The Lisa Torry Smith Act: New Stop and Yield Law for Texas Drivers

Episode Notes

Transcript

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.

Rocky Dhir: Hi, welcome to the State Bar of Texas Podcast. If you’ve ever been to New York City or Philadelphia, downtown Chicago, basically any of the traditional big cities in America, you’re immediately faced with traffic in all its forms. There’s cars, trucks, limos for rich people, bicycles and pedestrians. Lots and lots of pedestrians. Drivers in those cities and those areas they’re accustomed to stopping at intersections and then proceeding slowly and carefully after waiting for walkers to cross sometimes illegally, okay, I shouldn’t say that, oftentimes illegally through the intersection. Most of Texas is an entirely different experience. The automobile reigns supreme here. Most of us are used to speeding down suburban parkway’s, never expecting to see someone actually crossing the road on foot, but that doesn’t mean we don’t have pedestrians. We do. And driving without expecting them can lead to disastrous tragic fatal consequences. That’s happened to Lisa Torry Smith on October 19 of 2017. In the November 2022 edition of the Texas Bar Journal, Brian Middleton writes about Lisa’s tale and the impact it had on Texas law with the passage on June 18, 2021 of the Lisa Torrey Smith Act. Brian Middleton serves as a district attorney for Fort Bend County, Texas. He’s running unopposed for re-election in 2022. Brian is here now to talk to us more about Lisa, her namesake legislation and what it means for those of us who traversed Texas’ roadways, either in a vehicle or on foot. Brian Middleton, welcome to the podcast. Great to have you.

Brian Middleton: Thank you Rocky. Thank you for inviting me. It’s a pleasure to be on your podcast.

Rocky Dhir: Absolutely. Let’s start with Lisa Torry Smith. I guess she’d be the hero of our story. Who was she and what exactly happened to her?

Brian Middleton: She was an absolutely wonderful person, just doing what any good mother would do on October 19 and walking her child to school and doing so in a safe manner when she was run over by a driver as she walked through the crosswalk.

Rocky Dhir: Was this a school zone crosswalk?

Brian Middleton: It was near the school. She was about a block away from the elementary school so it was just before the school zone began, but it was in area near a school and where it’s common to see children walking. So she should have been aware and at that particular time, she should have noticed other people doing the same thing.

Rocky Dhir: So Lisa passed away from that interaction direction when she was hit with the vehicle. What about her?

Brian Middleton: Her son suffered some severe injuries, but he did survive, but she died at the scene. Her injuries were that catastrophic that she did not survive before she made it to the hospital.

Rocky Dhir: And this was in 2017. What was your role in all these? Were you in the district attorney’s office at that time?

Brian Middleton: No, I was actually a defense attorney at the time. And I remember that day when it happened watching it on the news and my heart was broken, because it occurred within five miles from my house and I thought how tragic for mother to die walking her child to school. You know, I have three kids and immediately had an impact on me emotionally.

Rocky Dhir: So did you work with Lisa’s family? Were you involved in the case at all?

Brian Middleton: I decided to run for district attorney in 2018 and as I was campaigning, they reached out to me. They told me the story about Lisa. Torry Smith and the problems that they were having with the case being presented to a grand jury. And I told them at that time, hey if I’m elected, I will take a good hard look at that case and see what can be done about it.

Rocky Dhir: So, spoiler alert, you were elected obviously. You won that election. So, once you came into office, walk us through what happened with the grand jury, that whole process and the driver. Tell us a little bit about what transpired thereafter.

Brian Middleton: Okay. So once I was elected, I did, kept my promise, start looking into the case and it was worse than I thought. There was no readily explainable reasons why she did not see Lisa and her child in the crosswalk.

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Rocky Dhir: She being the driver of the vehicle?

Brian Middleton: Right, there was a female driver. She was in plain sight, it was well-lighted area, they were walking in the crosswalk and it defied explanation how she could not see them and run over.

Rocky Dhir: Was she looking at her phone or something? Is that what was happening? Do we know?

