Bob Mionske wrote a great piece on a crazy road rage incident on his blog at Bicycling magazine which he reprinted on his  BicycleLaw.com blog.  The incident was captured on film and has been thousands of times, including an annotated version on You Tube here or  here. Security cameras captured the incident.  Bob’s article discusses the disparity of the parties and the “spin” which the rich and powerful have the ability to create…

You Be The Judge

Steve Magas
The Bike Lawyer

=================

A swift public relations campaign couldn’t save a successful Canadian lawyer from the fact that he ran down and killed a bike messenger.

By Bob Mionske

He was Metis, one of the officially recognized aboriginal peoples of Canada. The oldest of eight children, at the age of six he had been adopted by a foster family, together with his four-year old brother, as their mother struggled with an alcohol addiction. “We just grew up with poverty, with nothing,” his younger brother, now serving time for drug trafficking at Stony Mountain Prison, near Winnipeg, noted. “We probably had one of the hardest lives growing up. A lot of foster homes. Broken-down families.” As a young man, the older of the two brothers had gotten into trouble with the law over some bad checks, and had left his home town for a new life in Toronto, where he struggled with his own addiction to alcohol. For a time, he was living on the streets, homeless, but for the past several years the avid cyclist had worked as a bicycle courier.

A province away, another boy, 10 years his senior, was growing up. It might as well have been a world away. This boy’s father had been a mayor, and when he grew into adulthood, he also would take up the mantle of public service, exceeding his father’s own accomplishments. But first, there was university, where he earned his Bachelor’s Degree, and then a Master’s Degree. Afterward, he entered law school and after completing his law degree he continued his legal studies at Harvard Law School, where he earned an advanced law degree, graduating magna cum laude. Following law school, he clerked at the Supreme Court of Canada, before accepting positions with two of the largest and most prestigious law firms in New York and Canada. A Fullbright Fellow, this brilliant man also taught law while in private practice, first at the University of London, and later, at the University of Toronto. He entered politics with his election to the Ontario Legislature, and later served in cabinet posts, first as Attorney General, and subsequently as Minister of Aboriginal Affairs, and Minister of Economic Development. In May of this year, he resigned his cabinet position, to take a position as CEO of Invest Toronto, but it was widely believed that it was only a matter of time before he would become Ontario’s Premier. And beyond that?

Darcy Allan Sheppard and Michael Bryant came from different worlds, but when they met in the heart of the posh shopping district on Toronto’s Bloor Street, their worlds violently collided. In the wake of that collision, one life ended, and another lay in ruins. On the night of August 31, Sheppard—the Toronto bike messenger—and Bryant—the Toronto politician—both on their way home, became involved in a minor traffic dispute that quickly escalated into a violent incident of road rage, and within moments, Sheppard lay mortally injured on Bloor Street. Within hours, Bryant faced charges of criminal negligence causing death and dangerous operation of a motor vehicle causing death.

When serious charges have been laid, all but the most indigent will hire a criminal defense attorney to represent them. Michael Bryant was no exception; it was soon announced that he had retained Marie Henein, one of Toronto’s best criminal defense lawyers, with a well-deserved reputation as “a formidable opponent” who is “razor sharp” and “a lawyer’s lawyer.” Henein wasn’t Bryant’s only hire, however—the morning following Sheppard’s death, it was revealed that Bryant was being represented by the Toronto PR firm Navigator Ltd., which, among its other services, specializes in “CEO Reputation Building” and “Crisis Communications.” After being released on his own recognizance that morning, Bryant went before the cameras to offer his “deepest condolences” to Sheppard’s family, in a page straight out of the textbook of crisis management.

Immediately following this initial foray into rebuilding Bryant’s reputation, Navigator set to work disseminating Bryant’s spin on the incident. Bryant’s Facebook page received a makeover, with links to his press statement posted on his wall, and his candid profile photo replaced with an earnest, professional headshot. A blog and twitter account were set up “to quickly correct inaccuracies with factual responses,” with the posts reportedly focusing on responding to “what others have written and posted on twitter and youtube.”

