Who can get justice for Patricia Cunningham?

Cyclists from around the state of Maryland were appalled last week when an Anne Arundel County grand jury failed to indict Whitney DeCesaris for negligent homicide in the death of Patricia Cunningham, an Annapolis High School coach who was killed on Riva Road by Ms. DeCesaris's bad driving.  The grand jury did indict her for a few traffic offenses such as negligent driving.

Shortly after the crash, I wrote in the Washcycle (and in the Edgewater Patch) that the available information strongly suggested that this was negligent homicide (a misdemeanor with a maximum 3-year prison sentence), and urged people to email the State's Attorney.  About 600 people did so, and it's clear that her office seriously investigated the possible homicide.  I can not say whether the case was well-presented to the grand jury or not.  If not, then the prosecutors can try again to get an indictment. The 5th Amendment's prohibition of double jeopardy does not apply to grand jury investigations.  If she pleads guilty to negligent driving or another offense arising from the crash, however, the 5th Amendment will bar additional prosecution.  (Ashley Halsey's suggestion in the Washington Post that this case had to go to the grand jury because felony manslaughter was a possibility is dubious because there was no evidence of reckless conduct, just criminal negligence.)

A criminal conviction of Ms. DeCesaris, however, is not the only means of achieving at least a modicum of justice.  Of course no one can bring Ms. Cunningham back, so any talk about justice is relative.  The goals of criminal punishment include retribution, prevention of additional harm, and rehabilitation.  Here are a few other options.

Drivers License Suspension. 

Over the years, many cyclists have told me that putting drivers in jail for a few months is probably less important than making sure they never kill again.  It's bad enough that one life was taken by the crash, there is no need to ruin a second life.  But taking away a driver's license does not ruin anyone's life.  During the suspension period it protects society from a repeat offense, and it is also an effective rehabilitation.  By living without the ability to drive, the offender may come to better understand the hazard she was creating--especially if she adopts the bicycle as her new form of transportation.

According to Transportation Article §16-206(5)(i),  the Motor Vehicle Administration (MVA) "may suspend the license of a person who is convicted of a moving violation that contributed to an accident resulting in the death of another person" for up to 6 months.  That period is probably too short, and had she been convicted and sentenced to probation, her license could have been suspended for the maximum sentence of three years.  But even a six-month suspension can teach someone alot. 

Hopefully, the police have already explained this possibility to the Cunningham family, because §12-206.1 requires that "during the investigation of a moving violation, a law enforcement officer shall inform a victim's representative of the right to file a victim's representation notification form with the Administration to request to be notified of a hearing" to revoke the drive'rs license.  Provided that the family fills out a form requesting to be notified, then if the MVA holds a hearing on revoking the driver's license, the family will be notified an given an opportunity to speak at that hearing. 

Of course, the Motor Vehicle Administration may need some encouragement to act. 

Fix the Roads

Anne Arundel's rural residential roads can accommodate bicycles with automobiles if drivers learn how to share the road with bicycles.  The jury's failure to indict, however, might suggest that the average person in Anne Arundel does not view killing a cyclist while passing unsafely as substantially worse driving than the norm.  If Anne Arundel County accepts that assessment, then the County will be saying--in effect--that the death of a cyclist is merely garden-variety negligence, unfortunate but foreseeable.

That would put the onus on the county Department of Public Works (DPW) to immediately remedy these hazards.  Perhaps  DPW had been assuming that people do not pass cyclists on blind hills and curves.  With a grand jury determination that passing a cyclist on such a hill is not outrageous conduct, the onus may shift onto DPW to redesign roads where possible--and to make at least some fixes immediately. 

Traffic engineers know how to slow traffic.  They usually don't on rural roads, but the increasing density of cycllists on some roads may have shifted the balance on many roads that are too narrow to give cyclists a paved shoulder.  Rumble strips to calm traffis; signs to warn drivers that cyclists are using the center of the lane; signs to warn cyclists about the dangerous drivers.  In some cases, removing double yellow lines can help, since drivers proceed more slowly on roads lacking a painted center line. 

