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One Sentencing + Two Fatal Crashes = Rough Week

By: Steve Magas, July 23, 2013

I was in Florida for a week – didn’t ride a bit but soaked up the sun. Got back early Sunday knowing Monday would be rough – the sentencing of Andy Gast’s killer was set for 10:30 am. I was preparing a post here about the sentencing, and about how relatively “safe” the summer has been, when I came across two stories of two similar crashes… both fatal…

On July 12, 2013 a 58 year old cyclist, Janice Howard of Arcanum, was riding east on Delisle Fourman Road in Darke County, Ohio when she was struck from behind by 24 year old Jessica Jones.  Jones can be heard screaming on the 911 tape about how she was blinded by the sun and never saw the cyclist.

Up north, in Ottawa County, the OSHP is investigating the death of another  cyclist – 37 year old Dale Tusen of Port Clinton, Ohio. He was struck from behind at a little before 6:00 am this morning by a 2012 Chevy Impala operated by 68 year old Michael Swint.

It’s too early to tell what happened or why in either case. At 5;55 am in Sundusky, when Dale Tusen was pronounced dead, sunrise was still some 20 minutes away. That doesn’t mean it was DARK dark- but pre-sunrise. I’m sure the OSHP is reviewing whether Mr. Tusen had a “legal” light set and whether it was on as well as the lighting conditions in the area.

In the Darke County case, it was morning and both the cyclist and motorist were moving eastward towards the sun on a narrow country road. The motorist’s 911 call indicates she was blinded by the sun but a full investigation is ongoing.

In the news stories about these matters the trolls are already speculating and making stuff up… I should be used to this by now, but it’s still surprising what people type on their computers in the face of horrific tragedy.

State v. Melvin White

In Cincinnati yesterday, a bit of closure for the family of Andy Gast – the 27 year old cyclist killed near Lunken Airport on August 28, 2012. Melvin White, the motorist who struck and killed Andy, was court for a sentencing hearing after pleading No Contest to Vehicular Homicide, a first degree misdemeanor. I attended the hearing with the family and several local cyclists, including Frank Henson from Queen City Bike and Scott Fratianne, President of the Cincinnati Cycle Club.

Initially, the family met with the Prosecutor, Jennifer Bishop of the City of Cincinnati’s prosecution team. Jennifer did an outstanding job pursuing justice in this case and working with the family to make sure they were kept in the loop. Municipal Court is a busy busy place which hears, typically, less serious criminal matters – low level misdemeanors, theft crimes, etc.  A vehicular fatality is one of the most serious crimes that comes up in Muni Court and the Prosecutor, along with the Judge, wanted to make sure it was handled well. During the meeting the family was prepped for the fact that nobody knew what the Judge would do with the case – whether any jail time would even be considered.

When the hearing began the Prosecutor noted that the Tox Report from Mr. White reflected his prescriptions – a narcotic pain killer and Tramadol. Ms. Bishop also noted that the “black box” on the car had been examined and the findings included a speed of more than 10 mph over the 40mph limit at the time of the crash.

Mr. White’s attorney filed a report with the court which we did not have access to. He argued that Mr. White’s record was “pristine” and that he was a valued employee. He described a number of medical issues, a daily cocktail of medications, congestive heart failure, diabetes and other serious conditions he was dealing with.

Judge Mallory point blank asked Mr. White – “What happened” and Mr. White said “I just never saw him” – He tried to argue that this was an accident that “could happen to anybody” and that it was “unfortunate” – I tuned most of that out…

Andy’s mom spoke next, and spoke eloquently and passionately about what she’s been going through.  Andy’s two sisters spoke about their own grief and about what kind of loving, caring charitable person Andy was. Andy’s dad had a difficult time getting through his remarks. They spoke of Andy’s love of cycling and how he was training for a special ride – HabiTour – which combined his favorite charitable work at Habitat for Humanity along with his new love of cycling. Andy was training for the ride when he was killed.

The family asked the court for the maximum jail term. Since the conviction was a first degree misdemeanor, that would be six months and a $1000.00 fine.

Judge Mallory discussed his views – and the fact that he,too, had “shed a tear” more than once for Andy Gast. He asked to see a photo of Andy and made sure that Mr. White saw it as well.

Scott Fratianne, the CCC President, read a joint CCC/QCB statement about the impact of this crash on the cycling community and backed up the family’s request for jail time.

Judge Mallory seemed to indicate that he wanted to give Mr. White some jail time but said to Mr. White “If I send you to jail it will kill you” – He asked the Gast family if they would be OK with a sentence that was longer, but did not include jail time – a two year home incarceration. Mr. Gast told the court “We are a benevolent Christian family” and wished no harm to Mr. White – they DID want him to be appropriately punished for the crime.

The court then ordered:

- 180 Days in Jail, suspended in lieu of Two years home incarceration
-  $1,000 fine, suspended in lieu of Mr. Gast contributing $1000 to the Queen City Blinkies program
- 3 years Probation
- 3 year suspension of driving privileges
- 100 hours of community service

Judge Mallory conducted a very compassionate, fair and just hearing, in my view. He clearly listened to everyone, and read the materials submitted both by the defendant and by other cyclists who were not in court. He permitted, over a defense objection, the statement from the CCC/QCB to be heard. He crafted a sentence which while it seems somewhat “light” it is pretty stern given the law, the possibilities and the physical condition of the defendant. The Gast family was very happy to put this matter behind them and felt, I believe, that justice was served.