Brian Middleton: Well, she never testified so we don’t know exactly what she was doing. And that was part of the problem in the case, is proving that she was distracted. But she was making a turn into the intersection. There were no obstructions. There was no way to explain not seeing them in the crosswalk. So it presented some challenges in terms of proof. We did everything. We looked at cellphone records, there was a video. We looked at everything trying to decide whether or not to present the case to the grand jury. Early on, I recognized that the prosecutors that I had working on the case did not have the experience for these type of cases, vehicular crimes. So I reached out and I hired an expert on vehicular crimes to come in and provide a consult on the case. That person was Alison Bainbridge. She had been a career prosecutor in Harris County and had recently left Harris County District Attorney’s Office and was working for a personal injury firm. So I hired her to review the case. She tried to, in her words, salvage the case because there were some problems with the investigation. The case was presented under her direction to a grand jury and the grand jury did not (00:06:51) the case, did not indict the case. And so then began the discussion with the family that we were not successful. But it was so tragic and if you see the images and you know the story of Lisa Torry Smith, you will understand why at that point I became committed to trying to change the law to make a difference so this would never happen again.

Rocky Dhir: One thing I want to talk about is, from your perspective as a prosecutor having to walk Lisa’s family through the bad news. Before we do that, let’s take a quick break. We are going to hear from our sponsors. When we come back Brian, walk us through that experience. I’m sure it was uneasy. So let’s give you a few moments to kind of collect your thoughts, and we will be right back.

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Okay, and we’re back. Before the, break Brian was talking to us about the experience of trying to get Lisa Torry Smith’s, I guess technically there were no billed so you can’t really say murderer per se but you can say the person who struck her with the vehicle, trying to get that driver to be indicted under Texas law. And the grand jury came back and no billed so there was no indictment. Walk us through that experience of breaking the news to her family. That had to have been tough.

Brian Middleton: it was it was extremely tough. I had high hopes for the case being indicted and I recognized that I probably should have done more research before reaching that conclusion. I had a lot of experience with personal injury and criminal defense, and I thought, man, this is a slam-dunk case. But the grand jurors struggled with it. In reviewing the case, I could understand because the standard is criminal negligence. As a lawyer reading it, you scratch your head, it’s like what does is this mean? What does this look like?

Rocky Dhir: What is reasonable? What is negligent? It’s a law school question.

Brian Middleton: Right. And then reviewing the case law, at best it was a difficult case. And having to explain that to the family is, and when I say family, her parents, her sister, her husband, stepfather all present in my conference room, and having to explain them we did the best we could. We’re presenting it to a grand jury and provided all the information and the law and they declined to indict the case. And seeing their expressions and the palpable pain that they felt, because she was just simply doing what any person would do walking their child to school and for no discernible reason or excuse, just get run over.

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And the person just is not held accountable. It’s just hard to accept. It was hard for them to accept. It was hard for me to accept.

Rocky Dhir: Was there may be some level of satisfaction for the family and knowing that you at least tried to get an indictment? Or did that not did that not mean as much to them?

Brian Middleton: Well they expressed their gratitude. The pain was still very evident. I think they were grateful that I at least presented the case to a grand jury which they had not been able to get previously, but there was still pain. I shared that pain with them because I have become so heavily involved in the case that I was hurt. I thought how many times does this happen? And it was the third time in a matter of months that I sat down with the family and saying, hey, the other couple of cases involved auto to auto collisions. But to sit down and tell them because of the standard, “we’re unable to prosecute”. So I thought something has to be done about it. So I promised them that I would not stop with the no bill, and that I would work hard to try to raise awareness and also try to change legislation so this would never happen again, and then people who do things like this are held accountable.

Rocky Dhir: So let’s maybe walk through. Now we’re going focus I guess on the legal side of this. So if you would explain to us what the, I guess, the flaw in the law was that led to the no bill. Because you mentioned that the grand jury struggled. So it sounds like they tried to do their jobs and that they made a good-faith effort at trying to apply the laws as it was explained to them. Because at no point have I heard you say that the grand jury made the wrong decision. It looked like there was a problem with the law and getting it to kind of attach to this particular situation and result in an indictment. So, what was the gap in the law that kind of allowed for this no bill to happen, in your opinion?

Brian Middleton: Well, what I discerned from it, is that there was no clear roadmap for a The definition of criminal negligence is so ambiguous that even lawyers struggle with trying to define and create a set of facts that fit it. And so with this broad standard, I think they struggled with it. And so I think they needed some guidance as to what the law considers criminal. There is civil negligence, which is a lower standard and there’s criminal negligence. And making that line that distinction between the two is difficult. And so I believe that if the grand jury had a clear set of rules, a clear set of standards for them to follow, then they could then evaluate the facts and determine is this what the legislature had in mind when they said criminal negligent homicide.

