On Saturday night at Canandaigua (N.Y.) Motorsports Park, Tony Stewart and Kevin Ward Jr were racing in a sprint cup race, which is raced on modified cars on a dirt track.  Although known for his success with NASCAR, Stewart, like other drivers, also participate in other races as well.  About half way through the race, Ward was spun out by Stewart.   Racing officials slowed the race with a yellow caution  flag and Ward got out of his car to confront Stewart who was still racing in his car.

It is undisputed that as Stewart approached Ward, Stewart’s right rear tire hit Ward, dragging him underneath and then throwing him down the track.  Ward was pronounced dead shortly thereafter.  Amateur video was posted to YouTube, taken down and has since been resposted.  While the video is tragic, it is important to view from a legal perspective.  Unfortunately, it does not show the entire track, just the part where Ward crashed and is then struck.

The incident is being investigated by Ontario County Sheriff Philip Povero.  Stewart was questioned after the crash and the Sheriff indicated that he was fully cooperating.  He also described Stewart as visibly shaken by this accident and has indicated that he was not conducting a criminal investigation.

However, that hasn’t stopped many on various websites and social media to debate whether this was intentional and thus, whether Stewart will and/or should be charged with murder (or some other crime).   Some have suggested that Stewart has a history of playing very dirty, even more so than his reputation would suggest.  Some have suggested that while other cars slowed, he hit the throttle as he got close to Ward.  Others suggest that Ward is to blame by walking out into an active raceway.  The debate is fueled by those who are fans of Stewart or those that hate him for various reasons having nothing to do with this accident.   Thus, I decided to take an objective look at this issue to detail the various issues the District Attorney will face when deciding how to pursue this case.

1.  Celebrity Status

The first thing the DA will run into here is that if they decide to charge Tony Stewart is his celebrity status.  This will easily be the trial of the decade.  He has the money to assemble the next dream team.  Ontario County has a total population of 100,000 people.  Thus, this is small town America and with all due respect to the DA, they may find it very difficult to deal with the crush of publicity that such a prosecution would bring.  In addition, they may not have the manpower to handle the attack of Stewart’s dream team.  We can all debate as to whether or not celebrities get special treatment, but lets face it, it happens.

2.  Lack of intent

Stewart did not hit Ward with the front of his car; Ward was struck by the right rear tire as the car skidded out.  Clearly if one wanted to intentionally strike Ward, he would be run over with the front of the car.  More importantly, it would be obvious to anyone, but especially Stewart, that striking someone head on at high speed would surely cause serious injury if not death.  For one to believe that Stewart had such an intent would require Stewart to suddenly decide to throw his entire career away to possibly cause the death of another drive.  Stewart would have to suffer some type of psychotic break for this to happen and I based upon his reaction after the crash, this does not seem likely at all.

3.  Recklessness vs. invited risk

This seems like the best path for the DA to build a case but it is not without its own problems.    They will have to look at it this way: out of all of the cars on the track, why is it that Stewart’s car is the one that hit Ward?   Of course, one can argue that Ward was going to confront Stewart so he placed himself closer to his car. If I am the DA, I would want to see the entire lap. Did Stewart’s car go faster than the other cars or otherwise act differently?  When was Stewart able to see Ward out of his car?  Keep in mind that these cars are going fast and are not easy to control.  There are other cars on the track to look out for and the drivers are strapped in, have visors on their helmets and have limited neck movement.  Furthermore, the track doesn’t have a lot of room and you cannot just slam on your brakes like you can in a normal car.  One also doesn’t expect that drivers will start walking around on the track even under caution.

Once the DA can figure out when Stewart saw Ward, his actions at that point will be scrutinized millisecond by millisecond.  Does Stewart have a split second to react or more?  Some have argued on social media that Stewart saw Ward and was attempting to scare him or kick dirt on him which is why his car speeds up and skids out.  As a result, (if true) this was in fact an accident but one that was caused by Stewart acting recklessly.  So while Stewart did not act intentionally, his recklessness in attempting to get back at Ward for chasing after him caused the accident which led to Ward’s death.  While Ward would not be charged with murder (since same requires intent) he could be charged with a lesser form of homicide such as manslaughter.

However, just about every sporting event has a level of invited danger that is built into the participation of that sport.  Its the reason why football players are not charged when one player seriously hurts another.  In racing, it is expected that crashes will occur and sometimes, people get seriously hurt or even die.  Thus, it may be very difficult to prove that Stewart was acting recklessly when the very nature of racing on a dirt track involves bumps, spin outs and crashes with cars that are difficult to control.  Furthermore, Ward, a young but experienced driver, knew the dangers of walking on a track and approaching a speeding car.  A defense team would argue that the dangerous nature of the sport itself combined with Ward’s own conduct led to an unfortunate accident and that Stewart did not act recklessly.

4.  Stewart’s statement

The most crucial piece of evidence will be Stewart’s own statement.  It is impossible to get in the head of another person so police typically rely upon statements from the accused to build a case.  Here, Stewart spoke with law enforcement right away without an attorney present.  This statement will be scrutinized up and down to determine if he admitted to anything that can be used against him or if he lied.  For example, if he stated that he saw Ward and was attempting to kick dirt on him, that would help support a case for reckless homicide as indicated above.  However, if he indicated that he did not see Ward until the last minute and swerved to avoid him, that would help show that this was just an accident.  On the other hand, there may be other evidence such as a dash cam in Stewart’s car (that may or may not exist) that could show that his story is not accurate.  In that event, his lies will be used to show that he not only acted recklessly but he attempted to cover it up.

Conclusion

Its way too early to draw any conclusions as to what will happen here.  The DA will likely take its time to analyze every possible aspect of this case to either bring a good case against Stewart or to demonstrate that they did not give Stewart any special treatment by declining prosecution.

Story on Forbes is here