by Matt Richtel
Bunderson said he thought he had a winnable case, but in trial there was no sure thing.
All eyes turned to Reggie.
He nodded. He didn’t say it, but ever since Dr. Strayer’s testimony, he was obsessed by the idea that he had been texting, maybe not at the precise moment of the crash, maybe a moment before, he couldn’t exactly remember. It was blurry, as he’d always said. But now that he’d let the idea in, he couldn’t get around it: I texted and drove and I killed those “two great men.”
After Reggie nodded his agreement to the plea, there was no argument. Ed and Mary Jane, as much as they feared their son going to jail, felt a deep weariness with the whole process. It had to end, somehow. Plus, crucially, they saw that Reggie had complete conviction.
Even though Reggie was coming to terms with his actions at the time of the accident, there was plenty of reason to think the plea was just expediency. At least from the outside, it seemed he was grasping for an option that avoided the risk of a longer sentence, and the lifelong stigma of conviction. Put another way, Reggie’s team saw no reason to believe this was anything but a practical deal. They didn’t sense yet, nor perhaps did Reggie, that it masked a true, remarkable transformation.
IT WAS COLD, PREDICTABLY, on January 27. Reggie Shaw’s plea hearing was set for 3:30 p.m. His was the last case on the docket, and by the time they got to him, it was dark outside.
The hearing was short and completely anticlimactic. Reggie, legs shaking, accepted a plea in abeyance. He would get some jail time, no more than ninety days, to be determined by Judge Willmore. And he’d have some community service, which entailed doing a media interview, and talking to some schools. Here, too, the judge would work out the details.
In exchange, if the requirements were met, the thing would drop from Reggie’s record. As if it hadn’t happened.
Ordinarily in such a plea, there was not a formal sentencing. But this case was different, and Terryl and the others insisted that Leila, Megan, and Jackie have a forum to express themselves. Before then, Reggie would meet with a probation officer who would help suggest a sentence to the judge.
After years of slow back-and-forth, the families were stunned by the abrupt finality that confronted them—the hearing had taken mere minutes. Numb, they were hustled out of the courthouse, where there waited a few members of the media.
“We stood outside in the cold and dark. It had been months and months. They were going to plead and then they weren’t,” Leila reflects. “We were ready for a trial.”
The whole thing concluded with a whimper.
“We really thought it was the end at that point.”
CHAPTER 38
HUNT FOR JUSTICE
NOT LONG AFTER LINTON filed charges the previous summer, Terryl called Kaylene Yonk. She had long been a probation and parole officer for the Utah Department of Corrections. Now she had her own private firm where her job was to write presentencing reports, an official counsel for the judge about where a sentence should fall and why.
The prosecutor’s office loved Kaylene, whom they saw as fair but tough. She saw herself as tough, and so did defendants. She stood six foot one, had played basketball and volleyball in college, and, as a sworn police officer, carried a Glock semiautomatic pistol. In past years, she’d carried a .357 snub-nose revolver, a compact yet powerful little handgun that fits nicely in the palm.
Every once in a while, when her four kids were little, she’d take one of them to work. While she interviewed a prisoner at the jail, she’d leave one of her kids in the holding cell and tell them, “This is what it’s like” if you do something wrong.
Dealing with criminals and high stakes took its toll on Kaylene. She slept terribly. She got sinus headaches that turned to migraines. Daily, she took OxyContin, a powerful opiate, to cope with the headaches.
Terryl called her in early 2009 about Reggie and said he was a remorseless, arrogant liar. “I want him hammered bad.”
She wanted the maximum end of the plea bargain. She’d hoped it would be more. Judge Willmore would have to approve it anyway, so Kaylene’s recommendation mattered.
“Terryl is out for blood. She thinks this kid should go to prison for the rest of his life,” Kaylene reflects.
KAYLENE’S SMALL OFFICE HAD room for her desk, two guest chairs, and a refrigerator in the corner that she stocked with Diet Cokes. On the wall was a framed embroidery of a Japanese geisha that Kaylene had made. There was a picture of a sailboat in the sunset, painted by her brother-in-law.
When Reggie came in on the afternoon of January 27, just after he accepted the plea, Kaylene’s first impression was he was either arrogant, or very quiet, but probably the former. She didn’t have his file so she started asking him a bunch of questions about why he was there, and his background. He answered in monotone, with a “Yes” or a “No.”
Reggie said he didn’t know if texting had actually happened right before or during the wreck. He said he texted all the time and that it was a nonstop kind of thing in his life.
Her opinion of him hardened. He was arrogant, and maybe not only that: Perhaps he had no emotion whatsoever. That troubled Kaylene and reminded her of just a handful of the thousands of convicts she’d worked with, including one woman from Smithfield who had chained a girl in her basement and shown zero remorse.
Reggie “came across like this was a business meeting.”
After Reggie left, Kaylene was in agreement with Terryl. Maximum sentence.
THE SECOND MEETING TOOK place a week later. This time, Kaylene had the police report, including the pictures from the accident scene. She arrived less certain about what she was dealing with. In the intervening week, she found herself having trouble making sense of the idea that a kid who’d never done anything wrong, not so much as a speeding ticket, had been responsible for the deaths of two men.
