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What's next in Tony Stewart, Kevin Ward Jr. death case?

What's next for Tony Stewart now that a grand jury has decided not to press charges against him in the death of Kevin Ward, Jr.?

A grand jury investigating whether three-time NASCAR champion Tony Stewart committed a criminal act when his car struck and killed Kevin Ward Jr. on August 9 declined to charge Stewart. The crash occurred after Stewart’s car clipped Ward’s car while they were racing at the Canandaigua Motorsports Park. Ward’s car hit the outside wall, causing significant damage to the tires. An irate Ward then left his car while it was still on the track and walked toward the middle of the track in a way that suggested he wanted to confront Stewart, whose car was rapidly approaching him. Stewart's car struck Ward, killing him.

In a press conference on Wednesday, Ontario County district attorney Michael Tantillo revealed that grand jurors heard from about two dozen witnesses and watched two videos of the crash. The jurors were asked to consider whether Stewart should be charged with either second-degree manslaughter, which carries a prison term of up to 15 years, or negligent homicide, which carries a prison term of up to four years. Second degree manslaughter would have been appropriate if Stewart’s driving was reckless, whereas negligent homicide would have been suitable if Stewart had intended to scare but not harm Ward and in doing so drove unreasonably and killed Ward. Grand jurors reasoned that Stewart’s driving was sufficiently lawful under the circumstances.

Tantillo also revealed that according to toxicology reports, Ward was under the influence of marijuana on the night of the crash. Ward was apparently under such a significant influence that the drug likely impaired his judgment. As explained below, the presence of marijuana in Ward’s system could prove to be of great legal benefit to Stewart in a potential wrongful death lawsuit.

Stewart beats the odds for grand juries

The grand jury investigating Stewart began deliberations on Tuesday and acted with remarkable haste. It took only a day for it to conclude that Stewart should not be charged with a crime. Keep in mind, grand juries often take weeks and sometimes months. Prosecutors often need days to present a case and grand jurors regularly spend days debating the right outcome. That was not the case here, as Stewart received a near instant answer from the grand jury and it was exactly the one he wanted.

The odds are also high that a grand a jury will support charging the target of its inquiry, meaning that Stewart beat the odds. Under New York law, only 12 or more of the 23 grand jurors had to support charging him. Not only was unanimity not required, but the grand jurors only had to find a reasonable belief (probable cause) that Stewart had committed a crime. The burden to charge is much lower than the burden to convict, as a conviction requires a unanimous jury to find guilt beyond a reasonable doubt. Despite the markedly lower standard to charge, the grand jurors investigating Stewart quickly reasoned that they would not support charging him. Stewart is now essentially assured that he will never face criminal charges for Ward’s death.

Questions about process and claims of preferential treatment

On social media and elsewhere, cynics are wondering if Stewart received preferential treatment by law enforcement and prosecutors. One thought is that Tantillo convened a grand jury to placate concerns that Stewart had received preferential treatment, but then presented a weak case against Stewart so that grand jurors would be disinclined to charge him. Tantillo and Ontario County sheriff Philip Povero are elected officials and are thus presumably sensitive to whether their constituencies approve of their job performance. Some of Tantillo and Povero’s statements and actions arguably made it less likely for grand jurors to charge Stewart.

For example, consider the immediate aftermath of the crash when Povero quickly downplayed the possibility of criminal conduct. Among other statements, Povero cautioned there were "no facts in hand that would substantiate criminal intent from any party." This was an important statement as it signaled to the public, and potential grand jurors, that Stewart’s driving was not criminal. Povero’s statement contrasted sharply with that of Tyler Graves, a sprint-car racer who attended the race and who told The Sporting News’ Bob Pockrass, "I know Tony could see [Ward] . . . When Tony got close to him, he hit the throttle."

Then consider the grand jury proceeding. It is not clear how aggressively Tantillo presented his case against Stewart to grand jurors. The prosecutor, not a judge, runs grand jury proceedings. The prosecutor decides which pieces of evidence to introduce and which witnesses will testify. Grand jury proceedings are also conducted in secret, making it difficult to know what transpired. In Tantillo’s defense, he says that grand jurors heard from about two dozen witnesses and carefully considered the evidence. Still, we don't know what happened during the short-lived proceeding.

Tantillo’s press conference on Wednesday raised other questions about the investigation into Stewart. Tantillo acknowledged that Stewart had not been asked to take a drug or alcohol test, a curious decision given that Stewart's driving was connected to a fatal accident. The decision not to test Stewart is also arguably odd given that a toxicology report was conducted on Ward. Tantillo stressed, however, that a drug recognition expert had interviewed Stewart and was apparently satisfied that Stewart was not under the influence. Also, because Stewart was not charged with a crime, he could not be compelled to take a drug or alcohol test. Therein provided another benefit to Stewart: His chances of facing charges for a different crime, vehicular homicide, were lower without proof that he was using drugs or alcohol.

