Maureen McCormick: On the Cutting Edge of Traffic Justice

Earlier this month Streetsblog talked with Leslie Crocker Snyder, candidate for Manhattan district attorney, about how she would approach pedestrian and cyclist fatalities as the borough's top prosecutor. Today we will hear from a prosecutor who has made traffic justice the centerpiece of her career.

From 1986 until 2005, Maureen McCormick served as an assistant district attorney in Brooklyn, where she headed the Kings County Vehicular Crimes Bureau. In that position, she was known as one official who didn't take the deaths of New York City pedestrians and cyclists lightly. Specializing in vehicular crimes for 14 years, McCormick is also a contributing author of the New York State DWI Trial Manual and the Vehicular Homicide Manual, and is active in lobbying for changes in state law to toughen penalties for drivers who kill.

In her current job as chief of Vehicular Crimes in Nassau County, McCormick has continued her work under District Attorney Kathleen Rice, whose vigorous prosecution of drunk drivers was the subject of a recent "60 Minutes" profile. In part one of this interview, conducted via e-mail, McCormick explains the difficulties she and other New York prosecutors encounter in holding killer drivers accountable.

Brad Aaron: When a motorist hits and kills a pedestrian in New York State, and that motorist is found to have no drugs or alcohol in his/her system, how much discretion do prosecutors have in determining what charges to bring?

Maureen McCormick: I must first comment that vehicular crimes
prosecutors fight an uphill battle every day. The criminal justice
system does not always treat these violent crimes with the respect they
deserve. From statutes that undervalue these cases to some judges who
refuse to impose serious sentences, the criminal justice system can be
plagued with “murder snobs” -- people who think of these violent crimes
as less important than intentional crimes. This remains true in spite
of the fact that statistics consistently show that the average citizen
is far more at risk from homicidal drivers on our roads than from
criminals committing intentional homicides. The culture is changing but
not as quickly as anyone who has been victimized by these crimes, or
who fights against them, would like.

Prosecutors are bound by the facts and by the laws as they exist. The laws are not always the way we want them to be. The laws consist of not only what is on the books but also how different fact patterns have been interpreted over the years by the courts. Whether we like it or not, a single act of negligence by a driver will not usually be enough to bring charges.

Civil negligence (for lawsuits) is defined in the Pattern Jury Instructions (that a judge would read to a jury in a civil negligence case) as a "…lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances."

The definition of criminal negligence can be found in Penal Law section 15.05(4). The Criminal Jury Instructions (that a judge would read to the jury in a criminal case) state: "Criminal negligence is not the same as that type of negligence you may be familiar with that permits a person injured by ordinary negligence to obtain a monetary judgment in a civil law suit. The carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence. A person acts with criminal negligence with respect to a death when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that another person's death will occur, and when he or she fails to perceive that risk, and when that risk is of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

BA: What if, in an instance like that described above, it is determined
that the motorist was speeding, ran a red light, or was violating some
other traffic law at the time of the collision? Does that open up
additional venues for prosecutors to pursue?

MM: Generally a criminal case begins with some intentional act on the part of the driver: speeding, weaving in and out of traffic, getting drunk, etc., that creates a substantial risk of death to another person under the facts of the particular incident -- but the facts have to establish a “gross deviation” from the normal standard of care. This is why 10 or even 20 mph over the speed limit will generally not suffice on its own for a criminal charge. However, if the particular circumstances make the 20 mph grossly risky -- for instance when there is heavy pedestrian traffic in the area due to a street fair -- then under the "totality" of those circumstances an argument could be made that the driving was criminally negligent. It is unsatisfying but there is no hard and fast rule. Each incident must be viewed under this "totality of the circumstances" analysis and the risk taken by the driver must be substantial enough that the driver’s failure to recognize the degree of risk is a gross deviation from what a "reasonable person" would recognize. (Criminal recklessness arises when the defendant can be shown to have recognized the substantial risk and consciously disregarded it.)  At the same time prosecutors are bound to prove beyond a reasonable doubt that the negligence meets the court's definition of what is criminal because according to case law "negligent conduct arising from carelessness, inadvertence, lack of skill, competence or foresight -- would not be a sufficient."

The courts have recognized that driving drunk meets the definition of criminal negligence. But as recently as May 2008, New York’s highest court held that a 17-year-old driver who violated his junior license by driving with four unrelated passengers, without seatbelts, and who also was speeding at 70-72 mph through a curve with a posted caution speed of 40 mph, and who lost control sending the car over an embankment and killing three of his passengers, could not be held criminally liable (People v. Cabrera, 10 NY3d 370 [2008]). This decision alone has resulted in numerous defense motions to have cases dismissed claiming that "speed alone" or any traffic infraction "alone" is not sufficient to sustain criminal negligence. Our position is that this is nonsense. A person driving 100 mph in front of the court on Centre Street in Manhattan at lunch time when the streets are flooded with pedestrians MUST be chargeable with a crime. Conversely, a person driving the same speed at 3 a.m. by the Gowanus warehouses in Brooklyn, while no other person was in the area, would be subject to much lesser violations.   

The same "totality of circumstances" analysis applies when the driver commits traffic infractions. Throughout my tenure as a prosecutor, I have heard police officers, judges, prosecutors and the news media refer to a "rule of two." It is believed that if a defendant commits two simultaneous traffic violations in the course of a collision, that automatically allows for a criminal charge because one violation would be considered "ordinary" or civil negligence. Two simultaneous violations are certainly evidence to be considered in the analysis. After all, there is a common sense argument that a reasonable person could not be speeding 20 mph over the speed limit AND miss a stop sign without being aware of the risk the driver is creating. But what if it is five mph over the speed limit, the stop sign is obstructed and the driver is from outside the area? This is a different set of circumstances and the prosecutor is required to consider them all before bringing charges that meet those complicated definitions.   

BA: There seem to be disparate standards for criminal negligence in New York State. That is, a crane operator whose rig falls into a building, killing its occupants, may be charged in those deaths, while a driver who kills the same number of equally innocent pedestrians may only receive a traffic summons, or incur no legal penalties whatsoever. Are such variations intrinsic in state law itself, or is it a matter of how the law is applied and/or case precedent?

MM: The same standards and the same analysis applies to all types of criminal negligence. I am aware of the crane operator case through the media but I do not have any information regarding the specific facts that were used to support a criminal charge. I regret to say I am personally aware of cases where innocent pedestrians have been killed and criminal charges have not been able to be sustained. There is nothing worse for a prosecutor than having to explain to a family whose loss is equal to any intentional or reckless homicide that we are not able to prosecute. No one could be complacent about these issues if they sat at my desk and met with these families and witnessed their raw pain. I am aware that time will not heal their wounds and that they have been victimized in the most random, arbitrary and violent way. The only thing worse is the circumstance when law enforcement strongly suspects that criminality was involved but there is no evidence to support it. For instance a driver with a terrible driving record for speeding and violating traffic signals strikes and kills a pedestrian at an intersection in the middle of the night. The driver stays. He is not drunk or impaired by drugs but there are no witnesses to the color of the traffic signal. A collision reconstruction is inconclusive regarding speed. After investigating every possible avenue, charges can not be brought -- even though every part of you believes the suspect driver was speeding through the traffic light. It is awful but it is our constitutional obligation.