If the man wounded by Dick Cheney dies, the vice president could — in theory at least — face criminal charges, even though the shooting was an accident.
Dallas defense attorney David Finn, who has been a state and a federal prosecutor, said Wednesday that a Texas grand jury could bring a charge of criminally negligent homicide if there is evidence the vice president knew or should have known "there was a substantial or unjustifiable risk that his actions would result in him shooting a fellow hunter."
"The risk must be of such a nature and degree that it got to be pretty outrageous — that a reasonable person would have to say, `I am not pulling the trigger because this other guy might be in front of me,"' Finn said.
The charge carries up to two years behind bars, but with no previous felonies Cheney would be eligible for probation, the former prosecutor said.
Manslaughter, a more serious charge, would require a prosecutor to prove Cheney was reckless, which would be "virtually impossible under the facts we know today," said Michael Sharlot, professor of criminal law at the University of Texas at Austin.
"With recklessness, the defendant has to be aware of the risk, but choose to ignore it. With negligence, he doesn't have to be conscious of the risk, but a reasonable person would have been," Sharlot said.
As vice president, Cheney has no immunity from prosecution.
Mark Skurka, first assistant district attorney of the three-county area where the shooting took place, said prosecutors did not have an investigation under way.
"If something unfortunate happens, then we'll decide what to do, then we'll decide whether we're going to have an investigation or not," Skurka said.
If District Attorney Carlos Valdez decided to pursue charges, he would forward the matter to a grand jury, which would determine whether to indict Cheney. Valdez, a Democrat, is best known for his prosecution of Yolanda Saldivar, who was sentenced to life in prison for the 1995 slaying of Tejano singer Selena.
Harry Whittington, a 78-year-old lawyer, was struck in the face, neck and chest with shotgun pellets over the weekend while Cheney was shooting at quail. Whittington suffered a mild heart attack Tuesday after a pellet traveled to his heart.
On Wednesday, hospital officials said he had a normal heart rhythm again and was sitting up in a chair, eating regular food and planned to do some legal work in his hospital room. Doctors said they are highly optimistic he will recover.
In a TV interview Wednesday, the vice president accepted full blame for the shooting and defended his decision not to publicly disclose the accident until the following day. He called it "one of the worst days of my life."
If Whittington recovers, Cheney could still face a felony charge of negligently causing injury to an aged person, Sharlot said. But he said such a charge would be "quite unusual" in the case of a hunting accident.
In the only other case of someone being shot by a vice president, Aaron Burr was indicted on murder charges in New York and New Jersey for killing Alexander Hamilton in a duel in 1804, but he was never tried and finished out his term in office.