Michael Gaffey of Hayward is the judge who sentenced him. Remember that name. It may be part of the solution to the murder-by-car problem.

On Sept. 30, the Governor signed A.B. 8, from Assemblyman Mike Gatto (D-Glendale). It will establish a “yellow alert” system, so law enforcement can post descriptions of hit-and-run suspects on electronic freeway signs, the way they do now for child abductions. It wouldn’t have helped in the Smith case, but Gatto is attempting to scratch away at a key flaw with road crimes—mainly, that it’s way too easy to flee.

The prosecutors, in fact, argued that Smith fled because he knew he’d be better off facing a possible hit-and-run charge than a certain DWI. In other words, and I’m hardly the first to suggest this, the success of organizations such as Mothers Against Drunk Driving may have spawned a hit-and-run crisis.

Recognizing this, Gatto also wrote legislation for a mandatory six-month license suspension for any hit-and-run, even if the victim is unhurt, to try and get the penalties in line with DUI. The governor vetoed the bill. “I’ve run bill after bill—if there’s anything I can come up with to reduce road deaths, I’ll run with it,” said Gatto. “Of all the deaths people talk about, these are the most preventable.”

That said, the ridiculously light sentence in the Smith case is confounding. Nor was it unusual in a country where overt cases of murder-by-car are shrugged off by the legal system. “We just dealt with a case like this in North Carolina,” said Frank Harris, Director of State Government Affairs with MADD. The judge treated the drunk driver as if “the judge were the defense attorney. He sentenced the guy to thirty days.” Harris finds slap-on-the-wrist sentences infuriating. “These judges should be held accountable. That’s when the public needs to step in.”

That means paying attention to the elections of judges and prosecutors, said the legislators and advocates. If Streetsblog worked with advocacy groups and helped unseat judges such as Gaffey and prosecutors such as Los Angeles District Attorney Jackie Lacey, who didn’t think it was worth prosecuting a motorist who was texting his wife and diddling with his computer and, as a result, mowed down and killed a cyclist.

In other words, judges and DAs need to treat murder-by-car like murder, or they should get a new job.

Drinking, using drugs, speeding, reading a book, texting,, or just not looking out the front window while driving (aka: “I didn’t see him”) are just different categories of reckless driving, and are not excuses for killing someone. It is playing Russian Roulette with the public, putting random men, women and children in mortal danger. That’s a crime that requires serious consequences.

Any judge or prosecutor who can’t grasp that fact needs to be shown the door. They must be voted out of office and the Governor has to stop appointing them. Let’s start with Judge Gaffey, whose term ends in 2019.

  • Mjhmjh

    According to the court calendar, Spencer Freeman Smith is due to appear before a Judge Grimmer at 10:30 am tomorrow (June 10). Let’s hope that the court will again stand firm in the face of any further leniency-seeking strategies on the part of Smith and his legal team. As can be seen from the article. his original sentence was already ridiculously light.

  • tlspam2015

    Disgusted by the light sentence given to this criminal. He drinks, drives, kills someone and then flees the scene. Should have gotten at least 10 years.

  • So your true story also isn’t at all what we were talking about. Increasing the penalties, especially on first offenses with no collision, will definitely increase the incentive for people arrested for DUI to do even more to make it go away without a charge at all.

  • Mjhmjh

    The State Bar Association still appears to list him as “active”. Certainly, he was “active” and thus able to earn money as an attorney for almost the entire 3+ years that he succeeded in delaying the criminal case. The linked site indicates that his ‘interim suspension’ lasted all of 2 days.

  • Dick

    The issue isn’t affordable housing. It’s that most people in the US don’t have reliable transport beyond their car. But people are against attempts at creating mass transit because they have their car.

    It’s not an easily solvable problem. But then again, SF of all places shouldn’t have this problem since they’re an actual city.

  • Dick

    >Apparently it’s legal to drive with only one eye in California.

    Why shouldn’t it be legal to drive with only one eye? Not that I’m justifying crime, but treat crime as a crime and don’t buy into his attempt at a medical excuse.

  • leetramp
  • david vartanoff

    So I start w/ a true story involving people I know. He got popped for DUI. But, a well respected lawyer got him off w/ traffic school. Within 6 months he was popped again, but the lawyer managed to go to court claiming he had been a good boy and got #1 expunged before the second trial date. So, # 2 appeared as a # 1. Not necessarily a common situation, but still WRONG.
    As to living in places w/adequate public transit, I spend a fair amount ofmy discretionary time trying to push my local transit agencies toward better service.
    While I have sympathy for those who are priced out of nicer neighborhoods, I have lived most of my life in areas w/higher insurance rates based on higher crime, auto issues etc. A one time housemate re-registered his car 6 blocks away over the line into Berkeley to save $1k yearly on car insurance. “Address of convenience”.
    The trade off (aside from housing I could afford) is good transit, nearby food stores etc. decent schools, and a reasonable walk to good music venues and art movies.
    So, I feel justified saying driving is not a right. If you can’t stay sober enough to drive, I don’t owe you any slack. FWIW I no longer drive because I can’t pass the vision test. Do you believe I should drive anyway as long as I don’t run anyone down?.

