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Archive for Tuesday, November 3, 2009

Prosecutors likely to decide this week on charges for hit-and-run fatality on Tennessee Street

Charges against the man accused of hitting Rachel Leek in October's fatal hit-and-run are expected this week. It was determined the driver, Joel Hernandez, had been drinking when the accident occurred.

November 3, 2009

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Prosecutors could determine whether to file charges against the driver involved in a fatal hit-and-run accident by the end of the week, Douglas County District Attorney Charles Branson said Tuesday.

“We’re in the process of reviewing all the materials,” he said.

The police said 21-year-old Joel Hernandez had been drinking before he hit 20-year-old Rachel Leek, who was riding her bicycle in the street. The accident occurred about 2:20 a.m. Oct. 16, just south of 10th and Tennessee streets. Leek died the same day from her injuries.

Police officers made no arrests in the hit-and-run accident — a decision Branson said gives his office more time to determine what charges to file in the case, if any. With an arrest, prosecutors must make that decision almost immediately.

“They thought it was more beneficial to continue to gather information and continue their investigation, as opposed to (forcing) the investigation by making an arrest,” Branson said.

Comments

Monica Miller 5 years, 1 month ago

I don't understand how no charges is even being discussed in this case. . . How could he NOT be charged with something??

jimmyjms 5 years, 1 month ago

If he was drinking and driving, what exactly is there to "figure out?"

bankboy119 5 years, 1 month ago

jimmy,

My guess would be that if they could actually get the charges to stick. He may have "admitted" it at this time, but if charges come across he very well may ask for his admission to be stricken because he was "coerced" into the admission from officers.

Again, all hearsay and hopefully we find out what's going on behind the scenes soon.

Steve Jacob 5 years, 1 month ago

Jimmyjms, the DA has to get reports to see if Ms. Leek was impaired. As we all have seen before that makes a big difference in what he gets charges with.

Amy Heeter 5 years, 1 month ago

Don't strain yourself Mr. Branson but do get charges filed. I simply do not believe this community can accept another 2 week sentance for a drunk driver that took another's life. Although I will say that 2 drunk drivers both in cars hitting each other is different than a drunk driver in a car hitting a person a bike. Ms Leek didn't stand a chance in this wreck. There was nothing between her and the vehicle that hit her. The fact that Joel Hernandez hit her, the passengers in the car knew they hit her and they all fled is unacceptable. The fact that all parties involved waited to report until after Ms Leek had died is unacceptable. All three parties in the vehicle should be charged.

nobody1793 5 years, 1 month ago

If there is no arrest is there anything to prevent this guy from skipping town?

GmaD321 5 years, 1 month ago

If the laws currently in place do not allow for severe punishment of one who drinks, drives and injures another then we need to make tighter laws that do. It is absolutely unacceptable to get wasted (on whatever your drug of choice is) and get behind the wheel. Society and our laws need to reflect that.

ModerateOne 5 years, 1 month ago

GMAD321, I don't know the facts but what if the facts proved conclusively that Mr. Hernandez had only 1 or 2 beers over the course of a couple hours? Then it was not illegal for him to be driving even though it was illegal to flee the scene. What should be the "severe punishment?"

I for one am glad the DA is weighing these difficult issues before charging.

Randall Barnes 5 years, 1 month ago

This comment was removed by the site staff for violation of the usage agreement.

frisbeenation 5 years, 1 month ago

rando tell me where you read she was intoxicated.

Amy Heeter 5 years, 1 month ago

There was nothing in any article that said she was intoxicated. Another poster said that( my guess a friend of one of those in the car). The driver did not take a breathalyzer test so there will be no results on him. However when Ms. Leek died the owner of the car came forward. Of course her car was damaged and it was only a matter of time before the police found her. The way I hear it both the girls that were in the car told police the driver was intoxicted and driving at the time he hit Ms Leek. No doubt both the girls involved will walk as part of a plea for their testimony against the driver. That is of course if the D.A. actually files charges. I know the driver and the idea of him having just 2 beers is not realistic. I think they should all be nailed to the wall but suspect smitty is correct on this one. How sad is that?

ralphralph 5 years, 1 month ago

Fleeing makes it harder to prove intoxication, but makes it easier to prove fleeing. DUI may be a tough case, with time lag between the incident and any testing. Leaving the scene of this accident, in and of itself, is horrendous enough to warrant a stiff sentence, and evidence of intoxication, even if not of the type to prove the DUI, would scream for a max sentence on leaving the scene. The DA would have nothing to lose by going ahead with the DUI, even if it's tough to win, since the leaving the scene of a fatality looks like a strong case from these cheap seats. I would have to hope that the question being pondered is WHAT to charge, not WHETHER to charge. There is no "whether" in this one.

