Request for Legal Insight When a Cyclist Is Killed by a Motorist

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Permalink Reply by ad on August 17, 2016 at 9:56am

I commented in the other thread, but I think the think to keep in mind here is that the tickets issued are the clear-cut tickets. A reckless driving charge, especially at a felony level where a death is involved, would require an investigation and the state's attorney's involvement before an indictment issues. That doesn't happen overnight. I personally don't think enough has been reported to suggest whether such charges would be warranted here, but hopefully the CPD is investigating this in much more detail given the circumstances involved.

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Permalink Reply by David Barish on August 17, 2016 at 10:03am

I suspect the tickets that were written were the easily obvious ones.  The vehicle was in the bike lane. The real questions are still unknown and I hope that investigation is being done. We do not know if the driver was drunk, distracted, callous (or other things indicating a level of intent to merit a charge of recklessness); or if he misjudged, never saw, spilled his coffee (indicating a level of intent of negligence that would have meaning for a civil case but not necessarily a criminal one); or if he was really doing his  job and  this was a horrific tragedy where everybody can look back in time and wish they had done something else but cannot really be blamed for what they did; or if the cyclist did something fatally wrong.  We do not know if the impact of the construction site made this an accident that was going to  happen to well meaning and well driving/riding people.  We just don't know. Once the facts are better known other charges may be raised.  

Regardless of accountability of the participants I am deeply saddened by this poor young lady's death and have reached out to my daughter who often commutes past this same location to please be careful. The  dad gene is activated every time  I hear of stories like  this.  In the wake of Skip's recent thread and having been doored earlier this year I am increasingly wary of incidents where a rider has  done everything right but is  still vulnerable on the road.  We can lessen but cannot eliminate the risk we face.

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Permalink Reply by Jim Reho on August 17, 2016 at 12:22pm

Here's the instruction about recklessness that is given to criminal trial juries in Illinois:

5.01 Recklessness--Wantonness.  A person [ (is reckless) (acts recklessly) ] when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. [An act performed recklessly is performed wantonly.] 

Here's the definition of involuntary manslaughter, which if committed as a result of driving a vehicle is termed a reckless homicide:

Sec. 9-3. Involuntary Manslaughter and Reckless Homicide.
(a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which case the person commits reckless homicide.

Note that recklessness requires a certain element of intent -- a conscious disregard of risk of injuring another.  This is a higher burden of proof to meet than mere negligence.  Also, criminal cases need to be proven beyond a reasonable doubt, a higher standard than the preponderance of evidence required in most civil cases.  

It's not so easy to prove recklessness.  Also, remember that state's attorneys are in part evaluated by their conviction rate.  So, in cases involving generally unpopular people such as cyclists, ambitious state's attorneys, not wanting to take a chance of marring their conviction records, are not particularly anxious to pursue recklessness-based charges.  This, to me, is a big part of the problem.  I see this increasingly with all kinds of crimes:  state's attorneys don't want to take a chance of losing, so they don't charge.  For example, on several occasions I've heard prosecutors refuse to charge college athletes for rape-type offenses (especially at fanatical football schools) on the basis that they were not absolutely sure they could prove the case beyond a reasonable doubt.  Well, maybe, if you believe the crime was committed, you could give it a shot, eh?  But they don't.  It's a cop-out.  Far better to slam those recidivist shoplifters.

In this case, investigation needs to be done.  But bear in mind that even if the prosecutors think the truck driver was reckless, for the sake of their own careers (and because these cases take hard work against good defense attorneys), they will be loathe to charge any recklessness-based offenses unless they are very, very sure they will prevail.  And even if they think they do have to charge, their motivation level to aggressively pursue trial and conviction may be suspect.  Then begins the years-long crawl towards some resolution, often ending with a face-saving (for the prosecutors) plea that involves little or no consequence for the defendant.  Bobby Cann case strategy, do ya think?            

 

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