Published September 15 2011
No charges in Fargo 2-year-old’s death; prosecutors say case wouldn’t serve as deterrent
In a decision dated Tuesday, Assistant State’s Attorney Tanya Johnson Martinez declined to seek charges against the driver, Madison Bartz of Fargo, or the girl’s mother, Karen Rose Wilson of Fargo.
“Under the circumstances, prosecution in this case would not serve the public interest,” Martinez wrote in the decision. “It would not serve as a deterrent, there is no threat to the public, and Wilson is experiencing a more profound punishment than any available under North Dakota law, the death of her child.”
There was no evidence that the car was being driven in a reckless manner or that Bartz was on her cell phone, texting or otherwise distracted, Martinez wrote.
That Wilson and her daughter were crossing against the traffic signal is “undisputed,” Martinez wrote, noting several witnesses in nearby vehicles confirmed it.
The accident location and unlikelihood of encountering a pedestrian in the middle of a heavily traveled road on a green light “all support that Bartz was acting with the prudence of a reasonable driver,” Martinez wrote.
“The State cannot prove that Bartz would have had an opportunity to see (Jasmine) with sufficient opportunity to avoid impact,” she wrote.
Based on the accident reports, Jasmine was walking with her mother across the intersection at about 9:16 p.m. Wilson was carrying several bags and wasn’t holding the girl’s hand, Martinez wrote.
The intersection was poorly lit because of a street lamp that went out prior to the incident and a large storm system approaching, she wrote.
Wilson stated that Jasmine had pushed the crosswalk button, Martinez wrote.
“She said that when she looked to her left prior to crossing the street, it appeared as though the cars were some distance off,” she wrote. “She does not recall if the ‘walk’ signal had turned on.
“Wilson reported that (Jasmine) was being kind of crabby and that she was walking a couple of steps behind her. Wilson indicated that she turned back to look at her daughter … and (Jasmine) had stopped walking and was standing in the lane of travel. It was then that Wilson saw the approaching headlights.”
Wilson tried unsuccessfully to get Bartz’s attention, and the car struck Jasmine, Martinez wrote.
Bartz indicated she didn’t see Wilson and Jasmine until they were about 5 feet in front of her, “and then only saw Wilson and swerved to miss her, striking (Jasmine) instead,” Martinez wrote.
The car was traveling between 39 and 43 mph, which is over the 35 mph speed limit “but not notably unusual for that portion of the road, at that time of night,” Martinez wrote. Fargo Assistant City Attorney Jason Loos said last week the city looked at possible traffic violations but decided against charging Bartz.
Martinez told The Forum on Wednesday that the decision not to pursue a reckless endangerment charge against Wilson was “a close call.”
To pursue the charge, the state would have had to prove that Wilson acted recklessly, Martinez wrote.
“There is no question that Wilson was responsible for her minor child and for her minor child’s safe passage across the street,” she wrote. “Wilson failed to meet this responsibility and the consequences to (Jasmine) were fatal. Whether Wilson’s actions rise to the level of culpability necessary to prove recklessness is a question of fact.
“This would be an entirely different case if Wilson had been intoxicated, or if she had attempted to zigzag through traffic,” she continued. “Rather, Wilson made a grave miscalculation in both the speed and proximity of the approaching vehicles, her decision to cross against the light, and her failure to hold her daughter’s hand or monitor her location in some other manner.”
Past attempts to reach Wilson and Bartz for comment have been unsuccessful.
Martinez called the case “tragic” and said it was one of the most difficult she has ever reviewed.
“Certainly, all of us have had those moments where we may realize that we’ve just gone through a situation that put our child in danger, but it doesn’t always result in death. It almost never results in death. It’s unfortunate,” she said.
“The caution to the public would be to pay close attention to where their young children are when they’re in traffic or around vehicles, because they’re short and they’re hard to see,” she added.
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528