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Professor not charged in son's death

October 04, 2003

Deepa Bharath

The Orange County district attorney will not file charges against a

UC Irvine professor whose 10-month-old son died when he

absent-mindedly left the child in the car for four hours while he

worked, officials said on Friday.

Mark Warschauer, 49, vice chair of UCI's Department of Education,

did not intentionally leave his son, Mikey, in a locked car in an

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outdoor campus parking lot, officials said.

Deputy District Atty. Matt Murphy said he had to make the decision

based on case law.

"Despite our feelings, the law is very clear in such cases," he

said. "In cases where an otherwise responsible parent with no history

of abuse or negligence accidentally leaves a child in a car and we

cannot show conscious disregard for the safety of the child, the law

does not provide for criminal prosecution."

There are several legal precedents that show charges are not

warranted in such cases unless the parent knows his or her child is

in the car and then intentionally leaves the child to die, Murphy

said.

"That was not the case here," he said.

Murphy cited an identical case that came out of Nevada this year

where a high school teacher drove his 7-month-old to work and forgot

all about the baby, who died. No charges were filed because

stupidity, forgetfulness or even carelessness do not amount to

criminal intent, he said.

Warschauer was not available for comment, but his attorney,

Jennifer Keller, said she is "greatly relieved" by the district

attorney's decision not to file charges.

"The law does not support criminal liability on these facts," she

said. "And in any event, no greater pain could ever be inflicted on

this loving father than having to live with the loss of his beloved

son."

Now the Warschauers "can get on with the grieving process and with

helping educate other parents to prevent such tragedies in the

future," Keller said.

Warschauer and his wife reportedly had Mikey after trying to have

a baby for several years and taking fertility treatments. The

professor and his wife, who were doting parents and did not have any

history of neglect or abuse, took turns dropping off their son at day

care, Murphy said.

On the morning of the incident, Warschauer fed his son and put him

in the car seat intending to drop him off at the day care center, he

said. The professor reached the T-intersection he usually drove by.

If he went one way, he would go to the day care center and if he went

the other way, he would go to his office.

Murphy said instead of going to the day care center, Warschauer

went straight to the office and forgot all about Mikey.

"A couple of hours later, he stepped out for a sandwich," he said.

"And he still didn't realize he had left his son in the car."

It hit Warschauer only two hours after that, when he saw an

ambulance and people trying unsuccessfully to resuscitate his dead

baby.

"He was very distraught, but cooperated with police," Murphy said,

adding that the Irvine Police Department as well as the UC Irvine

campus police did a "thorough and professional investigation."

"Although the law was clear on this, it was a tough decision

emotionally," Murphy said. "What happened to the boy was tragic."

* DEEPA BHARATH covers public safety and courts. She may be

reached at (949) 574-4226 or by e-mail at deepa.bharath@latimes.com.

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