August 10, 2014
Tony Stewart’s Dilemma, Or How Prosecutors Build A Case

I’m not a fan of NASCAR or racing generally.  But I did recently find out that driver Tony Stewart killed another driver named Kevin Ward after the latter got out of his car and walked onto the track during a sprint car race.  It appears that Stewart hit Ward’s car, causing it to spin out and become inoperable.  Ward then physically left his car and walked out on to the track, appearing to be waiting for Stewart’s car to come back around, at which point, Stewart hit Ward, killing him.

When a prosecutor is trying to determine whether there’s probable cause to charge someone with a crime, they generally need two things: an actus reus (evil act) and a mens rea (evil mind).  In this case, we have a clear actus reus: a violent, harmful contact was made with Kevin Ward’s body, causing his death.  The question is whether there’s enough evidence of a culpable mens rea to arrest Tony Stewart for criminal homicide.

Here are some of the eyewitness accounts, aggregated by Deadspin at the link above:

Rich Willis, who was at the track, said he didn’t see exactly what happened but his sister down in Turn 1 did. He saw Stewart and Kevin Ward get into the wreck.

"People (who could see it better) said the guy got out of his car and was gesturing angrily at Tony Stewart when Tony Stewart came by during the next lap under yellow,” Willis said in a phone interview. “He approached him and evidently when he was driving by the guy standing on the track gesturing at him, he gunned his engine.

"What happened was the back end kicked out and clipped the guy and the guy flew across the track."


Tyler Graves, a sprint-car racer and friend of Ward’s, told Sporting News in a phone interview that he was sitting in the Turn 1 grandstands and saw everything that happened.

"Tony pinched him into the frontstretch wall, a racing thing," Graves said. “The right rear tire went down, he spun on the exit of (Turn) 2. They threw the caution and everything was toned down. Kevin got out of his car. … He was throwing his arms up all over the place at Tony for most of the corner.

"I know Tony could see him. I know how you can see out of these cars. When Tony got close to him, he hit the throttle. When you hit a throttle on a sprint car, the car sets sideways. It set sideways, the right rear tire hit Kevin, Kevin was sucked underneath and was stuck under it for a second or two and then it threw him about 50 yards."

Speaking purely as a criminal law practitioner, the video at the link above combined with these eyewitness statements (assuming they can all be authenticated and admitted into evidence) appears to provide probable cause to indict Tony Stewart for either negligent or intentional homicide in New York (though the latter would be much harder to prove).  In New York, negligent homicide could be indicted as either Criminally Negligent Homicide, or Manslaughter in the Second or First Degree.  Intentional homicide would be indicted as Murder in the Second Degree.

To convict Tony Stewart of Criminally Negligent Homicide or Manslaughter, prosecutors need to prove beyond a reasonable doubt that Stewart was criminally negligent.  The “Torts 101” summary of ordinary negligence requires four elements:

  1. Duty (the defendant owed a duty of care under the circumstances to the victim)
  2. Breach (the defendant breached their duty of care)
  3. Causation (the defendant’s breach of the duty of care is the proximate cause of the victim’s injuries)
  4. Damages (the victim’s person or property was injured).

These four elements are often summed up as the “Reasonable Person” standard: a person is negligent under the law if a reasonable person under the circumstances would not have taken the risk(s) taken by the defendant, and by taking the risk, the defendant caused damage to someone else’s person or property.

In addition to this, there is also a difference between civil negligence and criminal negligence.  Courts are fond of pointing out this difference, but in practice, they rarely provide a meaningful distinction.  The best description of these two concepts is probably the one given by Lord Hewart in the old english case of R v. Bateman:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

So the prosecutor has to prove beyond a reasonable doubt that (1) Tony Stewart was negligent (i.e. that Tony Stewart breached a duty of care to Kevin Ward, causing Kevin Ward’s death), and (2)that the degree of negligence shown by Stewart was sufficiently gross or shocking to warrant criminal punishment rather than mere civil remuneration.

In addition to all that, if prosecutors wanted to charge Stewart with Manslaughter in the Second Degree, they would have to show that Stewart’s conduct was not merely negligent, but reckless (i.e. that Stewart showed a “wonton disregard for human life.”)  The line between criminal negligence and recklessness is admittedly pretty thin, but on paper, the latter is a tougher burden to meet.  If prosecutors wanted to charge Stewart with First Degree Manslaughter instead, they would  also have to prove that Stewart acted with “intent to cause serious injury” to Ward (but not to kill him).  

