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Criminal charge possible for Stewart in Ward death

No Criminal Charges Pending Against Stewart
Tony Stewart could still face criminal charges for running down Kevin Ward Jr. with his sprint car, even if the three-time NASCAR champion didn't mean to kill Ward, hurt him or even scare him.

Ontario County Sheriff Philip Povero, who announced on Tuesday that the investigation is continuing, has said that his initial findings have turned up nothing that would indicate criminal intent in the crash at the Canandaigua Motorsports Park.

But legal experts agree that does not mean Stewart is in the clear.

The NASCAR star could be charged with second-degree manslaughter under New York law if prosecutors believe he "recklessly caused the death of another person," with negligent homicide another possibility, according to criminal law professor Corey Rayburn Yung of the Kansas University School of Law.

"The question over whether someone was reckless is a factual one, and one a prosecutor might let a jury decide," said Yung, who also posts at the Concurring Opinion blog.

Athletes in competition often do things that would get the average person arrested - think two boxers in the ring, or a baserunner sliding into second with his spikes high. But sometimes an act is so far outside the bounds of accepted sporting behavior that it becomes a crime, as former major leaguer Jose Offerman learned when he was charged with felony assault for rushing the mound - swinging a bat - after he was hit by a pitch in a minor league game.

So Stewart would not expect to be charged for the car-on-car bump that sent Ward spinning into the wall. But if, for example, he were to tell police that he saw Ward on the track and tried to shower him with dirt or otherwise send him a message, a first-degree manslaughter charge could be a possibility, Yung said.

In a 1949 case that Yung uses in his class, midget car racer Joseph Sostilio was found guilty of manslaughter after he tried to squeeze a four foot-wide vehicle through a two-foot opening at 40 mph, crashing into another car and sending it into the one driven by Stephen D. Bishop. Bishop's car flipped three times and he was killed.

Sostilio's conviction was upheld on appeal by the Massachusetts Supreme Judicial Court. Noting that a violent or aggressive act on a football field or in a boxing ring is not necessarily a crime, Justice Henry Tilton Lummus wrote: "In the present case physical contact was not an essential part of the racing of automobiles."

That was a half-century ago, and racing has changed. Trading paint is a part of the sport, and it's not even uncommon these days for racers to leave their cars to confront rivals after a crash, which Ward appeared to be doing when he was killed.

"In sports we tend to allow all sorts of conduct we'd never allow in another circumstance," Yung said. "But this isn't a collision. It's not in that ballpark; it's something you don't expect. This is a more complicated scenario. We're assuming Stewart didn't mean to do this, and yet a death resulted."

Whether Stewart's actions were part of racing depends on what the police investigation finds. Unlike the cars Stewart drives on the NASCAR circuit, the sprint cars have no radios or instrument data recorders that could tell authorities exactly what was happening when Stewart hit Ward.

Povero would not say how Stewart described the accident, but he said Monday he has reviewed two videos and spoken to Stewart.

"The worst thing that could happen for Stewart is if his story doesn't seem to match other evidence," Yung said. "Because then it might call into question his own story."

Povero's previous comments that he found no criminal intent all but rules out the possibility of a first-degree murder charge, which would essentially require a confession that Stewart was trying to kill Ward. For second-degree murder, prosecutors would need to prove Stewart was reckless in combination with a "depraved indifference to human life."

"Mr. Stewart has fully cooperated with the police officers that are investigating," Povero said in a news conference shortly after the race. "He was visibly shaken by this incident, and has promised his continuing cooperation in this investigation."

After the investigation is completed, Povero said, the evidence will be turned over to the district attorney as a matter of routine. Even if he is cleared by prosecutors, though, Stewart could face a civil suit.

Although the standard of proof is lower than in a criminal case, the civil court would also consider Ward's state of mind at the time of the accident and whether he was also negligent in venturing into racing traffic on a dark track in a dark suit.

But Stewart would also have to weigh the damage to his image and career - with his own team, tracks and millions in endorsements - making a quick settlement likely.

Join the discussion

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wesleyktb August 12 2014 at 8:45 PM

Ward caused his own death by making a stupid moved..put the blame where it belongs.....

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12 replies
Will August 12 2014 at 10:43 PM

I am so sick of headlines that read that Tony Stewart killed a young driver. It should read that a young driver while showing his anger while walking on a live race track in the dark has lost his life because of a personal decision he made to exit his race car. God bless this driver and God bless Tony for what he is going to have to live with for the rest of his life for a decision someone else made. Its a sad accident, but an accident is what it was. Stay strong Tony, ignor the haters.

