On the recent TriMet accident, and the grand jury's decision

One of the biggest topics in Portland transit circles the past month hasn't been TriMet budget cuts, or Neal McFarlane, or the CRC.  The story which has dominated the news is the tragic accident last May, when a TriMet bus turned (illegally) into a crowd of pedestrians at the intersection of NW Glisan and NW Broadway, killing two and seriously injuring a third.  I've mostly avoided commenting on the incident, waiting for the official investigation to complete.

And now, the investigation is complete.  A Multnomah County grand jury has declined to indict the driver, one Sandi Day, on charges of "criminally negligent homicide".  CNH is a felony offense which likely would have resulted in prison time for Ms. Day had she plead guilty or been convicted.  At this point, it is unlikely that Day will be spending any time in the big house.

However, she's not out of trouble, not in the slightest:  she has been charged with six traffic offenses--three of them misdemeanors (2 counts of "Careless driving resulting in the death of a vulnerable person", and one of "careless driving resulting in serious physical injury to a vunlerable person), and 3 infractions (failure to yield, illegal left turn, and careless driving resulting in an accident).  In addition, the DA's office pulled few punches in the report they released.   Al has a picture of the traffic ticket she ultimately received.  While none of these offenses carries a prison sentence, the three misdemeanors carry a potentially large fine--and a guilty plea or conviction would likely result in Day losing her Washington State Commercial drivers' license--and her job.

(Ms. Day lives in the state of Washington and is thus licensed there; a Washington CDL is valid for employment as a driver with TriMet.)


Varied opinions

In my opinion, which isn't terribly uninformed, the grand jury made the right call.  There is little question that Day was at fault in the accident, and that she broke the law.  The pedestrians were crossing NW Broadway with a walk signal, and the bus was making a left turn from the right-hand curb lane.  (Day had made an unscheduled stop to drop off a passenger, placing the bus out of the proper position to execute the left turn required of the route).  Rather than proceeding straight on Glisan and going around the block, she attempted the turn anyway--striking a crowd of pedestrians.

Much of the investigation focused on the position of the mirrors on the bus she was driving--did they obscure her view?  They most probably did, but drivers of commercial vehicles generally have a responsibility to "look behind" any visual obstructions.  The fact that she was turning across two lanes of parallel traffic may have also played a part--as executing that maneuver safely also requires she make sure she's not sideswiping any cars travelling westbound on Glisan to her left.

Certainly, Day needs to face some music.  But is criminally negligent homicide appropriate?  A relevant judicial opinion from a 1984 ruling is reproduced below (another hat tip to Al, who's a busy blogger...)

Criminally negligent homicide is defined at ORS 163.145. One commits this crime by causing the death of another “with criminal negligence,” which is in turn defined at ORS 161.085(10):

“’Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to beaware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

The crime of “criminally negligent homicide” encompasses more than just cases in which death results from driving. It includes any case in which a defendant causes the death of another by behavior that is “criminally negligent.”

Under Oregon law, this mental state of “criminal negligence” requires more than inadvertence, inattentiveness, or, in driving cases, the added commission of traffic violations. The legislative commentary to the 1971 Criminal Code revision on the (then) new crime of criminally negligent homicide stated that the purpose in defining this crime was to include conduct by a defendant who is unaware of great risk “only because [she] is insensitive to the interests and claims of other persons in society.” (emphasis added).  This insensitivity to the safety and well-being of others must then produce a “gross deviation” from the standard of care that a reasonable person would use.

Historically, most vehicular homicides are charged as Manslaughter I or II because they involve intoxicated drivers who also speed, make unsafe passes, run stop signs or red lights, and engage in other aggravated, aggressive driving. Under Oregon case law, Criminally Negligent Homicide cases typically involve this same level of bad driving, but usually without intoxication. Indicted criminally negligent vehicular homicides are fairly rare since the level of bad driving required by this crime is usually accompanied by intoxication, which then elevates the conduct into the “reckless” category, resulting in a charge of manslaughter.

In Oregon, not every fatal vehicle accident can or should result in felony homicide or other criminal charges, even when caused by a driver committing traffic violation(s) and/or being inattentive. The law requires substantially more egregious conduct to charge a driver with a criminally negligent homicide, with its presumptive prison sentence and many other serious consequences. Drivers who are not charged criminally do not, however, escape the law’s punishment; they are held responsible by a civil lawsuit using the standard of ordinary or “civil” negligence. This lesser form of negligence is generally defined as a failure to use “reasonable care” when acting in a given situation. “Reasonable care” is “what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.” Wollston v. Wells, 297 Or 548 (1984).

Emphasis added by me.  The purpose of criminally negligent homicide (and manslaughter, an even more serious charge) isn't to punish people who have brain farts and kill someone--it's to punish people who engage in flagrantly careless behavior and kill someone.   Acts like reckless driving, drunk driving, racing, joyriding, "chicken", showing off, and other obviously dangerous actions, are what these charges are all about.   Not every vehicular death implies the commission of a felony offense--even when one party is clearly at fault, and even when that party has clearly broken the law.

The dissenting opinion

Not everybody agrees, of course.  As expected, many of the relatives of the deceased are unhappy with the decision; I won't pick on grieving families in this blog.  Longstanding Portland blogger Jack Bogdanski, a professor of tax law at Lewis and Clark, is another matter.  Bojack, as he's commonly known, is incensed--and seems to think that not only did Day deserve a felony rap, but implies that the reason she wasn't indicted is due to monkey business on the part of the DA's office.  According to Bojack:

The immunity that the Portland police appear to enjoy from effective prosecution by the county district attorney now seems to be extending itself to bus drivers

In the comments, Bogdanski asserted that the conduct of Ms. Day does fall under the ambit of criminally negligent homicide, even though the case quoted above suggests otherwise.  But the suggestion that the DA acted improperly in not securing an indictment (felony indictments can only come from grand juries, remember), is stunning.
A common allegation against the the Multnomah County DA's office is that it is unwilling to prosecute police officers involved in shootings, even when the officer's claim to justifiable deadly force is questionable; and many accuse prosecutors (here and elsewhere) of "sandbagging" grand juries in such incidents--of not bringing the strongest case to the panel--in order to avoid an indictment.  As grand jury proceedings are generally secret, nobody knows for sure.  There isn't any real evidence that DA's offices do this; but given the close nature of the relationship between cops and prosecutors, a definite conflict of interest exists... and cops seldom if ever get indicted.  So some room for suspicion probably exists with regard to police shootings.
But bus drivers?  Are you telling me that the DA's office would sandbag a high-profile case like this to protect a bus driver?  That doesn't make sense--unless you think there's some secret solidarity pact among public employees, at all levels of government and across all organizations thereof.   That theory is flat-out ridiculous, and I hope that's not what Bogdanski thinks is going on.  Besides--after not getting the indictment, the DA's office pretty much threw every misdemeanor that it could find at Sandi Day. 

This was a terrible, and tragic, accident.  Two people are dead; a third was badly wounded; and Sandi Day's career is probably ruined.  It feels highly improper to mention her woes in the same sentence as those of the victims, but there it is.  But a felony?  Not even close.