Tony Stewart could still face criminal charges for running down Kevin Ward Jr. with his sprint car, even if the three-time NASCAR champion didn't mean to kill Ward, hurt him or even scare him.
Ontario County Sheriff Philip Povero, who announced on Tuesday that the investigation is continuing, has said that his initial findings have turned up nothing that would indicate criminal intent in the crash at the Canandaigua Motorsports Park.
But legal experts agree that does not mean Stewart is in the clear.
The NASCAR star could be charged with second-degree manslaughter under New York law if prosecutors believe he "recklessly caused the death of another person," according to criminal law professor Corey Rayburn Yung of the Kansas University School of Law.
"The question over whether someone was reckless is a factual one, and one a prosecutor might let a jury decide," said Yung, who also posts at the Concurring Opinion blog.
Athletes in competition often do things that would get the average person arrested — think two boxers in the ring, or a baserunner sliding into second with his spikes high. But sometimes an act is so far outside the bounds of accepted sporting behavior that it becomes a crime, as former major leaguer Jose Offerman learned when he was charged with felony assault for rushing the mound — swinging a bat — after he was hit by a pitch in a minor league game.
So Stewart would not expect to be charged for the car-on-car bump that sent Ward spinning into the wall. But if, for example, he were to tell police that he saw Ward on the track and tried to shower him with dirt or otherwise send him a message, a first-degree manslaughter charge could be a possibility, Yung said.
In a 1949 case that Yung uses in his class, midget car racer Joseph Sostilio was found guilty of manslaughter after he tried to squeeze a four foot-wide vehicle through a two-foot opening at 40 mph, crashing into another car and sending it into the one driven by Stephen D. Bishop. Bishop's car flipped three times and he was killed.
Sostilio's conviction was upheld on appeal by the Massachusetts Supreme Judicial Court. Noting that a violent or aggressive act on a football field or in a boxing ring is not necessarily a crime, Justice Henry Tilton Lummus wrote: "In the present case physical contact was not an essential part of the racing of automobiles."
That was a half-century ago, and racing has changed. Trading paint is a part of the sport, and it's not even uncommon these days for racers to leave their cars to confront rivals after a crash, which Ward appeared to be doing when he was killed.
"In sports we tend to allow all sorts of conduct we'd never allow in another circumstance," Yung said. "But this isn't a collision. It's not in that ballpark; it's something you don't expect. This is a more complicated scenario. We're assuming Stewart didn't mean to do this, and yet a death resulted."
Whether Stewart's actions were part of racing depends on what the police investigation finds. Unlike the cars Stewart drives on the NASCAR circuit, the sprint cars have no radios or instrument data recorders that could tell authorities exactly what was happening when Stewart hit Ward.
Povero would not say how Stewart described the accident, but he said Monday he has reviewed two videos and spoken to Stewart.
"The worst thing that could happen for Stewart is if his story doesn't seem to match other evidence," Yung said. "Because then it might call into question his own story."
Povero's previous comments that he found no criminal intent all but rules out the possibility of a first-degree murder charge, which would essentially require a confession that Stewart was trying to kill Ward. For second-degree murder, prosecutors would need to prove Stewart was reckless in combination with a "depraved indifference to human life."
"Mr. Stewart has fully cooperated with the police officers that are investigating," Povero said in a news conference shortly after the race. "He was visibly shaken by this incident, and has promised his continuing cooperation in this investigation."
After the investigation is completed, Povero said, the evidence will be turned over to the district attorney as a matter of routine. Even if he is cleared by prosecutors, though, Stewart could face a civil suit.
Although the standard of proof is lower than in a criminal case, the civil court would also consider Ward's state of mind at the time of the accident and whether he was also negligent in venturing into racing traffic on a dark track in a dark suit.
But Stewart would also have to weigh the damage to his image and career — with his own team, tracks and millions in endorsements — making a quick settlement likely.