Here's a good article, IMO, on the ins/outs and legal aspects of the case.
The consistent stance of authorities investigating the death of Kevin Ward Jr. is that no facts have emerged that would result in criminal charges against Tony Stewart but the investigation is not complete.
What would have to change in the investigation for a district attorney to charge Stewart? That’s difficult to say because Ontario County (N.Y.) Sheriff Philip Povero has not released many details about the investigation — an investigation he said Tuesday would last at least another two weeks.
But those familiar with New York law say that district attorney Mike Tantillo would have to have evidence of intent or evidence that the driver should have known that his actions could kill someone.
After an accident on the half-mile dirt oval at Canandaigua Motorsports Park, the 20-year-old Ward walked out onto the racing groove, gesturing at Stewart, whose car hit Ward with his right rear wheel. Povero said Ward was pronounced dead 45 minutes later upon arrival at the hospital, a death attributed to massive blunt force trauma.
Ken Hyland, who worked as a prosecutor in nearby Monroe County for 30 years and now is a criminal defense attorney, said there is no timeline as far as how long an investigation such as this lasts, and that Tantillo has five years to determine whether to charge Stewart with a crime.
“The burden on the proof is on the prosecution. Tony Stewart doesn’t have to prove that he is innocent,” Hyland said. “The prosecutor would have to prove beyond a reasonable doubt that he had one of these mental states and caused the death of this gentleman.
“It’s not that easy.”
It could come down to the videos the investigators have obtained.
So far, they have two videos, and only one has surfaced publicly. That public video isn’t conclusive, but it sparks questions that could lead to charges, said New York City attorney Steven Raiser, a partner of the New York firm of Raiser & Kennif and immediate past president of the New York Criminal Courts Bar Association.
“From the video clip we currently have, you don’t see enough to really be able to tell whether he sped up, which would be key and also whether or not, when he’s coming down the track, did he maneuver himself toward (Ward),” Raiser said. “Right now, there isn’t necessarily enough but the case definitely concerns me to a great degree. … I don’t think anybody really believes that this was just simply an accident. It’s a question of can they prove it? I feel they have a lot of evidence to prove it, but is it enough to prove it beyond a reasonable doubt? That is going to be tough.”
Unless there is clear proof of intent or a high degree of recklessness that demonstrates a “depraved indifference” for human life to hit Ward, a murder charge is likely not applicable. A second degree manslaughter charge, which can carry up to 15 years in prison, is possible but it would need to be proven that Stewart knew his move could kill Ward.
“He’s driving in such a manner that he’s aware of, ‘Gee, if I do this somebody could be killed," and you disregard that risk and do it anyway," Hyland said of the evidentiary requirements regarding second degree manslaughter. “It’s a pretty high level proof to meet.”
If the district attorney can’t show that proof, the most likely charge, if any, would be criminal negligence which, when someone dies as a result, carries a maximum of four years in prison but does not always require jail time.
Criminal negligence, according to New York law, occurs when someone “fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Hyland said that the district attorney and the jury would have to consider what a sprint-car driver would do in the situation.
“A juror or judge puts yourself in the shoes of a reasonable, prudent driver and say, ‘Was there a risk here that by doing this could kill somebody and was his failure to perceive that risk a gross deviation from the standard of care that a reasonable prudent racecar driver would observe under the circumstances,'” Hyland said.
That isn’t easy, because it would require knowledge of how the cars work and also the mentality of Stewart at the time.
There also have been a variety of views of what the three-time Cup champion saw prior to the incident. Tyler Graves, a sprint-car driver who was sitting in the stands, told the Sporting News in the hours after the accident that he believes Stewart could see Ward. He said it appeared Stewart swerved toward him but doesn’t believe Stewart meant to hit Ward.
A driver in the race, Cody Sparks, who was a few spots behind Stewart, told Time Warner Cable in New York that he didn’t think Stewart saw Ward, who was wearing a dark firesuit.
There also is the issue of Stewart accelerating at the time Ward was struck. Several sprint-car drivers have said that accelerating is required to turn the car.
The sheriff’s office has declined to say whether any toxicology results exist for either party.
“What is careless behavior in this context, I’m not sure,” said Michael McCann, a Massachusetts attorney who founded the University of New Hampshire’s Sports and Entertainment Law Institute and who also writes for SI.com. “It’s also defining what’s careless, what’s reckless in the context of the race."
Raiser said the fact the cars were under caution and the fact that Stewart is one of the best drivers in the world could have an impact. The fact that another car right in front of Stewart missed Ward also could have an impact on a prosecutor’s decision.
“There was another race car that had approached the victim in this case and he had moved out of the way,” Raiser said. “All of a sudden, Tony Stewart comes and runs the guy over. It makes you wonder why was that guy good enough to go around this 20-year-old guy and Tony Stewart just couldn’t figure out how to do that.
“It makes, to me, very, very suspect at how in the world he hit this guy. I’m not suggesting he did it necessarily intentionally but just maybe he wanted to come so close to this guy to scare him. … To say that this is purely an accident, just defies logic on who Tony Stewart is and the reaction of the other racecar driver who managed to get around him and in light of the fact there was a yellow flag. I don’t see him as blameless at all.”
Tantillo can himself make the decision not to charge Stewart. If he believes Stewart should be charged, he would take his evidence to a grand jury to get an indictment. A majority of the 23-member grand jury would have to agree that the evidence shows that the prosecutor could prove the charges.
“What’s reasonable (actions by the driver), there’s often ambiguity over that,” McCann said. “Sometimes, this is where a prosecutor is going to toss it to a grand jury to figure it out (whether to charge). There doesn’t appear to be desire to do that, but it’s early.”
Having just won a seventh four-year term in the 2013 election and unopposed, Tantillo is well-engrained in the Ontario County community. The increased public interest in this case could mean even extra scrutiny over evidence, lengthening the time for Tantillo to decide whether to press charges.
“He’s a good man to have to look this over,” Hyland said. “Knowing Mike Tantillo, I don’t think any public pressure is going to push him one way or the other.
“He’s going to look at it straight down the middle. If the facts are there, and he feels that this was a crime, he will charge it. If he feels there’s not proof there, there isn’t a crime, he will not charge it.”
If Stewart is indicted of a crime, it would likely take six months, if not longer, to go to trial, Hyland said.
Stewart could also face a wrongful death civil lawsuit from the Ward family. That would have to be filed within two years. Raiser said he would expect a civil suit in this case.
“If the DA is going to go forward on a case like this, they are going to make sure that they believe that they can prove it beyond a reasonable doubt,” Raiser said. “With the evidence on the table, with everything that’s there, I think you absolutely have enough for a civil suit with his background, with his antics in the past, with his temper issues.”