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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