Criminal intent rare, hard to prove.

Published Monday, August 8, 2005, in the San Francisco Examiner

City walkers put lives at risk

By Marisa Lagos

Motor vehicle crashes have decreased in The City by about 31 percent
over the last decade and pedestrian incidents have fallen. But if you
ask the friends and families of those killed, the statistics fail to
reveal what they have endured -- a loss compounded by the fact that,
often the person who killed their loved one was never held legally
accountable.

Prosecution is difficult because of weak laws, a lack of enforcement
and difficulties in prosecution; poor street planning and increasing
traffic congestion aggravate the matter. The issue begins at the
Police Department, where the number of traffic officers on the street
at any given time is usually no more than six, in a city with an
estimated 900,000 cars on the street daily and hundreds of thousands
of people on foot.

In the majority of cases involving an injury collision, the citations
police can hand out involve fines and are misdemeanor traffic
violations. In the case of a death, the driver may be arrested for
vehicular manslaughter -- though if the collision appears accidental,
there may not be an arrest at the scene of the crime.

If charges are filed, prosecutors have a tough time proving guilt, and
often plea out cases to avoid a fruitless trial. To prove guilt in a
vehicular crime, the District Attorney's Office must demonstrate
either negligence -- which is difficult unless a person is drunk or
clearly violated traffic laws -- or criminal intent. Carelessness,
advocates complain, is not considered a criminal act, and drivers face
simple misdemeanor infractions for violating a pedestrian's
right-of-way -- if they are even ticketed at all.

Compounding the problem, judges and juries are hesitant to prosecute
vehicular manslaughter cases, said Assistant District Attorney Linda
Klee. She attributed the leniency to the fact that most defendants
don't have criminal records and are visibly upset by what happened,
and that most jurors have broken the same traffic laws in the past.

The most dangerous streets, according to several studies reviewed by
The Examiner, are thoroughfares -- of which San Francisco has plenty.
Nationwide, arterial roads, such as 19th and Van Ness avenues, account
for almost one-third of pedestrian deaths in the U.S. over the past
decade, according to the Surface Transportation Policy Project's
<htttp://www.transact.org> study, "Mean Streets, 2004."
<http://www.transact.org/report.asp?id=235> In The City, Health
Department studies have shown that an overwhelming number of
collisions occur in the downtown area, the heaviest-traveled area for
commuters.

Klee, who has been a prosecutor in San Francisco for more than 30
years, said the office is seeing more vehicular manslaughter and
hit-and-run cases recently because both police and District Attorney
Kamala Harris have made it a priority. There are usually eight
vehicular manslaughter cases at the D.A.'s office at a time, but the
conviction rate is only about 50 percent, which Klee called
"incredibly low."

"The problem with vehicular manslaughter is that almost everybody
could have done the same thing," she said.

If there are no witnesses, proving a car hit someone can also be
difficult, she said. For example, Klee is meeting with a woman next
week who says she was hit while crossing the street -- but the office
has not filed charges because in a videotape of the accident, it does
not appear that the car hit her.

But police officers and prosecutors say that sometimes, collisions are
accidents, not criminal actions. And in a city where an officer can
write 60 tickets in a day, even simple infractions are sometimes hard
to prove if the defendant goes to court. Officer James Kelly, who in
2004 caught a hit-and-run driver that almost killed a four-year-old
girl, said an officer may not even remember the infraction when
summoned to court months later.

Assistant District Attorney Van Ly said she was disappointed with what
she saw as a lenient sentence of six months home detention in a
hit-and-run involving a 4-year-old. Ly said the difficulty of
convincing judges and juries to convict pedestrian-related cases are
only compounded if it is a misdemeanor, not felony charge.

"Unless it's a slam-dunk case, we often plea something out because we
don't know what our chances are if we go to trial," she explained.
"It seems the law is written in a way that is not very pro-victim --
there would have to be a legislative change."


Email: mlagos@...