Zusha Elinson, Center for Investigative Reporting
April 30, 2013
Source: San Francisco Chronicle
(04-29) 18:00 PDT SAN FRANCISCO — Patricia Molinaro’s husband, Joe, was 10 minutes into his morning ritual – a mile-and-a-half walk from his Pittsburg home to Wal-Mart – when her phone rang.
It was a neighbor. Joe had been in an accident.
Patricia rushed to help him, but she was too late. Joe, a retired truck driver and her husband of 50 years, had been hit by a Nissan sedan. He lay in the street bleeding, his skull crushed, neck, pelvis and legs broken.
“When I saw him, I knew he was gone,” said Patricia, 79, her voice breaking.
Joseph Molinaro, 85, was in a crosswalk when he was hit and knocked 30 feet on Sept. 26, 2009. Investigators found the driver’s failure to observe the pedestrian’s right of way was the primary cause of the fatal collision. But police did not give the woman driving a ticket, and the Contra Costa County district attorney did not file criminal charges.
Pedestrian deaths made up more than a quarter of traffic fatalities over the past decade in the Bay Area’s major metropolitan areas, according to a 2011 report by national transit advocacy group Transportation for America. Only New York and Los Angeles had more.
A Center for Investigative Reporting review of the 434 pedestrians killed from 2007 through 2011 in the five largest Bay Area counties found that one third of the victims, like Joe Molinaro, were walking in a crosswalk when they were struck – three times the national average. And in 2011, local fatalities increased almost 40 percent from the previous year.
Yet, more often than not, the drivers responsible faced no serious consequences.
Sixty percent of the 238 motorists found to be at fault or suspected of a crime faced no criminal charges during the five-year period, CIR found in its analysis of thousands of pages of police and court records from Alameda, Contra Costa, Santa Clara, San Mateo and San Francisco counties.
When drivers did face criminal charges, less than 60 percent had their driving privileges suspended or revoked for even one day, an automatic penalty in drunken driving arrests.
Forty percent of those convicted served no more than a day in jail; 13 drivers were jailed for more than a year.
Hard to get justice
Pedestrian advocacy organizations typically are small and underfunded, especially when compared with lobbies for automobile drivers or even bicyclists. For that and other reasons, laws protecting pedestrians have been watered down over the past century. So has the application of those laws.
Police occupied with other crimes don’t track down hit-and-run drivers. The state Department of Motor Vehicles doesn’t always pull licenses, at times hindered by the morass of paperwork required to get information from courts and police departments. District attorneys fail to charge the drivers, saying juries sympathize with the motorists.
San Mateo County District Attorney Steve Wagstaffe said jurors see the cases as tragic accidents with no guilty party: “They’re all thinking, ‘There but for the grace of God go I.’ ”
Contra Costa County prosecutors declined to comment on why they didn’t charge the driver who killed Joe Molinaro. But in general, they said, the burden of proof in fatal crashes is hard to meet.
“Before we file any crime we have to answer: Do we believe that this person is guilty of the crime and can we prove it?” said Hal Jewett, deputy district attorney. “If we didn’t (file), it’s not because we’re forgiving of drivers running over pedestrians. It’s because we didn’t think we could prove it beyond a reasonable doubt.”
The driver who hit Molinaro told police she was traveling down two-lane Buchanan Road at around 35 mph, according to the coroner’s report. She said she did not see him in the crosswalk because the sun was in her eyes, a possibility given the time and location – and a common driver explanation in the files reviewed.
Patricia Molinaro finds the lack of punishment for the driver inconceivable.
“It wasn’t right,” she said. “They just let her go.”
From murder to misdemeanor
When cars first took to the streets en masse in America, the media likened killing pedestrians to murder. Automobiles were depicted in editorial cartoons as bloodthirsty monsters. Mobs attacked reckless motorists.
Then in the mid-1920s, ordinances banning jaywalking were passed with the encouragement of carmakers.
In 1945, California lawmakers carved out a vehicular manslaughter statute with a lighter sentencing range and the option of charging the crime as a misdemeanor.
Today, prosecutors often are reluctant to bring even misdemeanor charges against motorists, CIR’s review shows.
No charges were filed in 143 of the 238 fatal pedestrian crashes in which the primary collision factor was a driver violation, such as speeding, blowing through a stop sign or not yielding to a pedestrian’s right of way, or where the driver was suspected of a crime like driving under the influence or hit and run. In 41 of the uncharged cases, the DA could not file charges because the drivers left the scene of the accident and police never found them. In two cases, the drivers also died at the scene.
In September 2011, 6-year-old Sioreli Torres was walking to school in East Palo Alto with her family. Sioreli was in the crosswalk when she was struck and killed by a BMW driven by a teacher at a nearby elementary school. Sioreli’s mother and three sisters saw everything.
“She was about three steps ahead of us,” said her mother, Guadalupe Zamora. “It’s so difficult.”
The driver, who, according to Zamora, rushed out of her car yelling, “I’m sorry, I’m sorry,” after the crash, declined to comment for the story.
Police determined the crash was the driver’s fault. Wagstaffe, the San Mateo County DA, said prosecutors debated whether to charge her.
“If this is a law school exam, the answer is guilty,” Wagstaffe said. “The elements were there, but we all agreed that no jury was going to convict on that.”
Seeking new laws
Assemblyman Tom Ammiano, D-San Francisco, has introduced legislation that would force drivers to acknowledge the risk of distracted driving when they apply for a driver’s license or renewal.
Oregon and a handful of other states have passed what are known as “vulnerable user” laws – enhanced penalties for drivers who injure or kill pedestrians or cyclists. Under the 2007 Oregon law, convicted drivers receive an extra penalty: community service and driving school or a fine of up to $12,500 and a one-year license suspension.
San Francisco District Attorney George Gascón charged seven out of nine drivers, including one cyclist, found to be at fault in fatal pedestrian crashes his first year in office, 2011. With more than 700 pedestrian injuries every year in the city, Gascón said something needs to be done.
“If we had 700 people being shot every year, we would be jumping up and down,” he said. “Reckless driving is just as bad as people using a firearm recklessly.”
The independent, nonprofit Center for Investigative Reporting is the country’s largest investigative reporting team. For a longer version of this story, visit www.cironline.org.