Stewart could face criminal charges in driver's death

No criminal intent has turned up in probe into death on dirt track.

08/12/2014 5:48 PM

08/12/2014 5:51 PM

Tony Stewart could still face criminal charges for running down Kevin Ward Jr. with his sprint car, even if the three-time NASCAR champion didn’t mean to kill Ward, hurt him or even scare him.

Ontario County Sheriff Philip Povero, who announced on Tuesday that the investigation is continuing, has said that his initial findings have turned up nothing that would indicate criminal intent in the crash at the Canandaigua Motorsports Park in New York.

But legal experts agree that does not mean Stewart is in the clear.

The NASCAR star could be charged with second-degree manslaughter under New York law if prosecutors believe he “recklessly caused the death of another person,” with negligent homicide another possibility, according to criminal law professor Corey Rayburn Yung of the Kansas University School of Law.

“The question over whether someone was reckless is a factual one, and one a prosecutor might let a jury decide,” said Yung, who also posts at the Concurring Opinion blog.

Athletes in competition often do things that would get the average person arrested — think two boxers in the ring, or a base runner sliding into second with his spikes high. But sometimes an act is so far outside the bounds of accepted sporting behavior that it becomes a crime, as former major leaguer Jose Offerman learned when he was charged with felony assault for rushing the mound — swinging a bat — after he was hit by a pitch in a minor league game.

So Stewart would not expect to be charged for the car-on-car bump that sent Ward spinning into the wall. But if, for example, he were to tell police that he saw Ward on the track and tried to shower him with dirt or otherwise send him a message, a first-degree manslaughter charge could be a possibility, Yung said.

In a 1949 case that Yung uses in his class, midget car racer Joseph Sostilio was found guilty of manslaughter after he tried to squeeze a 4-foot-wide vehicle through a 2-foot opening at 40 mph, crashing into another car and sending it into the one driven by Stephen D. Bishop. Bishop’s car flipped three times and he was killed.

Sostilio’s conviction was upheld on appeal by the Massachusetts Supreme Judicial Court. Noting that a violent or aggressive act on a football field or in a boxing ring is not necessarily a crime, Justice Henry Tilton Lummus wrote: “In the present case physical contact was not an essential part of the racing of automobiles.”

That was a half-century ago, and racing has changed. Trading paint is a part of the sport, and it’s not even uncommon these days for racers to leave their cars to confront rivals after a crash, which Ward appeared to be doing when he was killed.

“This is a ... complicated scenario,” Yung said. “We’re assuming Stewart didn’t mean to do this, and yet a death resulted.”

Whether Stewart’s actions were part of racing depends on what the police investigation finds.

Povero would not say how Stewart described the accident, but he said he has reviewed two videos and spoken to Stewart.

Povero’s previous comments that he found no criminal intent all but rules out the possibility of a first-degree murder charge, which would essentially require a confession that Stewart was trying to kill Ward. For second-degree murder, prosecutors would need to prove Stewart was reckless in combination with a “depraved indifference to human life.”

After the investigation is completed, Povero said, the evidence will be turned over to the district attorney as a matter of routine. Even if he is cleared by prosecutors, though, Stewart could face a civil suit.

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