How Prosecutors and Police Set the Table for a Hit-and-Run Killer’s Defense

The general public will probably never know if Manhattan District Attorney Cy Vance was pressured into pursuing a case against the hit-and-run driver who killed Marilyn Dershowitz. But given the number of traffic death and injury cases that never see the inside of a courtroom, Ian Clement's attorney can viably employ such a seemingly irrelevant argument in his client's defense.

John Arlia argued in court Tuesday that Vance's office would not have prosecuted Clement for leaving the scene of the fatal July 2011 crash if not for "influence" exerted by the Dershowitz family, namely the victim's husband, Nathan, and Alan Dershowitz, her famous brother-in-law.

Right or wrong in this instance (Vance's office denied the accusation), Arlia is on to something. The overwhelming majority of injuries to city cyclists and pedestrians -- debilitating, life-altering wounds included -- are never investigated by police, much less prosecuted. As the Times helpfully reported just this week, many motorists are never even ticketed for taking a life.

The case examined by the Times offers an instructive example. Like Marilyn Dershowitz, Roxana Buta was killed by a hit-and-run truck driver in Manhattan. Though video of the crash reportedly depicts the driver, a DOT worker, running over Buta without stopping, no charges have been filed. To the layman, the basic facts of these crashes appear identical save for two differences: one victim was riding a bike, while the other was walking; one victim had a famous last name, while the other did not.

Under New York State law, of course, the primary distinction is what can't be seen. To convict for leaving the scene, prosecutors must prove that the motorist knew or had reason to know that injury had been caused. Often it comes down to this: Slow down or stop after you run someone over and you might be charged with a felony; keep your foot on the gas and there's a solid chance the law won't touch you.

As the dailies have pointed out, Clement was not charged for the brutal death of Marilyn Dershowitz. In recent years, despite hundreds of city cyclist and pedestrian fatalities, only two drivers are known to have been charged for causing a death in a crash that did not involve alcohol or a police chase. One of those cases, brought by Vance, ended with the motorist pleading to manslaughter and sentenced to as little as six months in jail. The second case, stemming from a crash in Brooklyn in August, is still pending. Both were hit-and-runs. Had he not left the scene, it's likely Clement would have faced nothing more than summonses for careless driving and failure to yield.

In such a climate, it's no surprise that a defense attorney would question whether killing a person with a vehicle and driving away should be a prosecutable offense. Arlia has cleverly exploited city law enforcers' history of going easy on deadly drivers, prompting the Daily News to pick up the drumbeat by putting the district attorney and the victim on trial.

"Sometimes there’s just no one to blame criminally," Arlia said yesterday. Absurd and offensive it may be, but it's exactly what prosecutors and police are saying every time a city motorist maims or kills with impunity.

Addendum: According to the office of Manhattan District Attorney Cy Vance, prosecutors in New York County have filed charges for leaving the scene of an incident resulting in physical injury or death 33 times so far in 2012. Such charges were filed 37 times in 2011 and 17 times in 2010, the year Vance took office. In 2009, under Vance's predecessor Robert Morgenthau, charges for leaving the scene were filed 10 times.