Amy Heeter 5 years, 1 month ago

Yeah well I just keep thinking about Christopher Bread. If you recall the driver was charged just 2 hours under the 2 year statute of limitations on that one and still Marvin S. pretty much got a slap on the wrist.

Christine Anderson 5 years, 1 month ago

Personally, I don't think the lack of an immediate arrest suggests "cooperation" between l.e. and the d.a.'s office. I think it more likely suggests the police are getting sick and tired of doing their job only to be foiled by a d.a. (and staff of a.d.a.'s) who are too damn lazy to do theirs. It matters not how horrible the crime is. We can count on the Dg. Co. d.a.'s office to do "nothing, nothing. Absolutely nothing."

stephenj 5 years, 1 month ago

Rando you are an idiot. It never said that anywhere, only in asinine speculation on the boards (i.e. your post.)

sundancewierdo 5 years, 1 month ago

"To constitute depraved indifference, the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.

In one case, People v Register, 60 NY2d 273, 469 NYS2d 599 (1983),while exploring the meaning of "depraved indifference recklessness" the Court of Appeals ruled that intoxication is not a defense or excuse to "depraved mind murder," although it may be to intentional murder. Its analysis started with distinguishing reckless manslaughter from the "depraved indifference recklessness" necessary for murder:

"to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind. . . . . The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct." 60 NY2d at 274."

kanshawk 5 years, 1 month ago

regardless of what happens i'll probably still be voting for "anyone else" as a write in on the ballot for DA next election.

promitida 5 years, 1 month ago

I'm glad they waited to gather "materials" before charging Joel. But if he gets off with some joke of a sentence I'm going to host a protest.

compmd 5 years, 1 month ago

The "Law & Order" junkies need to get a clue.

At this point, the state would be delaying arrest for procedural reasons; they don't want something in the future to come back and bite them. Right now, the DA is thinking "I don't want to screw this up." So, the state prepares as much of the investigation as they can before arresting anyone and starting the clock on "due process" and "right to a speedy trial." By not arresting him now, the state has more of an opportunity to build a stronger case with reduced risk of losing or getting a conviction overturned on appeal.

ModerateOne said: "what if the facts proved conclusively that Mr. Hernandez had only 1 or 2 beers over the course of a couple hours? Then it was not illegal for him to be driving even though it was illegal to flee the scene."

Absolutely wrong. Regardless of how many beers one has had, if you blow anything even below .08 on a PBT, if you are obviously impaired, you get a DUI. A BAC is only one factor.

YOUNGCSI, stick with TV, my friend.

Sundance,

Thanks for the copypasta, but New York State Appeals Court decisions are not the first things a Kansas state judge is going to look at in a criminal case, especially when the statutes defining crimes and punishments do not match up one-for-one. However, if there was no Kansas case law in pari materia to some argument that someone wanted to make, they could certainly cite the New York decision.

smitty, Step 1, remove tinfoil hat.

IANYL, TINLA.

Danimal 5 years, 1 month ago

Yeah brandy, I would think that the Leek family has a pretty good civil case against the suspects in this crime. However, I would guess that there isn't much to be had in the way of monetary gain by going after them. I doubt that Joel Hernandez, being 21, has many assets or much personal wealth to go after.

I do think that there's something seriously flawed with the DA's explanation of being "in the process of reviewing all the materials" is pretty weak. If someone is killed in Lawrence I would certainly hope that once the suspect is identified, they are swiftly arrested. I guess they have as long as the statute of limitations is for whichever crime they're considering charging him with, but somehow even with it being technically legal, this approach seems immoral and wrong. Get your thinking cap on and make a decision about what charges to file and get to the business of carrying out justice.

grammaddy 5 years, 1 month ago

Drinking and driving ,resulting in a fatality and then leaving the scene! What's to figure out??