Flag Reply +37 rate up
6 replies
cb37725 August 12 2014 at 9:25 PM

If anyone was reckless,,,,it was the driver, Ward, for stupidly getting out of his car and dashing the track in front of oncoming racers. Sorry for their loss but that's the way it is.

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1 reply
theomegaman72 cb37725 August 12 2014 at 11:46 PM

The video and witnesses and other evidence will decide....wonder why Tony accelerated when he approached the kid

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4 replies
Wilson August 12 2014 at 10:20 PM

Why was this article even written? Because a law professor said he could be charged? Didn't the article in the second paragraph say the initial findings have turned up nothing! Keep it in the press because Tony is a public figure? The poor kid made a tragic mistake and paid dearly for it, while Tony will pay for it the rest of his life. Sad all the way around!

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2 replies
champ3x7 Wilson August 12 2014 at 10:39 PM

Bingo!

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exitscreaming Wilson August 13 2014 at 1:07 AM

It is sad, and Tony could be charged...why shouldn't they report that-why so defensive?

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1 reply
Daddy O exitscreaming August 13 2014 at 10:54 AM

Because it is bullsh-- just to make news by stirring up the pot. tony did not kill anyone it was an accident.

Flag 0 rate up
Bill Steiner August 12 2014 at 9:46 PM

Any one that thinks Tony Stewart deliberatly ran this hot headed kid over, is a Moron. The kid did a stupid thing and unfortunately paid for it.

Flag Reply +19 rate up
6 replies
craigpos27 August 12 2014 at 9:45 PM

I'm have raced and many friends in the sport. To be behind the wheel, your vision is greatly reduced by the wings location, also adding a black firesuit and helmet on a low light conditions and even under yellow flag conditions. They DO NOT DRIVE like everyday cars, no comparisons** dont be a grandstand racer! Rule #1 - do NOT get out of your car til the race is over. My heart goes out to all involved.
A fellow racer

Flag Reply +19 rate up
2 replies
Geri craigpos27 August 13 2014 at 6:25 AM

thank you Craig -exactly the correct response and from a good source-another racer. only people viewing from the fence would jump to a conclusion as to what a driver can or cannot see and especially his intentions. there is no reason Tony would think a driver in a black firesuit would be running against traffic in a self induced rage.that is the response of a young ,aggresive arrogant driver.

Flag Reply 0 rate up
vette_lag craigpos27 August 13 2014 at 6:42 AM

I raced mini sprints for 3 years. You are absolutely correct. Kevin should not have exited his car until safety personnel arrived. One exception, if the car was on fire. But NEVER exit towards the center of the track. Even under caution these cars are traveling approx. 50-60 mph.

Flag Reply +1 rate up
revivalman August 12 2014 at 9:52 PM

I'm starting to smell a witch hunt. Just watch some liberally retarded NY state prosecutor try to make a name for himself and file charges against Stewart. Or some sleazebag ambulance chasing piece of garbage lawyer will talk Ward's family into filing a civil suit.

Flag Reply +18 rate up
12 replies
John Roberson August 12 2014 at 10:25 PM

The press is still trying this case and Stewart with the words they are using.

Flag Reply +11 rate up
2 replies
champ3x7 John Roberson August 12 2014 at 10:38 PM

Sad, isn't it?

Flag Reply +1 rate up
exitscreaming John Roberson August 13 2014 at 1:08 AM

By saying charges might be filed ? that's the truth

Flag Reply 0 rate up
2 replies
karaokecdgs exitscreaming August 13 2014 at 10:14 AM

You Can't Handle The Truth

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Daddy O exitscreaming August 13 2014 at 10:57 AM

In a sensational way to stir up news. Not to get to the facts

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Chickiepoo August 12 2014 at 9:31 PM

You MIGHT could convince me that
this was "intentional" ....OR.....
even "reckless"....IF.....it happened in broad daylight AND Ward was wearing a "blaze orange" suit.......but it didn't and he wasn't.....

Anyone with "half a brain" would have
to KNOW.... at the speed those cars are going and as close to each other as
they ARE......if you walk out ONTO the track in the dark WITH a dark suit ON...

Just because the first car sees you and is able to go around....does NOT mean the one following right on his "BUTT"
is going to see you fast enough and be able to go around.

ANYONE that walks out ONTO a dark
track AT night.....and IN a dark suit....

IS A FOOL. And likely to be a dead
fool.

Flag Reply +11 rate up
3 replies
golfet33 August 12 2014 at 9:18 PM

WHAT! Ward was stupid. I guess next his family will sue.

Flag Reply +10 rate up
4 replies
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