The garbage truck driver who struck and killed two British tourists in Manhattan last February was convicted on two counts of second-degree murder yesterday.

Auvryn Scarlett was off his epilepsy medication the night he had a seizure behind the wheel on W. 35th Street between Fifth and Sixth Avenues. The truck jumped the curb and ran over Jacqueline Timmins and Andrew Hardie, who had come to the city from Yeovil in southern England to celebrate Valentine’s Day. According to reports, Timmins was decapitated and died at the scene; Hardie died later at Bellevue Hospital. The couple had six children between them.

Scarlett was also convicted of assault, presumably for injuring a third pedestrian, Abayomi Henderson, who seconds earlier had walked around the couple as they strolled down the sidewalk.

While it’s not unheard of for a sober city driver to be charged for killing someone — in cases of drag racing, for instance– it is, as Streetsblog readers know, extremely rare, and even more so for prosecutors to secure a murder conviction.

“I can’t recall any prior instance in which a killer driver who wasn’t intoxicated was convicted of murder,” says Charles Komanoff, long-time pedestrian safety advocate and author of
Killed By
Automobile, “and that includes many of the roughly 200 fatal instances since 1990 when the driver mounted the sidewalk.”

Komanoff cites several such cases in which drivers whose negligence resulted in death were given a slap on the wrist, or were subject to no legal sanctions at all. Stella Maychick, mistaking the gas pedal for the brake, killed six people and injured two dozen in Washington Square Park in April 1992: no charges filed. Isaac Chehebar, joy-riding at twice the speed limit on Ocean Parkway, killed sisters Inna and Svetlana Shetman and maimed their mother Rima Shetman in April 2001: plea-bargained by Brooklyn DA Charles Hynes to four months. And most recently, delivery driver Chao Fu, leaving his van with the engine running and the gear in reverse, killed toddlers Diego Martinez and Hayley Ng in Chinatown last January: no charges filed.

The decision to prosecute Scarlett for manslaughter and criminally
negligent homicide was announced almost immediately. “Apparently, he
stopped taking his medication,” an NYPD spokeswoman said the day after
the crash. “It was a conscious decision, so he’s being charged.” Why Auvryn Scarlett and not Chao Fu? Local coverage of the trial was scant, but a BBC report offers some insight:

Summing up the prosecution case at New York Supreme Court, assistant
district attorney Chris Ryan said Scarlett had shown a complete
disregard for the safety of others.

Driving six days a week for
the refuse haulage company, he knew he could have a seizure at any time
“on some of the busiest streets on earth”.

He said: “It is like
playing a game of Russian roulette, only instead of pointing the gun at
yourself, you point it at other people. And if someone dies — that is
murder.”

The Scarlett prosecution seems to hinge on the “conscious decision” not
to take his seizure medication, making it a reverse DUI case of
sorts. It could also be that the incident was captured on video, which
prosecutors showed to the jury, or even that the victims were living a New York fairytale — lovebirds on a Valentine’s Day stroll — the instant they were brutally killed. Whatever factors were at play in determining whether to bring charges (Streetsblog has a message in with District Attorney Robert Morgenthau’s office), Transportation Alternatives Executive Director Paul Steely White questions how the Scarlett case could differ so greatly from that of other pedestrian fatalities.

“Don’t people make a conscious decision to speed or a conscious decision to turn without yielding?” says White. “Are we saying that people are somehow unconscious when they’re breaking the law? The bottom line is that people are responsible for their own behavior, especially when they’re driving a multi-ton vehicle. Scarlett’s actions were no more deliberate than the majority of negligent motorists who routinely get off scot-free.”

Komanoff agrees: “It would be a positive sign if [Scarlett’s prosecution] signaled the end of the Manhattan DA’s habitual coddling of killer drivers. But if it’s back to business as usual after this case, then one is left wondering why one driver’s failure to take medication is treated more harshly than the failure of other drivers to refrain from gross, fatal negligence.”

One hopes that under future DA Cy Vance, holding killer drivers accountable will indeed become the norm. Unfortunately, with pedestrian deaths on the rise, safe streets advocates will probably have their first indication not long after Vance takes office in January.

Auvryn Scarlett will be sentenced for the murders of Jacqueline Timmins and Andrew Hardie on October 15.