50YearResident 5 years, 1 month ago

Just the facts as I see them and not condemning or defending either party involved. It was written into the original story that Ms. Leek was riding in the East lane of Tenn St which would be the passing lane on the one way St which heads South and the bike was not lighted with the required night lighting equipment. Impaired or not this would be a violation on her part and if impaired would be another violation. Leaving the scene by Mr Hernandez weather impaired or not makes it very hard to prove. Charges could be as little as, Leaving the scene of an accident. Additional charges are anyone's guess at this point.

Eride 5 years, 1 month ago

"50YearResident (Anonymous) says… Just the facts as I see them and not condemning or defending either party involved. It was written into the original story that Ms. Leek was riding in the East lane of Tenn St which would be the passing lane on the one way St ... Charges could be as little as, Leaving the scene of an accident. Additional charges are anyone's guess at this point."

You are not required to be in the right lane on a one way street within the city. The left lane is not a passing lane within the city.

As far as considering whether or not Ms. Leek was impaired, so far the police have only stated they do not believe she was.

Leaving the scene of an accident, thankfully, is not a "little" charge. Under these facts it is a severity level 9 person felony.

As for proving Mr. Hernandez was reckless... there are two witnesses from the car, there are witnesses from whatever bar they were at, there are their own statements they made on a publicly accessible site (facebook) regarding the hit and run as well as past posts glorifying drunk driving.

It saddens me that people try to make it not a big deal that three drunk people in a car ran over a girl and left her in the street to die. That dispite the horrific actions of those three that some people would try to blame the victim. Not having proper reflective gear on your bike is an asinine point to make when comparing liability to a drunk driver running someone over and leaving them to die.

mdfraz 5 years, 1 month ago

To those who want to charge the passengers in the car........what did they do wrong? Morally should they have called the police to tell them what happened? Probably, yes. Should they have begged and pleaded with the driver to stop? Yes. But really, they were riding in a vehicle where the driver was in control, not them. Yes, let's "throw the book" at those dastardly people sitting in the car. I'm not saying they have no culpability, if not legal, at least moral, but get real.

Danimal, it's quite clear that you and similar posters have not the first clue about speedy trial issues. If someone is arrested, they must be charged with something and have bond set in a very short amount of time (I believe something like 48 hours, but I'm not positive off the top of my head). Then, if they remain in custody, they must be brought to trial within 90 days, absent defense continuances or delays. With the need for this further investigation to continue, it's not only acceptable for the DA/police to take their time and do this investigation right, it's THEIR JOB.

I realize internet message boards provide anonymity and the chance to vent/voice opinions, but at least try to make them somewhat informed opinions.

And in no way am I excusing what allegedly happened here.

jafs 5 years, 1 month ago

md,

They could have chosen not to ride with a drunk driver, if they didn't want to be at the mercy of one. And, morally and legally, they absolutely should have called the police and reported this, not probably.

Eride,

From a "blame" point of view, you're probably right. But from a preventive point of view, bikers shouldn't ride at night without reflective lights.

And, isn't it in fact "contributory negligence" that she didn't have lights?

monkey_c 5 years, 1 month ago

compmd- Absolutely wrong. Regardless of how many beers one has had, if you blow anything even below .08 on a PBT, if you are obviously impaired, you get a dui. a bac is only one factor. Really? For Real? If I had just one beer with dinner there would be beer on my breath, but I would not be impaired. Would that actually constitute a DUI? I had certainly not heard that before, if that is true.

mdfraz 5 years, 1 month ago

No, legally, they had no duty to report that I can come up with. That's just wrong to say. Morally? Yes. Unless/until you cite a statute that makes their failure to report the accident a crime, you are just simply proving my point that people post what they WANT to be facts as real, established facts. I can find no LEGAL duty that the passengers had to the victim. That's all that matters in whether they will be charged.

FYI, after a little research, the closest thing I can find is in KSA 8-1606. This is the only statute I've read that says ANYTHING about a passenger's duty to report an accident, and that duty only comes about if the driver is INCAPABLE of making a report of an accident. There is no indication that is the case here. Everything else deals with the DRIVER'S legal duty, not a passenger.

And yes, let's just say "don't ride with a drunk driver; if you do you are in trouble". Seriously?

mdfraz 5 years, 1 month ago

monkey, if you have one drink and are under the .08, but you are "incapable of safely operating a motor vehicle" yes you CAN be charged with DUI. The per se .08 violation is not the only way that can happen. So, if you have one drink but you are all over the road, or if you HIT someone, it's a POSSIBLE charge.

