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Gutless decision by county DA Michael Tantillo in Tony Stewart case

Updated on September 16, 2014
A seven term prosecutor who has prosecuted real murders, Tantillo passed on this tough decision
A seven term prosecutor who has prosecuted real murders, Tantillo passed on this tough decision | Source

On Tuesday, Ontario County NY District Attorney Michael Tantillo announced that he would present the evidence against Tony Stewart to a grand jury in the near future. In doing so, Tantillo essentially abdicated his authority as the county's chief prosecutor and acted in pure political fashion to distance himself from the fallout of the Stewart case. The decision was a gutless one by the prosecutor and will needlessly lengthen the process that will ultimately decide Stewart's fate.

The DA said all of the right things in his announcement. He spoke of the secrecy of the process, promising to update the public only after the results were final. He made no effort to preview the case against Stewart or what his personal feelings on the matter are. All of these things are appropriate for a man looking to stay firmly on the fence when it comes to the three time NASCAR Sprint Cup champion.

Yet his desire to deflect responsibility could not have been more obvious. He wants to defer the decision on whether or not to charge Stewart because no matter which way he went, Tantillo would face a storm of criticism. That kind of position is one no effective politician ever willingly embraces and Tantillo certainly falls into that category. He's won seven consecutive elections for the DA's office in the county and you don't establish that kind of dominance with obvious political mistakes.

Text of DA's statement on Tony Stewart case

Stewart remains popular with a large portion of the NASCAR fan base both for his actions on and off the track
Stewart remains popular with a large portion of the NASCAR fan base both for his actions on and off the track | Source

Had the DA elected to file criminal charges against Stewart he would have alienated a significant portion of his base. Ontario county is a relatively insular environment from a demographic perspective and those demographics trend far more towards NASCAR fans than the national average. Like any other celebrity in trouble, Stewart has a core base of people who will continue to support him no matter what the charges. They will view a DA filing charges as a personal assault on Stewart, the acts of a public figure looking to build a legacy by imprisoning the driver.

Meanwhile, had Tantillo announced that his office would not be seeking criminal charges, he would have opened himself to verbal fire from the other side. Critics would see his decision as yet another example of “celebrity justice”, where money buys freedom and crimes are swept under the rug. Look at what's happening to the New Jersey DA who allowed former NFL running back Ray Rice to enter a pre-trial diversion program for assaulting his wife. That spectacle would have been nothing compared to a case where the video in question shows a man die (instead of merely knock someone out).

Without question, it was a no-win position for a county prosecutor far more experienced in plea bargaining drunk drivers than cases like this one. It's the kind of decision that he'll have to make only a handful of times in his life (if that), and asking him to embrace the challenge is probably expecting too much of a politician.

Stewart fans, get your gear from Amazon!

The decision of whether or not to charge Tony Stewart has drawn media members to race weekends
The decision of whether or not to charge Tony Stewart has drawn media members to race weekends | Source

That doesn't make his decision any less cowardly nor does it show the kind of leadership that the citizens of Ontario County, NY deserve. When you place yourself up for election as the chief law enforcement officer for your county, you're saying that you are the right person to make those tough decisions. You're saying that the citizens of that area can count on you to speak for justice- both for the victims of crime and for those who stand accused of them.

Unlike a defense attorney, a prosecutor has duties that extend beyond a singular client. His or her duty is not to winning but to helping the jury reach a just verdict. The late Judge Simon E. Sobeloff put it eloquently when he said:

“...he (the prosecutor) is an advocate, but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.”

The above quote was spoken by someone who could identify with the need for a prosecutor to be a leader. He spent over two years as the Solicitor General of the United States under President Eisenhower and was best known for his work in 1954 arguing on behalf of school desegregation. It was Sobeloff who went before the court and who helped make Eisenhower's decision a practical reality.

The position was hardly a popular one in many parts of the country (as years of court battles that followed would show). Yet neither Eisenhower nor Sobeloff acted based on public opinion polls. They did not defer what they felt was right to someone else. It would have been far easier for the Eisenhower administration to steer clear of the hot button issue and leave implementation in the hands of the states. Certainly both could have done more, yet the point here is that they acted in the first place.

Stewart, at his initial return press conference at Atlanta
Stewart, at his initial return press conference at Atlanta | Source

Making tough decisions, as Colin Powell once said, sometimes means pissing people off. It doesn't mean passing the buck to a grand jury and hiding behind their decision. Claiming that you will present the information to the grand jury and await their decision impartially is the worst kind of fiction.