  • I never said it was. But your proposed mandated sentences, especially for first time offenders who aren’t involved in a crash, would have serious equity consequences that make them at best, highly impractical to implement and would border on illegal. Already, those with lower incomes are all but priced out of cities and are forced to live many miles from where jobs are. They don’t have the option of choosing transit or biking. They must drive or they lose their job, which would come with its own set of issues as well.

  • david vartanoff

    Not an excuse for driving drunk. full stop.

  • too bad, move.

    Then start building affordable housing in the cities.

  • Dennis Lytton

    He can’t practice law for now. The next fight is taking away the practice of law from him for a very long time:

    http://members.calbar.ca.gov/fal/Member/Detail/236587

  • StrixNoctis .

    Accidentally killing a person in a collision isn’t necessarily murder when the driver gets help to attempt to have the victim saved, but leaving the injured person there on the road without a care about the victim laying there suffering and dying is psychopathic murder.

  • murphstahoe

    You are also missing the amount of local sympathy for the victim, in terms of the unequal sentencing.

  • The lesson they’re sending here is that if you’re driving drunk and you kill someone, you should immediately flee the scene so your intoxication can’t be taken into account if you’re caught.

  • Mjhmjh

    Thank you, Roger Rudick, for writing this blog. I hope that it will be widely read. In my opinion, as many people as possible need to know about this appalling example of a near-complete failure of the justice system.

  • Mjhmjh

    In response to your question about the drinking: The female paralegal who accompanied the married Spencer Freeman Smith on his three-bar jaunt that night gave a statement, but the criminal attorney and his legal cronies succeeded in stopping her evidence from ever being brought into play.

    According to the ‘Contra Costa Times’ newspaper report on the case (9/25/2015), the paralegal worked for Smith’s law practice. And the deputy DA stated that the firm had blocked her from giving a statement until a few months before the sentencing. (How?) Because there was no preliminary hearing or trial, her evidence was never presented in court.

  • Mjhmjh

    I doubt whether he will. I’m 100% certain that the reduction of the conviction from felony to misdemeanor was done with the goal of allowing him to continue his legal career.

    Throughout this appalling case, the legal fraternity has protected one of its own – from the innumerable delays granted to the defense (over three years from killing to sentence); to the judge who recused himself on the very day of sentencing, thus allowing the criminal to enter a new plea and obtain yet a further delay; to the outrageously lenient sentence itself.

    Justice has not been done here.

    Anyone who is disturbed by this outrageous case might care to compare it with another case in the same district. That of a teenager named Cody Hall, who was speeding and also killed a cyclist – just a few miles away from the place where Smith killed his victim and just a few months later. An irresponsible teenager, to be sure. But not drunk; not hit and run; probably not rich and – most importantly, I believe – not an attorney. Within months, the teenager was in prison serving an eight-year sentence.

    I want to believe in justice for all. But when an attorney can leave a man whom he’s hit dead, or dying, at the roadside and suffer merely the legal equivalent of a slap on the wrist, it is very hard to do so.

  • theqin

    Reduction of his sentence from a felony to a misdemeanor also means that he is no longer automatically disbarred, i.e., he can now continue to practice law.

    Although according to the documents on http://members.calbar.ca.gov/fal/Member/Detail/236587

    A conviction based on leaving the scene of an accident may constitute moral turpitude, so he may still be disbarred in the end.

  • murphstahoe

    Not sure it matters, but Spencer Freeman Smith is black.

  • datbeezy

    This seems too crazy to be true. The drinking was confirmed, fleeing the scene, etc? Of course, the answer is, how expensive how are your lawyers. Seems incongruous to argue on one that someone is a safe driver despite the eye [for the record – I feel you should be legally able to drive with only one eye as long as you have normal vision in the other], but then also argue that it’s an excuse for failing to notice that you’ve hit someone. Drivers with two eyes frequently don’t “see” the people they hit and are still required to not flee the scene of an accident.

    Meanwhile, up in Washington, a deaf black man was arrested for hit-and-run and suspicion of impairment and jailed for “fleeing the scene of a crime” – when he approached the first officer he could find to report the accident

  • Shannon Tracey

    I love this blog post. Thank you for naming names.

  • BBnet3000

    Wouldn’t that only be for first degree murder?

  • gneiss

    If a driver is convicted of hit and run that results in a fatality they should never be allow to drive again and their car should be impounded and sold. There’s no reason why a person should continue to have driving privileges if they can’t even have the decency to stop and render aid after hitting a human being on the roadway.

  • theqin

    Drinking heavily and then getting into your car and driving should be considered premeditation.

  • Calling it “murder” is saying that it was premeditated.

  • gary

    How long is this murder by car going to continue? one wishy washy law after another is proposed. This killer should spend 20 years in prison after having all this assets taken and given to the victims family.

  • david vartanoff

    The root of this is the presumption that we have the “right” to drive, no matter how incompetently. Of course, the driver in this case should be doing 3-10 (or more) in prison for murder. If released, he should be permanently barred from driving. As to DUI/DWI the mandatory penalty for a first offense should be 1 year no driving–and if caught immediate shift to prison. Can’t commute to work from your sprawl burb? too bad, move. We randomly execute 38,000 citizens most years for the simple crime of being on or near a street/highway. This is not acceptable in my definition of civilization.

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