James Schroll, the chief traffic engineer for Anne Arundel County, told me last year: "We already have 70,000 signs on county roads. Signs that merely tell people the law should not be needed."  At the time, I was asking him about whether the County would be posting signs that say "Bicycles May Use Full Lane," which have become ubiquitous on state highways in Prince George's County. "There are better ways to inform residents that the law allows cyclists to take the lane."

Whatever he had in mind, maybe it's time for the County to do it.

Do Some Soul Searching

We can probably assume that Ms. DeCesaris feels terrible about what she did, and helpless to make things right.  Her insurance company could have provided full compensation for a broken bike and even some types of injuries, but not the loss of life.  While Ms. DeCesaris can never give back to the Cunninghams what she took, she will have many chances to give back to the rest of society what she took. Through career choices and volunteer work she could save more lives than she has taken, if she chooses to do so.  That's a life path most fatality-causing drivers don't take--but the ones who do are probably happier.

The rest of us are not totally innocent in this matter.  At least once in life, most of us have taken  unjustified risks while behind a wheel or elsewhere.  And how often do we have momentary lapses of concentration only to notice a pedestrian--often with back to the roadway--at the last moment? Why didn't we see him sooner?

The grand jury probably realized that but for the Grace of God some of them could have faced the same charges as Ms. DeCesaris.  If the prosecutors did their job, the jury understood that this does not mean that she should not be indicted.  Let's hope that the failure to indict in this case does not unconsciously lead other drivers to assume that they won't face more serious consequences when an accident like this happens again.

(This article also appeared yesterday in the Edgewater Patch.  Jim Titus is a member of the Board of Directors of the Washington Area Bicyclists Association from Prince George's County. The opinions expressed here are solely his own.)

 

Comments

[LessonsFromJudea&Samaria]

Fix the roads.

In the West Bank, when a settler is murdered by a terrorist/guerilla/freedomfighter, one approach the settlers take (better than violent revenge) is to plant a new settlement on the site of the murder. Whether or not one agrees with the settlers larger political agenda, there is something compelling in responding to a homicide with building - that defies, yet focuses on the larger goal, not on blood revenge.

Every place a cyclist is killed, there needs to be a first class cycling facility built. Regardless of cost benefit, regardless of competing road use, etc. The cycle facilities should scream out the moral case.

[Smedley Burkhart]

Thanks for putting the time into this thoughtful piece.

Presumably, there will be a big civil judgment, well beyond what's usually covered by an auto policy (which is why I walk softly and carry a big "umbrella") and enough to make people sit up and take notice.

Is the moral distinction between criminal and civil penalties what's important here? Genuinely curious.

[twk]

This is all very frustrating and sad. Thanks Jim for the post. Something needs to be done and I am not sure where to direct my energies. The negligent homicide law took 7 years to get passed. That's too long to get a better law passed.

Let me know if more letter writing is warranted, I will make the time.

[SJE]

The failure to criminally punish
1. signals that the state considers that similar situations are not blameworthy
2. Requires the victim's family to bear the costs of law suit

[JimT]

@Lessons: SHA follows that approach to some extent for traffic signal warrants, in that fatalities provide additional points in deciding whether an intersection needs a light. They also use fatality data to decide on other improvements. Not exactly what you suggested, but a similar concept.

@Smedley: Thanks. Different people place different emphasis on criminal punishment, civil penalties (a.k.a. punitive damages), and plain old compensation.

The moral distinction you raise is probably part of the issue. Another way of putting it is that laws set norms, but traffic laws are commonly ignored. The ones with serious criminal penalties tend to be ignored the least.

Negligent homicide is a very tricky question. On the one hand, the outcome is as bad as it gets--someone died. On the other hand, the intent is only a bit worse than routine negligence. Tort compensation is all about actual damages, while criminal prosecution is partly intent and partly the result.

What's worse: Trying to kill someone and failing, or substantial negligence that kills someone. Most of us agree that the former is worse in a criminal setting.

What's worse: Trying to kill 20 people through 20 separate plans, but being unsuccessful every time. Or killing one person in a fit of rage? We punish the second more, but the first seems more morally culpable.

