was completed, the prosecution took its case against McCoombs to the grand jury.
A grand jury does not determine guilt or innocence: It determines whether the prosecution has probable cause to submit charges to a trial jury. The grand jury often will hear no defense-friendly evidence at all (the subject of the investigation, who in this case denies hitting Motsenigos, is not entitled to attend); it assesses only the sufficiency of the prosecution’s evidence to proceed. It has been said that a good district attorney can indict a ham sandwich, and with good reason: The bar is low.
Over several days, the jury saw enough evidence to return an indictment—if not for vehicular homicide, then for one of the lesser charges pertaining to McCoomb’s irresponsible driving. As reported in the Boston Globe on February 15, 2013, “[v]ideo footage, captured by a traffic camera, showed McCoomb’s truck attempting to overtake Motsenigos, striking him from the side, and driving off without stopping.” The same article quotes an eyewitness, one of several who corroborated the prosecution’s account, saying “It wasn’t [Motsenigos’] fault! He didn’t do anything wrong! He was just coming down the hill, and the truck hit him! The truck was going way too fast!”
Nonetheless, no more than 12 of as many as 24 grand jurors were persuaded that McCoomb should stand trial. (Thirteen votes are required to return an indictment.) Jurors reviewed the video evidence and heard corroborative eyewitness testimony, but refused to indict him even on the charge of unsafe overtaking of a bicyclist. By way of contrast, a trial jury in Massachusetts recently deliberated for only four hours before convicting a teenager of vehicular homicide for texting while driving. His victim? A passenger in the car he struck. If only he’d hit a cyclist, he might have gotten away with it.
The Motsenigos case hammers home what road cyclists long have known: The hostility of many drivers is not a product of justified indignation, although a minority of cyclists give drivers good cause to be indignant. But drivers’ often unjustified indignation hides an uglier truth. There remains a pervasive, deep-seated, almost atavistic prejudice against cyclists, and prejudice, more or less by definition, is intractable to reasoned debate.
Few if any drivers will admit prejudice toward cyclists. However, in a triumph of transitive victim-blaming, a goodly number of drivers will assert that the injuries to law-abiding cyclists are the fault of other lawless cyclists. One cyclist was asking for it, so another cyclist got hurt.
The proposition lurking at the heart of this sophistry seems to be that the indisputably asymmetrical power dynamic between drivers and cyclists should militate in favor of the advantaged rather than the disadvantaged parties. However, this is yet another way in which the argument is extra-legal: Our legal system by design embodies the inverse proposition that those in the weaker position must be protected by the law. If might makes right, our pretensions to the rule of law are hollow. The law also disfavors “self-help,” a pithy way of referring to taking the law into one’s own hands.
There is one positive take-away: State and local law enforcement sought to prosecute McCoombs to the fullest extent of the law, something reports suggest is increasingly common in Boston and elsewhere. Because the moral and legal arguments of cyclists appear to be unavailing, only by operation of the motor vehicle and criminal laws can the scales be balanced; and this can only be effective if officialdom grants equal respect to the legal rights of cyclists. Civil settlements and verdicts, which face their own hurdles before often unsympathetic juries, are not enough. They are rare, and very rarely reported. The deterrent effect, if any, is negligible.
Only regular and vigorous prosecution of drivers who are recklessly indifferent to the safety of cyclists can effectuate change on the scale necessary to make the roads substantially safer for cyclists. This is not to downplay the progress cyclists have made legally and in community relations in the past decade. Nor is it to disregard the role that courtesy plays in improving interactions between cyclists and drivers. But in the presence of rampant, unacknowledged prejudice, diplomacy alone won’t get the job done.
So the next time someone tells you, in so many words, that he has a diminished duty to follow the law while certain cyclists fail to ride lawfully, ask him if he feels the same diminished obligation to other drivers for the sins of the few. If the answer isn’t yes, thank him for his time and walk away, before you waste yours. You’re better off writing your city councilman, the chief of police, or your district attorney.