Tony Stewart, Kevin Ward, Jr., and Murder
As many of you have probably read by now, NASCAR driver Tony Stewart is reported to have killed Kevin Ward, Jr. during a dirt track race in New York. If you are curious to see what happened, Deadspin has the video posted here. In the lap previous to Ward’s death, it appeared that Stewart’s car made contact with Ward’s causing Ward’s car to collide with the track wall. Ward exited his vehicle and and walked toward the inside of the track making angry gestures (presumably at Stewart). The racers were under a caution flag after the collision between Stewart and Ward. As Stewart’s car approached Ward, Ward appeared to shout and wave his arms in an angry manner. Stewart’s vehicle appeared to fishtail and strike Ward. Ward was caught in a rear tire of Stewart’s car and was flung a significant distance. Ward’s body laid still on the track and he was later pronounced dead.
Not surprisingly, such an event has triggered strong emotional responses on Twitter and throughout the Web. Many have declared this case an obvious murder. Others have said that Stewart committed vehicular manslaughter. Others have put the blame squarely on Ward for walking into dangerous traffic on a dirt track. I thought it was worth shedding a little light on the topic based upon what the actual law is and the common mistakes observers are making about that law.
Unless Stewart states that he meant to kill Ward (which there is no indication he will do), the likely only viable theory of murder under New York law is murder in the 2nd degree which is defined as:
“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…”
Some who witnessed the event and/or the video have stated that Stewart appeared to accelerate in an effort to either bump Ward or spray dirt at him. It is possible that such conduct could rise to the level of “depraved indifference” or at least get to the jury on that question. Other videos or statements might contradict that theory.
Unless I am misreading NY law, I don’t think vehicular manslaughter is an option for the state (unless Stewart was intoxicated). I’m happy to hear from NY criminal law experts in the comments if I am mistaken. That would mean that the general manslaughter provisions would have to be used. First degree would require:
“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.”
If the state could prove that Stewart meant to physically hit but not kill Stewart, “1.” could apply. If Stewart actually meant to kill Ward, but was under an extreme emotional disturbance (e.g. rage due to race and prior accident), then “2.” could be a viable outcome.
Second degree manslaughter is fairly straight-forward in New York:
“He recklessly causes the death of another person…”
Although “recklessly” appears as the mens rea requirement for both 2nd degree murder and 2nd degree manslaughter, the type of recklessness required to prove murder (“depraved indifference”) is tougher for the prosecutor to show.
There is also a possible negligent homicide charge which is defined as:
“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”
Commentators who believe Ward’s “recklessness” or “negligence” make Stewart innocent of wrongdoing will likely disappointed in how criminal law works in this area. The thought processes of the Ward are irrelevant to whether Stewart would be guilty of murder or manslaughter. The conduct and thoughts of Ward are only meaningful under criminal law insofar as Stewart understood them and took action as a result. So, if Ward made it impossible for Stewart to avoid him (which there is no indication of), then the causation element of murder or manslaughter wouldn’t be met. Similarly, if Ward provoked Stewart in a way that was legally sufficient to trigger an extreme emotional disturbance (again, there is no evidence of this that I have seen), then Stewart should not be convicted of murder. It is a common mistake for 1L’s to focus on the victim’s actions and thoughts in analyzing negligence/reckless fact patterns in Criminal Law and so it is not at all surprising to see such confusion in public discourse. In such cases, it is even theoretically possible for a defendant to be guilty of murder or manslaughter, but not the tort of wrongful death (despite the difference in burden of proof) because tort law more directly includes the conduct of the victim in determining wrongdoing. Criminal law, on the other hand, puts the focus squarely on the acts and thoughts of the defendant.