In this case, we have eye witness statements claiming there was a dispute between Ward and Stewart, which gives Stewart motive.  We have eyewitness statements saying that Tony Stewart throttled his car as he approached Ward.  We also have eye witness statements from a person who prosecutors might be able to qualify as an “expert witness” stating that it’s a well-known fact in the racing community that sprint cars “set sideways” when you throttle them.  And we have a video that shows most (but not all) of this occurring.  

This gives prosecutors enough evidence to build a criminal case against Tony Stewart, assuming that all of these eyewitness reports are genuine.  They can establish duty and breach with expert testimony from the witness who discussed how Sprint cars behave when the throttle is pushed.  They can establish causation with the video, and damages with Tony Ward’s death certificate.  This is enough to get to criminal negligence by default, since that determination is largely one that rests with the jury.  Intent to injure could be proved by the video (several cars managed to pass Ward without hitting him, and the caution signal was up), setting up First Degree Manslaughter.  

Keep in mind that I am not saying a criminal case should be brought against Tony Stewart.  There are plenty of reasons not to.  For example, much of this case would turn on eyewitness testimony (based on the evidence currently available), and I’d be very uncomfortable subjecting anyone to criminal sanctions in a case where the government relies so heavily on eye witness testimony.  In addition, it seems reckless for Ward to have physically left his car while the race was still in progress, before emergency crews had an opportunity to get over to him.  In the video, Ward almost seems like he’s trying to position himself in front of Stewart’s car.  So there’s just too many moving parts in this scenario for me to say beyond a reasonable doubt that Tony Stewart acted with the requisite mens rea to commit a criminally negligent homicide.

Now this is an entirely different question from whether Kevin Ward’s family should bring a wrongful death suit against Tony Stewart.  As I mentioned earlier, civil negligence is a lower standard of mental culpability than criminal negligence, and the burden of proof in civil cases is also lower.  In a civil case, the Plaintiff need only prove that Tony Stewart’s negligence by a “preponderance of evidence,” i.e. more likely than not.  51% certainty is enough in a civil case.  It’s not enough in a criminal case, however.

July 5, 2014


New York Cop Pleads Not Guilty in Police Beating Caught on Tape

Vincent LoGiudice, a Nassau County, New York police officer, pleaded not guilty yesterday to multiple felony assault charges related to his beating, caught on tape, of Kyle Howell, an unarmed 20-year-old, during a traffic stop. Cops initially arrested Howell for assaulting cops and claimed he was trying to ingest a bag of marijuana after they stopped him, but prosecutors dropped the charges. Victims of police brutality are often the target of false charges, but cops are rarely indicted for those same incidents. Not this time; a grand jury decided to indict LoGiudice. Nevertheless, he remains employed by the Nassau County Police Department and enjoys the support of his fellow officers. Via News 12 Long Island:

In a strong show of support, many Nassau County police officers surrounded LoGiudice as he entered the courtroom. A rally supporting him was held after he pleaded not guilty.

"He is absolutely overwhelmed with emotion with the overwhelming support, not only by the entire Nassau County Police Department, but police departments in the region," said LoGiudice’s attorney William Petrillo.

Howell and his family were present in the courtroom during the arraignment.

It just shows that all these people here are just supporting police brutality,” Howell told News 12.

You can watch surveillance video of the beating here

LTMC: It’s a rare day when a Nassau County grand jury indicts a police officer for charges related to police brutality.  Nassau County is one of the wealthiest counties in the U.S.  The people there are not generally known for being sympathetic to victims of police misconduct.  On the other side of the coin, a talented prosecutor can usually convince a grand jury to indict a ham sandwich.  Maybe the Nassau County DA accidentally hired a prosecutor with a conscience who’s not afraid of possibly alienating themselves by indicting cops.

May 20, 2014
The Politics Of Prosecution

Dinesh D’Souza recently pled guilty to violating federal election laws by making political contributions to a New York Republican under false names:

D’Souza, known for his biting criticism of President Barack Obama, pleaded guilty to one criminal count of making illegal contributions in the names of others. A second count concerning the making of false statements is expected to be dismissed once he is sentenced.

The plea came four months after Manhattan U.S. Attorney Preet Bharara charged D’Souza with using “straw donors” to give funds in 2012 to Republican Wendy Long’s U.S. Senate campaign in New York. Long, who met D’Souza while they were students in the 1980s, lost to Democratic incumbent Kirsten Gillibrand.

"I knew that causing a campaign contribution to be made in the name of another was wrong and something the law forbids," D’Souza, 53, told U.S. District Judge Berman on Tuesday. "I deeply regret my conduct."

