Tony Stewart awaits District Attorney’s review of Kevin Ward Jr. case


Later this week, a New York state district attorney’s office is expected to announce its findings in the investigation of last month’s tragedy that involved Tony Stewart and also claimed the life of young racer Kevin Ward Jr.

Stewart could be absolved of any criminal blame in the case, he could be indicted directly by the district attorney’s office, or the D.A. could forward the case to the grand jury to determine if Stewart should stand trial or not in Ward’s death.

The Ontario County (N.Y.) Sheriff’s Office announced last Thursday that it had forwarded its investigatory report of the August 9 incident at an upstate New York dirt track to the D.A.’s office.

Noted Chicago defense attorney Steven B. Borkan, who specializes in civil and constitutional law and has extensive expertise in death and catastrophic injury cases such as the Stewart/Ward case, spoke with MST at this weekend’s opening race for the Chase for the Sprint Cup about what potentially lies ahead for Stewart.

The most important thing to understand, Borkan said, is that just because the sheriff’s investigation was forward to the D.A. office, it does not mean Stewart will necessarily be indicted for any crime stemming from the Ward incident on August 9 on an upstate New York racetrack.

“That’s very typical, there’s nothing to be read into it at all,” Borkan said of the sheriff’s investigation being sent to the D.A.’s office. “This is standard operating procedure.

“In any jurisdiction across this country, the manner in which these investigations were undertaken – particularly in a death investigation such as this – the sheriff’s office or the police district will complete their investigation.

“It’s a major accident investigation, it’s not labeled anything other than that, and then it will go to the state’s attorney’s office for their review and determination of what they want to do with it.”

One misconception that fans and the media seem to have is that the case would have to go to the grand jury if Stewart is to face potential charges.

That’s not the case, Borkan noted. The D.A.’s office could bring charges against Stewart itself.

“If the district attorney made the determination that they felt there was enough to prosecute and convict, they could do what’s called a direct indictment,” Borkan said. “They do not have to go to the grand jury. You see that very often; not all cases do go to the grand jury.”

But even if the D.A.’s office chooses not to hand down a direct indictment, the case could still be sent to the grand jury to weigh whether Stewart was culpable in the accident that claimed Ward’s life.

“In this particular instance, the district attorney wants to make sure that the proverbial I’s are dotted and T’s are crossed,” Borkan said. “Therefore, you take it to the grand jury, you present the evidence to the grand jury and then the grand jury then makes a determination of whether or not an indictment should be handed down.”

Borkan wouldn’t speculate on how he thinks things will play out later this week when the D.A.’s office is expected to announce its findings in the Stewart case.

“That’s a really tough question,” Borkan said. “One of the things I’ve often said, particularly as a defense lawyer representing police officers throughout my career, is that without looking at all the facts from both sides – from the victim’s side, from the accused’s side, and certainly from that “10,000 foot view” – that’s something that it isn’t really fair to give an opinion on that.

“I think the authorities have taken on an Herculean task and have taken as much time as they need to review all of this and will continue to do that. The bottom line here is that a tragedy did occur, certainly Kevin Ward did get out of the car – we certainly saw that – but as you and I both know, that’s not unusual in this sport.”

If Stewart is indicted by either the D.A. or the grand jury, NASCAR could let him continue racing, based upon the legal precept that he’s innocent until proven guilty in a trial.

Or, NASCAR could go in the opposite direction and place Stewart on suspension until any potential trial and its outcome is resolved.

“I am a very passionate fan, I’m a Tony Stewart fan, I’m a sprint car racing fan, I’m a Sprint Cup fan,” Borkan said. “But also as an attorney who has handled matters where serious allegations have been leveled against my client, I certainly know that I want to see all the facts laid out to an impartial body literally A to Z before a determination is made.”

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Mercedes: F1 teams need to work together to avoid split

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MELBOURNE, Australia — Mercedes boss Toto Wolff said Friday that Formula One teams have a responsibility to try to overcome their differences over the future of the sport in the face of a threat by Ferrari to quit because of a number of proposed changes.

Bernie Ecclestone, who ran F1 for 40 years before being replaced by new owners Liberty Media last year, has raised the possibility that Ferrari chairman Sergio Marchionne could walk away from F1 and form a breakaway series over Liberty’s future vision for the sport.

Ferrari is unhappy with Liberty’s proposal to simplify engines and redistribute prize money among F1 teams after the current contract with teams expires at the end of 2020.

Ferrari team boss Maurizio Arrivabene would not comment on the specifics of Marchionne’s previous comments at the season-opening Australian Grand Prix on Friday, but said: “My only suggestion, please take him seriously.”

Wolff is also taking the possibility of Ferrari walking away seriously. He told Britain’s Press Association before the Australian GP that he agreed with Marchionne’s concerns and that Formula One can’t afford to alienate Ferrari or lose the team.

“Don’t mess with Sergio Marchionne,” he said. “Formula One needs Ferrari much more than Ferrari needs Formula One.”

Wolff was more diplomatic on Friday, saying he hopes all sides could come together for the good of the sport.

“I think this as much a battle on track as much as it is a fight off track for an advantage,” he said. “It is clear the current governance and how the rules are being made is not very functional. There’s too much different opinions and agendas on the table and we need to sort it for 2021 for the best interest of the sport.”

Red Bull boss Christian Horner agreed there are too many competing agendas, suggesting that the FIA-Formula One’s governing body-and Liberty Media come together to decide on a set of regulations and financial framework for the next contract and the teams can then decide if they want to accept it or not.

“Trying to get a consensus between teams that have varying objectives, different set-ups, is going to be impossible,” he said. “It’s history repeating itself. It happens every five or six years, every time the Concorde Agreement comes up for renewal.”

Tempers also flared during Friday’s media conference over another issue of contention between the teams – Ferrari’s recent hiring of FIA’s ex-safety director, Laurent Mekies.

Horner believes Ferrari broke an agreement among teams at a recent meeting to institute a 12-month waiting period for any former employee of FIA or FOM (Formula One Management) to be able to start working for one of F1’s teams. The concern is that former FIA staff who go to work for a specific team could share secrets from other teams.

“Certain teams were pushing for that period to be three years, but in the end it was agreed upon being 12 months,” he said. “It almost makes those meetings pointless if we can’t agree on something and action it.”

Arrivabene defended Ferrari’s move, saying Mekies would not join its team until after a six-month “gardening leave” period.

“There is nothing wrong with that because we were absolutely respecting the local law, the Swiss local law where Laurent was hired,” he said.