Driver in fatal 2017 Loudoun Co. food truck crash appeals to federal court

The driver of a poorly maintained food truck, currently serving more than 10 years in prison for the 2017 crash that killed a Loudoun County, Virginia, woman and seriously injured her three children and mother, has appealed his case to federal court, claiming his constitutional rights have been violated.

Tony Dane, the owner of an aging school bus converted into a food truck, was sentenced in July 2018 after his poorly maintained brakes failed, causing the crash that killed 39-year-old Erin Kaplan.

After a series of failed appeals in Virginia’s courts, Dane, who is representing himself, claims his constitutional rights to due process, effective counsel and the ability to question witnesses have been violated.

Dane filed his petition for writ of habeas corpus in U.S. District Court for the Eastern District of Virginia against Harold Clarke, the director of the Virginia Department of Corrections; Dane is being held at Haynesville Correctional Center, on Virginia’s Northern Neck.

On Sept. 8, 2017, Dane drove from Front Royal on his way to a football game in Ashburn. He ran a stop sign on Watson Road and crashed into Kaplan’s station wagon as she and her family drove north on Evergreen Mill Road.

Dane was sentenced to 10 years in prison for involuntary manslaughter; 12 months in jail and a $2,500 fine for reckless driving; six months in jail for driving without a license for a second time; and $500 in fines for operating a vehicle without a license and failing to have a vehicle inspected.

The Loudoun County Circuit Court, the Court of Appeals of Virginia and the Supreme Court of Virginia have all upheld Dane’s conviction and sentence. Virginia’s Supreme Court denied his appeal in February 2020.

Dane’s petition in federal court alleges nine errors made by his public defender in his Loudoun County trial, including failing to consult with a pathologist or medical expert to determine the cause of Kaplan’s death, and choosing to not consult an expert on the mechanics of the food truck.

Dane’s filing cites several instances in which his lawyers failed to challenge false statements by prosecution witnesses.

“It is abundantly obvious that Trial Counsel’s failure to understand the evidence created his inability to challenge any of the evidence brought forward by the prosecution,” Dane wrote.

Dane said his trial counsel acknowledged his investigation concluded after meeting with police investigators. “This is where the investigation should start, not conclude,” Dane wrote, underlining each word for emphasis.

In his petition, Dane requests Clarke “immediately release [Dane] from custody, or in the alternative, grant an evidentiary hearing” about his allegations that his constitutional rights are being violated.

Prosecutors with Virginia’s Office of the Attorney General argue Dane’s request should be dismissed, saying he has failed to meet the standards by which a federal court should review a state Supreme Court’s ruling.

“A federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision either ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” wrote Sharon Carr, assistant attorney general.

No future court dates have been scheduled, according to online court records.

Neal Augenstein

Neal Augenstein has been a reporter at WTOP since 1997. Through the years, Neal has covered many of the crimes and trials that have gripped the region. Neal's been pleased to receive awards over the years for hard news, feature reporting, use of sound and sports.

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