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Cycling fatality and small town "justice"

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Cycling fatality and small town "justice"

Old 08-20-13, 05:39 PM
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ChuckD6421 
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Cycling fatality and small town "justice"

(As far as I can tell, this driver is still allowed to operate a motor vehicle)

On June 25th popular local musician to the Johnstown, NY area Ed Lakata was struck and killed from behind by a pickup truck while riding his bike on a NY State Rt. 29a (43.066787,-74.387269). The details as to the location and time are clear and the local sheriff's "investigation" is appalling. Since then, the driver has mixed it up with a mailbox and shown to be DWAI as well as admitting to having passed out and crashing his truck in 2010 while under the influence of his medication.

The driver is also a locally recognized "sportsman" who together pretty clearly, in the absence of any witnesses, came to an understanding. Of course that's my conjecture but I grew up in this area...

----------------
"'It was an accident in the truest sense of the word,' [Fulton County Sheriff Thomas Lorey] said."

"Lorey said the solid white line between the shoulder and driving lane is used to determine fault in such circumstances. He said if Damphier had crossed that line before the crash, he would be facing charges. Similarly, if Lakata crossed into the driving lane, he would be to blame.
'We investigated the crash,' he said. 'The accident happened very near the white line, but we couldn’t gather proof that anyone crossed over.'
In the absence of such proof, it was ruled an accident, especially since Damphier was not exceeding the 55 mph speed limit."

Driver will not be charged in death of Johnstown musician
https://www.dailygazette.com/news/201...stown-musicia/
(May require subscription)

----------------
"Damphier said Lakata had headphones on and was 'oblivious' to his surroundings as he was riding up Route 29A."
"'He turned around and looked down at his wheel [prior to impact],' Damphier said. 'The handlebars of his bike were imbedded into the hood of my truck.'"
"He said Lakata did 'a complete [U-turn] in front of me.'"
"'I would like to know what was in his system,' he said."


Driver says he’s innocent of allegations
https://www.leaderherald.com/page/con...legations.html

----------------
Further linkage:

Well-known band member killed in accident
https://www.leaderherald.com/page/con...-accident.html

Driver in June's fatal bike, car crash faces civil suit
https://www.leaderherald.com/page/con...ivil-suit.html

NY Driver in Fatal Bike/Car Wreck Faces Civil Lawsuit
https://norfolk.legalexaminer.com/aut...civil-lawsuit/

The following may be behind a paywall:

Popular area musician Edward Lakata killed
https://www.dailygazette.com/news/201...lakata-killed/

Driver in fatal crash with bicyclist charged in unrelated incident
https://www.dailygazette.com/news/201...unrelated-inc/

Editorial: Questions remain after death of bicyclist in Johnstown
https://www.dailygazette.com/news/201...20/0820_edit1/

Last edited by CbadRider; 08-20-13 at 08:02 PM. Reason: Removed personal information of driver and gun comments
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Old 08-20-13, 05:52 PM
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There is certainly an interesting interpretation of the the rules of the road and law - if a cyclist is over the white line you can run him over at will. But then again, looks like the driver claims and that claim is believed by the sheriff - the cyclist swerved in front of the car. Thats believable. But I would be looking to oust that sheriff.
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Old 08-20-13, 09:36 PM
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There's a difference between being innocent in any real sense, and the inability of the Sheriff or DA to prove your guilt to the "beyond a reasonable doubt" standard of criminal law. In short, absence of strong, nearly conclusive proof of guilt works to benefit of the defendant.