Stewart still faces a potential wrongful death lawsuit

While criminal law no longer threatens Stewart, he could still face a wrongful death lawsuit brought by Ward’s family. The family would argue that Stewart drove unreasonably and that his driving caused Ward’s death. Keep in mind that Stewart avoiding criminal charges does not insulate him from being held civilly liable for Ward’s death. The standard for a jury to find civil negligence is far lower than the standard to find criminal negligence. Indeed, a jury in a wrongful death lawsuit would only need to determine that Stewart was probably unreasonable and that he probably caused Ward’s death.

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In a wrongful death trial, attorneys for Ward’s family would likely call Stewart to testify. In response to difficult questions by attorneys for Ward's family, Stewart might attempt to invoke the Fifth Amendment, which allows witnesses to avoid answering questions that require an admission of criminal conduct. Although a grand jury has declined to charge Stewart, the Fifth Amendment's "double jeopardy" provision from being retried for the same offense does not attach at the grand jury stage. This is because Stewart could, in theory, face a second grand jury. (To illustrate: Minnesota Vikings running back Adrian Peterson was charged by a second grand jury for child abuse after a first grand jury declined to charge him.) While there is absolutely no reason to expect a second grand jury, Stewart nonetheless remains able to avoid answering questions that might risk his admission of criminal conduct.

Stewart would not be the only driver who testifies in a wrongful death trial. Other top drivers, particularly those familiar with the Canandaigua Motorsports Park, would be asked to provide opinions about Stewart’s driving and Ward’s behavior. Ward’s family and Stewart would likely each retain drivers as expert witnesses.

Ward’s family could claim substantial damages in a wrongful death lawsuit. Ward was only 20 years old, an important fact as damages in wrongful death cases tend to be higher for victims who were projected to live for many years. Ward also appeared on the way of a successful racing career, which indicates a high amount of lost future earnings. Racing and sports business experts would testify as to how successful a career Ward was likely to obtain if he had not been killed.

Under New York law, Ward’s family has until August 16, 2016 to file a lawsuit against Stewart, his team, the Canandaigua Motorsports Park, the makers of the track’s lighting, or other parties that are arguably in some way responsible for Ward’s death.

Stewart’s defenses to a wrongful death lawsuit and the legal impact of Ward being under the influence of marijuana

In his defense of a wrongful death claim, Stewart would contend that he never intended to hurt Ward and that his driving was reasonable under the circumstances. Stewart would highlight the two videos of Stewart’s driving prior to his car hitting Ward. These videos were shown to grand jurors, who concluded that Stewart’s driving was lawful.

Stewart would also stress that Ward’s regrettable decision to leave his car, walk on the track and confront Stewart caused him to assume the risk of being clipped by a car. As noted earlier, Tantillo revealed today that a toxicology report found that Ward was under the influence of marijuana. Stewart would claim that Ward’s use of marijuana was the real culprit behind his death.

Attorneys for Ward’s family would be ready to respond to the toxicology tests. Ward family attorneys could question the validity of the tests, which were conducted on Ward after he died. The attorneys might also express doubts that marijuana, which is not commonly thought of as a drug that makes people act in confrontational ways, would have caused Ward to leave his car and try to pick a fight with Ward. Marijuana, in contrast, is generally thought of as a drug that calms people and relieves pain. The attorneys would also insist that regardless of whether Ward was high on marijuana, a negligent driver should not have killed him.

Significance of New York comparative fault law: Stewart and Ward could be found negligent

While the racing community has hotly debated whether Stewart or Ward was at fault for the tragedy, the legal debate doesn’t require a finding of one or the other. They could both be at fault.

New York law permits jurors to find that Stewart and Ward were negligent and responsible for Ward’s death. If jurors reached such a finding, they would then determine the percentage of fault caused by Stewart and Ward. For instance, if jurors find Stewart and Ward were negligent, they might determine that Stewart was 45% at fault and Ward was 55%. Stewart would then only pay 45% of the damages for Ward’s death, while Ward’s family would essentially pay itself the remaining 55%. The math would be more complicated if other parties, such as the Canandaigua Motorsports Park, were also sued and found negligent, but the same basic principle would apply: Fault would be divided by percentage.

Likelihood of settlement

Even if Stewart feels confident that he would successfully defeat a wrongful death lawsuit, the trial itself could damage his image and career. While it may be legally advantageous for him to blame Ward, NASCAR as well Stewart’s sponsors and fans would probably find such testimony awkward and disconcerting. It thus makes sense for Stewart, whose net worth reportedly exceeds $100 million, to negotiate an out-of-court and confidential settlement with Ward’s family, which would essentially pay them to relinquish any legal claims they may have against him.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.