A traffic accident or crime?

http://morningsentinel.mainetoday.co...l/4862660.html

A driver in South Portland reaches to the floor of his car to get a CD,
veers for a split-second to the right and strikes a bicyclist from
behind. The victim goes into a coma and dies several months later.

A driver in Standish, following an early shift at work, falls asleep at
the wheel. He drifts into the breakdown lane and hits a pedestrian,
killing him.

The Standish driver faces a charge of manslaughter, and could go to jail
for up to 20 years if convicted. The South Portland driver is not
charged with any crime.

Why the different outcome? What separates a tragic accident from a crime?

Those are some of the questions Maribeth Lydon has been asking since her
brother, John Lydon, was hit while riding his bicycle in South Portland
on the afternoon of July 29, 2003.

The old questions surfaced again last month when Lydon learned that a
71-year-old Standish man had been indicted by a grand jury in Cumberland
County. Prosecutors say Lincoln Turner knew he was too tired to drive,
but still got behind the wheel on Dec. 19, 2006, when he struck and
killed 17-year-old Frank Rideout.

Lydon sent a letter in February to Cumberland County's top prosecutor,
District Attorney Stephanie Anderson, asking for an explanation. Lydon
said she needed to have her voice heard.

"I couldn't believe that he didn't even get a ticket," Lydon said of the
driver who hit her brother. "I don't think anything should happen to him
now. Too much time has passed. But I just wanted to ask the question and
express my opinion."

Anderson answered the letter, and in an interview this week she
described the standard that must be met for prosecutors to seek an
indictment.

Sometimes it's a fine line between cases that get prosecuted, and those
that don't. "It takes an aggravating factor," Anderson said. "It has to
be beyond any standard of conduct that a reasonable and prudent person
would do."

If a driver is drunk or speeding excessively, and a person dies as a
result of that conduct, those are the strongest cases for prosecutors.
Momentary inattention, or simply losing control of a vehicle, by
themselves do not pass the test for criminal conduct, Anderson said.

Last year, the Cumberland County District Attorney's Office brought
charges against six people for vehicle-related manslaughter. Those cases
are at various stages in the system.

"About half of the motor vehicle manslaughters we receive for review are
terrible tragedies, but they don't rise to the level of what we can
prove as a crime," Anderson said. "This office is pretty aggressive in
trying to charge those cases."

In the case of Frank Rideout's death in Standish, the district
attorney's office sought and received an indictment for Turner. He is
charged with manslaughter and reckless conduct.

"Mr. Turner admitted that he had been trying to get home, though he knew
his extreme fatigue was causing him to nearly lose consciousness,"
Anderson wrote in her response to Lydon's letter. "The essential
difference between these two tragedies is that we had evidence that Mr.
Turner chose to continue driving when he should have known that he was
endangering others."

Anderson noted that the Lydon family could seek relief through a civil
action. Maribeth Lydon said she considered that route, but was advised
against it because the driver did not have any ability to pay a
potential judgment.

While Lydon understands that prosecutors face difficult decisions, she
questions the underlying legal standard. Driver negligence -- even the
routine kind that resulted in her brother's death -- should be treated
as criminal conduct, Lydon said.

"If you're on the road, you have a responsibility to everyone else on
the road. All it takes is one mistake," Lydon said.

She recalled her brother as a person who loved sports and enjoyed
spending time with her children. He worked for Shaws supermarkets for 25
years.

On July 29, 2003, he was riding his bike on Cottage Road in South
Portland. According to the city's accident report, 24-year-old Michael
Robertshaw was driving in the same direction on Cottage Road. He briefly
took his eyes off the road to retrieve a CD that had fallen on the
passenger's side floor of his car, the report said. That's when he
veered and hit Lydon.

Lydon remained in a coma for several weeks and was transferred to a
brain injury rehabilitation center in Kennebunk. He eventually opened
his eyes, but he never regained movement or speech, and he survived on
breathing and feeding tubes. He died in October 2004.

"I miss him every day," Maribeth Lydon said. "The whole family dynamic
changes when you lose someone."

Anderson said it's difficult to tell grieving family members that her
office won't prosecute.

"When we can't charge, what they hear is - your loved one isn't
important," Anderson said. "They have lost a loved one, they are
completely devastated and they're looking for relief."

She recalled the death of 9-year-old Ryan Guthrie in October of 2005.

Andrew Bernstein, a 49-year-old lawyer from Cape Elizabeth, was driving
south on Interstate 295 in Falmouth, in a heavy downpour. Bernstein lost
control of his car, crossed the median, hit the guardrail and veered
back into oncoming traffic. His car hit a Lexus driven by Jane Quirion
of Benton. Her passenger, Ryan Guthrie, was critically injured. Guthrie
died two days later.

Bernstein told investigators he could not remember what happened. His
lawyer said a medical condition, not disclosed publicly, may have played
a role in the crash, but he insisted that Bernstein did not act
recklessly or negligently.

Anderson initially removed herself from the case because she had gone to
law school with Bernstein. She got back involved several months later,
when Guthrie's family questioned why the investigation had not wrapped up.

More than a year after the crash, Anderson told Ryan Guthrie's family
that she did not have enough evidence to seek charges. "We did
everything that we could, and it just boiled down to a horrific
tragedy," Anderson said.

Another memorable case illustrates a clear-cut example of criminal
conduct, she said.

In 2002, 19-year-old Michael O'Brien was drunk and speeding at an
estimated 110 mph when his car vaulted off Tukey's Bridge in Portland,
onto a jogging path 30 feet below. Killed were passengers Jason Carr,
Nathaniel MacConnell and Crystal Young. O'Brien pleaded guilty to
manslaughter and drunk driving.