The state often declines to prosecute based on that high bar. OTOH, the civil process has a lower bar, and many cases considered accidents for criminal law purposes, result in an assignment of responsibility and jury award in civil court.
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Old 08-20-13, 09:37 PM
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Originally Posted by howsteepisit View Post
There is certainly an interesting interpretation of the the rules of the road and law - if a cyclist is over the white line you can run him over at will. But then again, looks like the driver claims and that claim is believed by the sheriff - the cyclist swerved in front of the car. Thats believable. But I would be looking to oust that sheriff.
I don't find the single witness suicide swerve to be believable at all. Look at the prior and subsequent records of the people involved. The motorist has a documented history of not being able to safely operate a vehicle and maintain his lane. The cyclist shows no such history.
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Old 08-20-13, 09:59 PM
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This is why I video all my rides, at least there might have been a better chance of having two sides to the story if the cyclist had front and rear cameras going at the time of the incident.
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Old 08-20-13, 10:30 PM
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Someone else edited my post? Seriously?
I'm not new to Bikeforums and I'm a paying member. This is my first post to this particular forum and I find that really offensive. How about you ask my permission first? How about I cancel my membership?
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Old 08-20-13, 11:34 PM
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Originally Posted by B. Carfree View Post
I don't find the single witness suicide swerve to be believable at all.
Many of us may not find the suicide swerve claim to be likely, but that's very different from convincing an entire jury that it isn't a possible explanation 'beyond a reasonable doubt.' The DA needs either additional witnesses to disprove the swerve or some forensic evidence to do so.
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Old 08-21-13, 02:21 AM
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Originally Posted by ChuckD6421 View Post
Someone else edited my post? Seriously?
I'm not new to Bikeforums and I'm a paying member. This is my first post to this particular forum and I find that really offensive. How about you ask my permission first? How about I cancel my membership?

Check at the bottom. One of the Moderators did it and left a reason.

I've copied it below:

Last edited by CbadRider; 08-21-13 at 10:02 AM. Reason: Removed personal information of driver and gun comments


Suggest you contact that Moderator to ask for details. Moderators don't need permission, but they rarely act without reason.
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Old 08-21-13, 07:37 AM
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IMO it makes me mad that the only recourse the family has to to file a civil suit to get justice.

The business of "crossing the white line" is something I dont understand. If there is a white line at the edge of the road that separates the driving lane from the shoulder, it is only a reference NOT a boundry. If a cyclist come out into the driving lane, he has all the legal right to be there.

BTW I hope at the next election that fool sheriff is voted out of office for his stupidity.
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Old 08-21-13, 08:27 AM
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As to crossing the white line, the only reasoning I can come up with in my mind that makes half way sense is that the sheriff is treating the shoulder edge as a separate traffic lane and that he says the bike failed to yield to traffic already in the main lane when merging over into it?

If there was actually an encoded law or court case precedent that when a cyclist is riding on the shoulder edge that shoulder edge is legally another traffic lane that could make some sense and it would be like two cars on a road with two lanes in each direction with the car in the slow lane not checking his mirrors or signaling before switching into the fast lane and getting hit by a car that was already in the fast lane that he should have yielded to when merging over into the other lane.

Not saying that it's a legitimate stand, just saying that's the only kind of logic I can make out of the Sheriffs statement although I strongly suspect the Sheriff may believe that cyclists are never allowed to use the main traffic lane and must always stay to the right of the white fog line on the shoulder edge. Something both I and the law in any state would strongly disagree with.

On a side note whenever I ride FRAP on the shoulder edge to the right of the white fog line I personally always treat moving over that line back into the main traffic lane as a lane change and check for a clear spot to merge over and signal my intentions before doing so. I've seen some cyclists ride on the shoulder edge to the right of the white line and then swerve out into the main lane to go around hazards on the shoulder edge without checking behind them first and that always scares me when I see them do that because all it takes is one car in the wrong spot when you do that without checking first to nail you. Not saying that is what the cyclist did just mentioning it as an FYI for something to not do in order to increase your chances of staying alive.

Also, totally agree with the previous comments by others about this being one of the disadvantages of the "innocent until proven guilty system" sometimes there are people you just know are guilty and they might even wink and hint that your right but you can't prove it so they get off scott free with a smirk on their fact and that is really, really frustrating. Still probably better then the alternative of "guilty until proven innocent" for a free society but still really annoying when some people manage to get away with stuff just because you can't prove they really did it.

