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Ben Clough

Ben Clough, age 25, was killed by Lauren Robishaw on 10-2-98 when she ran a red light in her 1993 Acura Legend. She was traveling westbound on MLK as Ben was traveling northbound on Lavaca (probably trying to go into the alley). Robishaw was originally charged with Criminally Negligent Homicide, but the prosecutors agreed to reduce the charge to simply Reckless Driving in return for a guilty plea. Robishaw pled guilty and was sentenced to community service on 4-30-01. (more on sentencing)

Trial History. Trial dates set, and then rescheduled, were 2000: 1/6, 2/14, 3/16, 4/20, 6/15, 7/6, 8/17, 10/19, 11/22, 12/14; 2001: 1/4, 2/2, 2/23, 3/30. The actual trial was 4-30-01.

The Charge. The original charge was Criminally Negligent Homicide, a State Jail Felony, which carries a jail sentence of 180 days to 2 years. In addition, there is a possibility of a fine up to $10,000. The law is not black and white. Here's the definition of "criminally negligent":

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
[For more information, check out our page on Texas Laws affecting motorists.]

Note that the driver was never charged with running the red light in the first place. While bicyclists in Austin have gone to jail for running a red light, Robishaw got off completely scot-free on that charge.

Controversy about defendant's attorney. We did some poking around and discovered that the motorist's lawyer, Rip Collins, is friends with at least one local judge. Here's an article in the Ft. Worth Star-Telegram which contains this reference.

Controversy about the judge. Cyclists may remember Judge Wisser for letting the motorist who attacked Lance Armstrong out on minimal bail. (Here's the story about that.)


Sentencing
Here's the article from the Austin American-Statesman

Driver must revisit bicyclist's killing,
Court orders woman to go monthly to intersection where she ran red light
by Claire Osborn
Austin American Statesman, 05-01-2001, p. B1

Each month for the next two years, Lauren Robishaw must visit the corner of Martin Luther King Jr. Boulevard and Lavaca Street. That's where she glanced down momentarily in 1998, ran a red light and killed a 25-year-old bicyclist. The visits are part of the sentence imposed Monday after Robishaw, 23, pleaded guilty to a charge of reckless driving, reduced from criminally negligent homicide, which could have sent her to prison.

The mother of Ben Clough -- the bicyclist who was killed -- asked prosecutors to make the visits a requirement of Robishaw's two-year probation so the woman would take time to think about the man she killed.

Clough was known as "the old man" to his friends because he always paid his bills and people knew they could count on him for a place to stay, his mother, Karen Clough, said in a videotape played at Monday's sentencing in County Court-at-Law No. 6.

"He always had a gallon of milk in his refrigerator," she said. "Now I can't ever speak to him again."

Karen Clough, who is from Massachusetts, said it would have been too painful for her to attend the sentencing.

But in the videotape, she spoke to Robishaw about her son: "I can't say I want you to suffer," the tearful mother said. "I know you didn't mean to do it, but you did it anyway."

Robishaw quietly sobbed as she watched the tape.

In a separate statement read by Assistant District Attorney Buddy Meyer, Clough's father, Paul Clough, said Robishaw had never expressed any remorse to the parents.

Robishaw and her lawyers declined to comment Monday.

Robishaw will be required to check in with a probation officer before her monthly visits, Meyer said, and the officer will drive by and make sure she is there. "We didn't want her to just walk away from an event in which a very special person was killed," Meyer said.

He said making visits to the site of a wreck a condition of probation is not unusual in such cases.

In addition to probation, Robishaw, who now lives in Houston, also must serve 80 hours of community service, receive counseling and serve on a victims' impact panel. She also is forbidden from drinking.

Robishaw admitted to police that she had a glass of wine before the collision, but she passed a field sobriety test, Meyer said. No blood-alcohol test was administered.

Meyer said prosecutors agreed to the reduced plea because they could not prove beyond a reasonable doubt that Robishaw had acted negligently. She had not been speeding and was not drunk, he said.

The wreck occurred on Oct. 2, 1998, as Clough was riding his bicycle home from his job at Dynamic Reprographics. He was riding north on Lavaca Street when Robishaw, traveling west on Martin Luther King, ran a red light and hit him, police said.

Paul Clough, who lives in Maine, said he wished police had ordered a blood-alcohol test. It was humiliating, he said, that his son was tested for alcohol but she wasn't. No alcohol or drugs were found in Ben Clough's system.