While it carries the patina of legitimacy, the reality is that prosecutors own grand juries 99% of the time. The jury is at the mercy of whatever evidence the prosecutor decides to present. They retain independent subpoena power but rarely call witnesses or ask questions beyond the prosecutor's “suggestions”. Defense attorneys are not permitted into the room during testimony either, so witnesses lack the kinds of legal protections they would normally be afforded during a police interrogation or a trial.

The bottom line is that if Michael Tantillo wants Tony Stewart charged, the driver will be indicted. If Tantillo wants Stewart to walk, it's likely to happen. The only difference now is that no matter what outcome is reached, the public will blame the faceless grand jury instead of the singular prosecutor. More than anyone else involved, Tantillo knows this- which is why he should have been willing to attach his name to the decision.

Kevin Ward's family deserves to know what the state plans to do in regard to his death
Kevin Ward's family deserves to know what the state plans to do in regard to his death | Source

It is Michael Tantillo (and his staff) who had the opportunity to view the evidence as a whole. It is his office that has the opportunity to consult with experts in the field and compare their words with the video evidence. It is the District Attorney who has the right- and the responsibility- to apply his decades spent as a prosecutor and determine whether or not charges were warranted in the Tony Stewart case. Instead, he made no decision at all.

Everyone involved deserves better than this. The Ward family deserves to know whether the state of New York will pursue criminal charges against the man they believe killed Kevin. Tony Stewart deserves to know where the process is going; will he face criminal charges in an event that so clearly has been devastating on a personal level? The uncertainty is punishment of different sort, punishment that will be doubly ridiculous should the grand jury ultimately not choose to prosecute. Tantillo had the ability to bring this process to its final act. Instead, he chose to add an intermission.

One has to wonder if the citizens of Ontario County realize they deserve better. And if so, what they will ultimately do about it.

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Now it's your turn

Should the District Attorney have filed charges against Tony Stewart?

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      5 years ago

      In order to be charged with a felony in the state of New York (as well in the federal court and in 47 other states), you need the indictment of a Grand Jury. The Grand Jury, having its roots in British case law, is a review of evidence by a jury of "resonable people". In my opinion, there are two reasons why the D.A. would submit this to the Grand Jury: 1. He feels that there is enough evidence to charge Tony Stewart with a felony or 2. If he feels the evidence is lacking, he is giving full due process and giving the Ward family the benefit of knowing a jury of reasonable people determined that there is no reason to charge Tony.

    • profile image


      5 years ago's wrong to second guess the action of a professional driver on the track.....but it's ok to second guess the actions of a professional DA? Hypocrisy, thy name is Roush.

    • profile image

      Lee Staples 

      5 years ago

      So what you’re saying is every case that’s sent to a grand jury is the result of a “gutless” D.A.. That’s the “broad brush” you’re painting with that statement on the Tony Stewart case. I think it’s mighty easy for people like you to make all of your assumptions based on nothing but what you’ve made up in your mind. You and I anyone else not directly involved with the D.A.’s office has the first clue as to what’s going on behind the scenes. I mean heaven forbid the D.A. follow the law right? Give me a break. Just because you have a website and a twitter account doesn’t mean you’re a journalist. Get off your high horse because I think it’s pretty “gutless” of you to slam someone without knowing any of the hard facts.

    • profile image


      5 years ago

      No, the grand jury exists to do just what the DA wants them to do, just as Mike has made very clear here. Very well thought out article and one I agree with 100%. But like one poster on here said, the DA believes he has enough evidence to take Tony to trial on "some" charge, so now we wait to see what the DA really wants to do in this case. The DA is truly gutless, a true politician to the core, he loves the power his position gives him in his own little part of the world. But it's true, he should have just came out and said "I don't want to make a decision on this", oh wait, he did.

    • profile image


      5 years ago

      Best course of action. That is why the Grand Jury exists.

    • profile image


      5 years ago

      Well whoop de doo. A poll of NASCAR fans have decided that Tony should not be prosecuted.

      They have not seen all the evidence, nor all the facts, but have concluded that Tony is in no way guilty.

      And, the author has concluded that the DA is gutless because he fears repercussions from the voters. This assumes that the DA has enough evidence to go forward with charges against Tony, but wants to hand the case over to the Grand Jury.

      If there was nothing of merit to go forward with charges, the DA could easily have stated that.

      Apparently there is evidence worth presenting to the Grand Jury.

    • profile image


      5 years ago

      Goodness because it's beloved Tony, everybody now on the internet is a legal scholar and well versed in the politics that go along with it. Maybe the "gutless" decision is more of a practical and fair one all around?


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