Skip to main content

Is New York train derailment a criminal case?

By Paul Callan, CNN Legal Contributor
updated 11:44 AM EST, Thu December 5, 2013
STORY HIGHLIGHTS
  • Paul Callan: Train operator could face charges if evidence supports criminal negligence
  • Callan: Criminally negligent homicide very difficult to prove, but possible in this case
  • Callan: Grounds seem adequate to seek an indictment against train engineer Rockefeller
  • Gov. Cuomo says tragedy related to "excessive speed and reckless handling of the train"

Editor's note: Paul Callan is a New York trial attorney and a senior partner at Callan, Koster, Brady and Brennan, LLP. He is a CNN legal contributor.

(CNN) -- While tragedy envelops the families of the injured and dead in New York's Metro North train derailment, the train's operator could be facing a crisis of his own from criminal charges, if compelling evidence supports them.

Although such charges are difficult to prove in accident cases, this one may prove to be an exception to the rule.

It is the kind of high-profile case involving multiple deaths and many injuries that will undoubtedly attract the careful scrutiny of the prosecutor in charge: Bronx District Attorney Robert Johnson. Even at this early stage of the investigation, it would appear that a determined prosecutor could find adequate evidence to support an indictment.

New York's Gov. Andrew Cuomo, a former prosecutor himself, made it clear he believes law enforcement will look into the engineer's actions, and that the derailment was related to "excessive speed and reckless handling of the train." He focused on the investigators' assessment that the train was traveling at least 82 mph through a sharp "deadman's curve," which requires a speed of 30 mph for the safety of the train and its passengers.

Paul Callan
Paul Callan

"I wouldn't be surprised if criminal agencies looked into the facts of the matter once they're fully developed," Cuomo said.

Should these facts prove to be accurate, the framework of a criminally negligent homicide prosecution begins to emerge from the twisted rubble on the Hudson River. Under New York law, criminally negligent homicide can be charged in cases where death is caused by acts of grossly negligent or reckless conduct.

New York characterizes these charges as criminally negligent homicide, manslaughter or "depraved indifference murder," depending on the particular facts and circumstances of the case. The penalty for these crimes increases exponentially as the degree of negligence escalates to killing with "depraved indifference" to human life. The depraved indifference murder charge carries essentially the same penalty as a deliberate and intentional murder, usually known as "Murder One" in other states.

Unlike civil cases, in which the only penalty is the award of money damages, criminal liability for a homicide based on gross negligence, recklessness or "depraved indifference," can result in substantial prison sentences, ranging from a year-and-a-half to life. For this reason, the standard or proof required to prove such charges is quite rigorous.

Certainly operating a commuter train at such an excessive speed would easily constitute either reckless or grossly negligent conduct. Historically, New York courts have required more than a single act of negligent conduct before upholding a very serious charge like criminally negligent homicide.

Train engineer to face criminal charges?
Who's driving your train?
NTSB takes action against train union
Was the train engineer asleep at the controls?

In most cases in which the charge of criminal negligence or recklessness is upheld by appellate courts, a defendant must exhibit at least two forms of negligent conduct in the commission of the crime. For example, in drunken driving prosecutions for criminally negligent homicide, cases are often based on the claim that the defendant was not only drunk but was also speeding or ignoring other traffic laws when the person was killed. (In Mr. Rockefeller's case, blood tests for alcohol were negative.)

But it's possible that the prosecution could meet this high standard if investigators find evidence that Mr. Rockefeller was not only speeding at 82 mph when entering the dangerous curve, but was also operating a train while inattentive or impaired. That is similar to running a red light or a stop sign because of inattention -- the law does not grant a waiver for the failure to perceive an obvious risk.

His own lawyer's surprising admission that Mr. Rockefeller was driving a train while dazed or "zoned out" could constitute yet another form of gross negligence -- at the first sign of such a condition, prosecutors will argue, a reasonable person exercising due care for the safety of his passengers would have stopped the train and radioed for assistance.

Even if the engineer avoids a criminal indictment, he will most certainly be involved as a witness or a party in many civil lawsuits filed by the victims and their families.

Both he and Metro North officials will have to fight claims of negligence in the training and monitoring of railroad personnel. They will also have explain to the families of those whose loved ones perished on a routine commute to New York City why this happened when technology has long existed to stop an out of control locomotive from speeding into a dangerous curve.

Rockefeller's real worries, however, should be focused on possible criminal charges. In November of 1992, 39-year-old New York Subway motorman, Robert Ray, was sentenced to 5 to 15 years in prison for the reckless manslaughter of five subway passengers in a derailment caused by speeding. He was drunk, however, and had walked away from the accident. He served 10 years.

A robbery suspect who ran over a nun while fleeing police in a minivan was convicted of murder in yet another example of reckless homicide while operating a vehicle in New York.

The National Transportation Board's findings are not yet in. But if the investigation finds the accident was not related to track conditions or a terrible mechanical problem, but was because of human error, the defense will have to prove the existence of something that struck him suddenly and unexpectedly -- or Mr. Rockefeller could soon be traveling "up the river" in handcuffs toward a new residence.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions expressed in this commentary are solely those of Paul Callan.

ADVERTISEMENT
Part of complete coverage on
updated 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
updated 11:17 AM EST, Fri December 26, 2014
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
updated 8:19 AM EST, Fri December 26, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 10:05 AM EST, Fri December 26, 2014
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
updated 8:03 AM EST, Fri December 26, 2014
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
updated 6:27 PM EST, Sat December 27, 2014
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT