by Matt Richtel
The person should have known that their conduct was wrong and didn’t just deviate from what was right, but substantially deviated. Acted in veritable defiance of law and common sense. The standard says that, whether or not you are aware of the risks, “you should have been aware,” Baird explained. (By contrast, a greater standard, and tougher charge, is “reckless” behavior. Here, a person actually is aware and disregards the proper behavior.)
In the case of the driver with the bad brakes, Baird succeeded in securing a conviction of two counts of negligent homicide. The charge is a misdemeanor, but a serious one. The driver got ninety days in jail and a black mark for the rest of his life, in addition to the weight of his deadly actions.
Then, four years later, Baird prosecuted another trial that provided an insight into Baird’s thinking as he considered the Shaw case. The second case concerned a man in his twenties who was driving a truck with his wife in the passenger seat down Blacksmith Fork Canyon, a steep, windy road. The night before, they’d been camping with friends, had stayed up late, the evidence showed, and were driving back in a hurry to get to work. The driver lost control, and drove off the side of the road, slamming into a tree before coming to rest in a river. The man survived. The wife’s head was crushed by the tree, and she died.
On its face, it was an accident, but there was a twist, one that really bugged Baird. The evidence showed that the driver had smoked marijuana the night before, even though the toxicology report didn’t prove that the man was under the influence.
Still, Baird was piqued. “He was willing to jump in the car, with supposedly the person you love more than anyone on earth, and drive too fast after a night of partying,” he says, looking back. The case, on some level, was one that involved character. What sort of person would behave this way? Baird thought.
And the case involved some cultural issues, the frowning upon of drug use, the lack of appreciation, thought Baird, for how it can impact the brain and behavior, even after it’s mostly out of your system.
Baird conceded, though, that because of the toxicology issues, this one may be tougher than the one with the driver and the bad brakes. Baird brought the charges anyway and, again, he won; another negligent homicide conviction, and a sixty-day sentence.
Then there was Reggie.
First of all, Baird thought, there was just the newness of the whole concept of texting and talking on the phone, and its implications for driving. As Baird found time to explore the issue, he came to the conclusion: “There was no other case law, and nothing statutory that gave us any real guidance as to whether this constituted negligent homicide or something else.”
There weren’t great stats on how many wrecks were caused by cell phone–using drivers. There were mounting anecdotes. Just a few days earlier, across the mountains in Idaho, an eighteen-year-old driver had been sending a text message when she lost control of her car, jettisoning a fifteen-year-old passenger through the windshield. The girl was in the hospital in serious condition.
Baird was thinking about the question of whether Reggie—presuming he was, in fact texting—should have known his behavior was reckless. After all, Baird thought, if the technology was new, was it fair to make the case that Reggie was grossly deviating from a standard of care, if the standard of care wasn’t clear?
Was he really on notice? Baird asked himself. He said he himself knew the conduct was dangerous and wrong, but did Reggie? Should he have?
“Texting is not a dinosaur like vehicles and driving. It is such a new phenomenon,” he said. He was wrestling with other questions as well: How is texting different from looking down to unwrap a piece of gum, or to sip from a Big Gulp? These are things that, tragically, lead to a momentary loss of focus; but they are accidents, tiny blips, and instants.
Eating, smoking, changing the radio.
Or how about waving? There was something in Baird’s past, when he was a young man. He was on a motorcycle, and he waved to a mailman and . . . he didn’t like to think about it. It was the worst tragedy of Baird’s life. People made mistakes, right? Still, it wasn’t time to think about that, what he’d been through, or its implications on a potential Reggie Shaw trial.
This was about the facts, and the case, and the law. His initial impression remained: “There was no precedent.”
“MAY I GIVE YOU some information?” Reggie asked the woman.
She said yes. He gave her a pamphlet about the Church of Latter-day Saints, and a phone number to call if she wanted to follow up.
Reggie felt euphoric. His first pitch seemed to have gone well. And he hadn’t even landed in Canada to officially start his mission. He was still on the airplane, a Delta flight, from Salt Lake to Winnepeg.
At the Salt Lake airport, there had been back pats and “good lucks” from other travelers who recognized the band of suit-clad missionaries. On the plane, Reggie sat in an aisle seat, and struck up the conversation with a woman who asked about where he was going, and why.
“It was the first time I actually attempted to teach someone who I didn’t know, who was not a member and not familiar with the Church,” Reggie said. “She listened well, she asked a lot of questions.”
The last thing she said was: “I’ll take this information to my pastor and we’ll talk about it.”
Reggie recalls her reference to her pastor with a laugh. “That’s never a good sign.”
He was feeling buoyant, on his way, and the pitch to the woman allowed him to think it might involve fewer doors shut in his face than he’d been prepared to expect.
In Winnepeg, he met his “companion,” the guy he’d be paired up with, walking the streets, suit-clad, scripture in hand. He was Elder Smith. He was on the tail end of his own mission and would be showing Reggie the ropes. They hopped in Smith’s small Ford and took the drive to Regina, a big city that would be their home base.
