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Legally Speaking - When justice fails

Nineteen-year-old Autumn Grohowski was on her cell phone with her dad, just letting him know she would be home soon. It was June, a summer night in Lebanon, Pennsylvania, and Autumn was approaching the trail she would take home. She was on her bike, and mindful of her safety, so she kept the call short — she told her dad “I don’t want to be killed by a car, so I don’t want to talk on the phone on the way home.”

Those were her last words.

As she headed south on Fourth Street, Autumn, an award-winning student with plans to become a visual artist, approached the junction with the trail, which ran near a railroad track. She noticed that the railroad warning lights were flashing, and the safety arms were swinging down, indicating that a train was coming. No problem, her turn was just before the railroad crossing anyway, so she began to make her left turn, riding across the centerline, into the oncoming traffic lane, before turning onto the trail. She never finished her turn.

Gregory Moyer was driving north on Fourth Street. As he approached the railroad tracks, the warning lights were flashing, and the safety arms were swinging down, indicating that a train was coming. But Moyer was drunk, with a blood alcohol content of .14, nearly twice the legal limit, so when he saw the warning lights flashing, and the safety arms coming down, he gunned it, blowing through the railroad crossing. Or maybe he always blew through the crossing, drunk or not. Only Moyer knows. Regardless, Moyer was lucky this night — he wasn’t hit by the approaching train.

Autumn wasn’t as lucky. As she was approaching her left turn, Moyer blew through the railroad warning lights, and plowed into Autumn. The impact crushed Autumn’s skull, broke her neck, arms, legs, and ribs, and collapsed her lungs. Without a thought in the world for the human being he had just run down, Gregory Moyer fled the scene. A short distance away, however, horrified witnesses forced Moyer to a screeching halt. Trapped by his captors, and forced to return to the scene, the drunken Moyer called 911 and reported that he had “just hit a little girl on a bike.”

As the 911 operator took his report, Moyer repeatedly exclaimed “Oh, my God, Oh, my God.”

Miraculously, Autumn wasn’t dead. She was rushed to the hospital, and with her father Kris at her side, she clung to life. “When I got there, it looked like she was already dead,” he said, “but they were saying to me she could still hear me.” Kris stayed there by Autumn’s side, as she stubbornly struggled to live, until, 30 hours later, the doctors removed her from life support. Her father held her in his arms as her life ebbed away. Recalling the moment, Kris said “I held her neck. And her heart stopped in my hands, you know. So it was very tough.”

Thus began Kris Grohowski’s long search for justice. In late October of 2007, four months after taking Autumn Grohowski’s life, Gregory Moyer had not yet been brought to justice. In fact, the D.A. hadn’t even filed charges in the case. Kris Grohwoski spoke out in frustration: "He should be charged with speeding. He should be charged with running the red light. He should be charged with homicide by vehicle for killing my daughter. I just want justice for my daughter, and that’s all. I just want justice." Lebanon County District Attorney David Arnold responded with his assurances that charges would be filed.

And a week later, charges were filed … although they were not the charges Kris Grohowski would have expected for the man who took his daughter’s life. Gregory Moyer was charged with DUI, hit and run with death, careless driving, and not yielding to railroad warning signals. He was not charged with homicide by vehicle, because District Attorney Arnold felt “there’s blame on both sides.”

As the District Attorney explained, “In this instance, Autumn Grohowski’s actions also played a role in causing this accident and a pretty significant role in that. She was, by eyewitness accounts, traveling in the middle of Mr. Moyer’s lane."
And that determination — that Autumn was partly to blame for the crash that took her life — was at the root of the District Attorney’s decision not to file vehicular homicide charges. District Attorney Arnold explained that the homicide by vehicle statute requires the prosecution to prove that the drunk driver caused the death of another person as a result of driving under the influence of an intoxicant. Although Moyer was clearly intoxicated, the District Attorney explained that the evidence and interviews did not prove that Gregory Moyer caused Autumn’s death as a result of driving under the influence, because, as witnesses reported, Autumn was in the opposing lane of traffic when Moyer slammed into her — reportedly, attempting to elude a driver who was following her in an attempt to get her phone number, by beginning her turn early — and therefore, the District Attorney reasoned, Autumn’s death was caused as much by her presence in that lane as it was by Gregory Moyer drunkenly blowing through a set of railroad safety arms.

Thus, Autumn’s killer escaped homicide charges. Still, Kris Grohowski felt some satisfaction that the man who took his daughter’s life had been charged with something, that he wasn’t going to escape justice, just as he had tried to escape the scene of the crime: "I’m finally relieved that there’s been charges filed. As far as that goes, I know they’re not heavy charges. But they’re charges. It’s a beginning as far as that goes." It says something, I think, about the state of criminal justice when the family of a drunk driving victim has to plead for charges to be filed, and express their relief when charges are filed, even though the driver is not charged with homicide. Still, Grohowski looked forward to at least some measure of justice for his daughter, and to moving forward with his own life, noting "[I’ve got to] Try to pull my life back together so I can start over again because that’s what I have to do."