Rocky Dhir: It’s interesting because this whole time I thought the problem is going to be, for the grand jury, would be discerning what constitutes negligence in the criminal context. It sounds like what you’re saying is that they knew what negligence was. They couldn’t agree with the prosecution’s presentation that this was criminal negligence as opposed to merely civil negligence. So was that the problem, the civil versus the criminal?

Brian Middleton: Right, and trying to reach that higher standard. And some of us is fact-specific because in this situation because of way of the investigation was done, there was a lack of evidence, right? You just had a set of facts that raised a lot of questions that could not be answered because the way, the manner in which the investigation was done. And so there was a need to connect dots that the grand jury was not able to do. With a better investigation, possibly different results, but I understood in reviewing and preparing for the grand jury presentation that this was a difficult explanation.

Rocky Dhir: Okay. Well now let’s talk for a second about the Lisa Torry Smith act, because I want to make sure we talk about that and then we can come back and talk a bit more about what the law says. But the act itself, let’s maybe take a step ahead and then we’ll kind of work backwards to fill in the gap. Tell us what this piece of legislation does and what the changes from the previous law.

Brian Middleton: Under the previous law, all we had was the involuntary manslaughter, which requires the criminal negligence, or should I just say, criminally negligent homicide is exact title under the penal code.

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Under the common law would be called involuntary manslaughter. But they just had that simple very broad definition. The Lisa Torry Smith act at two parts basically. One that made it an offense to cause injury or serious bodily injury to a pedestrian or other protected individuals who are in a crosswalk who are injured as a result of the criminal negligence of a driver. And so this provided a guidance and a roadmap for potential grand jurors to follow, “hey look, this is what the legislature is defining as a criminal offense”, when people do this in a specific area in a crosswalk where there is now a heightened standard.

The second part of Lisa Torry Smith Act was the provision where before it was simply just ‘yield to pedestrians’. Now, the law was changed to ‘stop and yield to pedestrians’. You may have noticed around the state, at least I have, there are more signs going up saying “state law stop if there is a person a pedestrian in the crosswalk”. So now the duty and responsibility under our traffic laws is that if there’s a person in the crosswalk, your duty and responsibility is to stop. So what we see a lot of times is people not stopping, slowing down driving around pedestrians. So now the effort is to raise awareness that there’s a new duty and that’s to stop when you see a pedestrian in the crosswalk.

Rocky Dhir: For a lot of drivers I can see people maybe not being aware. And one driver who does stop for a pedestrian, then getting rear-ended by a second driver who didn’t anticipate that. So is that something that this act has tried to account for, or is there a way to kind of protect the good drivers from getting rear-ended by the bad drivers who aren’t paying attention?

Brian Middleton: Yeah, Rocky. Good drivers are always keeping a proper lookout and the Act has a fermented defense in it if the pedestrian is not lawfully in that crosswalk area, then this actually doesn’t apply. So in terms of protecting less blameworthy drivers, I think that provision is there because what you’re looking for is criminally negligent behavior. Failing to see someone in a crosswalk may or may not arise to criminal negligence. But as the law has been, with criminal negligence and continues to be, there’s got to be some substantial and unjustifiable risk that the person did not observe. I would say if you’re speeding into a crosswalk area and you hit a pedestrian as clearly in a well-lighted area who had the light to cross in that area, I think that may be criminal negligence under the new standards. Because what the case law said in the past is that, simply fell into a bay of traffic law may or may not be criminal negligence. They have to be more specific facts.

Like in Montgomery versus State where a driver was found to have committed criminal negligence by making abrupt left turn to jump on the freeway and caused someone’s death. In that case there were a lot of facts that were specific that showed substantial and justifiable risk, that still continues. But I think what the Lisa Torry Smith Act does for grand jury, it defines what the focus is. We are worried about pedestrians in crosswalks areas. We are trying to raise the standard for drivers that when you approach a crosswalk you need to slow down and pay attention. And so, I think the law achieves that. The public awareness campaign that the Texas Department of Transportation is doing is trying to raise awareness about it. If you don’t injure someone and the police see you fail to stop, that’s a traffic infraction now. So, I think by changing the culture and getting people to understand that crosswalks are dangerous areas, and that if you’re not careful you may go to jail. And so I think in that process that we can cut down on the number of pedestrian deaths that we’re seeing not just in Texas but across the nation, by making and raising the standard for drivers to be aware when they are approaching crosswalk areas.