Conservative politicians and pundits characterized this as a politically-motivated prosecution:

Sen. Ted Cruz (R-TX) rushed to defend D’Souza at the time of his indictment. He slammed the charges as “an abuse of power” and asked Face the Nation host Bob Schieffer, “Can you image the reaction if the Bush Administration had went, gone and prosecuted Michael Moore and Alec Baldwin and Sean Penn?”

Soon after, Cruz joined with Republican Senators Chuck Grassley of Iowa, Mike Lee of Utah, and Jeff Sessions of Alabama in a letter to FBI director James Comey Jr., quoting Harvard Law professor Alan Dershowitz in suggesting that D’Souza’s “politics have something to do with” the indictment and demanding to know how and why the alleged violations were discovered.

According to Media Matters, Fox News host Sean Hannity called D’Souza the “latest victim to be targeted” and put on President Obama’s “enemies list,” the hosts of The Five called the charges “politically motivated” and an example of liberals “rediscovering their inner Stalin,” and Neil Cavuto called it an example of “conservatives under attack.”

It is sad that people only seem to care about selective prosecution when it’s happening to “their” side.  Many of Obama’s critics decry his failure to uphold the rule of law.   Well, Dinesh D’Souza broke the law.  He admitted to it.  If upholding the law is really that important, then prosecuting people who break the law is part of that concept.  As you reap, so shall you sow.

But since this prosecution is happening to a high-profile critic of a Democratic Administration, Republican lawmakers and Conservative political pundits now suddenly seem to care less about the “rule of law,” and have suddenly discovered the wisdom of Justice Jackson:

Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

Selective prosecution is outrageous.  So why weren’t these same critics complaining about politically-motivated prosecutions when the Bush DOJ targeted Democrats for corruption probes in 2007?  Furthermore, why didn’t they speak up when The Bush DOJ was purging Democratic lawyers from its rolls, essentially guaranteeing that selective prosecutions would occur?  Furthermore, it seems relevant to mention that Democratic politicians are also being targeted for prosecution by the Obama DOJ.  The prosecutors who indicted these cases could very well have been Republican appointees.  Are these prosecutions politically motivated as well, or simply “upholding the rule of law?”

It’s certainly possible that the prosecutor who indicted Dinesh D’Souza had an axe to grind.  But it would be nice if people who are upset about Dinesh D’Souza’s prosecution would be consistent about their outrage.  And maybe save some of their outrage for the people whose prosecutions are the most outrageous.

April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 18, 2014
Justice Department Bad Boys: More Than 650 Cases of Misconduct Documented in 12-Year Period

From the article:

Federal prosecutors, judges, and other officials at the Justice Department committed over 650 acts of professional misconduct in a recent 12-year period, according to a new report published by a DC-based watchdog group, the Project On Government Oversight. POGO investigators came up with the number after reviewing documents put out by the Department of Justice’s Office of Professional Responsibility (OPR). According to one little-noticed OPR document published last year, a DOJ attorney failed to disclose a “close personal relationship” with the defendant in a case he was prosecuting, in which he negotiated a plea agreement to release the defendant on bond. An immigration judge also made “disparaging remarks” about foreign nationals. POGO contends that this number is only the tip of the iceberg and OPR needs to release more information about this misconduct to the public.  

Also, some potential for reform:

A bill proposed on Thursday by Sens. Mike Lee (R-Utah) and Jon Tester (D-Mont.) would overhaul how misconduct is investigated at the Justice Department. Right now, only OPR is allowed to look into ethics complaints, instead of the Justice Department’s Office of Inspector General, which is widely considered to be more independent. The senators’ bill would move that authority to the IG’s office. Sen. Lisa Murkowski (R-Alaska), who supports the bill, says: ”When Americans pledge to abide by ‘liberty and justice for all,’ that does not mean that those pursuing justice can creatively apply different standards or break the rules to get convictions—it means that in America everyone is held equally accountable.” 

January 30, 2014
7th Circuit pokes a hole in prosecutorial immunity

From the article:

A three-judge panel for the U.S. Court of Appeals for the 7th Circuit just issued an important opinion (PDF) on absolute immunity, the policy that makes it impossible to sue prosecutors who engage in misconduct, even when that misconduct results in a wrongful conviction.


[This case involves] a gory mess of injustice, including a trial judge who took a bribe from Fields’ co-defendant. But, for the purposes of this discussion, Fields discovered that prosecutors had knowingly coerced witnesses into giving false testimony, which resulted in his conviction and 17 years in prison before he was acquitted at a second trial. Writing for the majority, Judge Richard Posner makes it clear that Buckley was a special circumstance in which one prosecutor replaced another before trial, and that it should not be used to close the investigation exception to absolute immunity[.]