It probably makes sense to punish the bad result more than the benign result. Mainly because publicity of the event causes a deterrence, but also because we don't have traffic cameras for every unsafe pass. The only ones for which we have good information are the fatalities.

If we could give a $500 fine for every unsafe pass that does not cause a fatality, that would be better than what we do now. But since we can't, the only way to get deterrence is probably to over-punish the few who are caught, which are generally the few who kill.

[LessonsFromJudea&Samaria]

JimT

Well thats good, but in my example its less a matter of using data, then of defiantly claiming space, and using that for propaganda - if you are going to oppose a new settlement thats built where a settler died, each time you object you remind everyone of why it was built where it was. I doubt very much that SHA using recent fatality data as one input to placing a signal really has that effect.

What would be really more similar, would be for members of the cycling community to stripe an illegal bike lane, or a lego cycle track, for some linear segment including the location of the fatality. Dare the motorists to complain, and the authorities to remove it. Get the incident into the regional, or even national, media.

In London people are doing a die-in, blocking a major public thoroughfare.

Maybe we are not at that point. I am merely brainstorming right now.

[Michael Roy]

Jim, great piece. I hope the family finds some justice.

[Shalom]

Jim,

Along the lines of your suggestion about the consequences of a suspended license --

Why not have a driver's license depend on a minimum # of hours on a bicycle? A renewal would depend on a smaller but recent # of hours. You have to pass the written test, the eye exam, and the biking requirement (with exemptions for certain physical disabilities).

And -- as part of the biking requirement, a safety talk, which includes drivers who have injured or (may there be ever fewer of these) killed a cyclist. They can work off their guilt and their community service over some (large) number of years.

[send to jim t]

"fixing the roads" - not with the current generation of antibike carcentric residents.

justice is relative to what, jim T?

the grace of god is and has always been a [poor choice of words].

[T]

I don't think the drivers issue is restricted to Anne Arundel either. I've actually encountered better attitudes on bikes in western MD than in any of the Baltimore or DC suburbs, but I suspect that's because they're used to seeing folks and perhaps aren't in as much of rush (ie, lack of traffic). Who knows, pure hypothesis on my part.

Legal changes will be tough nuts to crack through Judiciary and JPR, but nonetheless should be attempted if only to highlight the cases again and again. Case in point, the state's move over law was a decade in the making. The three foot law had to be at least five to six years in the making.

I'm all for aggressive advertising or PR campaigns. When you car shop you think about side impact airbags, safety ratings, etc, but when those people buying the safe cars are turned loose on the road they think of bicycles as impediments to their progress. It's one of the most utterly selfish things I've ever witnessed since I started bike commuting a few years back and one of the most disgusting to me. When people say bikes shouldn't be on the road as a justification, I just ask if they routinely run over kids, cats, or deer that they also view shouldn't be in the road and how they could possibly live life in that way. But it's a cultural issue we confront and such issues require cultural changes.

[Greenbelt]

A driver this bad shouldn't be allowed to drive again ever.

[JimT]

@send: True justice requires complete restitution. When that is impossible, options must be viewed relative to eachother.

@Shalom: What you describe might be possible somewhere, but not now in Maryland. Cycling is generally perceived as being more dangerous than driving to the individual deciding which to do, so requiring people to bike would be a really tough sell.

Possibly drivers' licenses are too easy to obtain, and should require many more supervised hours behind the wheel. If we got to that point, it might be possible to substitute urban cycling for some of the hours behind the wheel.

This is most likely to be considered in an extremely urban state. Only one comes to mind, and it isn't Maryland.

[SJE]

Over the holiday, my sister in law and I discussed the driving skills of her 84 year old father. They aren't so good, and as a matter for OTHERS safety, he is giving up his car.

If we can't justice for Patricia, at least we can do little things like reminding our driving family of their obligations to other road users.

[Kolo Jezdec]

I will believe we are truly concerned about the safety of all users of the road when cars are equipped with a device that prevents the use of a cell phone at anytime when the car is not in park, in neutral with the emergence brake on, or the engine is not running. Put away the phone, the cigarette, the coffee cup, etc., and drive the car.

