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Wednesday, May 19, 2010

New Report: TriMet Driver at Fault for Two Pedestrian Deaths, but Not Charged

Posted by Sarah Mirk on Wed, May 19, 2010 at 1:13 PM

Now this is strange. Today the police and grand jury released their analysis of the TriMet bus crash that killed two pedestrians downtown last month. The investigation and the grand jury seem to come to opposing conclusions.

The investigation, led by Officer Peter Kurronen concluded that the pedestrians were legally crossing the street and that the bus driver, Ms. Sandy Day, was at fault for the crash. Her left turn onto Broadway illegally crossed two lanes of traffic while the five friends leaving a comedy club had the right-of-way in the crosswalk.

But the Multnomah County grand jury declined to charge Ms. Day with any crime.

"This case, with the driver being either inattentive or unable to see, possibly both, while engaging in an unlawful left turn, may well involve civil negligence, but the grand jury concluded that it is not chargeable as criminally negligent homicide," reads the eight page report detailing the crash (pdf).

More from the report:

Officer Kurronen’s investigation will speak for itself, but he found several factors significant in contributing to the crash: the lighting in the area, the generally dark color of the victims’ clothing, the angle of the turn, the fact that the turn was an unlawful left turn that crossed two traffic lanes instead of coming from the proper (left or south) lane on Glisan, the blind spot created by the driver-side mirrors and A pillar, the intervening two vehicles westbound on Glisan in the south lane, and a driver’s perception-reaction time at night. Kurronen concluded that the victims were walking legally with the right-of-way, and that the driver, Ms. Day, was at fault for this crash....

The Multnomah County grand jury received evidence and testimony from 33 witnesses, either directly or by report, during sixteen hours spread-out over five days. They spent additional time reviewing the evidence after all testimony was received. After doing so, their vote was not to charge the driver.

Instead of criminally negligent homicide, Day will be issued a traffic citation. See article: Getting Away With It [News, Nov 2009].

UPDATE 1:55 PM Senior Deputy District Attorney Chuck Sparks says the investigation and grand jury's findings are not really in conflict with each other. The case hinges on a small but potent distinction between civil negligence and criminal negligence.

"She is responsible for the crash. The question is did she commit the crime of criminally negligent homicide or did she commit a traffic violation?" says Sparks.

More explanation from Sparks—including his heartbreaking description of the guilt Day feels—below the cut.

To be responsible for homicide, Day would have "to fail to be aware of a substantial and unjustifiable risk." That risk "must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care."

Sparks spells out what he learned from the investigation and Day's testimony in front of the grand jury: "I can't get inside the driver's brain and say this is why this happened. But here you've got a person who is 48 years old, has no traffic tickets in her entire adult life, has no accidents in her entire adult life and the question is whether in that night when she made that turn, was she criminally negligent? Or was she trying to manage the risks?

If she just kind of went whipping into the turn and said, "Eh, maybe there's someone there, maybe there's not," that could be criminally negligent. She testified for an hour and fifteen minutes and answered every single question the jury asked. The picture that emerged for her was someone who's a very conscientious driver."

Day was making the illegal turn, ironically, because she had been trying to protect another rider's safety. The last customer Day picked up was an elderly man who asked to be dropped off not at the bus stop, but at the corner of Glisan. "She went over to that corner to drop him off safely, he was elderly, it was at night. She then had to maneuver into a more difficult turn," says Sparks.

As far as Sparks heard, the police will issue Day five tickets under the state's vulnerable road user statute, an illegal left turn citation and a ticket for failure to yield to pedestrians in a crosswalk, all of which will mandate 100-200 hours of community service and a safe driving course. But the bigger punishment (in addition to a lawsuit from the families, which Day could easily face), is the life-long knowledge that she is responsible for the young peoples' deaths.

"Having met her and talked to her, she's going to live the rest of her life with this. And she is horrified," says Sparks.

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