The Canadian Press - ONLINE EDITION

Criminal charges for Stewart still possible, even if he didn't intend to hurt Ward on track

  • Print

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.

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 baserunner sliding into second with his spikes high. But sometimes an act is so far outside the bounds of accepted sporting behaviour 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 four foot-wide vehicle through a two-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.

"In sports we tend to allow all sorts of conduct we'd never allow in another circumstance," Yung said. "But this isn't a collision. It's not in that ballpark; it's something you don't expect. This is a more complicated scenario. 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. Unlike the cars Stewart drives on the NASCAR circuit, the sprint cars have no radios or instrument data recorders that could tell authorities exactly what was happening when Stewart hit Ward.

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

"The worst thing that could happen for Stewart is if his story doesn't seem to match other evidence," Yung said. "Because then it might call into question his own story."

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."

"Mr. Stewart has fully co-operated with the police officers that are investigating," Povero said in a news conference shortly after the race. "He was visibly shaken by this incident, and has promised his continuing co-operation in this investigation."

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.

Although the standard of proof is lower than in a criminal case, the civil court would also consider Ward's state of mind at the time of the accident and whether he was also negligent in venturing into racing traffic on a dark track in a dark suit.

But Stewart would also have to weigh the damage to his image and career — with his own team, tracks and millions in endorsements — making a quick settlement likely.

___

AP Auto Racing Writer Jenna Fryer contributed to this story.

___

Jimmy Golen covers sports and the law for The Associated Press. Follow him on Twitter at: www.twitter.com/jgolen

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

It’s the End Of the Term And They Know It, Part Two

View more like this

Photo Store Gallery

  • Marc Gallant / Winnipeg Free Press.  Local- (Standup Photo). Watcher in the woods. A young deer peers from the forest while eating leaves by Cricket Drive in Assiniboine Park. A group of eight deer were seen in the park. 060508.
  • A goose flys defensively to protect their young Wednesday near Kenaston Blvd and Waverley -See Bryksa 30 Day goose challenge- Day 16 - May 23, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)

View More Gallery Photos

Poll

Which Jets prospect has the best chance of making NHL team this season?

View Results

View Related Story

Ads by Google