On November 14, the same day that Transportation Alternatives convened a national Vision Zero symposium at Brooklyn Law School, Fordham Law School held a day-long event examining the legacy of "Bloomberg's New York." Among the speakers: Manhattan District Attorney Cy Vance, who sat on an afternoon panel on public safety.
Streetsblog founding editor Aaron Naparstek was in the audience and asked Vance why prosecutions of deadly driving haven't kept up with the advances in safe street design that rapidly accelerated under Bloomberg. What is stopping the DA from holding reckless drivers accountable for killing people?
Here's the response from Vance, lightly edited:
I think you are incorrect stating that our office has not indicted or prosecuted vehicular homicide [unintelligible]. In fact, we have on many occasions. There have also been cases, tragedies, when we have not prosecuted. Those are typically ones where after an investigation we believe we do not have a provable criminal offense.
Now what should be criminal and what shouldn't be criminal is obviously subject to very subjective and emotional reactions. As a prosecutor I am often involved with injuries to innocent people and my instinct, and our instincts [as] prosecutors, is to work on behalf of victims, irrespective of the class of crime or the kind of crime.
But in the realm of vehicular cases, there are cases which are tragic, which are hard to understand, but may not have the facts to support a criminal prosecution and conviction. I think that was the belief of the [police] commissioner under Bloomberg, I think it's a statement of the challenge that we have as prosecutors today. And our office is significantly following the challenges, difficulties, the successes, of vehicular prosecutions not only in NYC but across the state. It is something we will continue to work on, and continue to devote our resources to.
And I regret, and am saddened, as everybody is, when there is a tragedy that occurs. But sometimes, though others may not like it, or agree with it, a prosecution is not necessarily a following event after a tragic accident.
The vehicular prosecutions that Vance takes credit for, almost without exception, involve driving under the influence, fleeing the scene of a crash, or attempting to get away from the police after committing another crime. In the vast majority of cases when a sober driver kills someone and stays at the scene, the deterrent response from Vance's office is either feeble or non-existent.
It’s a timid record on traffic violence and a far cry from what Vance promised as a first-time candidate for DA in 2009. During that campaign, Vance said he would take reckless driving seriously and that prosecutors should head off traffic deaths before they happen by issuing charges for “potentially tragic” behavior like speeding on city streets. On a section of his website that has since been removed, Vance challenged the "rule of two" -- case law that has been interpreted to mean that drivers must be found guilty of two separate traffic violations to secure a criminal conviction:
There is no reason why two traffic violations are necessary in order to support a conviction of criminally negligent homicide. I view the “Rule of Two” as the result of case law which should be modified to reflect the reality that one vehicular crime is fully capable of killing. Although in recent years this notion has been applied by the courts in a less strict manner — it is indisputable that it does not take two violations to kill someone. Many violations — speeding, running a red light, or failing to stop at a stop sign are more than dangerous enough to take a life.
In the five years since then, however, it’s hard to discern any meaningful change compared to Vance’s predecessor Robert Morgenthau, who was notoriously reluctant to prosecute vehicular crimes. Among the cases that have elicited “subjective and very emotional reactions” but “may not have the facts to support a criminal prosecution and conviction” are several fatal crashes clearly caused by driver negligence or recklessness.
Vance failed to bring any charges against the cabbie who killed 9-year-old Cooper Stock, who was crossing the street with his father, obeying all the rules, when the turning driver failed to yield and fatally struck him.
Sui Leung, 82, was in a crosswalk with the signal when she was struck by a van driver turning from Kenmare Street onto Elizabeth Street. No charges were filed.
Renee Thompson, a 16-year-old high school student from the Bronx, had the right of way when a tractor-trailer driver turned into her path, dragging her under the rear wheels and killing her. The driver faced no charges from Vance's office.
The driver who backed over and killed Yolanda Casal, 78, faced only a misdemeanor charge for driving without a license and paid a $500 penalty, a fine comparable to a garden-variety $278 red light running ticket.
This is the normal way of things -- many more cases could be cited of deadly drivers facing no consequences. What's exceptional is when Vance levies serious charges against a sober driver after hurting or killing someone. Such cases do exist -- Vance has charged the driver who killed Charity Hicks with manslaughter. Evidence in that case includes video footage of the driver swerving onto the sidewalk, and phone records indicating that he was texting at the time. Update: The driver also fled the scene on foot.
Why did prosecutors feel justified pursuing charges in that case but not in so many others where drivers clearly broke the law? Have new measures like the city's Right of Way Law changed the way prosecutors approach reckless driving cases? Good luck divining any answers from Vance's response at Fordham.
