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On Aug. 9, Tony Stewart struck and killed Kevin Ward Jr., another driver in a race that night, at a dirt track in Canandaigua, N.Y. After missing three races, Stewart returned to racing in Atlanta. Since that incident, an ongoing criminal investigation has continued.
Tuesday, the District Attorney in Ontario County, Michael Tantillo, announced that he would be presenting the evidence to a grand jury:
“Over the past several weeks I have reviewed with members of the Ontario County Sheriff’s Department their investigation, as it progressed, in the Tony Stewart matter. Recently that office concluded its work and forwarded the complete case file to me. Upon my review of all of the information contained in the entire investigation, I have made the determination that it would be appropriate to submit the evidence to a grand jury, for their determination as to what action should be taken in this matter. Accordingly, the evidence developed in the investigation will be presented to an Ontario County grand jury in the near future. As grand jury proceedings in New York State are strictly confidential by law, I am unable to state when the matter will be scheduled, other than to state that I intend to present the matter in the near future. Similarly, because of the confidential nature of these proceedings, I cannot state who will be called as witnesses, or what any witness’s expected testimony will be. When the presentation has been completed and a determination has been made, I will advise the public and the media at that time of the results.”
So what does this mean? Let’s dive in.
1. The case is complicated and politically sensitive.
In not taking a position on whether charges should be brought — while simultaneously announcing the case is going to a grand jury — the district attorney is trying to placate both sides of a highly charged case, those that believe Stewart behaved criminally and those that believe he did not. Rather than making a determination himself about whether to advocate charging Stewart, the district attorney in this case will rely upon the determination of the grand jury.
2. Who hears the case?
There are 23 members of a grand jury in New York state. Those jurors will all be from Ontario County, the location of the dirt track where Kevin Ward Jr. died. There are 107,000 people in Ontario County, so it’s a relatively small place. Given the amount of attention that this incident received, it would be nearly impossible to find a group of people that isn’t familiar with this case in that jurisdiction.
Grand juries sit for a term of a month, although they can make their decision in much less time than that. All of their hearings are private.
3. Why isn’t the prosecutor making a decision?
Probably because there is compelling evidence on both sides and the prosecutor’s office isn’t sure whether they can make a case that rises to the level of a conviction beyond a reasonable doubt. If there’s a debate in the office, the evidence developed by the police leads in multiple directions, or it’s a politically sensitive issue, why not allow a 23-person grand jury to hear the evidence and make a determination? It protects the prosecutor’s office from criticism on both sides and all New York felony cases must be presented to a grand jury unless a defendant waives that right.
Here, Stewart has not waived his right to a grand jury.
4. What potential charges would Stewart face if he’s indicted?
It seems unlikely that a prosecutor could make the case that Stewart intentionally struck and killed Ward. In theory, that’s possible if there has been evidence developed that suggested Stewart intended to strike Ward, but I would say it’s highly unlikely. If a prosecutor isn’t able to prove intent then Stewart would likely face second degree manslaughter charges or criminally negligent homicide charges.
The New York penal code describes second degree manslaughter thusly: “A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person.”
Criminally negligent homicide is defined as: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”
The grand jury is likely to consider whether Stewart’s actions that night were reckless or negligent. In so doing, they would also consider the degree of culpability of Ward — he exited his car on a live track — as well as how other drivers behaved that night. Second degree manslaughter is a Class C felony, which for a first-time offender, would mean 3.5 to 15 years in prison upon conviction. Criminally negligent homicide is a Class E felony, which for a first time offender, would mean 1.5 to 4 years in prison.
There is also the very outside chance that a grand jury could consider this second degree murder. Per the New York penal code: “A person is guilty of murder in the second degree when: 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
A second degree murder charge seems unlikely, but it would carry the most stringent penalty, up to life in prison or a minimum of 15-40 years.
5. Will Stewart testify?
Generally defendants don’t testify before grand jury proceedings because a defendant has a Fifth Amendment right not to incriminate himself and defendants don’t want to lock in their story which may be later used against them at trial. But Stewart has already responded to the grand jury news by announcing that he will “continue to provide my full cooperation.”
Plus, we don’t know whether Stewart has already told his story to investigators. If Stewart has already told his story to investigators, he may be willing to reiterate that account for the grand jury. Of course, remember a defendant’s appearance doesn’t mean he won’t be indicted. Remember, Adrian Peterson also appeared before the grand jury that indicted him for child abuse.
6. What’s likely to happen?
Put simply, we don’t know because we don’t know what the evidence shows. In general, however, it’s relatively easy for a prosecutor to get a grand jury indictment since the prosecutor is cross-examining all witnesses, calling those witnesses that he chooses, and most defendants are not presenting a defense. It takes 12 members of a grand jury in New York to vote for an indictment. If a grand jury brings an indictment, then barring a plea agreement, Stewart would stand trial in Ontario County.
Again, we don’t know what the evidence shows, just that the prosecutor believes there is enough evidence to bring this case to a grand jury.
I’d submit that this is a close call one way or the other. We should know the grand jury’s decision within a month.
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