The Multnomah County District Attorney’s office will not pursue criminal charges against the man who was driving the garbage truck that ran over and killed Tamar Monhait on August 21st.
Deputy District Attorney Nicole Jergovic, in a memo released on Thursday (PDF), wrote that, “After a complete and very thorough investigation by the Portland Police Bureau’s Major Crash Team, it is apparent that Tamar Monhait’s death was an accident and the facts do not support a criminal homicide.”
This decision was reached despite the fact that a PPB investigator concluded Monhait had the legal right-of-way and that the garbage truck operator, Paul Thompson, did not use his turn signal (contrary to what he told PPB officers at the scene), admitted to trying to beat an oncoming train, cut the left turn sharply, and was described by a witness as taking the left turn “fast”.
In order to pursue charges, the DA would have to convince a jury beyond a reasonable doubt that Thompson’s actions were willfully negligent and reckless.
Paul Thompson had apparently not activated the turn signal before or during the turn onto SE Taylor, thereby not making any conspicuous indication of his intended change in direction to other road users.
— from the DA’s memo
In the four-page memo Jergovic lays out the salient facts in the case and shares the legal analysis that led her to her conclusion.
According to the memo, Thompson was driving southbound on Water Avenue at around 1:50 am and had initially wanted to turn left (east) on Yamhill. However, he changed his route upon hearing an oncoming southbound train. “His statements to [PPB] Officer Sandler,” reads the memo, “were that he was ‘trying to beat the train’ and using his two-way radio.” Thompson turned turned left just one block south of Yamhill.
Even though Monhait was riding and at a reasonable speed in a bike lane, Thompson says he didn’t see her until she was “right in front of him”. He also told the PPB he completed his radio call before he turned and that he was “not in a rush” at the time of the collision. Video of the collisio shows Thompson’s truck came to rest with its driver-side wheels across the centerline and resting in the oncoming lane. DA Jergovic said in a phone call today that cutting a corner sharply isn’t “something out of the ordinary for someone driving a truck of that size.”
A witness who was standing on the corner and saw the crash, told investigators that despite not visibly speeding, the truck operator, “did turn fast.” But that witness also said neither party in the collision was traveling too fast for conditions.
The police found no signs of intoxication with Thompson.
Monhait, on the other hand, had a blood alcohol content (BAC) of .128 — well above the legal limit. The lead PPB officer on this case determined that Monhait’s alcohol intake was a factor in the collision because, as noted in the memo, “alcohol is a depressant and can delay normal brain functions such as concentration, hand-eye coordination and reaction time.” While she was above the legal limit, and a fact about alcohol impacts were mentioned in the memo, there’s no proof that Monhait’s actions were actually influenced by her alcohol intake. The PPB officer on the case said Monhait was riding in the proper position on the road. The officer also mentioned that Monhait made no “evasive action” prior to the collision. Regardless of her BAC level, there’s no reason Monhait would have tried to avoid the collision because there was no turn signal used, she had the right-of-way through the intersection, and the truck operator made a “fast” and illegal left turn right in front of her.
According to the memo:
Paul Thompson had apparently not activated the turn signal before or during the turn onto SE Taylor, thereby not making any conspicuous indication of his intended change in direction to other road users.
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The lack of visibility was a key consideration for the PPB and the DA in their analysis of this collision. There was repeated mention in the memo that Monhait was not wearing reflective or highly visible clothing:
She was wearing dark colored pants and a tan and white plaid shirt and a black purse. None of her clothing was reflective or high-contrast. Officer Maynard notes that he knows from experience that pedestrians and bicyclists often overestimate their visibility and believe they are visible to drivers when they actually are not. This is particularly true at night.
The driver was not intoxicated and he did not engage in reckless or criminally negligent driving behaviors. He was turning at an appropriate and lawful speed. He failed to signal his turn. But otherwise, the manner of his driving was unremarkable.
— from the DA’s memo
There’s no Oregon law that requires vehicle operators to wear high-visibility clothing; but in this case Monhait’s lack of visibility is likely a factor that would influence jurors.
The intersection was described as being “relatively well-lit” with overhead streetlights and lights from adjacent buildings. However, the east side of the street (where Monhait was hit) is noticeably darker than the west side.
Monhait was also not using a front light (which means she was in violation of an Oregon law). To determine how visible she would have been, officers recreated the collision by recording video from both a bicycle and truck operators’ perspectives:
Officer Maynard noted that while riding with no front headlight, he felt as though he would easily be visible to vehicles as they passed despite the fact that he did not have a front light. When he later viewed the video, he noted that it was actually much more difficult to observe him (a cyclist) than he had thought or expected.
Given what is known about the facts of the case, Jergovic determined that there is nothing in Oregon’s criminal code that is applicable to the actions of Mr. Thompson.
In order to pursue charges, the DA would have to prove “beyond a reasonable doubt” that Thompson acted with criminal negligence, which means (as per ORS 161.085(10)), “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 be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
To find someone guily of criminal negligence in a case like this, the DA has to prove a certain mental state of the defendant. They do this by looking at all the actions and behaviors prior to and immediately following the collision. Because it likely comes with a prison sentence and serious consequences, a DA has to determine that the person did more than just make an innocent mistake. They usually require reckless and/or drunk driving to reach the criminal threshold. These behaviors would be enough to reach the all-important legal requirement of, “gross deviation from the standard of care that a a reasonable person would use.”
Here’s more from the memo:
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 similarly bad driving, but usually without intoxication. “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).
“Criminal negligence” is, therefore, more than a mere civil negligence. Criminal negligence is a significantly higher level of misconduct with the much higher criminal burden of proof. In a criminal case the burden of proof is “beyond a reasonable doubt,” while in a civil case the burden of proof is only “a preponderance of the evidence.” It is unusual to have negligent driving rise to such a high level that it becomes Criminally Negligent Homicide when death results.
In her conclusion, DA Jergovic said, “The driver was not intoxicated and he did not engage in reckless or criminally negligent driving behaviors. He was turning at an appropriate and lawful speed. He failed to signal his turn. But otherwise, the manner of his driving was unremarkable.”
On the issue of a civil case against Thompson, Monhait’s family has already filed suit. In a story last week, The Portland Tribune reported that lawyers who represent the trucking company have replied to Monhait’s family, “accusing Monhait of negligence in failing to have a front head lamp on her bicycle, failing to wear a helmet and bright clothing, riding while being intoxicated, riding too fast, and lacking effective brakes on her bike. It claims the company was ‘improperly named’ as a defendant, that Monhait ‘failed to yield the right of way to defendants’ and ‘struck’ the truck, ‘causing her own death’.”
From here, the PPB will decide if Thompson deserves a traffic citation.
— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org
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