I appeared on Fox News Happening Now with host Heather Nauert and co-guest Lis Wiehl to discuss the Gorilla case and a murder case of Kenneth Alan Amyx.

Watch the clip about the Amyx murder case Amyx is alleged to have stabbed his girlfriend to death and then posted pictures of the gruesome crime on her Facebook page.

For this blog, however, I would like to concentrate on the “Gorilla Case” where zoo officials shot and killed a Silver Back gorilla after a small child was able to get past fencing and fell into the gorilla’s habitat. The video of this incident was compelling and frightening. There was much controversy over the case, and even more confusion on the legal principles at play.

Firstly, there is often confusion between what is considered a civil case, versus a criminal case. For something to be a crime, prosecutors and police have to point to a specific criminal law that was violated. Many today feel that whenever something goes wrong, or someone is injured, that the offending person should be charged with a crime. Criminal cases typically require knowing and purposeful conduct, that is, conduct that is designed to commit the actual crime.

It is true that there are some criminal laws where recklessness suffices, but the kind of recklessness needed under the case law is that which was so egregious as to almost constitute an intentional act. It is conduct that created a “substantial risk” of harm that any reasonable person would have known at the time they committed the act that the result could likely occur, even if they did not necessarily want to create that harm.

A civil negligence case is different. Civil cases seek to redress persons injured when the conduct of a person is “negligent.” Negligence is typically defined as conduct that objectively was unreasonable and caused an injury. Now, the actual legal definitions are complex, but this is the gist of it.

In the gorilla case, people believe that the parents of the child should be charged with a crime. I have reviewed Ohio law and the only crime that I see applies is child endangerment. Now, the term “child endangerment” is a legal one.

To endanger a child, Ohio law states: No parent “shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” This law requires the parent “knowingly” do something to create this risk.

To be successful at prosecuting such a case, prosecutors will have to show that the parents acted “knowingly,” of failed to act, knowing that it created a “substantial risk” of harm to the child. “Knowingly” is defined as being aware of the risk and disregarding it. On this point, as a former NJ Prosecutor and now NJ criminal defense attorney I know this will be extremely difficult for a prosecutor to prove to 12 jurors beyond a reasonable doubt. There is no evidence whatsoever that the parents “knew” of this danger and/or disregarded it.

In fact, the evidence would suggest that this was a freak accident that could not have been anticipated. Again, accidents are just that- – perhaps civil in nature, but not criminal.

Next, the prosecutor would have to prove that the parents’ actions (or inactions) “created a substantial risk” to the safety of the child. Not paying attention to a child for a brief period of time may pose some risk, but it is not legally considered a “substantial” risk in most cases, especially ones where a reasonable parent was not on notice of the danger- – such as falling into a gorilla pit.

On a final note, I often comment about the philosophy of prosecution, as it is as important (and many times more important) than the law itself. In any criminal case, prosecutors are given “wide discretion” to apply criminal laws as they see fit. There is an excellent reason for this. The discretion gives prosecutors the powerful tool to extend mercy, forgiveness, and/or not prosecute all technical violations of the criminal laws, if there be extenuating circumstances tending to excuse and/or justify why a person ran afoul of the law.

When I was a head NJ county prosecutor, I saw my role as being tough on crimes that impacted others (like violent crime, gang activity, robbery, murder, sex assault to name a few). But, those crimes only represent a fraction of the cases that come along. Most other crimes that prosecutors deal with are not the serious ones that make the media news cycle.

Hence, just because you can charge a crime, does not mean you always should. Prosecutors should weigh many factors before charging a person for a non-violent crime, such as the need for deterrence which in some cases means that a message needs to be sent that the conduct will result in significant penalties, so as to stop future perpetrators from committing such offenses.

None of this exists in the gorilla case. It was a freak accident that needs no deterrence to prove a point.

I have handled many cases where a parent’s inattention for a brief moment had unanticipated and freak tragic consequences. But let’s be honest, this could happen to any parent- – we are human and get distracted. When a child is injured or killed by a parent’s inattention (and who otherwise was a good, caring, and loving parent- – and not abusive) one realizes as a prosecutor that the parent (irrespective of the criminal justice system) will have a life sentence of regret, sorrow, and pain. In many of those cases, we have to ask: What are we accomplishing by criminalizing their conduct and throwing them in jail after such a tragedy?

The gorilla case is such a matter in my mind. Legally, there are not facts sufficient to show that the parents “knowingly” “created” a “substantial risk” to the child. And even if there were arguable, facts in that regard, I see nothing gained by making good, loving, caring parents who may have made a momentary mistake, now criminals subjected to going to jail. It is complete overkill and not productive to anyone.

This was an unfortunate accident and the parents should not be prosecuted for his incident.

We should be thankful that boy was not injured and we should do what we can to make sure another incident like this never happens again for the protection of humans, as well as the animals, alike.

© 2016 Robert (Bob) Bianchi, Esq

NJ Supreme Court Certified Criminal Trial Attorney

Frm. head NJ County Prosecutor

National TV Legal Analyst