Traffic Justice Q&A With Bronx Prosecutor Joseph A. McCormack
12:05 PM EDT on July 8, 2009
McCormack is chief of the Vehicular Crimes Bureau of Bronx District Attorney Robert T. Johnson's office. Designated by the Governor’s Traffic Safety Committee as New York State Traffic Resource Prosecutor, McCormack is responsible for statewide trainings of prosecutors and law enforcement personnel. A frequent national lecturer on vehicular homicide, he is chair of the New York State District Attorneys Association Vehicular Crimes Legislation Subcommittee.
We met McCormack at the June traffic justice forum for Manhattan district attorney candidates. Here, he talks about crash investigations, the "rule of two," and the difficulties that can arise in obtaining and using vehicle "black box" data.
Brad Aaron: What were your general impressions of the Manhattan DA forum? In
your opinion, were the pledges for increased prosecutions following
pedestrian and cyclist deaths and injuries feasible under current law?
Joseph A. McCormack: I thought the forum was fantastic. Clearly, any of the candidates invited will be aware of the importance of pedestrian and cyclist safety issues and the need to back up concern with resources. I don't know if they pledged increased prosecutions as much as increased awareness and investigation which is certainly feasible under the current law.
BA: There was a lot of discussion on Streetsblog, following our write-up
of the forum, about the "rule of two." How prevalent is the "rule of
two" standard in determining whether to prosecute drivers involved in
crashes resulting in death or serious injury? Who normally makes these
decisions -- the police on the scene, an ADA on the phone?
JAM: The rule of two was explained in the Maureen McCormick interview and by [Transportation Alternatives General Counsel] Peter Goldwasser on the comments following your story on the forum. It is a rule of thumb used by most members of the criminal justice system from investigators to judges. Your education on it is helpful. I teach prosecutors and police officers in NYC that it can be used to understand some of these crimes but they must be aware that one factor, if egregious enough, standing alone, may impute criminal culpability. Cases such as Cabrera [Editor's note: People v. Cabrera is discussed in the Maureen McCormick interview linked above] make both understanding and prosecuting these cases more difficult, making the real lesson to be learned even more important. These cases are fact-driven and so the single most important rule at the outset is to be sure to fully investigate and gather the facts.
BA: Is the "rule of two" standard more likely to be applied in cases
where a pedestrian or cyclist is the victim, rather than a driver or
vehicle passenger? In other words, is it considered more difficult to
prove negligence when a vehicle hits a person, rather than another
JAM: There are no separate "rules" for investigating and prosecuting pedestrian or cyclist crashes versus car crashes. The only difference I can think of at all is sometimes, in the absence of witnesses, we can figure out more from the resultant damage to a vehicle but in some cases we are also able to figure out how a crash occurred when it involved a pedestrian or a cyclist from evidence gathered at the scene. I feel they are treated the same both by investigators and legally. The so called rule of two certainly makes no distinction and I don't feel there is one in practice.
BA: At the forum, Mr. Vance spoke of "protocols" that are followed
after a fatal crash. What are they? Aaron Naparstek cited two fatality
cases in the forum's opening remarks. In one case, a driver was
permitted to leave the scene after striking and fatally wounding a
cyclist, though it was his seventh moving violation (he was 21).
Another driver, who struck and killed a four-year-old child, had a
vehicle equipped with a TV screen in its dashboard. He too was allowed
to drive away. Would NYPD check to see if, for example, that TV was
playing at the time -- or subpoena cell phone records to determine if
he was talking on the phone? If steps like these aren't being taken,
what, exactly, is the protocol for determining driver responsibility
when a pedestrian or cyclist is killed, and how might it be improved?
JAM: The police department has protocols that are constantly being updated and examined in the hope of making them the most effective. I am sorry, but I can't speak directly about cases I have no actual knowledge about.
I would like to explain a little about "black boxes" and what they
are and what we do about them. The forum and the questions posted on
your blog seemed fairly confused about them.
Every crash, no matter who or what is involved, is scrutinized for Electronic Data Recorder evidence.
Every crash, no matter who or what is involved, is
scrutinized for Electronic Data Recorder (EDR) evidence. By the way,
the so-called "black boxes" in cars are actually silver. Quite a few
years ago the NYC STOP DWI Program run by the DOT paid for training by
the national expert in EDR recovery. Once I had the funding, we had all
of the NYPD Detectives and many of the Highway Patrol Unit Techs
assigned to investigate crashes trained for two weeks. We also got
funding to purchase the equipment to download the EDRs. In the years
since we have upgraded this equipment as needed with recurrent funding
from STOP DWI. So, New York City is right at the cutting edge with EDRs.
Still though, these EDRs are not an automatic cure-all.
First off, they may not record any data if the vehicles airbag system
doesn't deploy. A car can crash or strike a pedestrian or cyclist and
not set off its airbag. We then get nothing. Also, the kind of car
involved is a significant factor. Some makes and models are capable of
being downloaded and some are not. Some manufacturers maintain that
their vehicles do not have EDRs. Some manufacturers refuse to help
police download their cars. And some manufacturers have EDRs that do
not record information useful to a crash investigator. If a car has a
readable EDR sometimes there are other problems that prevent the data
from being retrieved such as crash damage, power loss or if the EDR
resets itself before the information is gathered. The one thing I can
assure you of is that we try.
One other point is the legal requirements to get EDR [data]. Four years ago a bill was presented to the state legislature out of
nowhere and it passed immediately. The law now requires the police to
get a search warrant to download an EDR. At the forum there was a
little bit of confusion regarding a recent case from the Court of Appeals (The PEOPLE v. WEAVER, Appellant 2009 WL 1286044 (N.Y.), 2009 N.Y. Slip Op. 03762)
that requires the police to get a search warrant to attach a GPS
transponder on a vehicle. That has nothing to do with EDRs. We have had
to get warrants for an EDR because of the law.
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