Last edited by turbo1889; 08-21-13 at 08:44 AM.
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Old 08-21-13, 08:35 AM
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B. Carfree - I simply do not believe you have never unintentionally crossed over the white line that divides the lane from the shoulder. Or never seen a cyclist swerve into the traffic lane unexpectedly. I see it nearly every time ride. Thats the sheriffs determinant as to the fault for the accident, not mine. In fact, you have been known to ride in the lane, under the sheriff's statement, that would be cause to run over a cyclist. Thats why I commented on his interpretation of traffic laws.
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Old 08-21-13, 12:15 PM
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Originally Posted by howsteepisit View Post
B. Carfree - I simply do not believe you have never unintentionally crossed over the white line that divides the lane from the shoulder. Or never seen a cyclist swerve into the traffic lane unexpectedly. I see it nearly every time ride. Thats the sheriffs determinant as to the fault for the accident, not mine. In fact, you have been known to ride in the lane, under the sheriff's statement, that would be cause to run over a cyclist. Thats why I commented on his interpretation of traffic laws.
When you wrote, "That's believable", did you mean it was believable that the sheriff believed the motorist's version of events or did you mean that you believed the motorist's version? I thought you meant the latter. If it was the former, then I made an invalid ASSumption. Sorry.

While I didn't make any claims about never having unintentionally crosssed a fog line, center line or lane line, I am amused that you think driving with that level of care would be beyond anyone. Perhaps my training level makes me look at it from a different perspective. And yes, I do legally take the lane when necessary and without apology.
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Old 08-21-13, 01:56 PM
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Originally Posted by JonnyHK View Post
Check at the bottom. One of the Moderators did it and left a reason.

I've copied it below:

Last edited by CbadRider; 08-21-13 at 10:02 AM. Reason: Removed personal information of driver and gun comments


Suggest you contact that Moderator to ask for details. Moderators don't need permission, but they rarely act without reason.

1. The driver's identifying information was removed because posting their personal information can get the forum into legal trouble if someone decides to use that information to go after the driver.

2. Gun control comments belong in P&R.

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Old 08-21-13, 03:36 PM
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Originally Posted by CbadRider View Post
1. The driver's identifying information was removed because posting their personal information can get the forum into legal trouble if someone decides to use that information to go after the driver.

2. Gun control comments belong in P&R.

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1. Understood.
2. My point that you removed was to show a common trait between the sheriff and the driver. Tenuous and conjectural, I know. But I'm a poster to an internet forum, not a professional reporter. I can do that. A quick Google video search will demonstrate what I mean. I'm NOT advocating for or against gun control, just showing a possible reason for a bias, as if that was needed. I suggest a quick note to me with a suggestion to change it rather than your rather ham-handed chopping of my post.
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Old 08-21-13, 06:47 PM
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Originally Posted by ChuckD6421 View Post
. . . I suggest a quick note to me with a suggestion to change it rather than your rather ham-handed chopping of my post.
I'm not one of the Mod's so I can't speak for them and sometimes I think I'm one of the ones they keep an eye out for.

BUT, I can tell you that this section of the forum tends to be a little more wild then other parts and get out of hand a whole lot quicker. If your in this section your "in the other side of the tracks part of town" where where the cops (Mod's) have to act a little quicker and give little warning in order to keep things half way under control down here. So don't get offended if they jump in and just take care of stuff first and ask questions later, your in that part of the forum so expect it.
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Old 08-21-13, 07:46 PM
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Originally Posted by dynodonn View Post
This is why I video all my rides, at least there might have been a better chance of having two sides to the story if the cyclist had front and rear cameras going at the time of the incident.
How do you record all your rides?
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Old 08-21-13, 07:54 PM
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Originally Posted by turbo1889 View Post
I'm not one of the Mod's so I can't speak for them and sometimes I think I'm one of the ones they keep an eye out for.

BUT, I can tell you that this section of the forum tends to be a little more wild then other parts and get out of hand a whole lot quicker. If your in this section your "in the other side of the tracks part of town" where where the cops (Mod's) have to act a little quicker and give little warning in order to keep things half way under control down here. So don't get offended if they jump in and just take care of stuff first and ask questions later, your in that part of the forum so expect it.
A good description and point taken. As a matter of fact I did do the required reading at the top of the forum first and got a sense for that. Too bad. They're so much nicer over there in the Clydesdales forum. Anyhow, I stand by my second rebuttal. Thanks!
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Old 08-21-13, 09:56 PM
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Originally Posted by aubiecat View Post
How do you record all your rides?
With a couple of Contour video cameras mounted on the front and rear of my bike.
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Old 08-21-13, 10:47 PM
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re: Gun Control Comments -yeah, it's kinda funny here on the "Advocacy and Safety" forum. I received a nastygram from a mod for daring to report a thread I didn't feel "advocated for safety" - the OP wanted to know if it was a good idea to shoot at people. I didn't agree that the thread belonged here, much less with the OPs position, the mod apparently did.

