Sheboygan DA issues homicide charges in crash that killed Troy Tousey

Prosector issues felony charge in Sheboygan County bicyling fatality

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Sheboygan County Dist. Atty. Joe DeCecco filed a felony charge Friday against a 67-year-old man who crashed into and killed a bicyclist on County Highway Y on June 6.

The motorist, Roger Peterson, failed to pay attention, didn’t  see a group of bicyclists ahead of him and plowed into them on a flat road with good visibility, DeCecco said. Somebody died as a result.

“That, in my opinion, is negligence,” DeCecco said. “We’re going to charge that every time. People have a right to feel safe and secure when they’re engaged in these activities.”

Read the rest of Tom Held’s post on his blog The Active Pursuit

 

DeCecco’s decision runs contrary to those made by District Attorney’s in other well-publicized fatal bicycle crashes. For instance Waukesha County Dist. Atty. Brad Schimel recently declined to issue criminal charges against a 21-year-old who claimed to have fallen asleep at the wheel when his car drifted across the centerline and killed Bob Gunderson riding his bicycle on Woods Rd. in Muskego last July. Schimel also did not charge the man who claimed the sun was in his eyes when he drove his car into and killed Jeff Littmann in 2011. In both cases Schimel argued the burden of proof for criminal negligence was too high and so he did not have a reasonable chance of proving his case.

Milwaukee County Assistant District Attorney Greg Huebner made a similar decision not to charges when an 18-year-old man claimed he “blacked out” last July and his car crossed the centerline and killed 56-year-old Sam Ferrito while he was riding his bicycle. The consequences for killing this innocent man were tickets for two moving violations: reckless driving and crossing the centerline.

“It is a terrible tragedy, and that was my first inclination,” Huebner explained to be of his decision not to seek further charges, “but I just did not believe I had the evidence to prove the case beyond a reasonable doubt.  And I spent a lot of time with this case. I even ran it past a number of other attorneys and they all agreed with my decision. If he had been going 20 over or something, it would have been a whole different ball game.”

Vehicular Homicide, or more properly homicide by negligent operation of a motor vehicle as defined by Wisconsin state statute, is a felony, and is predicated on proving the driver was “criminally negligent.”  Criminal negligence is a much higher standard and very difficult to prove. Sadly, the most common example of simple negligence I could find was “ordinary negligence occurs when a person fails to exercise ordinary care, such as if a person is driving a car and changing the radio station at the same time.” Criminal negligence means reasonable people would believe that a the actions that caused the crime create a substantial and unreasonable risk of death or great bodily harm to another.

Clearly, Sheboygan County Dist. Atty. DeCecco has a different view of his chances in court. Peterson will appear in court on Monday to face the charges of charges of homicide by negligent operation of a vehicle, a felony carrying a 10-year maximum sentence, and negligent driving causing injury, a misdemeanor punishable by one year in jail. The Bike Fed will watch this case with great interest.  If the jury does find Peterson guilty, the Bike Fed would certainly advocate that other District Attorneys take a much more aggressive approach in cases where, through carelessness or distracted driving, a person in a motor vehicle kills an innocent, more vulnerable road user like someone riding a bicycle or walking.

Of the nine people killed in crashes this year, seven were the fault of the person in the motor vehicle.  With DeCecco’s announcement today, only four of those seven have been charged with felony offenses.

 

About Dave Schlabowske, Deputy Director

Dave was the first full-time staff member hired to open the Bike Fed's Milwaukee office 11 years ago. A former professional photographer and life-long Milwaukee resident, Dave lives with his wife Liz and daughter Frankie in the Washington Heights neighborhood on Milwaukee's west side.

4 thoughts on “Sheboygan DA issues homicide charges in crash that killed Troy Tousey

  1. It is a tragedy all around. Many times the motorist did not intend to injure or kill anyone, but they did. For that there HAS TO be a substantial penalty. In many other walks of life, reckless/negligent actions always bring stiffer penalties than those leveled at motorists.

    I am also sad for the driver. Not that he faces a felony charge, but that he has to live with knowing his actions killed another, for the rest of his life. A life, BTW, that the cyclist no longer has.

  2. Hello Dave,

    If there is a jury trial on the homicide by negligent operation of a motor vehicle charge, the judge will likely instruct the jury that criminal negligence means:

    1. the defendant’s operation of a vehicle created a risk of death or great bodily
    harm; and
    2. the risk of death or great bodily harm was unreasonable and substantial; and
    3. the defendant should have been aware that his operation of a vehicle
    created the unreasonable and substantial risk of death or great bodily harm.

    Also, the defendant would likely ask for an instruction on “ordinary negligence” which would read:

    Criminal negligence is ordinary negligence to a high degree. Ordinary negligence exists
    when a person creates an unreasonable risk of harm to another by failing to exercise ordinary
    care. Ordinary care is the amount of care which a reasonable person exercises under similar
    circumstances. Negligence does not require that the person be aware of the risk of harm that
    his or her conduct creates; it is sufficient that a reasonable person in the same circumstances
    would be aware of that risk.

    Criminal negligence differs from ordinary negligence in two respects. First, the conduct
    must create a risk not only of some harm but also of serious harm – that is, of death or great
    bodily harm. Second, the risk of that harm must not only be unreasonable, it also must be
    substantial. Therefore, for the defendant’s conduct to constitute criminal negligence, the
    defendant should have realized that the conduct created a substantial and unreasonable risk
    of death or great bodily harm to another.

    Finally, if evidence of a violation of a “safety statute” [like the 3 foot law] is received, the judge may instruct the jury that the jury may consider that evidence as well, although it does not necessarily constitute negligence.

    • Thanks for the further clarification Clayton. What is your gut reaction to the decision to seek felony charges? If the Sheboygan County Dist. Atty. is successful, wouldn’t this set a precedent that might encourage a more aggressive approach to these fatal crashes by other District Attorneys around the state? I would guess that there is a history of juries changing their perception of negligence given the increase in damages in non-criminal settlements. But perhaps it is not possible to draw parallel’s with juries in criminal cases.

  3. Hello Dave,

    I don’t know enough about the case to comment on it. Hopefully the increase in awareness of situations like this leads to a postive result for people in the future. Thanks for everything you do for bicyclists in Wisconsin. It’s a great state to ride a bike.

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