Waiting for Justice: A FOX28 Special Report - Fox 28: South Bend, Elkhart IN News, Weather, Sports

Waiting for Justice: A FOX28 Special Report

It's a story we've been following since it happened in August of 2013.  A South Bend couple, Bob and Judith Hillers and Judith's cousin, Janice Cash, were killed in crash on US 31.

"You know, I still visit the cemetery," says Beth Hillers.  "I went yesterday for Easter. My daughter and I planted them flowers. I just told them I really hoped I'd be able to tell them the next time I saw them that there was something happening."   It's a hope Beth Hillers and her sisters have been holding onto since the crash.   An officer brought them word of the deaths.  Police told them a teen with only a learners permit, driving recklessly, was responsible.   Hillers says, "We all remember him saying that there were 911 calls as far back as Lakeville. That people were calling in saying, 'This person is driving very fast and changing lanes and that people were pulling out of his way and that he crossed the center line.'"

More than a month ago, and 7 months after the accident, the St. Joseph County Prosecutor Michael Dvorak told me they were doing a supplemental investigation and wouldn't make a charging decision for another 3 to 4 weeks. The prosecutor explained in a press release that neither "negligent homicide" nor "vehicular homicide" were crimes in Indiana, indicating Indiana law makes it tough to charge these cases.  He said "reckless homicide" was the only available criminal charge and explained even that was challenging.   Hillers says, "After the press release from Dvorak's office telling us that basically, they didn't feel like had anything in Indiana law they could charge him with, I think my sisters and I were really heartbroken."

A long-time friend of the Hillers asked Attorney Jeff Sanford to look at the case.   Defense Attorney, Jeff Sanford says, "To create this impression that there's no law that is applicable here is, I think, very misleading."   We need to point out Sanford, a defense attorney, is running for County Prosecutor. He also doesn't have access to all the facts in the case. However, based on the information the Hillers' daughters gave him, and a little research, he says he believes there are several charges the driver could face, including involuntary manslaughter.  

Sanford says, "The fact of the matter is, under the involuntary manslaughter statute, the legislature recognizes situations involving a car, you could be charged with that.
There's no big hole in the law. I'm at a loss to explain it, really, as to why he's not charging this person."

"Vehicular Homicide is covered currently under Indiana Law,"  explains Notre Dame Law Professor and former federal prosecutor, Jimmy Gurule.  "The statue provides that any person who takes the life of another human being during the commission of a Class A misdemeanor is liable for involuntary manslaughter."   Gurule says the statue is very specific.  It has to be a misdemeanor that inherently poses a risk of serious bodily injury. One example might be "aggressive driving" which is noted in the initial police report, and Gurule says the case would have to meet 3 of the 9 criteria.

"I think a negligent homicide charge would be helpful, would certainly be helpful to the prosecution, but I can't say that the absence of that leaves one without prosecutorial tools and statutes," says Gurule.  The former prosecutor went on to say, while homicides are all tough cases, he worries about the alternative.  "In the absence of holding them accountable, I think the criminal justice system sends the absolute wrong message; that you can engage in this kind of unlawful conduct and not be held accountable."

Prosecutor Dvorak says he can't comment further on this case. He did send me a written statement that says, in part, "We are aware of the statues you mentioned. The investigation remains active and on-going.  Witnesses continue to be interviewed.  And until the investigation is complete and a charging decision made, it would be inappropriate for the prosecutors office to comment."

Until they know one way or another, Beth and her sisters say, it's impossible to find closure. 
"I don't think whatever happens in this case, anyone is going to feel good about it.  I mean we lost our parents.  This kid might lose part of his youth because of bad decisions and that's hard for me, as a teacher, to want for him,  but I feel there has to be some justice."

FOX28 did contact Ken Cotter who's running against Sanford for Prosecutor.  Cotter is Michael Dvorak's Chief Deputy.   He told us, "It would be unethical for me to comment at all on a pending case, even though I have had no involvement in the case."   Dvorak isn't seeking re-election.

For weeks now, we've also been contacting state senators about this story.    Both Indiana Senate President Pro Tem David Long and Senator Joe Zakas say they are interested in the case.  Staffers for both senators have talked to Dvorak's office researching whether any changes might be necessary in the law.  They're also comparing Indiana law to other states.  A spokesperson for Senator Zakas says Prosecutor Dvorak has expressed gratitude for Senate leadership's interest in the case. 

We also did some digging into the records of the teen driver accused of crossing the center line in this case; a teen we are not naming because he is a minor.  Seven months before the deadly accident, he was charged with speeding and not having a valid operators license.  Then in January, five months after the accident, he was pulled over again, for a learner's permit violation.
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