This emphasis on spin control was not met without some criticism:

When a news story says, “We have new information from a source …” is that source Navigator? Or someone egged on by Navigator? We won’t know because Navigator “prefers to be inconspicuous.” Reporters talking to them have to agree that everything is off the record. Why?

Commenting on the ambiguous blurring between news and spin, one Toronto criminal lawyer said, “Look, the headline on this story should be: ‘Navigator, changing your perceptions without you even knowing it.’ ”

Responding to questions regarding his company’s work for Bryant, Navigator spokesperson Dan Robertson offered a defense: “From day one, there has been speculation, innuendo and rumor. It is perfectly fair to insist on accuracy, especially at a time when Mr. Bryant is not able to publicly tell his side of the story.” Ironically, Navigator could have been describing the man their client was charged with killing; if anybody in this incident was “not able to publicly tell his side of the story,” it was Sheppard, who now lay dead as speculation, innuendo and rumor about him replaced facts about the clash that led to his death. Within 48 hours of Sheppard’s death, the initial shock of the story would give way to a tidal wave of negative news stories about what was termed Sheppard’s “darker side”:

• On September 2, Toronto police announced that they were investigating whether Sheppard had grabbed the driver, or his wheel, “to confirm the accuracy of witness accounts that have suggested the cyclist may have been trying to get Bryant into a headlock and that the two may have been wrestling for control of the wheel.”

• In the same September 2 article, police reported that Sheppard had been involved in a dispute—described as “a noise complaint or a domestic dispute”—with his girlfriend earlier in the evening, and that “police intervention was required.” Sheppard was also reported to have consumed alcohol; one neighbor described him as being “drunk as a clunk,” while a fellow messenger said he “might have had one,” but “It didn’t constitute any unruly behavior.” On the scene, police decided to allow Sheppard to continue on his way, after concluding that, “he appeared to have been drinking but was not drunk and posed no threat to anyone.” Following his death, however, police announced that they were waiting for a toxicology report on Sheppard. They did not scrutinize the driver as carefully. Stating that “there was no reason to ask Bryant for a breathalyzer,” police reported that Bryant had not been drinking. The obvious next question—was the driver under the influence of other substances?—will forever remain an unknown.

• Also appearing on September 2 was a separate news article detailing Sheppard’s past run-ins with the law in his hometown of Edmonton; there were 56 counts against him, charging Sheppard with “possession of stolen property, fraud and uttering a forged document, all under $5,000.” The charges stemmed from allegations that Sheppard had stolen 17 checks from the Canadian Multicultural Society in 2002, made them payable to himself, and forged the signatures. He was released on bail in 2003, fled Edmonton, and never returned.

• September 3, descriptions of Sheppard as a man “admired by his co-workers for his charisma and adored by his family and friends for his comedy” were countered by complaints from neighbors, who said he “drank often and would have loud parties with his cyclist friends.”

• September 3, in an editorial with the giveaway title “Michael Bryant and self-Defence,” the Ottawa Citizen suggested that “investigators were too quick to charge Bryant,” proffering that “maybe it wasn’t ‘criminal negligence’ on Bryant’s part that caused the tragedy.” Dismissing the initial reports of a verbal argument between Bryant and Sheppard, the paper instead raised the specter of anonymous “reports that Sheppard tried to commandeer the vehicle, reaching in to grab the wheel and attacking the driver,” opining that “if this was, for all intents and purposes, a kind of car-jacking, then it’s hard to blame the driver for flooring it.” After implying that Bryant had been “terrified” by Sheppard, the paper again posited Bryant as the victim, noting that “In any event, Bryant will have his day in court and it is almost certain that self-defense will feature prominently.” The editorial concluded that “Bryant seems pretty certain that he is innocent of the accusations and, if true, he should be allowed to have his life back”—a conclusion that somehow missed the obvious irony that Sheppard would never have his life back.

• September 4, in another editorial, the Toronto Sun also proffered the suggestion that Bryant was the victim, rather than the aggressor, posing the question “Finally, ask yourself what you would have done if you were in a car with your spouse, with the top down, and someone was attacking you?”