Back to the subject of the original post - Many LEO's are poorly trained in laws pertaining to cyclists, just as this the County Sheriff demonstrated here. This is from a state with no FRAP or sidepath rule: https://amateurplanner.blogspot.com/2...arn-about.html

Even if there is sufficient evidence to bring the charges to a Grand Jury, the sympathy of the Grand Jury is often with the motorist who they can most easily identify with. https://www.boston.com/yourtown/news/...ruck_that.html
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Old 08-21-13, 11:12 PM
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Originally Posted by FBinNY View Post
There's a difference between being innocent in any real sense, and the inability of the Sheriff or DA to prove your guilt to the "beyond a reasonable doubt" standard of criminal law. In short, absence of strong, nearly conclusive proof of guilt works to benefit of the defendant.

The state often declines to prosecute based on that high bar. OTOH, the civil process has a lower bar, and many cases considered accidents for criminal law purposes, result in an assignment of responsibility and jury award in civil court.
I am a local prosecutor and your points are right on target.

If a jury fails to convict an accused, it does not mean that the accused is factually innocent. It just means that the prosecutor failed to prove the accused's guilt BRD--the accused may be guilty, the prosecutor just failed to prove the People's case.

This is also the reason why the correct legal terms IS "presumed innocent until proven guilty" and NOT "innocent until proven guilty."
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Old 08-22-13, 06:43 AM
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Originally Posted by eja_ bottecchia View Post
. . . This is also the reason why the correct legal terms IS "presumed innocent until proven guilty" and NOT "innocent until proven guilty."
Yes, that's a fact I was already aware of and have even gone out of my way before to correct others on. Then I pulled the same brain dead shortening of the phrase which makes it incorrect in my own post above. Oh, well, at least someone else caught it and made the correction.

Also, glad to hear there is at least one prosecutor out there who is aware of the rights of cyclists and willing to give them a fair shake (being one himself), its kind of refreshing to know at least on a mental sanity check level that not everyone in the enforcement professions is either on the dark side outright or merely only culturally prejudiced.
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Old 08-22-13, 08:41 AM
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Some cases around here would indicate that this problem is not confined to small towns and nor do the drivers involved necessarily have to be of local prominence. In early September 2010 we had a three time loser (with a suspended licence and no insurance) strike and kill a cyclist riding in a straight line in a bike lane near one of the universities. It took the police till Boxing Day to actually lay any charges and then it was a driving while disqualified charge and a careless charge netting a grand total of $2,000 in fines.
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Old 08-22-13, 08:53 AM
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Originally Posted by nelson249 View Post
Some cases around here would indicate that this problem is not confined to small towns and nor do the drivers involved necessarily have to be of local prominence. In early September 2010 we had a three time loser (with a suspended licence and no insurance) strike and kill a cyclist riding in a straight line in a bike lane near one of the universities. It took the police till Boxing Day to actually lay any charges and then it was a driving while disqualified charge and a careless charge netting a grand total of $2,000 in fines.

Driving on a suspended license and causing a death should carry with it a considerable jail term than treating it like some traffic fender bender.
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Old 08-22-13, 10:56 AM
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Originally Posted by dynodonn View Post
Driving on a suspended license and causing a death should carry with it a considerable jail term than treating it like some traffic fender bender.
I have to fully agree... what exactly does it take to remove some truly offensive motorists from the road... driving on a suspended license and causing a death is not enough? In the US the fine for littering is $1000... so essentially that motorist was given a fine of 2 times that for littering, for killing someone, while in fact that motorist should not have even been behind the wheel. I mean how much of a negatively compounded situation does it have to be? What, you have to kill the Mayor's daughter????
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Old 08-24-13, 11:23 AM
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The story took an odd twist when the motorist involved in this incident had a search warrant executed on his residence. An officer involved in the search stole some nude pictures of the guy and passed them around the cop shop. So far the incident has cost the careers of three officers and he is suing the police service for $1 million for his pain and suffering. Initially I had sympathy for the guy but he has some nerve suing the police for his humiliation after putting his victim 6 feet under when he got off with a $2,000 fine. I hope the cyclist's family sues his ass off if he wins the lawsuit.
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