In a moving demonstration of grace and forgiveness at the sentencing hearing for Roger Peterson, 67, the man who killed her husband, Marci Tousey asked Sheboygan County Circuit Judge Angela Sutkiewicz to forgo a jail sentence in lieu of community service. “I know that Troy can’t live on in my heart if I’m angry or unforgiving,” Mrs. Tousey testified. “I want to move forward, and teach my children happiness can exist even when awful things happen. I don’t feel jail will teach him (Petersen) any lessons he hasn’t already learned.”
According to Tom Held’s excellent report of the sentencing hearing in his blog post on the Active Pursuit and a report in the Sheboygan Press, the Judge abided by the Mrs. Tousey’s request and sentenced Peterson to 100 hours of community service in which he will have to talk about the dangers of driving with a medical condition.
The crash report showed that Petersen was traveling south on county Highway Y just near the intersection with Rowe Road when he struck and killed 48-year-old Troy Tousey, and hit two other bicyclists on the regular Wednesday Night Worlds group ride. I spoke with Sheboygan County District Attorney Joe DeCecco, who told me Peterson was diagnosed with sleep apnea after the crash. Peterson claimed he momentarily fell asleep just prior to the crash and woke up to find he had smashed into the tail end of the group ride. Peterson pleaded no contest earlier this month to two misdemeanor counts of negligent driving and was fined $600 on the two misdemeanor counts. The felony count of homicide by negligent operation of a vehicle, will be dismissed after Petersen performs the community service. Judge Sutkiewicz could have sentenced Peterson to up to 7 years in jail.
Like most people, I was deeply moved by the compassion shown by Tousey’s widow and his other family members. The children she mentions are Tousey’s eleven-year-old twins, Hannah and Tate. I have a daughter myself and I must admit to having a lump im my through and teary eyes as I write this. I hope their terrible sense of loss will be forever tempered by their mother’s rare display of grace and true forgiveness. I also think Peterson is sincere when he apologizes.
I have spoken with DeCecco a couple of times since the initial plea deal was reached and he told me Peterson voluntarily surrendered his driver’s license before the sentencing and agreed never to drive again even though at that time he had no legal responsibility to do so. Despite this, DeCecco sought felony homicide charges against Peterson, a rare decision by a District Attorney. As I have reported in past blog posts about similar cases, most DAs are worried they cannot not prove criminal negligence and only charge drivers with basic traffic violations even when their inattentive driving results in a more vulnerable road users’ death.
DeCecco immediately took a more aggressive stance than the other DAs under the premise that a criminal charge is necessary to send a message that we all need to pay full attention to the act of driving when we are behind the wheel and sharing the road with people walking and bicycling. “People have a right to feel safe when they are doing these activities,” he told me.
For instance in July of 2011, an 18-year-old driver claimed to have “blacked out” when he crossed the centerline of the road in Oak Creek and hit Sam Ferrito, 56, head on while he was riding his bicycle. After that case, I spoke with Milwaukee Assistant District Attorney Greg Huebner to try to get a better understanding of the reasoning behind his decision not to prosecute the driver for a more serious crime.
“It is a terrible tragedy, and that was my first inclination,” Huebner began, “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.”
Waukesha County District Attorney Brad Schimel gave a similar response in the 2012 case when Roger Gunderson was killed by 20-year-old Andrew S. Yang, 20, when he fell asleep and drifted across the centerline on Woods Rd. in Waukesha County. Schimel told me he did not have the evidence to prove to a jury that the driver’s actions met the test of criminal negligence. Schimel explained his reasoning: “In order to sustain a criminal charge for causing the death with the motor vehicle, I would need to demonstrate that Mr. Yang engaged in some criminally negligent or reckless conduct. This requires more than just ordinary negligence, but rather an awareness that his conduct was practically certain to result in great bodily harm or death to another. Under the circumstances here, given that Mr. Yang had adequate sleep the night before, did not engage in unreasonably exhausting activities during the day and had not been awake for an unreasonable period of time prior to driving, it would not be possible to obtain a conviction for criminally negligent or reckless conduct. Thus, it is not possible to proceed with criminal charges.”
So while DeCecco did seek criminal charges in the Tousey case, when I spoke with him after the hearing today, he told me he does think there is a gap in our current laws. “In cases where inattentive driving results in a crash with these serious results, I wish there was something in between the negligent felony homicide and a non-criminal traffic citation. I think we need that gap filled.”
I have asked Waukesha District Attorney Brad Schimel to review our proposed Vulnerable User legislation and he echoed DeCecco’s thoughts about the need to fill the gap in the law. Schimel seemed to agree with the majority of the draft legislation, but he told me he had a few specific concerns and would get back to me with some suggested changes to the language of the bill. DeCecco has also agreed to look over our legislation and said in principle he is supportive of our efforts to fill this gap in the law.
The Vulnerable User Bill is in committee now, but we have heard rumors that it might move to a vote before either the Assembly or Senate. For more information about how you can encourage your legislators to move the bill or vote in favor, read this blog post from a few days ago: A LIfe is Worth More Than a Traffic Ticket