So that was the spin. Why do I think it’s spin? Because details about Sheppard’s ancient run-ins with the law over stolen checks had nothing to do with what happened the night of his death. Neither did stories about noise complaints from neighbors, or his problems with alcohol. And perhaps most important, neither did invented “questions” about road-raging cyclists and terrified drivers. But they had everything to do with shaping public opinion, turning the public against Sheppard, and in support of Bryant. The story shifted from the factual “cyclist run down by road-raging driver” to the fanciful “terrified driver attempts to flee angry, drunken criminal.”

So to set the record straight, here’s what really happened.

The night of August 31, Darcy Allan Sheppard was on his bike on Bloor Street, riding home from his fiancee’s apartment. It was 9:45 p.m. As he approached a traffic light, he passed to the left of a Saab convertible that we now know was Michael Bryant’s. After passing Bryant, who was stopped at the light, Sheppard cut in front of his car and also came to a stop. Shortly thereafter, as the light turned green, Bryant drove forward, perhaps bumping Sheppard’s wheel. Sheppard turned his head back, in Bryant’s direction. Witnesses reported that when the light turned green, there was a toot of the horn from Bryant, and a shout to “get moving,” followed—perhaps—by a return shout from Sheppard. Then, incredibly, Bryant hit the gas, pushing Sheppard forward into the intersection, knocking him off his bike. As Sheppard struggled to get to his feet, Bryant backed up, stopped, turned his wheel and began to drive past Sheppard as he sped away.

Sheppard gave chase, grabbing onto Bryant’s car as it sped by. Witnesses reported hearing shouting, and noted that Bryant was “very, very angry.” They also reported that as Bryant sped down the street with Sheppard clinging to his car, he was driving on the wrong side of the street, at about 60 miles per hour, driving up onto the sidewalk, driving against the trees and posts and newspaper boxes lining the street in what they reported appeared to be an attempt to brush Sheppard off his car. Down the street 100 yards, Sheppard was slammed into a mail collection box, and crumpled into a heap in the street as Bryant’s rear wheels ran over him. Witnesses reported that Sheppard, who lay in the street bleeding heavily from his nose and mouth, attempted to get up, but was advised to remain still until an ambulance arrived. Bryant continued driving down the street to the end of the block, before turning in to the driveway of a luxury hotel, where he finally stopped his car.

This is not spin. It is not supposition. It is not rumor. It is fact. We know this, because remarkably, the incident was captured on security cameras, which corroborated the eyewitness accounts. Anonymous spin doctors can suggest news leads and story angles to divert media and public attention, and anonymous internet comments can invent fantasy versions of what actually happened, but the camera doesn’t lie.

And the camera shows that on the night of August 31, Michael Bryant used his car to ram Darcy Sheppard out of his way, before fleeing the scene as Sheppard gave chase on foot. Moments later, Darcy Allan Sheppard lay dying on a Toronto street as Michael Bryant sped away.

(Research and drafting provided by Rick Bernardi, J.D.)

Velo News has been publishing regular updates of the Road Rage trial going on right now in California.  An Emergency Room doctor is accused of committing a road rage incident in which two cyclists were injured.

You can read the latest here…

Patrick Brady’s story of 10/22/09  is particularly compelling and reprinted below.  You can read the story on Velo News here or simply follow along below —

Steve Magas

The Bike Lawyer

================================

Road Rage – E/R Doc on Trial in CA

Velo news –

LAPD investigator tells jury in road rage trial he was shocked at a driver’s comments.

“I WANTED TO TEACH THEM A LESSON” – Trial Continues

A traffic investigator told jurors in the Los Angeles road rage trial this week that a driver’s comment at the scene of the incident “was so shocking his words burned into my brain.”

Dr. Christopher Thomas Thompson is on trial in Los Angeles Superior Court for assault and other charges related to an incident on a narrow canyon road involving two cyclists on the Fourth of July, 2008. Thompson also faces charges related to a similar, earlier, incident on the same road, involving a different cyclist. If convicted of all charges, Thompson could spend up to five years in prison.

Prosecutors say that after a brief exchange of words on the Fourth, Thompson passed the two cyclists then slammed on his brakes, causing the riders to crash into the rear his car.