Six month’s later, Grohowski’s relief that his daughter would have justice turned to disbelief when the jury returned a verdict of not guilty on the hit and run charge. Moyer hung his head and cried as the verdict was read. The jury had been convinced by Moyer’s defense that the distance he had traveled — 100 feet — after hitting Autumn and being forced to a halt, was too short a distance to be evidence beyond a reasonable doubt of hit and run.

There may have been more to the verdict than a good defense, though — there may also have been more than a touch of “there but for the grace of God go I” sympathy for Moyer. One anonymous person, while commenting on the news in an online forum, and claiming to be one of the jurors who heard the case, explained “Yes Moyer should have stopped at the train tracks, but people try to beat the train; we live in a fast-paced world. We run yellow/red lights, we run stop signs. It’s a sad story that shouldn’t have happened, but it did.” That comment was not the only show of support in the community for Moyer; many of Moyer’s partisans chimed in with their own support for Moyer, with one commenter observing “it was just a terrible, horrible accident that he has to live with - but is not his fault.” Yes, Moyer’s partisans reasoned, he was driving drunk, yes he blew through a railroad crossing as the warning lights were flashing and the safety arms were coming down, and yes, by doing so he killed a young woman — but her death was “not his fault.” It was, the same Moyer partisan explained, “purely an accident.”

The judge was decidedly more sober in his assessment of Moyer’s actions that June night. Because the hit and run charge carries a penalty in excess of one year, Moyer was entitled to a jury trial on that charge. However, the other charges carry lesser penalties, so Moyer was not entitled to a jury verdict on those charges. Accordingly, once the jury cleared Moyer of the most serious charge, the Judge declared Moyer guilty on the remaining charges of DUI, careless driving, and not yielding to railroad warning signals.

Despite the convictions on the lesser charges, this was not the justice for Autumn that Kris Grohowski had so desperately wanted and anxiously waited for. Exiting the courtroom, Grohowski said “this is terrible,” calling the jury’s decision “a load of malarkey.” Grohowski’s only hope for bringing to justice the man who had ended his daughter’s life now lay in the civil lawsuit he had by that time filed against Moyer.

After delivering his verdict, Judge John C. Tylwalk set a July sentencing date; Moyer faced a sentence of 72 hours to 6 months imprisonment on the DUI charge. Under Pennsylvania law, Moyer may also face a separate hearing, at which the Department of Transportation may seek to suspend his license for a 12-month period. But for killing Autumn Grohowski, Moyer would not do one minute of time.

On July 16, Judge Tylwalk sentenced Moyer to 2 to 6 months in County Prison. Moyer was also ordered to pay a $1,000 fine for drunken driving, and a $525 fine for careless driving and driving with an open container of alcohol in his vehicle. In addition to the fines, Moyer was also ordered to pay restitution of $1,375; Judge Tylwalk also prohibited Moyer from driving for the next six months.

Noting that the sentence could have been as light as 72 hours in jail, prosecutor Bob McAteer said that Judge Tylwalk “really put the hammer down” on Moyer. The Grohowski family saw things a little differently. "It’s so unfair," Autumn’s mother, Karen Gregorio, said. "He gets two months and she could have had 50 to 60 years. He got away with murder.” Autumn’s brother, Pennsylvania National Guard Staff Sergeant Kevin Grohowski, who told the Judge “I loved my sister; it’s been devastating to me,” described the sentence as “a slap on the wrist.” Noting that her son had just completed one tour of duty in Iraq, and was scheduled to return to Iraq in February to begin a second tour, Karen Gregorio bitterly observed that “my son goes overseas to protect this guy’s right to drink.”

Moyer will serve his sentence, and then his life will go on. He will be prohibited from driving for the term of his sentence, and then, in its wisdom, the State of Pennsylvania will once more allow him to operate a motor vehicle. Moyer’s life will go on.

Autumn’s life will not. Nor will her father’s. On May 29, three weeks after Gregory Moyer’s trial, despairing at having failed to obtain justice for Autumn, and unable to endure his continuing grief, Kris Grohowski ended his own life with a gunshot. (

Bob

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

I’d like to thank Shaba Mohseni and the San Luis Obispo County Bicycle Coalition for hosting me at their Pedal to the People Fundraiser on July 19. It was a great event, combined with some great racing, and a chance to see how they do things in San Luis Obispo. From my time there, it’s obvious that San Luis Obispo has somehow managed to avoid the conflict between road users that plague other communities. I will be discussing that conflict, including the recent road rage incident in Brentwood, in my next column.

Until then, I’d like to extend my thanks to everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on "Bicycling & the Law" this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.

This article, When Justice Fails, originally published on VeloNews on July 25, 2008.

Now read the fine print:
 
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
 
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
 
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
 
Important notice:
The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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