By Chris Dolmetsch Bloomberg News
NEW YORK — Any decision to charge three-time Sprint Cup Series champion Tony Stewart in the racetrack death of Kevin Ward Jr. is seen by defense lawyers as depending on whether prosecutors believe the incident could have been avoided.
A finding by investigators that there was an act that was “extremely reckless,” such as veering close to Ward to scare him, might give rise to charges said Richard Harpootlian, a defense attorney and former prosecutor in Columbia, South Carolina.
Investigators are still seeking witnesses and gathering evidence from the Aug. 9 incident at Canandaigua Motorsports Park in upstate New York, as well as developing a reconstruction of the crash, Ontario County Sheriff Philip C. Povero said Tuesday in a statement.
Povero declined to give details or findings of the probe, saying his office will conduct a “thorough review of all relevant facts” surrounding the crash and will meet with the Ontario County District Attorney’s Office to discuss all aspects of the investigation. Povero has said no charges are pending against Stewart, who is cooperating with the investigation. The probe may take at least two more weeks, New York authorities said.
Ward, 20, was killed when he was struck by Stewart’s car while he was walking on the track during a race at Canandaigua Motorsports Park, a dirt track located in the Finger Lakes region about a 40-minute drive southeast of Rochester.
“There aren’t words to describe the sadness I feel about the accident that took the life of Kevin Ward Jr.,” Stewart said in a statement. “My thoughts and prayers are with his family, friends and everyone affected by this tragedy.”
Mike Arning, a spokesman for Stewart with True Speed Communication in Huntersville, North Carolina, didn’t immediately respond to a voice-mail message after regular business hours yesterday seeking comment on the probe.
Stewart is the co-owner of the Stewart-Haas team, which also fields Sprint Cup cars for Danica Patrick, Kevin Harvick and Kurt Busch. Stewart’s sponsors also include Exxon Mobil, Chevrolet, Coca-Cola and Oakley, according to his website, and his annual earnings are estimated by Forbes at $12.5 million.
“What he does for a living is drive,” Harpootlian said in a phone interview. “If someone is killed as a result of his driving, that raises huge questions. Because this is what he does. He drives very fast in very close proximity to other cars and people. His livelihood depends on being able to do that without hitting anything. And yet he somehow hits this guy.”
After his car hit the wall on the previous lap, Ward got out of his car and gestured at Stewart before he was struck, video images show.
The incident occurred 14 laps into the 25-lap race, with Ward losing control of his winged sprint car and hitting the track’s outside retaining wall after the contact with Stewart’s car. The race was put into caution, slowing the participating cars. Ward, who was wearing a black helmet and firesuit, unbuckled himself, walked onto the dirt track and gestured at approaching cars, including Stewart’s, video images of the incident show.
As two cars approached Ward, the first “swerved to avoid the driver out on the track,” according to the sheriff’s department, and the second car, driven by Stewart, struck Ward.
Video showed Ward went under Stewart’s car and was then thrown into the air before landing motionless on his back on the track. Ward was pronounced dead at a local hospital about 45 minutes after the incident, police said. An autopsy showed he died of blunt force trauma.
While Stewart is a team owner and one of the top drivers on Nascar’s top tier, he schedules numerous short track events every year. The Aug. 9 incident came about a year after Stewart broke two bones in his lower right leg when he crashed in a dirt track race in Oskaloosa, Iowa, costing him the second half of the Nascar season.
Stewart was one of 15 drivers involved in a pileup in a short track race in July 2013 in Canandaigua. After the Aug. 9 crash, he pulled out of the Cheez-It 355 at Watkins Glen International held Aug. 10 in Watkins Glen, about 100 miles to the south, after the accident.
Charges prosecutors can use when pursuing a homicide charge in cases where intention is unclear include manslaughter, which doesn’t require premeditation, or negligent homicide, said Judd Burstein, a lawyer in New York who has handled criminal cases.
There is also an alternative ground for second-degree murder in New York that allows prosecutors to charge someone if they showed “depraved indifference to human life” that causes the death of another person, Burstein said in a phone interview.
“This is not some normal person on the street spinning out their car,” Burstein said. “This is an expert driver a prosecutor might say was able to accomplish that goal intentionally.”
“There are a lot of interesting legal issues here,” Burstein said. “Was he negligent? Did he do it intentionally? Is this the kind of act he would be able to do intentionally because of his superior skill?”
One defense lawyer said Ward exiting his car on the race track was the main factor in his death.
“There is no way this guy is getting charged with criminal responsibility for the death of the other driver,” said defense attorney Joe Tacopina. “He’s out there dodging cars.”
While lawyers disagree over the possibility of criminal negligence charges, the evidence required for civil liability in a lawsuit is much lower than in a prosecution.
Stewart is in a “tough spot,” Harpootlian said.
“Certainly the video and the conduct raises questions, that what the sheriff’s department and the DA up there have to resolve,” Harpootlian said. “They have to prove beyond a reasonable doubt that he was grossly negligent. Or he did something intentionally beyond a reasonable doubt. Not probably, not maybe, not could have, but beyond a reasonable doubt.”