When cyclists are injured or killed by motorists, the offending motorists are rarely held accountable. The reason may be that, for many years, cyclists were not welcome on the roads and were therefore regarded as unexpected obstacles on the road. In this context, every negative encounter between a bicycle and a car was considered an accident.
As time passed, cycling became more acceptable and the number of bicycles on the roads increased. Rules were set into place to encourage bicycles and motor vehicles to share the road. This was all well and good, however, nothing was done to change the perception of bicycles as unexpected obstacles on the road or the idea that harming them was anything more than an accident. Consequently, news report after news report has been published outlining one tragic bicycle fatality after another.
In most of these cases, there is little or no investigation into the incident. The media simply reports the bare facts, followed by months of outcry for justice from cyclists, concluding in a disappointment when a negligent motorist is let off the hook, often with less than a slap on the wrist. Such letdowns die quietly after a whimper of follow-up reporting on the matter.
A few days ago, another such incident was barely reported. One or two local news sites and one larger local mainstream media outlet made brief mention of the event.
This was the case of cyclist Alexander Motsenigos who died in his hometown of Wellesley, Massachusetts when his bicycle was struck by a truck. At the time of the incident, the case received a lot of attention.
Motsenigos was not a novice cyclist. He had competed in three triathlons in the year preceding his death. He must have been familiar with the stretch of road he was riding on at the time of the incident since it was located just a few miles from his home.
Witnesses and traffic camera footage placed Motsenigos in front of the tractor-trailor that hit him when they reached the crest of the Weston Road Bridge. According to the crash incident report:
“The traffic camera footage clearly shows that Motsenigos was in front of the tractor-trailer unit operated by McCoomb when they reached the crest of the Weston Road Bridge. As stated above, it is approximately 250 feet until the road narrows to a lane width slightly over 10.5 feet. At that point in time, Motsenigos and MsCoomb were travelling at similar speeds on the roadway. Motsenigos was in front of the tractor and on a downhill slope off of the bridge, which would tend to add speed to the bicycle’s movement.”
Prior to the impact, the cyclist was in front of the truck. His position gave him the right of way. Any motor vehicle traveling behind him was obligated to wait until there was adequate room to safely pass before overtaking the cyclist. Instead, this is what happened:
“Due to the narrow width of the roadway of Weston Road after the Linden Street intersection it is impractical for even a passenger vehicle to pass a bicyclist unless they can cross the double yellow line into the opposing lane. In this case, McCoomb was operating a vehicle 42 feet long and 8 feet wide tractor-trailer and there was traffic in the opposing lane preventing him from using that lane to safely go around Motsenigos. The footage shows the trailer over the double solid yellow lines as it traveled through the intersection at Linden Street. During the interview, McCoomb states he has been driving a truck for 35 years and admits that it is a familiar area (Weston Road at Linden Street) and that he goes through there quite a few times, therefore, he is well aware of roadway configuration.
McCoomb’s decision to attempt to pass Motsenigos in this area, while operating a tractor-trailer unit of that massive size, while a Motsenigos was operating the bicycle at a comparabe speed, is negligent. There is not a sufficient distance to safely pass the bicycle and there is not sufficient roadway width to ride adjacent to the bicycle when Weston Road narrows at Linden Street. McCoomb’s decision to try and pass Motsenigos, especially with the tractor/trailer unit of that size, without sufficient room, resulted in Motsenigos’ death.
McCoomb stated in his recorded interview that he always checks his mirrors and says that he observed Motsenigos upright, riding his bicycle behind the trailer after he had passed him. This statement is untruthful and impossible based on the traffic camera footage and physical evidence. McCoomb then contends that he continued on never witnessing that he had collided with Motsenigos. This contention is highly unlikely based upon the fact that, by McCoomb’s own admissions, that he was monitoring the bicvclist actions and checking his mirrors.”