[guez]

I'm really troubled by the cyclist=Israeli settler analogy. Perhaps it would be better to pick an example where most of the readers of this blog would agree that those who are staking out a claim to a space have a legal and moral right to do so.

[Alex Pline]

There are multiple issues that revolve around this case and at this point, it's not so much about "getting justice" in this particular case (that ship has sailed there is a civil case) but about where it goes from here.

1. Overall this really has nothing to do with bicycles, rather it is about driver behavior and the consequences of risky decisions. This was no "accident" (ie under normal circumstances something happened beyond the drivers control). However the issue of the application of the law IS about bicycles. See point #2.

2. The State's Attorneys and their association do not like this law (CR 2-210 Criminally Negligent Homicide). I am not an attorney nor do I operate in their orbit, but from what I have read and people I have talked to, Maryland is decidedly a "defense attorney" state with the legislators and their backers from that community. Of course they don't want this law because the standard is much lower than the older Vehicular Manslaughter law (CR 2-209) and they defend people who violate this. Go and look up the history of the law, it's pretty clear who did and did not back it. Jim T can give the best history lesson on this. They complain that the standard for the law is vague but that is because they just don't understand it vis-a-vis bikes and have not spent any effort to try and understand it.

So the problem is what do we do about it? It's becoming clear to me that there is nothing wrong with the law. A few days ago in Frederick County a truck driver was convicted and sentenced under CR 2-210 for speeding in a truck on a wet 2 lane road which killed - wait for it - another driver. If you compare this with the Cunningham case, they really are not any different. A driver's risky behavior was beyond the care that would be exercised by a reasonable person and should have known their behavior might result in a bad outcome.

We need to press for application of the law for bike incidents and we need to elevate this understanding of risky behavior to something like the attitudes about seatbelt use or what MADD has done with drinking and driving. It is only until people become aware of the consequences of their behavior through both carrot AND stick that we will have safer roads for everyone.

My personal opinion on sentencing in these cases is not so much about jail time, rather I'd like to see judges sentence community service that furthers education of drivers about the consequences of risky behavior. These are not malicious people, they just exercise very bad judgement. Requiring the driver in the Cunningham case to spend 3 years talking to drivers education classes would do much more good that throwing her in jail so yet more kids would be without a mother.

[LessonsFromJudea&Samaria]

"I'm really troubled by the cyclist=Israeli settler analogy. Perhaps it would be better to pick an example where most of the readers of this blog would agree that those who are staking out a claim to a space have a legal and moral right to do so."

I can think of many places where victims react to a murder with violent revenge (as some settlers do). I cannot off the top of my head think of another case where victims of a murder also respond by an illegal, defiant, but non-violent (at least in the literal sense) taking of space like that. Is it troubling that people with a perhaps racist sense of entitlement who are making peace more difficult, use gandhian techniques from time to time (and see their own cause as just?) The world is a complicated place. Indeed if there were no conflict over legal and moral rights, there would be no need for gandhian techniques (we forget that not everyone agreed with Indian independence, for example.) Not everyone will think we are doing right if and when we build an illegal cycle track.

If you can come up with a better example by all means go ahead. I doubt there is controversial moral clause all here will agree on apart from biking itself. That means any example will trouble some. But I'm already troubled by what happened here. We can live with a certain amount of moral discomfort.

[washcycle]

I just saw "Five Broken Cameras" (which was really good) and so I'm having trouble viewing the settlement process as non-violent. Spolier alert: there's a reason those cameras got broken.

[LessonsFromJudea&Samaria]

(note by victims I mean friends and relatives of the victim, and members of the community victimized - obviously homicide victims take no action - pardon my sloppy wording)

[LessonsFromJudea&Samaria]

washcycle

there is much violence committed by settlers on the west bank. There is also violence committed against settlers. Not all settlers who are victims of violence are people who have committed violence (as is also, of course, true of Palestinians living on the West Bank) I personally hope for a territorial compromise to create a Palestinian state alongside Israel - but I also know that settlers, even the ones who live in the "ideological" settlements that will need to be uprooted, are human beings, and should not be murdered because of the acts of a few other settlers. I personally would not participate in the construction of a "revenge settlement". But I find the notion fascinating, and potentially instructive. As I said, if anyone can find a similar use of the taking of space on the site of a homicide, to make a point, please post about that and we can use that example instead.