She had the pictures from the accident in a loose-leaf binder. (The images were so disturbing that, at one later point, when she showed the pictures to her own son, he said, “This is the most awful thing I’ve seen in my whole life.”)
When Reggie came in, she pulled out the photographs.
“I’m a firm believer that you need to see exactly what you caused,” she said.
The blood drained from Reggie’s face.
“I can’t handle this. Please don’t show me these pictures.”
He started crying, and he couldn’t stop. She put away the pictures, which she says was a very rare kind of restraint. “I didn’t know how far he’d lose it, and I didn’t know if I was ready to deal with someone who would lose it so totally that I couldn’t handle it.”
“He finally did break,” Kaylene says. “All of a sudden, he turned into this nice little kid.”
KAYLENE MIGHT NOT HAVE realized the extent of it, but it was a huge moment for Reggie, a floodgate. Reggie had let the accident in, perhaps for the first time in public. He’d done all his crying alone, not even with his family. Now it was starting to come out. His private and public selves beginning to reconcile. He’d begun to bridge the vertiginous gap between what he told the world and the truth he knew deep inside.
Kaylene listened to his story, and his explanation for why he’d never apologized to Keith’s and Jim’s families. Despite feeling desperate to reach out, Reggie had been instructed by his lawyer that doing so could be an admission of guilt. He told her that he’d had no idea that texting and driving was wrong; no one had told him. He said, “If it could’ve been me who died in that accident, instead of them, take me.”
It was revelatory for Kaylene, too. Like others in this case, she was seeing Reggie through the lens of her life, and her own road-time behavior. “I was pulled over three times for DUI,” she says. But she hadn’t been drinking; it only looked that way. “I wasn’t drunk driving. I was asleep.” That had happened years earlier when she first started at the Department of Corrections and was working the graveyard shift in Ogden. In the mornings, she’d drive home and find herself noddi
ng off. She was exhausted, stressed, and dealing with the headaches.
She also said she had some empathy in general because of her own medical challenges, the idea that she was just as human as anyone else. She got these terrible headaches. (They resulted, she says, from a series of surgeries she’d had earlier in her life to relieve severe sinus infections.) Then there was the daily forty milligrams of OxyContin she took to cope.
“I take narcotics every day and I drive on them every day,” she admits, and she says she’s done so for many years. She says she couldn’t think of a time the drugs had impacted her driving, noting that she’d gotten use to a dose that, doctors say, could be manageable behind the wheel. She can, though, occasionally slur her words a bit and is prone to repeating herself.
“Have you ever fallen asleep at the wheel and had to shake yourself awake?” she asks rhetorically. “It’s happened to me a lot.”
To get in a wreck, she says: “All it takes is a half second of inattention.”
At the second meeting with Reggie, she saw a broken person who she could connect to. A different Reggie revealed himself, one who virtually no one else in the process, at least outside of his family, had seen up to that point.
“I decided that putting Reggie in jail for one day or a year, it’s not going to make any difference. As far as I was concerned at that point, we didn’t need to send him to jail. He’s already punished himself. It’s eaten him alive and it will for the rest of his life.”
Kaylene now had to have a direct, possibly tough talk about it with Terryl, who, remarkably enough, had just had her own harrowing driving accident.
THE FIRST TIME TERRYL had nearly gotten into a terrible wreck was when she was in Orange County. It was that awful day when Danny had snatched Mitchell away from her outside the movie theater. Driving home, distraught and reckless, speeding, she’d nearly gone off the side of the road.
There was nothing so excusable that caused her distraction this time—on a cold day in February. What distracted Terryl was a Twinkie. It was sitting in the front console, the last one, and Terryl had promised it to herself. Taylor and Jayme were in the back. It was snowing. They were heading for school. It was a busy area of Logan, often with joggers, but, on this day, quiet, owing to the weather.
Taylor started saying he was going to eat the last Twinkie. It was lighthearted son-mother banter. He reached for the Twinkie.
“It’s the last Twinkie, and you don’t get it,” Terryl said, laughing, as she reached behind her.
She started to turn a corner. Now she was going too fast.
The car began sliding. She lost control. She spun. The car wound up backward in a ditch.
She had a cascade of thoughts. “I said: ‘This could happen to anybody,’ ” she says of making a driving mistake. “If someone were out there jogging, I could’ve killed somebody.”
But she didn’t feel this let Reggie off the hook, because his action didn’t have theoretical consequences but actual ones. And she still saw a distinction between her momentary lapse of judgment and focus, and what science said was a widespread and systemic problem caused by cell phone use.
A FEW DAYS LATER, Terryl and Kaylene talked. Terryl was miffed that Kaylene was thinking about suggesting to the judge a lesser sentence than she and the prosecutors wanted.
Terryl impressed upon Kaylene the idea that Reggie had swerved into the oncoming lane several times before the wreck. After the first swerve, he could have and should have realized the risks in his behavior and pulled over if he wanted to text more.
“There’s no excuse,” Terryl told her. “He should’ve pulled over before he was crossing the center line.”