Rocky Dhir: I’ve seen a lot of unprotected crosswalks, ones where there’s not a traffic signal, there’s no Walk/Don’t Walk sign. You just kind of proceed out and use your own discretion to kind of cross the road and make sure you’re not jumping into oncoming traffic.

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But there are plenty of situations where there is a Walk/Don’t Walk sign. Does the Act talk at all about jaywalking? You know, somebody walks against a Don’t Walk sign and then they get hit by a car. At that point who’s at fault? Is that an affirmative defense? Is there something in the Act that kind of accounts for that scenario?

Brian Middleton: The Act includes an affirmative defense. If the pedestrian or cyclist or whatever it may be, to protect the person in the crosswalk is violating a traffic law, then they’re not protected under the statute. So pedestrians have to be obeying the law too. Someone that’s jaywalking is not going to be protected under Lisa Torry Smith Act.

Rocky Dhir: Got it. That’s happened to me a lot of times if I’m riding my bike. I tend to ride on sidewalks because cars don’t always see if they’re not paying attention. And then I stop at a crosswalk, the sign says Walk, and I’m going across and a car is just about, because they get a green light, and they’re  trying to turn into me. That’s happened so many times and I’m wondering what happens if I go on a Don’t Walk sign. At that point, it says I’m not protected. So I have to continue to obey law. This doesn’t protect all pedestrians. It’s those who are obeying the traffic laws as I understand it.

Brian Middleton: That is correct. I’m a cyclist too. I also jog and I’ve had a lot of near collisions with aggressive drivers. But the responsibility and duty still Remains for cyclists and pedestrians to obey all traffic laws.

Rocky Dhir: Trying to go back to the legal standard, if I understood it correctly. The problem with Lisa Torry Smith’s driver, the one that hit her, was that the grand jury was unable to figure out what constituted criminal negligence because there was no standard as to a driver’s responsibility with respect to crosswalks. Now the Act says, yes you have a responsibility with respect to crosswalks. Does the Act define what does and does not constitute negligence? So for example, if a driver is going through an intersection, you’ve got a pedestrian, let’s say they’re turning right into an intersection and you’ve got a pedestrian who is crossing legally and the driver hits the pedestrian. What’s the line between, ‘Oh, this was an accident and this was negligence’ versus ‘is this criminal negligence that might warrant some type of punishment or sanction’? Do you, as a prosecutor now have a better roadmap in terms of what constitutes just driver error and what constitutes a prosecutable offense?

Brian Middleton: Okay. One thing I wanted to clarify, grand jury proceedings are confidential and secret. So, in no way, shape or form, or am I disclosing anything that was said by the grand jury. I’m just talking about the results. So under the Lisa Torry Smith Act, we now have a framework for discussion. As we present these cases to grand jurors, we can say this is what the legislature intended. They intended that there be a higher standard and crosswalk areas. They will still, just like the grand jury and the petit jury still will have to make a determination whether there was a substantial and unjustifiable risk that was not appreciated or recognized by the driver. So we’re not talking about ordinary negligence, still not talking about ordinary negligence. We are talking about specific facts that make it so egregious that this person should be held criminally responsible.

So the facts that would create liability before and now are the same, but now the Act provide some guidance and it also creates a duty for drivers and provides a clear framework for grand juries and prosecutors to articulate this is what it is expected by a state of Texas. You’re supposed to stop and yield to pedestrians in a crosswalk, which means you should have a heightened awareness as you go through these intersections. Now, if you are proceeding through an intersection, you don’t stop, you don’t yield and under the circumstances that was an unjustifiable risk that you may be held criminally responsible. So it’s the tightening of the framework and creating a clear focus on what the State of Texas is requiring the drivers that has changed.

Rocky Dhir: But at the end of the day, there’s still some error, or not errors, there’s some room for the jury to now decide was this criminal error or was this simply civil negligence.

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So it still leaves that discretion, I suppose, in the hands of the jury the prosecutor.