[gneiss]

I would like to expand on the idea that Alex Pline made in his point #2. What we see here, especially from the failure of the grand jury to forward an incitement, is that many people believe that those who ride bikes where there are cars are engaging in a risk taking activity that those driving cars are not. As a result, people who die or are injured while biking owe some contribution of negligence to the collision simply by being on the bicycle on roads in the first place. I believe there needs to be a significant change to how society views the use of our roads or instructions to that effect by those who prosecute our laws to grand juries as solely the province of car drivers before we can make any movement toward prosecution of these kinds of offenses.

[Mike]

@LessonsFromJudea&Samaria I guess one person's inspiring act of non-violence is another person's "any excuse to build another settlement" (perpetuating the cycle).

[Mike]

@gneiss Agreed, which is why focusing on cyclists is probably an advocacy error and focusing on the greater set of non-cars is more useful. Whether the cars start slowing down for bikes or pedestrians (who are killed in larger numbers than cyclists), we all win.

[Tara]

What troubles me is the concept of "accident" -- that everyone seems to assume that, part of the trade-off for living in a society where vehicular driving is widely available, is that that people will be killed by drivers, and there will be no serious repercussions for it.
Not a biking story, but I was really disturbed by the story in the paper yesterday about the 74 year old woman who got to pay a $2500 fine for killing an elderly woman and an unborn baby who did not survive birth. Says the judge who oversaw her guilty plea for misdemeanor reckless driving, "This is an accident, unfortunate as it is." Well, no, it wasn't an unfortunate, unavoidable, accident, it was reckless driving, by someone who gets her license back I 6 months.

http://www.washingtonpost.com/local/mars-company-co-owner-convicted-of-reckless-driving-in-fatal-loudoun-county-crash/2013/12/05/fdf43c90-5d03-11e3-bc56-c6ca94801fac_story.html

[MB]

Interesting difference between the stories: Patricia's killer sounded as if her crash was a personal growth opportunity. Ms. Mars, in the second case, was deeply touched by her actions and has reached out to the families of those she killed. That difference doesn't excuse the actions of negligent drivers, but I wouldn't want my death to be mocked by a self absorbed twit and reconciled in the eyes of the state by a small fee.

[LessonsFromJudea&Samaria]

"@LessonsFromJudea&Samaria I guess one person's inspiring act of non-violence is another person's "any excuse to build another settlement" (perpetuating the cycle)."

I guess I would take any excuse to build a bike lane. Like I said above, I don't think those new settlements contribute to peace. I don't cheer when they are built. But I find the approach interesting. Surely one can find inspiration in Gandi's approach even if one thinks the British Raj was a good thing, eh?

It doesn't sound like anyone here is interested in guerilla bike lanes though, so it might be best to drop the idea for now.

[Jim T]

It's also worth noting that Virginia has no law against criminal negligent homicide. Realistically, Ms. Mars does not seem as culpable for falling asleep as a driver who deliberately makes an unsafe pass and then avoids a head-on collision by sideswiping a cyclist. Only if she knew she was likely to fall asleep would she have violated the Virginia law. The Maryland law is that you should know.

[SJE]

Jim: from what I have read, there is a good chance that Patricia's killer was using her phone and struck from behind, which makes a far less sympathetic story than the one where someone tried to pass (damn cyclists clogging the roads) and swerved to avoid another accident (it was us or the cyclist, and its their fault for doing risky things).

[Jim T]

@sje: I hope you are wrong because that would make the failure to charge criminal negligence closer to malfeasance than I would like to assume is possible in Anne Arundel.

[SJE]

JimT: IIRC, the cell phone records were not examined or brought into evidence.

Prosecutors have almost absolute immunity.