How the Wheels of Justice Work (or Don't Work)
The wheels of justice don't spin quite as fast as the wheels on a Schwinn 24. Here's what happens when a collision occurs in which a cyclist is killed or seriously injured.
1. The collision occurs. Somebody calls 911 and the police show up.
2. Cops at the scene. The police gather names of witnesses, if any and other information. If it was a hit & run and nobody knows the license plate number (about half of all serious bike cases), it's unlikely the motorist will ever be located and charged.
If the driver is at the scene, and the police know the driver to be drunk, they're supposed to arrest the driver. If they think the driver is probably drunk, they're supposed to test the driver. If they simply SUSPECT the driver is drunk, they can ASK the driver to submit to a specimen test, but the driver doesn't have to agree. (That's the 4th amendment protection against unreasonable search & seizure.)
Whether or not the motorist was drunk, the police can still arrest the motorist if they want to -- they have a lot of discretion about that. It's entirely up to them. It's unlikely for the police to simply issue a ticket if they didn't witness the accident themselves and there's not a heck of a lot of evidence at the scene. However, after the police do an investigation, the driver could be charged with the traffic violation (and possibly something more serious, like criminally negligent homicide). Then again, as we've seen repeatedly in Austin, the driver may never face charges for the traffic violation.
3. If they think it's newsworthy, the police department issues a press release almost immediately. Local media and interested persons can get a copy of the press release by calling the police Public Information Office at 974-5017. The press release will likely omit a lot of important details, especially conclusions about things that the police didn't witness themselves. In Ben Clough's case, the press release didn't bother to mention that the driver had run a red light, but it did point out that Ben wasn't wearing a helmet. (The press, of course, dutifully based their articles on the press release, misleading the public into believing that it was Ben's fault for getting killed.)
4. An officer who was at the collision scene files an Accident Report within a day or two after the collision. The Accident Report includes information about the people involved and their vehicles, a diagram of the collision, and a list of factors believed to contribute to the collision. It often contains precious little else. You can get a copy of the report by visiting the police department at 7th & I-35 or by ordering a copy through the mail. It costs $4.00. For more information, call APD's Report Sales department at 974-5000.
5. Investigation or case closure. There are several possibilities at this point:
Unfortunately, when the police say that a case is "under investigation", there's no easy way to determine whether they're actually investigating it, or whether it's sitting in a pile of cases waiting to be investigated. The Public Information Office (PIO) generally won't say anything beyond "It's under investigation." If you're having a hard time getting information about the status of the case from the PIO, try asking the PIO who the investigating detective is, and then try contacting the detective directly.
When motorist Michael Memon ran down and killed Tom Churchill, the police said only that the case was "under investigation" for months. It took a scathing report on the local news about how the police hadn't done anything with the case for six months for them to do anything with the case. (After the news report, the police quickly "finished" their investigation and turned the case over to the DA's office.) But in 1995 when Cecily Hyde ran over an Austin police officer, the police charged her in less than ten hours.
6. Police turn the case over to the DA. If the police complete an investigation and don't close the case or file charges themselves, they'll turn their case after to the District Attorney's office (DA) and let the DA decide about charges. Remember that it often takes the police between two weeks to several months to turn their case over to the DA's office, depending on how much there is to investigate, their current workload, and, probably, politics.
7. If and when the DA gets the case, the DA almost always sends the case to a grand jury. (The DA could bring their own charges, or they could just drop the case, but neither is likely.) It takes the DA between a few days to several months to send the case to a grand jury. Contrary to some what some conspiracy theorists are saying, I haven't seen any evidence that bicycle cases take longer to go to grand jury than non-bicycle cases. A prosecutor makes a presentation to a grand jury about the evidence in the case, and then the citizens on the grand jury decides whether to file charges ("return an indictment") or drop the case ("no-bill" the motorist).
8. Case Dropped or Court Case scheduled. If the grand jury no-bills the motorist, then (s)he's off scot-free and that's the end of the criminal matter. (That's what happened to Michael Memon, when the grand jury surprisingly "no-billed" him for killing Tom Churchill.) And just as regular juries don't explain their rationale for deciding guilt or innocence, the grand jury doesn't explain why they decided to indict or to no-bill. It's also our understanding that the grand jury proceedings themselves are secret and not open to the public. If the grand jury indicts the motorist instead of no-billing, then the defendant will have as many as three court events:
Any or all of the above events can be postponed by the court, or often by the defendant requesting a delay. In fact, delays by the court are likely; it typically takes months for a case to go to trial after an indictment. It's not uncommon for a case to be scheduled and rescheduled for trial several times before the trial actually happens. From the date of the accident itself, delays of a year or more until the trial are not uncommon.
9. Civil Suit. Motorists may yet get hauled into court even if they're no-billed, or if they win their criminal case. A la OJ, the family can file a civil suit against the motorist. (In fact, they can file the suit even if the motorist was indicted and found guilty in a criminal trial.). That option was available to Tom Chuchill's family, but they wanted to put their grief behind them and not drag it out with a court case.
Do you want to know what to do about a case involving you or a friend? Check out our page on what to do if you're hit or harassed