A traffic-death case that has become a rallying cry for families who have lost loved ones to pedestrian crashes goes to trial this week in a Manhattan federal court.
Marilyn Dershowitz – the sister-in-law of famed trial lawyer Alan Dershowitz – was killed in 2011 while bicycling in Chelsea with her husband, Nathan. She was struck by the driver of a post office truck, who then faced criminal charges of leaving the scene of the accident. A jury cleared the driver a year later after less than a day of deliberation.
That loss by the Manhattan district attorney’s office has since been seized on by families of people who have been killed in pedestrian deaths. They claim that the D.A.’s high-profile loss in the Dershowitz case made prosecutors gun-shy about pursuing subsequent pedestrian-death cases, even ones where the driver clearly is at fault.
A spokeswoman for Manhattan District Attorney Cyrus Vance denied any chilling effect as a result of the Dershowitz case. “In the strongest terms possible, the DA’s Office does not view this acquittal by a trial jury as a ‘loss,’ nor is ‘influence’ ever a factor in making charging decisions,” the spokeswoman, Joan Vollero, said.
Nevertheless, the fact remains that in New York, drivers who kill pedestrians or bicyclists are much less likely to be prosecuted than drivers who live in other states. Fewer than 7 percent of drivers in fatal crashes are even ticketed, and only a tiny fraction – usually only those driving drunk – face any criminal charges.
“Drivers need to be held accountable,” said Dana Lerner, an Upper West Sider whose 9-year-old son, Cooper, was killed just over a year ago while crossing the street with his father. “There’s this idea out there that people who drive will not convict other drivers, and that is a problem.”
Lerner is a member of Families for Safe Streets, an advocacy group that has focused on the lack of prosecution. The group earlier this year held a rally at City Hall to raise awareness of the issue, and one of its members in January loudly confronted Vance at a Crain’s breakfast, asking him why he isn’t doing more.
Lerner said the families are hoping that if the Dershowitz family wins the civil trial, it will put added pressure on Vance to change his approach. “I hope that the message is that there has to be a way to look at these things criminally,” she said. “Maybe if this case is won, he will reconsider.”
In the civil case, Nathan Dershowitz, the brother of Alan Dershowitz, who is himself an attorney in Manhattan, is suing the federal government for wrongful death (because the driver was a postal service employee) and is seeking $17 million in damages. In a brief telephone conversation, Dershowitz declined to comment, saying he would not speak about the matter until after he has testified in the trial. His lawyer, Ben Rubinowitz, said he expected the trial to last two weeks.
Nathan and Marilyn Dershowitz had been married 48 years at the time of the accident, having met as children at summer camp when she was 13 and he was 12. They married in college and had two children.
On the July 4th weekend in 2011, they left their Tudor City home to take advantage of a quiet holiday weekend and ride their bikes together. They made their way to Manhattan’s West Side, crossing 9th Avenue on 29th Street. It was on that block that Marilyn was struck by a postal service truck, and died shortly after arriving at the hospital.
The driver of the truck, Ian Clement, stopped briefly after the accident, after feeling “a bump” in the road, then drove away, ignoring honks from other drivers and screams from bystanders rushing to Dershowitz’s aid. It took Clement two hours to tell a supervisor, “I think I’m the guy you’re looking for.”
Despite that, the jury cleared Clement of leaving the scene, and his lawyers argued that the case only went to trial because the Dershowitzs put pressure on the D.A’s office to pursue the case. “There was influence placed on the D.A.’s office,” Clement’s lawyer said at the start of the trial, though he never offered proof of that influence.
Ironically, the high profile of the Dershowitz family did end up being a factor in the case – though not in the way Clement’s lawyer had claimed.
The families now say that the loss of the criminal case involving such a high-profile victim – as well as sharp post-trial criticism by Nathan Dershowitz about how the D.A. tried the case – helped create a climate in which not a single high-profile prosecution has been pursued by Vance, despite a number of well-chronicled deaths, including that of Dana Lerner’s son.
Lerner said the arrival of the civil trial now, in the midst of an aggressive Vision Zero push by Mayor Bill de Blasio, gives her hope that a verdict in favor of the Dershowitzs could begin to change people’s minds on what she and others have come to see as a public health epidemic. “I hope potential jurors will understand, and the culture will change,” she said.