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Car Accidents? Juries Tend to Think So

April 27, 2002
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Car Accidents? Juries Tend to Think So

by Clyde Haberman, New York Times

Two years ago in Charlotte, N.C., a professional basketball player named Bobby Phills was killed in a car crash that got a good deal of national attention. His death was cast as a tragedy, a respected young man cut down in his prime.

Understandably, with his family and teammates in anguish, little was said then about how Mr. Phills had effectively killed himself and how only by the grace of fate did he not take others with him.

In a Porsche bearing the license plate "SLAM'N," he was drag-racing with another player, going more than 75 miles an hour — some estimates were much higher — in a 45-m.p.h. zone. At that outrageous speed, he lost control and collided with another car. That car was then rear-ended by a taxi.

Cold as this will sound, the fact that only Mr. Phills died qualifies as good news. All too often, destiny can be perverse. Reckless drivers kill innocent people while surviving themselves.

Arguably even more perverse is a tendency to then let them off the hook.

In New York, the laws make it hard to convict such people, assuming that they are even charged to begin with. Repeated attempts by the New York State District Attorneys Association to toughen the laws keep going nowhere in Albany.

When cases do go to trial, juries have a habit of sympathizing with defendants accused of doing terrible things behind the wheel while drunk. They identify even more, experience shows, with a driver who, like Mr. Phills, has thrown caution to the wind while stone sober.

"One of the hardest things we have to deal with in these cases is that feeling of `There but for the grace of God go I,' " said Joseph Petrosino, chief of the felony trial division in the Brooklyn district attorney's office.

"But people make choices," Mr. Petrosino said. "We avoid the word `accident' in these cases. These are criminal acts. The deaths that result may be unintentional, but the acts that are done that lead to these deaths are intentional."

Brooklyn is an interesting proving ground right now because of several traffic deaths that are nothing short of shocking, even in a city inured to horror, a place where an average of one person a day dies on the road.

Actually, the situation has greatly improved. In 1990, before the numbers started to drop, there were 701 traffic deaths in New York City. There were 385 such deaths last year and 378 in 2000, with pedestrians accounting for half the total each year. Still, a lot of people die.

SO sometimes it takes a Joseph Gray to get New Yorkers to pay attention.

Mr. Gray is the former police officer on trial for manslaughter in Brooklyn Supreme Court. He is accused of going on a drinking binge one day last August when he was still on the force and then running down a pregnant woman, Maria Herrera, and her family. She died. So did her 16-year-old sister, her 4-year-old son and the child she was carrying. A toxicologist testified that Mr. Gray may have knocked back as many as — get this — 18 beers.

Of course, it is for the jurors to decide guilt or innocence. But they may have trouble forgetting the testimony this week of Freddie Roman, who was on the scene right away. With the bodies lying on the ground, Mr. Roman said, Mr. Gray told him, "Come on, man, we all have a few beers once in a while."

Sometimes attention is also focused by the likes of Rachamim Barninka.

Mr. Barninka, shades of Bobby Phills, is accused of having turned his red Ferrari into a torpedo eight days ago along Fourth Avenue in Brooklyn. Supposedly, he was going as fast as 100 miles an hour when he hit Howard Mazariegos, whose life came to an end at age 28, along with his dreams of becoming a successful photographer, said his sister, Ingrid.

In this case, the suspect is not having just the book thrown at him. Mr. Barninka faces an entire shelf of charges, led by second-degree murder.

Making such charges stick is not easy, though. Generally speaking, prosecutors need an action beyond speeding — say, running a red light — to prove criminal intent. "Within the legal community, and maybe within society in general, there's a perception that speeding by itself cannot be enough to sustain criminal charges," said Maureen McCormick, an assistant district attorney in Brooklyn.

To John Kaehny, the executive director of Transportation Alternatives, an advocacy group for pedestrians and bicyclists, the message is stark. "If you kill with a car and you are not drunk," he said, "the odds that you'll do any jail time are extremely low."

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