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UCI Professor Avoids Charges

Prosecutors say the man had no intent to harm his 10-month-old son, who died when left in a hot car.

October 04, 2003|Mai Tran and Christine Hanley | Times Staff Writers

Orange County prosecutors said Friday that they will not file charges against a UC Irvine professor who forgot his 10-month-old son in a hot car while working at his campus office. The baby's death resulted, they said, from a tragic mistake.

Mark J. Warschauer, an associate professor and vice chairman of the university's Department of Education, left son Michael in a locked car for more than three hours on Aug. 8, apparently forgetting that he had not dropped him off as usual at the university's day-car center.

Warschauer, 49, said he did not realize his mistake until after lunch, when he saw a commotion around his car. Campus police officers broke a rear window and removed the infant after a passerby discovered him. The boy died of hyperthermia.

The Irvine Police Department recommended that charges be filed.

Deputy Dist. Atty. Matthew Murphy said he considered a count of involuntary manslaughter or child abuse. But he said he changed his mind after reviewing state law and similar cases across the country, finding that charges usually are not filed in cases where a parent with no history of abuse or negligence accidentally leaves a child behind.

"Despite the feeling in our office about the tragic death of the child, the law in this area is very clear," Murphy said. "We cannot show [that the father demonstrated] conscious disregard for the safety of the child."

Other factors Murphy said he weighed included Warschauer's unquestionable love for his child, supported by dozens of witnesses and an Internet site devoted to the memory of his son, on which the professor takes full responsibility for his son's death and urges parents to be more cautious with their children.

Warschauer noted on the site that it took seven years and 14 in-vitro fertilizations to conceive his and wife Keiko Hirata's only child. Pictures show the family hugging and smiling in front of snow-capped mountains, in the swimming pool and Michael, whom they called Mikey, crawling and getting ready to take his first step. Oct. 2 would have been his first birthday.

Warschauer explained that his son was sleeping in a rear-facing car seat in the back seat. He said he was not concentrating and made a wrong turn at an intersection that led him straight to UC Irvine by habit, as he has done for 2 1/2 years.

And he said he had been up all night helping his wife with a project.

"I torture myself again and again as to how I could do such a thing," Warschauer wrote. "I got out of the car without remembering he was there ... and shattered all our dreams.... I accept 100% blame for this tragic accident."

Warschauer's attorney, Jennifer Keller, said her client is determined to do whatever he can to spare other parents the pain he and his wife will experience the rest of their lives. In this case, she said, "criminal prosecution would not have accomplished anything."

Laura Petersen, co-founder of 4 R Kids Sake, a Corona group founded to protect children from car injuries, said Mikey's was one of 39 U.S. heat-related deaths this year the group is aware of.

Of those, five mothers and two fathers have been charged. Other parents have been investigated but not charged, and developments in some cases aren't known, Petersen said.

Child safety experts say justice is meted out depending on a number of factors, including the nuances of each case and laws that can vary from one jurisdiction to another.

A Lancaster day-care provider is charged with the deaths of two foster sons locked in a vehicle in the desert heat. Leslie Sue Smoot, 48, has pleaded not guilty. She told investigators she forgot to take the children out of the car, but that she also thought someone else was going to bring them inside.

"Because of the conflicting statements, prosecutors probably know a lot more than we do," Petersen said.

"It's hard to outguess what they think happened."

Unless substance abuse or misbehavior is a factor, they say, parents are rarely sent to jail because prosecutors recognize they will have a lifetime of punishment.

Prosecutors have been known to be more aggressive in cases of negligence, and to seek harsher penalties against caregivers who are not related to the children, they say.

Petersen said her organization was asked to study whether any particular group was more inclined to leave kids behind, and found that the people who leave children in cars transcends demographics. The decision to proceed with charges has nothing to do with social or economic status, she said.

"Looking at the cases, there is no one cultural group, one age or one nationality. It spreads straight across the spectrum. It has been everyone from NASA engineers to college professors to day-care providers to grandmothers to uncles and aunts and baby-sitters," she said. "Each case has different circumstances. We don't always know what all those circumstances are."

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