On Tuesday, the jury heard testimony from a Los Angeles police traffic investigator, a doctor who treated the cyclists at the scene and a plastic surgeon who operated on one of the cyclists’ broken nose. The testimony was graphic enough that one juror had to leave the court room for a few minutes after feeling faint. Jurors also heard from the cyclist who says he had the earlier encounter with Thompson.

After a break Wednesday, testimony resumes Thursday.

’Burned into my brain’

LAPD traffic investigator Robert Rodriguez said he arrived at the scene on Mandeville Canyon Road with the fire department and asked Thompson what happened.

According to Rodriguez, Thompson said, “I just live up the road. I was driving to go to work. The bikers were in front of me, three across. I honked my horn and yelled ‘ride single file.’ The bicyclists flipped me off and yelled back. I passed them up and stopped in front to teach them a lesson. I’m tired of them. I’ve lived here for years and they always ride like this.”

Thompson’s attorney, Peter Swarth, questioned Rodriguez extensively about how he could recall the exact words, since Rodriguez did not write them down for more than 90 minutes.

Later, Deputy District Attorney Mary Stone asked Rodriguez in re-direct examination how he was able to remember.

Rodriguez replied, “That statement was so shocking his words burned into my brain.”

Stone asked, “Have you ever been to a collision where someone said they wanted to teach that person a lesson?”

“Never,” said Rodriguez.

Rodriguez said that after Thompson’s comments, he decided the incident was assault with a deadly weapon and called the department’s patrol division to take over the investigation.

Samaritan neighbor

Physician Bruce Rogen later testified that he came upon the scene while driving up the canyon to his home that morning.

Rogen said he approached Peterson, who was “sitting cross-legged leaning forward dripping blood. The piece of cloth to his face was sodden with blood. There was a fair amount of trauma. I identified myself as a doctor and asked a few questions. I was concerned there could be more damage.”

Rogen checked Peterson for a head injury. He checked the injury to Peterson’s nose and removed his own shirt and used it to apply pressure to the wound.

In listening to the description of Peterson’s blood loss, one juror began feeling faint and court was recessed for five minutes.

On cross-examination, Swarth asked Rogen about any exchange he had with Thompson and with the cyclists regarding Thompson — a former emergency room physician.

“(The cyclists) didn’t want him to treat them,” he said. “They didn’t want him nearby.” Asked to describe Thompson, he said, “He seemed agitated, anxious.”

Surgeon testifies

Geoffrey Keyes is the plastic surgeon who operated on Peterson. In his testimony he said Peterson’s injuries included a broken nose and broken internal structures as well as scars on his lip, chin and nose. He needed nasal septul reconstruction.

The surgery was performed under general anesthesia, required re-breaking the nose and using chisels to shape the bone and took an hour and half to complete. Displays included photographs taken before and after the surgery.

The earlier incident

Previous articles:

Oct. 20, 2009: Defense suggests cyclists were looking for a fight
Oct. 19, 2009: Road-rage trial begins
Oct. 12, 2009: California road-rage case heads for court
Dec. 24, 2008: Mionske: Mandeville incident inspires Cyclists Bill of Rights
Aug. 15, 2008: Mionske: Bikes v. cars
Aug. 8, 2008: Mionske: Where’s the justice?
July 14, 2008: Mailbag: Readers sound off
July 13, 2008: Doctor charged
July 10, 2008: LA incident rallies cyclists

Final testimony on the day came from Patrick Watson, a former professional adventure racer who filed charges against Thompson for an alleged incident that occurred in March, 2008.

Watson said he and training partner Josh Crosby were descending at roughly 30 mph —the speed limit for the road — when Thompson approached from behind. Crosby and Watson moved to ride single file, he said.

Watson said, “The car came so fast and so close I had to jump off the road. I did a bunny hop up the curb into the grass. When I jumped back on the road Thompson slammed on his brakes.”

Watson said he bunny hopped back onto the curb and stopped. He got off his bike and leaned it against a fence.

“(Thompson) drove straight at me and then he drove off,” he said.

Watson contacted the police and attempted to press charges, but ultimately, no charges were filed.

Asked by Stone why he contacted the district attorney, Watson said, “I wanted to make sure they did something this time.”

