Roger Cossack |
The 21-year old Ward died on Aug. 9 after being struck by a Sprint
Car driven by Stewart at New York’s Canandaigua Motorsports Park. The Ontario
County Sheriff’s Department conducted a month long investigation into the
incident, and forwarded the results of that investigation to the District
Attorney’s office this week.
“Upon my review of all of the information contained in the entire
investigation, I have made the determination that it would be appropriate to
submit the evidence to a grand jury, for their determination as to what action
should be taken in this matter,” said Tantillo in a written statement. “When
the presentation has been completed and a determination has been made, I will
advise the public and the media at that time of the results.”
Speaking exclusively to SiriusXM NASCAR Radio’s SiriusXM Speedway yesterday, Cossack
said he sees no grounds for an indictment to be handed down.
“It is difficult for me to think of what crime… he actually
committed,” said Cossack, a legal analyst for ESPN, TruTV and a
Distinguished Visiting Professor at the Pepperdine University School of Law. “The hallmark of any
crime is that you must intend to commit that crime. I don’t see how the
prosecution would ever be able to prove that Stewart intended to do harm to
Kevin Ward, Jr., unless there is some super-special, secret evidence that we
have no idea about. Procedings before a grand jury are always secret,
(including) the witnesses, the evidence and even the time it’s going to be (conducted).
We don’t know very much, but I can’t think of any crime Tony Stewart can be
charged with.
“If he had acted in a way that was grossly negligent and
abdicated responsibility to (a large) degree, it could be raised to criminal
behavior,” said Cossack, who formerly served as a prosecutor in Los
Angeles County.
“But in this case, I can’t see how they can ever charge him with being grossly
negligent. After all, Kevin Ward was walking down the middle of a race track
where people were… going very, very fast. How are they ever going to prove that
Stewart was not as alert as he should have been? Forget `beyond a reasonable
doubt.’ Beyond any doubt! How are they going to prove that?
“We’re talking about (fractions of) seconds in a not-well lit
(venue) where a guy suddenly appeared, walking the wrong way in the middle of
the race track. How can they prove that Tony Stewart wasn’t paying enough
attention, or that his intent was to do something bad?”
Cossack explained that it will be up to the prosecution to
convince the grand jury (to indict), by asking a pair of critical questions.
“One is, `can you see that someone has committed a crime,’” he
said. “The other is, ‘is there reason to believe that the person we have
suggested actually committed that crime?’”
While this case is unique in the world of motorsports, Cossack
said the grand jury’s task remains the same.
“(In a case where) a doctor has acted incorrectly, they have
specialized witnesses that go before the grand jury and explain what a doctor
should and should not do. In this case, at the end of the day, they’ll need
witnesses to convince the grand jury that a crime has been committed.”
In the state of New York, grand juries are
comprised of 23 jurors selected to represent a cross-section of the community. After hearing all the pertinent evidence,
jurors can vote to hand down an indictment, dismiss the charges, or
direct the District Attorney to charge the accused with a lesser crime. In
order to indict, only 12 of those 23 jurors must agree that there is sufficient
evidence to bring charges.
Cossack
said the decision to convene a grand jury may be, at least in part, politically
motivated. Like all District Attorneys, Tantillo is an elected official. And
while has served seven consecutive terms and ran unopposed in the most recent
election, the decision to place the final decision in the hands of a jury
offers a certain degree of insulation between Tantillo and an emotionally
volatile, high profile case.
What
that does is give (political) cover to the prosecutor,” Cossack said. “He can
say, `We gave it to the grand jury and they decided. I didn’t make the
decision.’ It’s really kind of an end-run. It is the prosecutor’s decision (to
forward the case to a grand jury), but this way, he gets cover for whatever
decision is made.
"But
again, I can't think of any crime that Tony Stewart committed.
“The
old joke is that a grand jury will indict a ham sandwich,” Cossack warned. “A
vast majority of the time, the prosecution gets an indictment. In this case,
though, I have a sense… that the decision will be not to indict.”
Interesting. I've always been under the impression that lack of intent reduced the possible criminal charge to vehicular manslaughter, as opposed to homicide. There are many cooling their heels in prison right now who fall into that category. Having said that, from what we've been told, it would seem very unlikely that a conviction beyond a reasonable doubt could ever be reached.
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