Just a day in, Reggie was walking down the street with Elder Smith, going house to house, when a car drove by. Someone yelled at the pair, and then a bottle came flying in their direction. It missed. It shattered. It was a bottle of SoBe, an energy drink.
Though he’d come to expect some of this, he was kind of shocked. To Elder Smith, it was just another day.
He thought: Any time you’re trying to do good, Satan is going to try to stop you. It might be with a SoBe bottle. Anything to frustrate or derail your path.
CHAPTER 26
TERRYL
NINE MONTHS EARLIER, TERRYL had approached Jackie Furfaro outside gymnastics practice to ask if she needed anything. Jackie had said no.
Since that time, Jackie and Leila each had kept in periodic contact with the investigators, expecting little, getting even less. Leila was in more regular contact, speaking periodically with Singleton. In June, in one of those conversations, she got the impression from him that he was frustrated and that it seemed the likely outcome of the case would be a ticket for driving left-of-center. She called Jackie, with whom she’d had little interaction.
She explained her frustration, and Jackie shared it. Jackie decided to call the prosecutor’s office. It was late June. Terryl wasn’t around. She was outside Washington, D.C., packed into two rooms at the Days Inn with the whole family and her mother for a very special event: Jayme was the Utah state representative for National History Day—a competition in which more than five hundred thousand students compete. There was extra meaning in the event for Terryl because her real father, and his wife, joined the group, marking the first time the whole collection of them had been together.
Shortly after Terryl got back home, in early July, she got a call patched through from the receptionist while she was sitting in her office, in the basement of the Cache County prosecutor’s office.
Terryl’s basement office had windows, but you sort of had to crane to look out of them because the room was half underground. Three plants in pots graced the window facing east toward the front of the courthouse. Through the north-facing window, she could glimpse the Best We
stern that was kitty-corner to the courthouse. It was a far cry from the ornate offices upstairs.
“Hi, Terryl. It’s Jackie Furfaro.”
“Jackie!” Everything Terryl said seemed to have an exclamation point on the end.
“I could use your help.”
Jackie explained about the accident. Terryl listened for fifteen minutes or so. She took a few notes. That was all she needed. This was right in her strike zone: an aggrieved victim, a remorseless alleged perpetrator, and no one taking up the fight.
She started researching in earnest. She popped in on Baird and his boss, George Daines, the county attorney. On July 6, nearly finishing her research, she made a handwritten note in a hybrid of script and cursive, letters smaller and neater and more right-leaning than in her diary. She noted a few things, like: “driver uncooperative,” and “text messaging while driving (cause of accident).” She wrote down possible charges, including manslaughter, which is a felony, negligent homicide, and reckless driving. She asked a question: “How many X did John see (driver) go left of center,” referring to Kaiserman, the farrier who was behind Reggie in the car.
She did more research. She wrote a memo.
THE JULY 6 MEMO was written in a style that her colleagues think of as quintessential Terryl: deeply passionate but somehow dispassionate enough, and just to the point. It was written to Baird and Daines.
“I know I have discussed this case with both of you,” it began. The first paragraph went on to remind the lawyers that she’d been meeting with the victims’ families. The paragraph concluded: “The victims’ families are asking that Negligent Homicide Charges be filed.”
Then Terryl listed twenty bullet points over two pages. Among the facts: According to phone records, Reggie texted Briana Bishop five times on his drive and received six text messages from her. In all bold, Terryl wrote:
Please be aware that rain is falling and the roads are slick and wet.
Terryl recounted in short bullet points what Rindlisbacher saw at the post-accident scene, including his witnessing of Reggie texting.
“Reggie lies to Trooper Rindlisbacher and denies using his cell phone for calls or texting while driving that morning,” Terryl wrote. This is a supposition, albeit a reasonable one. The records show what Reggie was doing, and it was fair to assume he’d lied rather than forgotten what happen because of the trauma.
At this moment in the overall narrative of the accident, Terryl gives voice to a new kind of emotion: Indignation. Barely masked.
I think that the most disturbing thing to me is that even though he knows there is a criminal investigation taking place (his family has hired Jon Bunderson), he still goes ahead and submits his mission papers.
And she continues, after a few more sentences, that the sum of the misconduct of Reggie and his allies enabled Reggie to go on a mission, which could somehow protect him from justice.
Because he has lied to law enforcement . . . and he has hidden behind an attorney, he will not have any consequences for his actions as he is now on a mission.
And:
The bottom line here is two men are dead because Reggie felt that it was okay to use his cell phone for text messages and Reggie obviously thought that it was okay to lie to a trooper.
In a subsequent paragraph, Terryl observed that the Utah public schools have a class on distracted driving in their driver’s education class. In all bold, she offered the following supposition:
I believe that the reason Reggie lied to Trooper Rindlisbacher and in his written statement is because he knew it was dangerous to be sending/receiving text messages while driving 55 mph in the rain with wet roads.
