Mimesis Law
24 March 2017

Death Race: Blame The Last Guy Living?

June 29, 2015 (Mimesis Law) — There is a basic reason why 18-year-old Cory Gloe was indicted in Nassau County, New York. It wasn’t that he wasn’t the best kid around. It wasn’t that he personally harmed anyone. It was that he was alive.  It was because the other kid, 17-year-old Tristan Reichle, was dead.

The allegation was that Gloe “goaded” Reichle into drag racing on Route 110. Basic stupid kid stuff.  Of course, Reichle could have said no.  Reichle could have raced and, whether he won or lost, driven home that night to sleep off the drugs and alcohol in his system.  But instead, Reichle raced, according to prosecutors, and lost control of his car, crossing over into oncoming traffic and slamming into an SUV.

The two passengers of the SUV were hurt. Reichle and the four current or former Farmingdale High School students in his car died.

That left Gloe holding the bag.  Gloe didn’t cause Reichle’s car to veer into oncoming traffic. Indeed, his car never touched Reichle’s or anyone else’s car. But there was a tragedy, a crime according to the prosecution, and someone had to be prosecuted for it.  You can’t prosecute a dead kid. It’s unbecoming. So Gloe it was, and he’s facing manslaughter, assault, criminally negligent homicide charges.

His attorney, Steve LaMagna, has moved to dismiss the charges.  In part, he contends that there is no evidence that there was a race at all, but rather just a kid driving poorly, driving impaired, losing control and getting into tragic accident. When people die, there is a strong inclination to find a crime, because accidents often fails to sate the need to attribute malevolent fault. People really hate it when kids die and there is no one to blame.

But is the allegation that Gloe goaded Reichle into a drag race sufficient to impute criminal liability on Gloe for what Riechle did?  The prosecution argues it is:

“The evidence presented to the grand jury clearly showed that the risks of street racing were apparent and foreseeable to [the] defendant, and he chose to race not just despite those risks, but because of those risks,” their court filing said.

While the prosecution doesn’t deny that Reichle, had he survived, would be criminally liable for his conduct, they extend the culpability a level beyond the individual who caused the actual harm, both to himself and others, to the person who didn’t but may have instigated the conduct.

George Washington lawprof Jonathan Turley sees the issue turning on Gloe’s degree of “instigation”:

On one hand, if Gloe was the instigator of the drag race, it would seem that charges are appropriate, though some would argue that reckless driving and lower charges would be more appropriate. What strikes me as difficult in unraveling the issue of who instigated the race in such a circumstance. It is not clear who the surviving witnesses are. The police clearly have some basis to alleged that Gloe repeatedly challenged Reichle. Teenagers are known to act in stupid ways, including drag racing. In this case, it appears that does drivers acted stupidly. However, at what point does the other teen become criminal liable for murder?

Why he suggests that Gloe’s instigation makes charges “appropriate” isn’t entirely clear, given that Turley offers no doctrinal basis for extending criminal liability beyond the actor, in this case, Reichle.  This appears more an analysis based on feelz than on law.

On the other hand, youthful stupidity is a pervasive defense, but does little to justify the commission of a crime if the individual is otherwise culpable.  While it may well go to the propriety of the sentence, it doesn’t change the question of whether he is guilty of crime if his conduct meets the elements of an offense.

So does goading another person to engage in dangerous and unlawful conduct, that ultimately results in tragic consequences, make the instigator culpable?  The prosecution’s argument smacks of the elements of negligence rather than criminal conduct. Is drag racing on the street a terrible idea? Sure. Is it foreseeable that it could cause harm, even death?  You bet.

But are the risks so severe, so grave, that it essentially assures harm coming to someone, such that it surpasses civil negligence and rises to the level of recklessness?  Probably so.

Yet, none of this addresses the question of whether Gloe is culpable for people killed by Rieche’s independent choice to engage in the race.  The answer may come from the Court of Appeals opinion in People v. Abbott:

A “drag race” involves two or more drivers engaged in a contest of speed with the use of their automobiles. When this activity occurs on a public highway there is an inherent danger of increasing the death-dealing potential of the automobile. The significance of this conduct should be apparent to anyone “who shares the community’s general sense of right and wrong”‘. It necessarily evinces a “failure to perceive a substantial and unjustifiable risk, constituting a `gross deviation from the standard of care that a reasonable person would observe in the situation'”, and it is “sufficient to sustain the conviction for criminally negligent homicide.”

In Abbott, the Court held that by engaging in a street drag race, it was sufficiently dangerous that even the guy in the “other car” was culpable for “aiding and abetting” the racer who died, since it takes two to make a race.

Gloe can still contend that he didn’t race, didn’t instigate a race, but the fact that he wasn’t driving the car that crossed into oncoming traffic will not absolve him of culpability to being a participant, if a race occurred.

Main image via Flickr/Matthew O’Thompsonski

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  • Wrongway
    30 June 2015 at 5:33 am - Reply

    Ohh man this horrible.. and no one is gonna be happy about the outcome of this case.. the legal system is pretty crappy about ‘fixing’ anything..

    sometimes, if both saides are pissed off, they think they got it right..

    but one thing jumped out at me.. `The significance of this conduct should be apparent to anyone “who shares the community’s general sense of right and wrong”‘..

    (this may not be a popular view but here goes..) this decision gives the ability to shift the burden off of the one who caused the ‘harm’ (the guy who was drunk & raced his car).. also not to mention the individuals who also agreed to participate in the ‘race’ by staying in the car with him.. to the guy who was racing against him..

    there’s more than a single person here who’s guilty, and I’m not arguing for a sec that he shouldn’t be charged with something, but to shift 100% of the blame onto him.. doesn’t cut it.. but maybe that’s just the “community’s general sense of right and wrong” talking..

    a terrible event, I just hope our Justice system doesn’t make it worse..