A Perilous 'Safety' Prosecution: Unwise Bid To Put Bus Driver On Trial
Last week, MTA bus driver Francisco de Jesus hit a girl in a crosswalk in Williamsburg, sending her to the hospital with severe leg injuries.
Both are lucky she isn't dead. Police arrested de Jesus on the spot — but good luck to the Brooklyn prosecutors who must prove this case.
The arrest may have the opposite effect of what safe-streets advocates intend — that is, in turning the public off this good cause rather than rallying support.
De Jesus was steering his rush hour Q-59 bus through a left turn at a congested intersection when he hit Jiahuan Xu. Witnesses say she was in the crosswalk, with the “walk” signal on her side.
So the case seems a tailor-made argument for a law that pedestrian-safety folk have pushed and that Mayor de Blasio has championed as part of his “Vision Zero” effort to cut traffic deaths: stiffer penalties for drivers who “fail to yield” or “fail to exercise due care,” which are now misdemeanors.
As it is, the precinct cops took de Jesus in on both misdemeanor counts, rather than issuing civil citations. De Jesus is the second bus driver charged in three months.
But the arrests — and streets' advocates crowing about it — may instead spur a backlash.
John Samuelson, the head of the Transport Workers Union, which represents de Jesus, hit back hard, calling Transportation Alternatives boss Paul Steely White a “progressive intellectual jackass.”
Indeed, de Jesus is about as sympathetic a driver as you can find. Though the investigation is ongoing, no witness has told the media that he was speeding or otherwise driving recklessly. The nearly three-decade MTA driver doesn't appear to have been drunk, texting, or on drugs.
Instead, he says that he looked in the crosswalk and made sure no one was crossing before he turned.
So what happened? The TWU claims the side-view mirror caused a blindspot. Did Xu enter the crosswalk after the bus had started its left turn, placing her in the spot where de Jesus wouldn't have seen her? Or was the driver zoned out?
We don't know, and may never.
We do know, though, that MTA bus drivers are far less likely to kill than other drivers — and that, over the past 26 years, they've reduced their injury rate from 10 per million miles travelled to five.
If de Jesus takes this to a jury — his right, and a real possibility given his union resources — the jury may find him not guilty. There's just too much doubt.
That's especially true because jurors are likely to believe the “I didn't see her” defense in far less murky cases. Manhattan DA Cy Vance lost a big case two years ago — a mail-truck driver hit and killed a bicyclist — on similar grounds.
Just last year, a Bronx jury found a driver who killed not guilty — even though his doctor told him not to drive because of his epilepsy.
And remember, Kerry Kennedy got off a misdemeanor charge last year when a Westchester jury found that it was perfectly credible that a harried rich housewife would mix up her wake-up pills up with her sleepy pills and not notice as she careened down a highway.
Contrast those outcomes to a case coming up next month — a case that's far more obviously egregious than de Jesus'. Last year, 23-year-old Domonic Whilby allegedly got drunk, stole a truck, and drove it at high speed into an MTA bus in Manhattan, killing William Pena, the driver.
Whilby faces a second-degree murder rap. And a jury last year rightly convicted Adam Tang — “Afroduck” — of reckless endangerment for spectacularly breaking a Manhattan speed record.
Of course, there are lots of cases where cops and prosecutors should charge bad drivers — but don't.
And state penalties for dangerous offenses should be a lot tougher to get bad drivers off the road before they kill. If you're driving with no license, prosecutors should be able to charge you as if you were carrying an illegal handgun — and take away your car, too.
People who speed and run red lights shouldn't be driving, either — and a lot more cameras could help find them.
Long-term, too, it's technology — an upcoming MTA pilot program to outfit buses with sensors that can detect pedestrians – that will save the most lives.
But (absent further evidence) prosecuting de Jesus could endanger pedestrians — because dropped charges or an acquittal will give cops an excuse not to charge bad drivers when they should.
This piece originally appeared in New York Post
This piece originally appeared in New York Post