Brian Middleton: Exactly Rocky. Let me be clear is that, we’re not trying to criminalize what would be ordinary negligence. We have a whole civil process for simple civil negligence. What we’re trying to do is create accountability for people who transcend that and their conduct is so egregious that they ought to be held criminally responsible. If you’re speeding through a residential area blowing through an intersection at 90 miles an hour, I would say that you’re likely to be held criminally responsible. But someone who is not having 100% attentiveness at the time, may not be criminal responsible, or that criminally responsible for that. So it’s always going to be fact-specific. But what we’re trying to do is raise awareness and raise have a heightened awareness as you approach intersections. We are trying to save lives basically, that’s what we trying to do.

Rocky Dhir: Absolutely. Well now, if you look back to Lisa Torry Smith situation, and as you read the Act today, do you think it would yield a different result in that prosecution if that law was on the books at that time?

Brian Middleton: I can say confidently, we would have had a stronger argument to that grand jury about why the person should be held criminally responsible. And if I could go back and change everything that was wrong, it would have been a more thorough investigation. But I think the investigation is something that can be corrected by better performance, but the law also needed to change. We needed to raise awareness and raise standards in order to change our cultures. Vehicles are extremely dangerous.

Rocky Dhir: Yeah they are, absolutely.

Brian Middleton: They can be very convenient. They get us from point A to point B, but if they’re used recklessly or with criminal negligence they can kill people no differently than a firearm. So, my hope is that people, when they get behind the wheel, they understand is that they are driving, and command and control of something that is just as deadly as a firearm. So if we can convince people of the seriousness of driving and raise their awareness as they enter intersections and crosswalk areas, that we can stop this epidemic in America of pedestrian homicide that shows that.

Rocky Dhir: Final question, two-part question. So first, do you know if did they go and sue the driver civilly? And do you know whatever became of that case? And then secondly, maybe more importantly, how is her family doing today specifically her son? I mean, I think he was six years old when that tragic hadn’t occurred. I’m assuming he’s about 11 now. How is he doing? How’s her family doing? So let’s, I guess talk about the civil side of the case if you know, and then maybe talk a bit about how the family is today.

Brian Middleton: I don’t recall what, if any, action was taken on the civil side. When I got involved the case was already pretty old so I don’t know. And there’s a two-year statute of limitations on the personal injury. So I don’t know. I can’t speak confidently as to how they handled that part of it. As for the family, they focused all their energy in trying to prevent another tragedy like Lisa Torry Smith. She has a wonderful sister Gina Torry who is a part of the Nobel Prize Organization. So she’s very well connected and she’s using all of her contacts and her resources to try to raise awareness. And she means business, trust me. People, including myself, who get phone calls from her tend to move pretty quickly. And that’s how they dealt with their pain.

As for Logan, her son, he’s thriving. But he doesn’t have his mother here to share his life. And it was so very preventable. And that’s what his — the pain that I have to carry is that this person should have been held accountable, because there was no plausible explanation for why she shouldn’t have seen this family in that crosswalk. There’s nothing they could have done differently. I don’t think she just ran over. And it’s just a tragedy that someone could kill another person under those circumstances and not have any criminal responsibility.

Rocky Dhir: It sounds like you and your office did the best you could with the situation.

Brian Middleton: Yeah, I mean our job is to seek justice not convictions. We present the cases to the grand jury and we live with the results that we achieve.

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But in this case, I felt like there needed to be legislative change, also need to work on awareness so people understand how dangerous vehicles are. So I’m interested in changing culture and changing minds, and also holding people responsible. But I think we can save lives if people just understand, when you approach a crosswalk or an intersection slow down. Somebody you love, somebody’s child, somebody’s mother may be in that intersection and that life may be dependent upon your actions. So I hope that the Lisa Torry Smith causes a change in our culture and that we have safer intersections in Texas.

Rocky Dhir: Well Brian, I think that’s a great message with which to conclude our conversation for today, because unfortunately we are out of time. But I want to thank you for taking the time with us and for all your work and helping to spearhead the passage of the Lisa Torry Smith Act and most importantly for educating us about it. So thank you again.

Brian Middleton: Thank you, it’s been a pleasure.

Rocky Dhir: And of course I want to thank you for tuning in and I want to encourage you to stay safe and be well. You can catch Brian’s article on the Lisa Torry Smith Act in the November 2022 Edition of the Texas Bar Journal. You don’t want to miss it. I’ll definitely give it a read.

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