Tony Stewart faces tense days ahead as grand jury considers possible indictment

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Dan Wetzel
·Columnist
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Placing a case in front of a grand jury has been criticized as a completely one-sided and self-fulfilling process.

So much so that Solomon Wachtler, a former chief judge of the New York Court of Appeals, once claimed that should a district attorney so choose, he could get a grand jury "to indict a ham sandwich."

This is how the potential legal case of NASCAR driver Tony Stewart got both unpredictable and very real Tuesday.

Tony Stewart reads a statement during his return to the track in August. (AP)
Tony Stewart reads a statement during his return to the track in August. (AP)

Stewart, 43, fatally struck and killed another driver, Kevin Ward Jr., at a minor league dirt track in Ontario County, N.Y., in early August. Since then a quiet, and presumably exhaustive, Sherriff's Department investigation into the incident yielded little news as Stewart eventually returned to racing on the major Sprint Cup circuit.

The investigation ended recently and local district attorney Michael Tantillo decided to put the case in front of a sitting grand jury to determine if Stewart should be charged. There is no timetable for when it will begin.

"Upon my review of all of the information contained in the entire investigation, I have made the determination that it would be appropriate to submit the evidence to a grand jury, for their determination as to what action should be taken in this matter," Tantillo said in a statement.

What comes next is anyone's guess but that uncertainty has to weigh over Stewart, who no doubt hoped authorities would decline to press any charges and view the incident as he has repeatedly described it: an accident.

[Related: Grand jury options explained]

Tantillo may push hard for an indictment. Or he may just wish to place responsibility for making that call onto the grand jury. Or he could be just covering himself politically. With a fatality involved, it isn't unexpected that the case was pushed to the fullest, according to a local defense attorney contacted by Yahoo Sports.

"It's not overly surprising," attorney Donald G. Rehkopf, whose practice is 20 miles from Canandaigua Motorsports Park where the incident took place, told Yahoo Sports' Jay Busbee. "If somebody is dead, people are going to want to evaluate it a lot more closely."

There's no telling the motivation of the prosecutor.

Nor what the grand jury might do.

The case will go in front of a 23-person group, with no judge present and the assistant district attorney serving as legal adviser to the grand jury, according to the New York process. Only 12 members need to agree, according to court documents, that "evidence is legally sufficient and that it provides reasonable cause to believe that the defendant has committed the crime" for an indictment to be handed down.

Kevin Ward Jr. (AP)
Kevin Ward Jr. (AP)

Stewart could be charged with any number of felonies, from homicide to negligent homicide to something lighter such as manslaughter in the second degree.

The most difficult part of the case has always been judging Stewart’s intent after he and Ward got into it during the dirt track race. Ward, feeling that Stewart had wrecked him, climbed out of his car during a yellow flag caution to confront (at least verbally) Stewart. It was then that Stewart’s car clipped Ward and sent him flying to his death.

Stewart has repeatedly denied trying to hit Ward on purpose and is said to have cooperated fully with authorities during the investigation. The case is complicated, with powerful machines roaring around the track and Ward out of his vehicle trying to get Stewart's attention – all in nighttime conditions.

Even with what the local sheriff has described as a "forensic video enhancement," convincing a jury of Stewart's intent with such high stakes seems challenging, perhaps too challenging for a district attorney to bother attempting.

However, second-degree manslaughter could come if there is a belief that Stewart's actions were considered reckless enough to cause the death. A grand jury that doesn't have to actually try the case may be more likely to hand down an indictment and essentially tell the prosecutor's office to go and give it a go.

That charge alone carries a maximum of 15 years in prison.

"I respect the time and effort spent by both the Ontario County District Attorney and the Sheriff's Office in investigating this tragic accident," Stewart said in a statement. "I look forward to this process being completed, and I will continue to provide my full cooperation."

There isn’t much else Stewart could say. Make no mistake, this was not a course that the driver could have favored.

"When the presentation has been completed and a determination has been made, I will advise the public and the media at that time of the results," Tantillo said.

If it's as easy to gain a grand jury indictment as the old saying goes, these are tense, tense days for Tony Stewart.