This is huge.  It is extraordinarily hard to sue a prosecutor for prosecutorial misconduct.  Generally, you can only sue a prosecutor for actions taken during the investigation stage of a criminal prosecution, which generally means prior to indictment.  Wrongful acts committed during a trial are immune from suit, even if they lead to a wrongful conviction.  

In this case, however, Judge Posner says that a prosecutor who fabricates evidence during the investigative stage of a trial, uses it to indict someone, and then uses that evidence during trial to wrongfully convict someone, can’t then claim Absolute Immunity based on the fact that the misconduct was completed during the trial phase of the prosecution:

A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a “license to lawless conduct,” which the Supreme Court has said that qualified immunity is not to do. Wharrie’s interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court’s Buckley decision, by giving absolute immunity to prosecutor‐investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication… .

Indeed.  A great case.  Sometimes, the good guys win.

December 28, 2013
"There is a courthouse saying - known by anyone who has ever practiced criminal law - that expresses the ethos of winning over everything else in a grisly, sardonic way: "Any prosecutor can convict the guilty. It takes real talent to convict the innocent." This would be just another cheap (but clever) shot about prosecutors if there weren’t so many cases in which prosecutors have proudly convicted the innocent and refused to back down even upon compelling proof that the conviction was wrongful."

Abbe Smith

December 24, 2013
"Some prosecutors like to claim that they have a duty to victims of crimes to prosecute zealously. But they are not above trashing the victim if it serves to support a bad conviction. For example, in Illinois v. Juan Rivera, the defendant was convicted in part on snitch testimony and in part on a coerced confession. The victim was Holly Staker, an eleven-year-old girl who was raped and brutally murdered. When DNA showed that the sperm in Holly’s vagina was not Rivera’s, the prosecutor made the absurd and repulsive argument that the child had been “sexually active” and, therefore, the fact that the sperm was not Rivera’s did not exculpate him. Similarly, in a case in Nassau County, New York, when DNA showed that the sperm in a sixteen-year-old victim was not that of the man convicted of the crime, the prosecution argued that it “must have come from a consensual lover, even though [the girl’s] mother and best friend insisted that she was a virgin.” The unnamed lover theory has been used by prosecutors so often that defense lawyers have a name for it. Varying the term unindicted co-conspirator, defense lawyers refer to it as the “unindicted co-ejaculator.”"

Monroe H. Freedman

December 10, 2013
"On October 28, 2013, Michael Kiefer, a prominent and highly respected journalist with the Arizona Republic, published a four-part series about the prevalence of prosecutorial misconduct in that state’s death penalty cases. … Kiefer’s investigation discovered that in half of all the death penalty cases in the state since 2002 involved allegations of prosecutorial misconduct by the appellate attorneys assigned to handle those cases on appeal. Shockingly, the Arizona Supreme Court validated half of those allegations. Worse yet, reported Kiefer, “since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials …”"

John T. Floyd

I want to emphasize this finding from Kiefer’s study:

Shockingly, the Arizona Supreme Court validated half of those allegations [of prosecutorial misconduct].

Death penalty cases are not tried by neophytes.  They are given to seasoned prosecutors with years of training and experience.  These are the prosecutors who shouldn’t be making mistakes because they have the experience and professional skills to know better.  Nonetheless, Arizona’s highest court sustained fifty percent of allegations of prosecutorial misconduct by appellate attorneys in all Arizona death penalty cases in the past ten years.  That means every other seasoned prosecutor accused of misconduct in death penalty cases in Arizona violated the Constitutional rights of the accused—not to mention their ethical duties to the Bar.

When people talk about prosecutorial misconduct being the bailiwick of a “few bad apples,” they place themselves in a difficult position.  How is it possible that 50% of the seasoned prosecutors handling death penalty cases in a reasonably well-populated state (Arizona) are violating the Constitution?  How do we reach such a disturbing rate of Constitutional violations unless there are systemic failures in the prosecutorial profession that need to be addressed?

December 10, 2013
"No civilized system of justice should have to depend on … flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department … should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute [these] cases without bothering to disclose [the lawless cop’s] pattern of misconduct."

Judge Alex Kozinski, discussing the misconduct of law enforcement officials in Milke v. Ryan, decided last March of this year.  The Court was so shocked by the scope of the misconduct in this case that it sent a copy of its opinion to the local United States Attorney’s Office to investigate the Phoenix Police Dept. and the Maricopa County Attorney’s Office for systemic civil rights violations.

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