"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."
Yes but it is not common to have a race champion actually hit and kill the guy walking on the track.
I say let a jury decide.
****Stewart may face criminal charges
Legal experts agree driver not in clear after Ward's racetrack death
Associated Press
Published 9:30 pm, Tuesday, August 12, 2014
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," with negligent homicide another possibility, 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.
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.