Clough, who never got a driver's license, was happy living without a car, his father said. He was taking desktop publishing courses at Austin Community College and was a volunteer with the Yellow Bike program, which provides bicycles for anyone to ride around town.

"Ben never complained; . . . he just enjoyed life," his father said. "He never had a bad word to say about anybody, and I wish I could say that myself."


The Collision

(Friday, 10-2-98, 8:47pm) diagram of collision (#1)

Ben Clough, age 25, was killed by Lauren Robishaw when she ran a red light in her 1993 Acura Legend. She was traveling westbound on MLK as Ben was traveling northbound on Lavaca (probably trying to go into the alley). Several witnesses saw Robishaw run the red light and the police indicate "Ran Red Light" on the police report, although they didn't include that in their press release. They DID mention in their press release that Ben wasn't wearing a helmet, so the media dutifully reported that a helmetless cyclist died in a collision, and made no mention of the red light since the police didn't put it in their press release.

Ben died almost instantly at the scene. Witnesses seem to think that this is one of those cases in which a helmet wouldn't have made a difference. Ben probably didn't have lights on his bike though, and that might have made a difference.

From our illustrated guide to How to Avoid Getting Hit by Cars, the collision type is most similar to #1, The Right Cross. Our guide explains that this kind of collision is most common when the car is coming out of a driveway, parking lot, or one-way street. (But in Ben's case, the car was on a two-way street, had a red light, and was on the right side of her street rather than the left.)

The police report indicates that the motorist "Had Been Drinking", but the police did not test her. The police would not comment on this discrepancy when we called to ask about it.

The police turned the case over to the District Attorney, the District Attorney sent the case to a grand jury, and the grand jury indicted the driver on a charge of criminal homicide.

Here are facts & myths surrounding the case:

MYTH: It was wrong for the motorist to not get a ticket when the collision happened.

FACT: The motorist could have been CHARGED with running a red light by the police or the D.A., without having been ticketed, once the police concluded their investigation. So it didn't matter that the driver wasn't ticketed at the time of the collision. The problem is, the driver was never charged with this violation at all.

MYTH: The DA is ignoring this case.

FACT: It typically takes several months for a case to go to grand jury, whether a cyclist was involved or not. The DA had the case for about four months before a grand jury indictment, which is not unusual.

Sure, we can criticize the system, but let's criticize them for what they ACTUALLY did wrong, not for what they DIDN'T do wrong. To wit:

FAILURE #1: The police failed to get a blood alcohol level from the driver, although they wrote on their report that the driver had been drinking and that it was a possible factor in the collision. [The police chief tells us that the driver passed a field sobriety test, so the officers could not take a blood alcohol reading because they did not have probable cause to suspect that she was drunk beyond the legal limit. The chief suggests that we lobby to have the law changed, and in fact at least one cyclist lobbied the State legislature to enact a law requiring the police to get a blood alcohol reading whenever a motorist causes the death of another road user. This might not be so easy, because there will be claims that this violates the U.S. Constitution's fourth amendment against unlawful search and seizure.]

FAILURE #2: The police failed to arrest the driver and make her bail out of jail. Getting arrested is part of the price of doing something wrong, and getting bail from the motorist makes it less likely that they'll skip town if they're indicted. When cyclists get arrested for minor traffic infractions and riding on the sidewalk, we kind of expect a motorist to get arrested when they kill someone.

FAILURE #3: Neither the police nor the DA ever charged the driver with running the red light. (Though we can't count how many cyclists have been JAILED for running red lights.)

FAILURE #4: The police failed to mention in their press release that the driver had run the red light, and failed to mention that the driver had been drinking, and refused to comment on those aspects of the case for days following the collision. They did, however, mention in their press release that Ben hadn't been wearing a helmet.

FAILURE #5: The press dutifully reported that a helmetless cyclist died in a collision, and made no mention of the red-light-running or the drinking (since those items weren't in the press release), leading the public to believe that it was the stupid cyclist's fault for getting killed.

FAILURE #6: The local press was otherwise clueless. At the memorial ride for Ben, various reporters were bouncing around me trying to get a look at my copy of the Accident Report, which they hadn't bothered to procure for themselves. Even when they got copies, they didn't read them carefully -- the Statesman reporter didn't even notice the cops' notation that the driver had been drinking until I pointed it out to her.

FAILURE #7: This case continues the pattern of cyclists being hit with serious penalties for minor traffic offenses, while at-fault motorists who kill us face little to no penalties.





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