by Brendan Beery
If I were the district attorney (prosecutor) assigned to review the Caitlin Jenner car accident from last February, I’d charge her with misdemeanor manslaughter (at least), and I think I’d win.
Reporting about the accident has been fuzzy and amateurish. The New York Times wrote, “… [I]nvestigators had found that Ms. Jenner was driving in a manner ‘unsafe for the prevailing road conditions’ when her sport utility vehicle rear-ended a Lexus, pushing it into traffic. … Ms. Jenner was hauling an off-road vehicle on a trailer behind her Cadillac Escalade on Feb. 7 when she steered to avoid cars slowing for a traffic light in front of her on the Pacific Coast Highway.” If you glean any sense of what happened from that crack journalism, you’re more discerning than I am.
NBC, among others, was even worse. Not only did they not get the story right; they got it wrong. NBC reported, “Jenner was driving a Cadillac SUV and rear-ended a Lexus that had just rear-ended another vehicle in a chain-reaction crash …”
But the evidence the prosecutor reviews will not be the shoddy work of “journalists” or even unreliable eyewitness testimony. The prosecutor will be viewing video evidence reportedly from a security camera on a bus. The video was obtained by – who else? – Gawker. You can see that video by clicking here.
The video starts at what appears to be the point of the first impact. Even my degenerating eyes can see pretty clearly that when Jenner, who indeed is driving an Escalade with a heavy payload in tow, slams into the back of the Lexus driven by the now-dead woman, the Lexus has not rear-ended the car in front of it. Jenner’s colossal vehicle – aping a commercial rig with its lengthy trailer added on – strikes the Lexus from behind, pushes it into oncoming traffic, and, having dispensed with the trifling little thing, proceeds to plow into the car that had been in front of the Lexus before the Lexus launched into its deathspin.
To summarize, the video shows an oversized vehicle that is out of control laying waste to everything in its path. Media outlets have variously speculated that Jenner was texting, trying to escape paparazzi, or just zoning out. Whatever the case, Jenner manifestly followed too closely behind traffic in front of her, drove too fast for road conditions, and failed to account for the destructive potential of the mammoth projectile she was piloting.
In California, one is guilty of misdemeanor vehicular manslaughter if she causes the death of another (a given in this case) with negligence. Negligence is the bane of many lawyers’ existence. That’s because, to decide whether a person was negligent, we must determine whether she acted “as a reasonable person in the same circumstances” would have acted. And the “reasonable person” is not easy to define. We are talking here about an average person of ordinary intelligence and sensibility. Since just about everyone considers himself or herself to be the reasonable person (at the very least), jurors will often boil the question down to this: how would I have acted?
I doubt that many jurors would view this video and picture themselves as the driver of the Escalade – or what more closely approximates the engineer of a careening locomotive. Most of us don’t drive Escalades, haul bulky all-terrain vehicles, make ourselves into super-sized battering rams like superhero Transformers, or, for that matter, tailgate. Jurors are jurors: if you’re one of them, you’re good to go, and if you’re not, you’re toast.
I wrote above that I’d charge Jenner with at least misdemeanor manslaughter. She could even be charged with a felony. For that charge to stick, she’d have to be guilty of not just negligence, but gross negligence. Here’s how I explain this to students: this generally means that the defendant not only should have known the risk, but that she did know the risk; and it generally means that she didn’t just fail to do what a reasonable person would have done, but that she did the opposite of what a reasonable person would have done. Applying that to Jenner’s case, a juror could conclude that Jenner not only failed to keep a safe distance, but consciously maintained an unsafe distance – the opposite of what a reasonable person would have done, especially while hauling a load that would render sudden breaking a dubious undertaking.
None of this is to say that Jenner will be charged with anything. Look at the video, consider the law, and make your own call. But she is certainly legally exposed here, and her celebrity is likely unhelpful given prosecutors’ affection for “setting an example.”