And guess what, that's probably something the DA's office is considering. It's very fact specific, and it takes time to sort out. So, again, the DA's office is actually doing their job as they are supposed to in this case, at least from the info I can gather in the news.

kmat 5 years, 1 month ago

md - the car belonged to one of the passengers and she handed him the keys and had him drive. Hopefully she can be charged for having a known drunk person drive her car.

ralphralph 5 years, 1 month ago

If the passengers helped the driver hide the car, etc., would that be "Aiding a Felon" or "Obstruction" or some such?

Eride 5 years, 1 month ago

"jafs (Anonymous) says… Eride,

From a “blame” point of view, you're probably right. But from a preventive point of view, bikers shouldn't ride at night without reflective lights.

And, isn't it in fact “contributory negligence” that she didn't have lights?"


My response:

  1. We are discussing criminal liability, tortious liability is a different issue.

Even though it doesn't actually matter since this is criminal liability I will go ahead and correct it anyways...

  1. Kansas uses comparative negligence, not contributory negligence and in fact, basically no jurisdictions use contributory negligence anymore.

In conclusion: Kansas' negligence standard is irrelevant because we are discussing criminal liability but even if we were discussing tortious liability your point would still be moot. Under Kansas' comparative negligence standard, as long as a person's percentage of fault is found to be less than that of the other parties that person will not be denied recovery on that issue (now the amount of recovery will be reduced dependent on the percent of fault attributed to the other party but they will still be allowed to recover that percentage of the damages). It is doubtful based off the facts we currently have available to us that any jury would find her as being equal or more at fault then a driver who was impaired, who hit her, and left her to die.

mdfraz 5 years, 1 month ago

IF the passengers helped conceal the crime, I think there may be some legal liability. As for the person that owned the car, I can't answer that question. Civilly there is probably liability for that, but criminally, I can't say yes or no.

KSA 21-3205 says a person is criminally liable for a crime committed by another if such person intentionlly aids, abets, advises, hires, counsels or procures the other to commit the crime. So it appears that if they actively assisted the driver in hiding the crime they could be liable criminally, but if they didn't ACTIVELY do something to help facilitate the crime, they probably aren't liable.

Very quick research doesn't show any criminal statutes for loaning your car to someone who is intoxicated, but I didn't have a lot of time to do more than skim.

Leslie Swearingen 5 years, 1 month ago

Kmat, maybe she was drunker than he was.
If you will recall the college student who watched a man rape a ten year old in a public restroom in Las Vegas was not arrested for not reporting the crime. He was however expelled from college.

jafs 5 years, 1 month ago

md,

Not reporting the crime is "actively assisting the driver" in hiding it, in my book.

My comment was a response to yours that they weren't in control of the car. While that is obviously true, anyone who rides in a car with a drunk driver is putting themselves at risk. If you don't want to be at the mercy of the drunk driving the car, then don't ride with them.

To ignore the obvious choice that passengers have to ride/not ride with a drunk driving is to paint an incomplete picture of the situation.

It's not like the driver abducted the passengers.

jafs 5 years, 1 month ago

In general, I'm more interested in prevention than blame after the fact.

If the biker had had lights, this might not have happened.

If the driver weren't drunk, this probably wouldn't have happened.

If more people refused to ride in cars with drunk drivers, then fewer people would die in alcohol-related accidents.

Psychohontas 5 years, 1 month ago

I wish all you people would shut the h. up. I feel sadness and loss for Rachel Leek's family. It broke my heart. It was/is a horrible tragedy. You don't know how much liquor Mr. Hernandez consumed, perhaps it was 1 or 2 beers. Jake Deckert received 14 days in jail and two years parole and it wasn't even a felony. Joel is a good kid with no criminal record. He made a mistake, one that he will have to live with forever. It was an accident people, an unfortunate, terrible accident. Joel is a very gentle soul, I can't imagine this not haunting him. He should be given a similar penalty as Mr. Deckert. He should also have to speak at a MADD panel about what he did. I cannot condone his behavior, but I will not judge him. Neither should you. I'll always love you Joel-Love,Your Auntie F.

promitida 5 years, 1 month ago

Smitty-

Dolph had to use the space to throw in his two cents about how the Chancellor can do her job.

Thanks for the update!

frisbeenation 5 years, 1 month ago

They are going to announce charges today.

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