13 Investigates: Charges never filed against driver in death of 13-year-old boy

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WINNEBAGO COUNTY (WREX) — Bobby Figinsky, a 13-year-old boy, was hit and killed by a driver on Hononegah Road in 2017. That driver has never been charged.

The Winnebago County State’s Attorney says that’s because there was no crime — it was a tragic accident. Bobby’s mother thinks otherwise. She reached out to 13 Investigates to look into this case about justice.

“The last pictures I have of my son, are his autopsy photos,” said Bobby’s mother Jenessa Figinsky.

The Night of the Crash

Bobby and his friend Macayla were both hit by a truck on Oct. 15, 2017 while walking along Hononegah Road. Macayla survived, but her mother says the horror of that night lives on almost 16 months later.

“She just kept screaming. I will never forget the screaming,” Corin Mertz, Macayla’s mother, said.

Dashcam video captures Macayla’s screams.

“Oh my God, please let me stay with him!” she cries out.

On the side of the road, in the grass, you can see a person giving CPR, though you can’t see Bobby. It’s one of the many horrific moments the dashcam captured that night on October 15. It also captured the exchange between the driver of the car that hit Bobby and a responding officer.

“Are you a witness at all?” an officer asks.

“Worse,” a man responds.

“Father?” the officer asks again.

“Negative, I hit him,” said the man.

The crash happened at 6:44. At 6:52 p.m., the driver who hit Bobby came forward to police. Initially, investigators thought it was a hit and run. But at 11:51 p.m., when the driver was taken in for questioning by Winnebago County Sheriff’s detectives, he gave his side of the story.

“I’m driving along and I thought there was a branch or something that hit my truck and I’m like that’s weird. So I pulled over and that’s when I got really weird,” the driver said.

At 12:45 a.m., he was released with no charges and no ticket.

13 Investigates is not naming the driver because he hasn’t been charged with a crime. Something Jenessa Figinsky and Corin Mertz say they can’t wrap their heads around.

Questions About Justice

“It’s not right that there’s been absolutely no repercussion of any kind. It’s not right,” Jenessa told 13 Investigates, fighting back tears.

“The truth is it’s a legal system, it’s not a justice system,” said Corin.

But justice is exactly what Winnebago County State’s Attorney Marilyn Hite Ross says this case is about.

“The prosecutor’s role is to seek justice, not merely convict,” Hite Ross said.

Hite Ross said she declined to bring charges against the driver because that in itself would not be justice.

“Sometimes there are crash accidents involving death that are merely that, an accident. And that is what the result was in this case. There was no evidence of criminal conduct,” said Hite Ross.

Shortly after the crash, the Winnebago County Sheriff’s Office took over the investigation from Roscoe Police.

“It’s terrible, the situation and the scenario that this happened. But accidents happen,” said Winnebago County Sheriff Gary Caruana.

Sheriff Caruana says those investigators found no evidence the driver was reckless and despite the initial call going out as a hit and run, the driver actually returned to the scene. Hite Ross says by law, drivers have 30 minutes to return to the scene of an accident before it’s considered a hit-and-run.

But Jenessa and Corin say something else doesn’t sit right with them, and it was something they heard on the dashcam:

“You drinking at all today?” says an officer.

“I had one beer with dinner,” says the driver.

Police got a blood and urine sample 4.5 hours after the crash, but never gave a breathalyzer on the scene.

13 Investigates asked Sheriff Caruana, why not?

“Because there was no impairment, no signs of impairment. There’s no reason to go to that level if there’s no sign of impairment,” Sheriff Caruana said.

13 Investigates then asked, if the driver wasn’t showing signs of impairment and a breathalyzer wasn’t needed, then why was a blood and urine draw necessary?

Caruana said, “Well again, that’s protocol. We had a fatal accident and we want to make sure that we’re covering all the bases.”

The results of that blood and urine draw came back clean. Jenessa said she wonders if in those 4.5 hours, the alcohol metabolized.

Hite Ross said, “Obviously the time when that result is taken can go both ways. Either a person can be on their way down from a very high blood alcohol content or they can be on their way up.”

“I know as far as an accident investigation to a death investigation, it was done 100 percent right,” said Caruana.

A Mother’s Mission

But Jenessa says investigators made mistakes and she has a binder full of documents from the investigation that she says proves it.

“The accident happened at 6:44 pm. You’ve got reports that say 7:15, and reports that say 7:35. They can’t even get the time of the incident correct in their report,” she said. “They couldn’t even call him by his correct name in some of the reports. If you can’t get the basics correct how am I supposed to trust you with the big stuff?”

The big stuff is where Jenessa and investigators don’t see eye to eye. They both agree Bobby and Macayla were walking side-by-side on Hononegah Road. But because there are no sidewalks, where they were walking is up for debate.

Investigators say they believe the teens were in the road. Jenessa and Corin are adamant they were on the shoulder. And they believe the driver veered off the road and hit them. One reason they think that, is because of tire marks on the scene left in the grass.

In his interview with detectives, the driver said, “I know I wasn’t drifting off the road.”

According to the accident reconstructionist report, “There were tire tracks from the numerous vehicles which pulled off the road and into the ditch to assist Bobby.”

But dashcam video shows all the vehicles on the pavement.

“I reviewed all of the evidence including the dash cam video, my conclusion is the same. Just because there’s a tire mark off of the roadway, we don’t know when that was made,” said Hite Ross.

Corin says Macayla’s told her multiple times that she and Bobby were not in the road. We asked Sheriff Caruana if her assertion, which contradicts with the accident reconstructionist, makes a difference in this investigation.

“I have to go by the scientific evidence of the accident reconstructionist. But I will tell you, investigations that we have worked on, when you ask a witness what they saw and you have other corroborating witnesses, it’s not always the same. I can’t tell you what she felt or saw is 100 percent factual, ” Sheriff Caruana said. “We can’t determine exactly through that investigation if they were on the roadway or not.”

“At this point all the police can say is we did a good job, we know we did a good job. I can look at the reports and disagree. But they’ve decided that the tire marks didn’t matter,” Jenessa said.

“My heart goes out to the family. I don’t want to see this. I don’t. This is something that we don’t want to investigate ever. My condolences to the family,” Sheriff Caruana said.

The words bring little comfort to Jenessa.

“Sorry doesn’t bring Bobby back and it certainly doesn’t give us justice.”

Justice, Jenessa said, is a legal acknowledgement that the crash happened.

“I know it sounds weird and they say this doesn’t matter because it would just be a minor traffic ticket, but at least it would acknowledge that Bobby’s life mattered to some degree,” she said.

13 Investigates also found a list of previous traffic violations for the driver. From a DUI, to negligent driving, to driving on the wrong side of the road. These were all incidents he was ticketed for, but there is no ticket for the crash that killed Bobby.

The driver of the truck declined 13 Investigates’ request for an interview.

Kristin Crowley

Kristin Crowley

Evening News Anchor

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