No easy answers in Uber driver's case

Rafaela Vasquez was watching "The Voice" instead of watching the road. That much is clear.

Exactly what punishment, if any, she should receive in a fatal collision between an Uber self-driving test vehicle and a pedestrian in Tempe, Ariz., remains vexing, according to experts.

The answer could have profound implications for the way companies develop driver-assist systems and self-driving vehicles, as well as for interpretations of who or what is considered a vehicle operator. And it could set precedents for how America's criminal justice system handles cases involving emerging transportation technology.

And it could send Vasquez to jail.

She was the human safety driver Uber employed to oversee the self- driving test car that struck and killed Elaine Herzberg the night of March 18, 2018. An investigation revealed Vasquez had been looking downward watching "The Voice" TV show on a phone before impact.

In late August, a grand jury returned a felony count of criminally negligent homicide against Vasquez, now 46. She has pleaded not guilty. If convicted, she faces four to eight years in prison.

"That a charge would come two and a half years later is something of a surprise," said Jesse Halfon, an attorney in the automotive and products liability practice at law firm Dykema. "But I understand why a prosecutor would feel the need to bring some accountability for a fatality, which I think we'd agree was avoidable, regardless of who we want to place the blame on."

Courts have addressed distracted driving, and that's the lens through which the Maricopa County Attorney's Office framed the charge against Vasquez.

"When a driver gets behind the wheel of a car, they have a responsibility to control and operate that vehicle safely and in a law-abiding manner," said County Attorney Allister Adel.

But Herzberg's death is the first involving the testing of self-driving technology, and this case is the first of its kind. Because of the wealth of data available and the nature of the testing at the time of the crash, this is no ordinary distracted-driving case.

"So many things went wrong here, and the technology is what complicates it," said Gail Gottehrer, an attorney who specializes in law surrounding emerging technologies. "If this goes forward, it will make precedent."

A jury might recoil at the extended nature of Vasquez's distraction — she gazed downward 23 times in the three minutes preceding the crash. Video from an inward-facing camera may be damning with a jury.

But those factors generate mixed feelings. Some experts say it's inherently difficult for humans to monitor automated systems and that "automation complacency," a phenomenon that invites inattention from people who are supposed to ensure machines work as intended, set Vasquez up for failure.

"I'm somewhat sympathetic to Ms. Vasquez because I have some understanding of how challenging this job is and, in some ways, how inevitable these kinds of cases are, whether it's Tesla Autopilot or GM Super Cruise or a self-driving Uber," Halfon said.

Whether because of automation complacency or other reasons, humans often bear the brunt of the blame when machines malfunction. A research paper by Madeleine Elish coined the phrase "moral crumple zone" to describe the way humans are assigned moral and legal responsibilities from these system problems. Look no further than the two fatal Boeing 737 MAX aircraft crashes in 2018 and 2019 to see the inclination to blame the pilots.

"There were initial attempts to say those were pilot error and that the pilots failed to understand the way the system worked, or they failed to respond appropriately," said Daniel Hinkle, senior state affairs counsel for the American Association of Justice. " 'Moral crumple zone' is almost too abstract. When you are designing your system to ensure a human is there to absorb responsibility, it's a human crumple zone."

Important distinctions exist in the Tempe crash. It involved a self-driving vehicle, but it was only a test vehicle. It required human oversight.

An investigation by the National Transportation Safety Board, the federal agency charged with probing notable crashes, concluded the probable cause of the crash was Vasquez's failure to monitor the road ahead. But the board also cited Uber's safety culture and automation complacency as contributors. How those conclusions are treated by a jury will be a key question.

"It's persuasive in that this is the finding of a high-level government agency," Gottehrer said. "But just because the NTSB determined a probable cause, that's not the same as the burden of proof needed to establish liability or criminal or civil culpability. ... If you are telling a jury someone is criminally negligent, the question is, 'Did they fall below the reasonable-care standards we'd expect from a safety driver?' And that's a whole new concept right there."

So is the concept of an automated driver. Though NHTSA issued an interpretation in 2015 that stipulated a self-driving system could be considered the driver of a vehicle, Arizona law considers a driver to be the person sitting behind the wheel.

Legal precedent suggests there can be co-operators of vehicles, stemming from unusual cases, such as one in which one person was pushing a stalled vehicle while another steered. But in this matter, a prosecutor's office has already absolved Uber of criminal liability. (The company reached a civil settlement with Herzberg's family, the details of which are undisclosed).

That's troublesome, Hinkle suggests, because Uber had disconnected two safety systems: The factory-installed City Safety auto-brake system supplied by Volvo and an internal fail-safe developed by Uber called Reflex. Further, the company had decreased the number of human safety drivers in its test vehicles from two to one, a move that eliminated another safeguard.

"They left her alone in the vehicle to monitor it all by herself," Hinkle said. "It doesn't absolve her of responsibility in any way, but it clearly implicates Uber in the crash."

Lawyers say prosecuting corporations on criminal counts is notoriously difficult and that the U.S. justice system is tailored to compensate victims of corporate neglect in civil courts. But there are two issues they find problematic with the way Uber's role in the Tempe crash has been examined.

Citing a conflict of interest because it had conducted an anti-drunken driving campaign with Uber, the Maricopa County Attorney's Office transferred its investigation to neighboring Yavapi County, which subsequently cleared Uber of criminal wrongdoing.

But the criminal case against Vasquez is being adjudicated in Maricopa County — raising the question why the conflict of interest would not apply to Vasquez, the company's employee, as well.

Separately, they find it concerning that a low-level employee is shouldering criminal responsibility.

In criminal cases involving potential corporate misdeeds, they argue, it's senior-level executives who should be charged, noting the conviction of former Volkswagen executive Oliver Schmidt for his role in the diesel emissions scandal.

Though Uber has been criminally cleared, the company's role may nonetheless give a jury qualms about convicting Vasquez.

"In criminal law, someone can be shot with a machine gun 12 times, but if they still have a breath left and you push them off a cliff, the shooter and pusher could both be prosecuted," Halfon said.

"On a purely legal basis, it doesn't get Vasquez off the hook. But with a jury, it might make her more sympathetic than you might think."