Even without the witnesses’ testimonies, it is obvious that the truck driver, Dana McComb, tried to pass a cyclist in an area where he knew there was insufficient room to safely pass. Anyone who has ever ridden on that road knows how narrow it becomes. Any prudent driver would have waited for the road to widen before trying to pass the cyclist. But, McComb did not.
The Wellesley Police Department, in conjunction with the Massachusetts State Police and the Norfolk County District Attorney’s Office, spent three months investigating this case.
“There was clear consensus at the conclusion of the investigation that probable cause existed to seek complaints against the driver of the 18 wheel semi-tractor trailer dump truck involved in the crash for the following:
M.G.L. c90§24G (b) Motor Vehicle Homicide by Negligent Operation
M.G.L. c90§14 Precautions for the Safety of Other Travelers
M.G.L. c89§2 Unsafe Overtaking of a Bicyclist”
Motor vehicle homicide can be difficult to prove, but the other two charges could be surmised, and easily proven, just from the police report.
“The case was presented to the Norfolk County Grand Jury by the District Attorney’s Office in early December. Due to the complexity of the case, testimony from a number of investigators and witnesses was heard during the course of several days. Additionally, over 50 evidence exhibits were submitted to the grand jury. The process concluded on December 13, 2012. After hearing the testimony by the investigators and witnesses involved in the case, reviewing the accident reconstruction data, viewing the photographs and videos depicting the evidence as well as the simulation of the crash the grand jury did not return a true bill on any of the charges brought before them for consideration.”
How the Grand Jury could have listened to testimony, viewed photographs, videos and reconstruction data and not indicted MCComb on any of the charges is incomprehensible. Sufficient evidence for at least one of the charges must have been presented. So why was there no indictment?
Research into how grand juries operate was in order. The American Bar Association (“With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.”) has published a list of FAQs about the grand jury system.
Reading through this document, two pieces of information seemed particularly relevant.
“How are grand jurors selected?
In most jurisdictions, grand jurors are drawn from the same pool of potential jurors as are any other jury panels, and in the same manner. The pool generally consists of names culled from various databases, such as national voter lists, motor vehicle license lists and public utilities lists.”
“Does anyone screen grand jurors for biases or other improper factors?
No. Unlike potential jurors in regular trials, grand jurors are not screened for biases or other improper factors.”
Well, that second FAQ may explain how a grand jury could look at three months’ worth of evidence against a negligent driver and completely dismiss it: grand jurors are not screened for biases or other improper factors. If a random selection of Massachusetts drivers was included on the grand jury, we might expect a high percentage of them to be anti-cyclist, since they would reflect the general makeup of drivers in this area.
Here is another scary quote which may shed some light on how so many negligent drivers sneak past grand juries to avoid criminal charges.
“The prosecutor drafts the charges and reads them to the grand jury. There is no requirement that the grand jury be read any instructions on the law, and such instructions are rarely given.”
So, just to see if I have this straight (thinking out loud), they select a random group of people from large public databases, read them the charges, let them see and hear the evidence, but they receive no instructions on the law. OK, then how do they know whether adequate evidence exists to charge the accused? Gut feeling? Personal bias? A combination of the two?
Good crash investigations and a sympathetic public are not enough because grand juries are the weakest link in the process. Meanwhile, cyclists keep crying for stricter laws with tougher penalties for negligent drivers who kill cyclists. But all the laws in the world won’t help these dead cyclists because a grand jury, comprised of lay people with no instruction in the law, stands between them and justice.
Only about half of U.S. states have grand juries. Perhaps it’s time to put such an institution to rest. As long as biased lay people in the hands of sometimes equally biased prosecutors are allowed to use this subjective approach to deciding whether to press criminal charges, cyclists will never have a fair chance in the legal system.
Although this problem is larger than cycling, it must be brought to the forefront of everyone’s mind. It is a reflection of our justice system. And as it stands, it may be an impediment to justice — which is just one more thing for cycling advocates to consider when planning for cycling’s future in America.