James Foutch arrives for his sentencing hearing in Anderson, Indiana in 2015.

EDGEWOOD, Ind. — At 2 a.m. on May 24, 2013 — less than a year before the high-speed collision that killed an expectant father — James Foutch, an officer with the Edgewood Police Department, was stopped by a fellow officer as he headed west on Indiana 32 near Anderson, about 40 miles northeast of Indianapolis.

Officer Derek McHatton had clocked Foutch, who was off duty and driving his personal vehicle, at 96 mph. Foutch told McHatton he “was just seeing how fast [his] truck would go.”

Although McHatton reported Foutch’s excessive speed to a supervisor, no further action was taken, and Foutch never received a reprimand.

Following the 2014 accident that killed one and injured another Foutch pleaded guilty to felony reckless homicide and felony criminal recklessness inflicting serious bodily injury, but unsuccessfully appealed the eight-year prison sentence he received. 

Though Judge Patricia A. Riley, who wrote the opinion for the Indiana Court of Appeals, does not say so directly, the anecdote about Foutch’s driving history seems to imply that perhaps Jesse Sperry’s death and the injuries to his wife Rebecca — who hours after the accident on April 6, 2014 gave birth to their daughter Autumn — could have been avoided had Foutch’s superiors reined him in earlier.

In fact, Foutch’s driving license had been suspended 17 times before the accident, and between 1990 and 1997, he was convicted six times for speeding, according to the ruling. And, following the April 2014 accident, Foutch admitted to an investigator he had taken prescribed hydrocodone and unprescribed Xanax that morning.

However, Edgewood Town Marshal Andrew Ellingwood said Monday that his department followed official procedure with Foutch, who was hired by the department in 2003.

On a first-time offense, Ellingwood said, what normally would happen is something akin to a warning that would have been given to a civilian driver, with increasingly serious disciplinary action, such as a written reprimand, for subsequent offenses.

“At that time, the officer that stopped him had the conversation with him about the inappropriateness,” he said of the 2013 event. In addition, Foutch was offered counseling.

The course of action taken was appropriate, Ellingwood told the Anderson, Indiana Herald Bulletin, because speeding is considered an infraction. Had Foutch committed a misdemeanor or felony, the disciplinary action would have been appropriate to the nature and severity of the offense.

In seeking his appeal, Foutch asserted that the nature of his case was “simply a run of the mill recklessness while driving which resulted in the death of one person and injury of another.”

In its ruling, the court said Foutch’s argument “gravely minimizes the severity of his actions.”

In addition, the court expressed concern over Foutch’s driving record, noting that despite past speeding fines, being ordered to serve community service and receiving a suspended sentence and probation, he continued to disregard the safety of fellow motorists.

The court pointed out that Autumn Sperry “must grow up without her father.”

Foutch also had no automobile insurance — which is required under Indiana law — at the time of the crash. Rebecca Sperry incurred at least $180,000 in medical expenses, which did not include the loss of her Buick automobile, hospital care for the infant or Jesse Sperry’s funeral expenses. The court said the lack of insurance placed a significant financial burden on Rebecca Sperry.

Ellingwood said he was not aware of Foutch’s legal troubles prior to his arrest in the Sperry incident.

He also noted Foutch was hired by his predecessor, who operated the department under different criteria. When he became marshal in 2009, Ellingwood said he made the decision to require agility testing, a written test, a background check, oral interviews and psychological examinations, as recommended by the Indiana Law Enforcement Academy.

Still, all of these tests and background checks occur only prior to service with the department, Ellingwood, said, with the exception of driver’s licenses. Ellingwood said those are checked periodically because of insurance requirements. Because of privacy laws similar to HIPAA in the medical field, the only information released is whether an officer’s license is valid.

“We don’t even get their history from the BMV any more,” he said. “Unless you have a criminal history, we don’t get access to their driving record.”

In fact, the state has the authority to levy a fine if an agency runs a criminal background check without a proven reason, he added.

Ellingwood said he’s not certain whether the accident involving the Sperrys could have been avoided.

“That one is hard to predict because those guys are adults and control what they do off duty,” he said. ”They know the rules as they are set out by the policy and are responsible for abiding by them.”

The Anderson, Indiana Herald Bulletin contributed to this story.