Then Terryl began to touch on the science to back up the dangers of texting and talking while driving. She cited Dr. David Strayer, the University of Utah scientist who’d failed to get the cell phone industry’s attention and then struck out on his own. He’d, by now, devoted himself to showing the risks to attention from using a phone behind the wheel. His evidence was mounting and profound; this was something different, this device that captivated the human senses, and, in a way, recognition of the risks required neither science nor proverbial rocket science.
The research showed many people intuitively knew of the risks of talking on the phone but did it anyway.
Terryl summarized all this, and then added a final sentence. It was the kind of thing that just drove her nuts. Reggie, she wrote, “has gone on with his life and has not shown any remorse for the extensive damage he has done.”
ON JULY 17, TERRYL invited Jackie and Leila to the offices to meet with Daines and Baird. It was early, seven a.m. They gathered in the conference room, a quietly intense and splendid setting. It’s not so much the insides that demand attention—the room is rectangular, with a conference table surrounded by beige cloth–covered chairs, and with American and Utah State flags in the corner—as it is the view.
The window, facing east, provides a perfectly framed glimpse of the Logan temple, which stands less than half a mile away, and the majestic Rockies behind it. The temple was only the second built in Utah, constructed by volunteer labor over seven years starting in 1877. The exterior of rough-hewn limestone was originally painted white, according to the Church website, but the paint has been allowed to weather away, and now the building tends toward brown; at a distance, its body blends into the mountains.
But not its steeple. White, almost gleaming, and certainly ornate, the steeple seems to project from its top into the sky.
That morning, the sun rose over the mountains, peeking in through the conference room window. Jackie and Leila told the prosecutors how they felt. Jackie, according to Terryl’s handwritten notes, said that Reggie, from what she’d heard, was just going on with his life, not taking responsibility, and it’s “no big deal to him.” Jackie said that Reggie lied about it. “How,” Terryl wrote that Jackie wondered, “to teach my children about responsibility?”
For her part, Leila said she wanted to see Reggie punished, and to hear him say he was sorry. People can’t text and drive, she said. “People need to know they can’t do this,” Terryl wrote that Leila said. This is a “preventable distraction.”
The prosecutors took it in. They were nice but noncommittal.
A day later, July 18, an intern in the office—a second-year law student named Jacob Gordon who would later join the office as a prosecutor—produced a three-page memo for Baird at the prosecutor’s request. The subject: “Reggie Shaw, Possible Charges.”
At the top, it said, “The Issue: What is the appropriate charge for a defendant when he is texting on his cell phone and causes an accident that kills two individuals?”
The intern wrote that there were four possible charges: reckless driving, reckless endangerment, negligent homicide—all misdemeanors—and manslaughter, the one felony option. He defined each charge.
Reckless driving: “operating a vehicle in willful or wanton disregard for the safety of person or property.”
Reckless endangerment: “under circumstances not amounting to a felony office, the person recklessly engages in conduct that creates a substantial risk of death or serious bodily injury of another person.”
Negligent homicide: “the actor, acting with criminal negligence, causes the death of another.” And he notes that in this definition “the [actor] ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all circumstances as viewed from the actor’s standpoint.”
Manslaughter: “recklessly causing the death of another.” And, the intern added, that recklessly here means “when he [the actor] is aware of but consciously disregards a substantial but unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that it constitutes a gross deviation from the standard of care that a
n ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”
Clearly, Reggie’s actions had taken a life. That wasn’t in dispute. But did he know of the risks, and should he have known of the risks? The law says the penalty is harsher if someone should have known of the risks and harsher still—manslaughter—if the person does know the risks and wantonly disregards them.
“To be sure,” the intern wrote, “I think the defendant is guilty of manslaughter.” However, he wrote: Unless Reggie were to admit that he knew about the risks of texting while driving, he would be difficult to convict.
And so, Gordon, the intern, settled on negligent homicide, the toughest misdemeanor penalty, arguing that the two charges for reckless behavior are not “harsh enough to do justice to the outcome of the accident.”
But there was a caveat. A big one that took up the third page of the memo. The caveat: There was no precedent. He wrote, “There is virtually no case law whatsoever in the entire United States that has addressed it. The technology is just too new.”
Washington, he wrote, is the only state to have passed a law banning drivers from texting while driving, while a handful of states had banned such behavior with drivers with learner’s permits. Four states banned talking on a handheld cell phone.
In his conclusion, he emphasized Reggie should be charged with negligent homicide and also reiterated: “There is no supporting case law in the United States at this time, owing, most likely, to the relative newness of the technology.”
JUST A FEW DAYS earlier, across the country, there was another tragic example of the stakes. In New York, five high school cheerleaders died in a head-on wreck with a tractor trailer. Police suspected texting.