Kaylene asked Terryl: “Haven’t you ever fallen asleep at the wheel, or dropped something and reached for it, or went over the center line? If you did, did you stop and pull over and stop doing whatever you were doing?”
Terryl confessed the “Twinkie incident” to Kaylene.
But she maintained that cell phone use was happening more and more, becoming a regular part of driving, and probably dangerous. And the consequences were entirely different, Terryl told Kaylene. That was the bottom line. Besides, she thought: Spare me Reggie’s proverbial deathbed conversions and the last-minute apologies, in the face of jail time. This guy has stonewalled and lied.
And then there was a new affront.
Part of the plea agreement was that Reggie would give a media interview to Nadine Wimmer, the anchor for Channel 5 in Salt Lake City. But just a few days after Kaylene and Reggie met, Terryl got a call from the anchor.
“ ‘I can’t do this interview,’ ” Terryl says Nadine said.
“Why not?”
Nadine explained that Reggie’s lawyer had called and said that Reggie could be interviewed but would only talk about the risks of texting and driving, not about his experience in the accident.
Terryl was irate. Reggie would skate with a little jail time and community service, and then have his record wiped clean. Nothing good would come from this. Modest justice, and little learned.
CHAPTER 39
THE LAWMAKERS
ON FRIDAY, THE THIRTEENTH of February 2009, at 2:15 p.m., after a long week of legislating, the Utah House of Representatives met to discuss texting and driving. Ten of the twelve members of the Law Enforcement and Criminal Justice Standing Committee convened in the capitol, the meeting called to order by their vice chairman, Curtis Oda, a Republican and insurance agent. They gathered in room 25, nothing fancy, more like city council chambers than a rotunda, the committee members in a horseshoe at the front, and a smattering of people in the two aisles of chairs looking on.
On the committee’s agenda were two proposed pieces of legislation restricting wireless phone use by drivers. One was from Representative Stephen Clark, the contractor from Provo. It called for a ban on texting while driving. The other, proposed by another Republican who was a finance professional, was slightly more aggressive than Clark’s in that it called for a ban on texting while driving as well as a requirement that drivers in a school zone use a hands-free device.
When it came time to take on the texting bills, Clark, friendly with a round face and round glasses, began by saying he would try to keep things brief “so you can move on it quickly.” He was being polite, the day was late, but this was going to be a fight. In the preceding days, he’d been pulling members of the committee aside in the caucus room to lobby them.
“We need to do something about this,” he told Representative Carl Wimmer, the policeman turned legislator. Wimmer recalls answering, “No, we don’t need to do something. That is the mantra of big government.”
Wimmer says that Clark asked him, “What will it take to make this work for you? What can I do to get your vote? What do I need to do to make this palatable?”
“My answer was: ‘Nothing. Nothing. I will not run this bill,’ ” says Wimmer.
Generally speaking, Wimmer was considered among the more conservative legislators, but not a total outlier. For him, being conservative meant supporting extremely limited government and states’ rights. To take an example, he wanted the state of Utah to withhold federal income tax paid by Utah residents until a state committee determined which federal programs were constitutional. Only then would it release the income tax money to the federal government to be spent on things it deemed constitutional (and not, he said, for unconstitutional things, like the Department of Education). On other issues, his view of states’ rights was gummier. For instance, he liked the federal Defense of Marriage Act, defining marriage as being between a man and a woman, because he feared that, without it, some states would wind up pressured to allow gay marriage.
“I’m not one hundred percent consistent about everything,” he concedes.
Gregarious and happy to engage on any topic, Wimmer jumped right in during the hearing to express his concern about the proposed texting ban. He read from a law passed just a year earlier that made it a class A misdemeanor to drive carelessly
for any number of reasons, including using a mobile phone.
“We’ve got twenty or thirty laws on the books that make it illegal to drive unsafe—you cannot speed, cannot drive left of the yellow line and right of the white line. You cannot wreck. You cannot follow closely,” he told his fellow legislators in a sum-up of his feelings on the subject. “One more [law] is not going to make a difference.”
Several other legislators responded by arguing that the point was to turn the ban against texting into its own offense. That way, it would send the message that texting was wrong and, more to the point, police wouldn’t have to wait until someone drove dangerously to pull them over.
“We would not sacrifice a child before we charge somebody,” said Representative Paul Ray, a Republican who was the legislator who had proposed the second, stricter, piece of legislation banning texting while driving.
A back-and-forth followed among a handful of the legislators. Most notable was an exchange between Clark and John Dougall, a Republican and electrical engineer and businessman who would later become Utah’s state auditor. He had short black hair and a question for Clark: Don’t you trust our citizens to make good decisions behind the wheel?
“I guess I do not,” Clark responded. Adding: “Like that guy this morning.” It was a reference to a story he’d told earlier in the hearing about some guy he’d seen texting while driving erratically.
At another point, Dougall pointed out that people are allowed to drink a bit and get behind the wheel but they’re not allowed to drink to the point of being drunk. What he was getting at was that people can be trusted to text a bit, to the point that they’re not a danger.