Los Angeles Deputy District Attorney Mary Stone rested the prosecution’s case against Dr. Christopher Thomas Thompson on Friday afternoon, following five and a half days of testimony in Thompson’s trial on assault charges.

The charges stem from an altercation with two cyclists on a Los Angeles County canyon road on July 4, 2008, and another incident involving two different cyclists in March that year, on the same road.

In the final two days of the prosecution’s case, jurors heard testimony from two cyclists involved in the March episode, which did not result in any injuries.

Jurors also heard testimony from doctors who treated the cyclists in the July 4 incident; an accident reconstruction expert who analyzed GPS files from cyclists in both incidents; another cyclist who said he had an altercation with Thompson earlier, and finally an LAPD detective who investigated the case.

The March incident

Thursday began with defense attorney Peter Swarth finishing up the cross-examination of Patrick Watson, one of the riders involved in the March incident. Swarth spent a great deal of time going over Watson’s two bunny hops onto the grass next to the road as well as the distances between Dr. Thompson and Watson at various stages of the incident.

Watson had difficulty relating specific distances at specific points. Eventually, in referring to the point at which Watson got off his bike, Swarth said, “You wanted to kill (Dr. Thompson)!”

“I was pissed,” Watson said.

Testimony then moved to the inability of a motorist to identify a cyclist by anything such as a license or other identifying mark.

Swarth charged, “You remain anonymous!” to which the prosecution objected as argumentative, which the judge sustained.

Next to testify was Patrick Watson’s training partner, Josh Crosby. Crosby had an easier time describing the events of the day to the jury. He said Thompson passed them, words were exchanged, then Thompson pulled ahead, forcing Watson onto the grass and Crosby into oncoming traffic. He said after Watson returned to the road Thompson stopped suddenly, forcing Watson back onto the grass and Crosby into the oncoming traffic lane yet again. Crosby said when he told Thompson to get out of the car, Thompson accelerated toward each rider.

Later, under cross-examination, Swarth asked Crosby why he wanted Thompson to get out of the car. Swarth asked, “Did you want to educate him?”

“I don’t think there was any need for education,” Crosby said. “I think he knew what he was doing.”

Swarth asked what his plan was.

“The plan,” Crosby said, “was to see if my teammate was okay, get (Thompson’s) info and wait for the cops.”

GPS data

Watson, in the March incident, and Stoehr, in the July 4 incident, each used GPS devices on their bikes. Accident reconstruction specialist Gerald Bretting said the devices showed Stoehr was going 28.1 mph and Watson was going 29.2 mph just prior to Thompson passing them in their respective incidents.

A third incident raised

Patrick Early told jurors that he had an incident with a driver he believes was Thompson, sometime in the winter of 2008. Early, who said he is a casual cyclist, said he could hear a car approach at a high rate of speed, which he estimated to be 40 to 50 mph. He said he could judge the speed by the engine’s high rpms, the tire sound on the road and the sound of air moving over the body of the car.

Following a loud, long honk of the horn, Stone asked Early what he did next.

“I braced for impact,” he said. “I thought I was going to be hit.”

Early works in the automotive industry and described in great detail how he identified the vehicle that passed him. He even drew a sketch of the differences in body styles of various Infiniti models.

According to Early, as the car passed, the driver turned and said either, “Get the fuck out of the road,” or “Get the fuck off the road.” Early said he couldn’t be certain which of the two it was due to wind noise.

Early said he yelled back after the car was past, “I think, asshole.”

Early said the driver stopped approximately 25 feet ahead of him. Because Early was riding uphill at only about 10 mph, he was able to stop without running into Thompson’s vehicle.

Early testified the driver was “angry, extremely angry. He was in a rage; he was someone out of control.”

The defense begins its case at 11 a.m. Monday.

Va. Study: Eyes on The Road

Rubbernecking Riskier Than Using Cell Phone

Special to The Washington Post
Tuesday, March 18, 2003; Page HE01

My New jersey from Joe Mizerek’s Three Feet Please webpage.

Ohio’s version of the “3 Foot Law” is now percolating through the legislature.  I will keep you posted!

Steve Magas