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.

Marilyn and Nathan Dershowitz. Photo via New York Post

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.

  •  Perhaps it’s time to start blaming the NYPD and the municipal laws that grant drivers so much impunity when it comes to killing and maiming vulnerable road users. Help Bicycle Roots Hold AIS Accountable on Monday, September 17th: here’s how:

  • There are laws against smoking in public places, on the grounds that there’s a long-term health hazard to others.  We vaccinate children to get rid of (or keep down) diseases.  Then, when it comes to a transportation system that chews through human beings like some Babylonian temple of human sacrifice, practically everybody accepts that this is just the way things are because that’s the way they are, which is the way they are.

    Am I reaching too far to find irony? 

  • Anonymous

    This article is a tragic accident.
    There is nothing to be seen here. 
    Please keep moving along.

    signed, Ray Kelly, Commissioner, NYPD

  • Anonymous

    Let me get this straight.  According to the defense and the Daily News, if we lived in a culture where murderers generally avoided prosecution, it would therefore be reasonable to not prosecute murderers.

    Thanks, Cy Vance, for providing the fertile ground in which this reasoning took root!

  • Joe R.

    I posted this in the comments section of yesterday’s NY Times article on reckless drivers but it bears repeating here because the structural flaw of too large of a motor traffic volume is often overlooked, even here at Streetsblog:

    “The problem in a nutshell isn’t just the lack of enforcement. Rather, the streets are too crowded, period. When you have too many people trying to use the same space they cut corners to save a few seconds here and there. Everyone does this-motor vehicles, cyclists, and pedestrians. The real long term solution is to decrease the crowding on the streets starting with motor vehicles. While we need delivery trucks, buses, and emergency vehicles, private cars have no place in Manhattan. There are so many other ways to get around that it makes no sense to allow private cars on the streets. There should be a lot fewer taxis as well. You also need to modify the toll structure so through truck traffic goes around Manhattan instead of through it. By greatly decreasing the volume of motor traffic, you can get rid of many traffic signals, and in general remove a lot of the frustration associated with getting around Manhattan. When delays due to congestion are fewer, people are less likely to cut corners to save a few seconds.

    The hard fact is there is no way to safely mix the volume of motor vehicles and pedestrians we see in NYC. It hasn’t been done anywhere else, and it can’t be done here, either. The traffic volumes need to be drastically curtailed-not just in Manhattan, but in the entire city, even if it means some must give up their convenience. Any other so-called solution is like trying to drill a hole in water. The safety, health, and sanity of 8 million people is at stake here.”

  • Driver

    Joe, people cutting corners and driving recklessly is independent of crowding and congestion.  Just look at how people drive during the overnight or early AM hours when there is little to no traffic. 

  • Anonymous

    Driver, you and Joe R are “both” right.
    It is too crowded, and even when it is not too crowded, drivers with licenses bought over the counter at Walmart, if they have a license or insurance at all, are driving drunk, drugged, distracted and/or deliberately aggressively.
    And Ray Kelly, his cops, the DAs, the judges, he juries, Bloomberg and 99% of our “electeds,” don’t give a flying f*ck about any of it.

  • Joe R.

    @SB_Driver:disqus You’re missing my point. Fewer vehicles on the streets = less chance of getting killed by one. And yes, people drive faster late nights, but it seems to me at least they’re a little more patient when it comes to yielding to the very occasional pedestrian. If you study the psychology of road rage you’ll find that when people are faced with obstacle after obstacle, they just lose their ability to think rationally and take chances. Also, maybe whatever reckless driving is seen late nights is just a carry over from being used to driving that way all day.

    For lots of reasons besides just decreasing traffic deaths, NYC needs to create strong disincentives for motor vehicle use, even if those most affected by this turn out to be wealthy, influential people. 25 years ago I could actually enjoy riding my bike during the day. Nowadays going out anytime before about 9 PM is a lesson in frustration. A few times I even encountered rush hour traffic levels after 11. We need to ask ourselves why traffic levels have increased so drastically, even though the NYC population has only increased maybe 10% in the same period.

  • Arthur Brown

    Boy, the editors of the Daily News really just despise New York City and the people who live there, don’t they?

  • Nathanael

    What is wrong with prosecutors?  “Second degree manslaughter” (involuntary manslaughter) requires no proof of intent, merely proof of recklessness.  Which isn’t hard to prove if you just RAN OVER SOMEONE, given the complex training which is required to operate a motor vehicle.

    I’m actually OK with the motorist who was sentenced to six-months-to-three-years for second-degree manslaughter.  Given how hard it is to prove intent, and given that I don’t believe in imprisoning people in general, I’m fine with that.

    Most people would drive a lot more carefully if they knew that six months in prison was the minimum. 

    Instead it appears to be the MAXIMUM, which is just wrong.  Most of these people aren’t going to prison at ALL!


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