Printed from: http://www.ohiobikelawyer.com/bike-law-101/2013/07/one-sentencing-two-fatal-crashes-rough-week/ .
© 2014.

11 Comments   »

  • If a motorist is “blinded by the sun”, shouldn’t he/she stop the car and wait until he/she can see before proceeding?

    As a culture we seem to have developed this sense of entitlement regarding motorized travel – nothing, it seems, should be allowed to stop us from moving – not even if we can’t see the road ahead.

  • As for Melvin White, I seriously doubt jail time would have “killed him”. Morbidly obese people have survived six months in jail before. When killers like Mr. White get off with a fine, what sort of message does it send to motorists, and cyclists?

    Also, 6 months and a $1000 fine for vehicular homicide? If that’s reasonable, why do murderers who DON’T use a car as their weapon get 20 to life?

  • Steve Magas says:

    Thanks for the comments. The theory behind sentencing, I believe, is that this is NOT a “murder” – it is not an intentional killing. Rather, it is a careless killing – not intended at all. That doesn’t make the victim any less dead of course, but criminal law is based on intent and the worse the intent the worse the sentence.

    I would like to see this bumped up to a felony with higher POSSIBLE penalties in the right case. Right now, to get to a felony you have to have aggravating factors, such as DUI or driving on a suspended license. We had a case like that here in CIncinnati a few years ago – a drunk, high motorist on a suspended license killed two. He’s doing 16 years.

  • George says:

    If you are INTENTIONALLY driving 10mph over the speed limit and hit somebody, how is that not an intentional killing? Remember, the traffic engineers and the county clearly told Mr. White (although indirectly through traffic signs) that 40 mph is the safe driving speed for this road. If you drive at a speed higher than that, you might end up killing/injuring yourself or somebody else. The message was clear, yet he INTENTIONALLY drove at 25% higher speed limit. I fail to understand why this is not an intentional killing.

    Assume that a doctor is getting late to go back to home. So, he INTENTIONALLY gives a patient more anesthesia then is prescribed by the drug manufacturer and the scientific community assuming that more anesthesia will fasten up the process and he can return home 10 minutes earlier. Later, the patient dies. Then, can the doctor claim it was not an intentional killing?

  • Steve Magas says:

    I agree George. I have argued for years that laws that punish bad driving won’t change behavior until the penalties are significant enough to reach into that driver’s brain and really shake her/him. You can read the statute here – http://codes.ohio.gov/orc/2903.06 – it is long and complex. Here’s a long, complex analysis of the sentencing options in 2007. http://www.sconet.state.oh.us/Boards/Sentencing/resources/summaries/VHVAPostHB461.pdf

    Intent is the key to defining criminal misconduct and the penalties therefor. Behaviors may be deemed “negligent” – “reckless” – “knowing” – “purposely” as defined in 2901.22. http://codes.ohio.gov/orc/2901.22 – Murder is where one “purposely” causes the death of another. The vehicular homicide provisions involve less than intentional crashes which lead to death – the statute describes a negligence-based at the low end, then reckless and impaired driving, which cause the crime to move into the felony range. If someone aims a car at another and intentionally runs them over, it’s murder, not vehicular homicide.

  • Allen Schutte says:

    I find it interesting that within days of this verdict was one where a truck driver basically had the book thrown at him for a wheel coming off and killing somebody (I’ll admit I don’t have the particulars of the case). The judge sent the 64 year old driver to jail for 6 months and told him to “find a new line of work”. Unless he didn’t stop or was seriously operating in an unsafe manor there couldn’t be any more intent than Mr White.

  • Steve Curtis says:

    The following Monday after the Darke County accident, I drove east at the same time of the morning that the accident had taken place. I had no problem seeing the road clearly despite the position of the sun. I don’t believe that the sun played a factor at all. I feel it was probably an excuse. The road the accident took place on is long and straight. I wouldn’t be surprised to find out she was on her phone or working the radio.

  • Steve Magas says:

    We will be watching this case closely to see how the evidence shakes out. Thanks for writing!

  • Richard Bruns says:

    Thanks Steve for you efforts in highlighting bicycle tragedies that often go overlook by most. I live in Darke County and we have had two bicyclist killed over the past two years. I do not know the details of either case, but what appears to be a lack of due diligence by our prosecuting attorney causes me concern. Thank you for including these cases in your blog.

  • Steve Magas says:

    Thanks for reaching out. Darke County has had a couple of very serious matters in the past few years. The death of Richard Monk in 2011 stood out – the motorist was charged with Aggravated Vehicular Homicide and DUI, which was pleaded down to a misdemeanor… still trying to figure that one out- SOMETHING happened… maybe the DUI evidence was weak or tainted… maybe evidence arose that Mr. Monk did something wrong – maybe it was politics – who knows… Glad to see you are watching! Keep me posted!

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