Is there a criminal case in Amtrak crash?

Story highlights

  • Eight people died in Amtrak train 188 derailment this month
  • Joey Jackson: Need for accountability weighs heavily on our collective minds

Joey Jackson is a criminal defense attorney, and a legal analyst for CNN and HLN. The views expressed are his own.

(CNN)More than a week later, and it's still unclear what led to Amtrak train 188 derailing in Philadelphia, leaving eight passengers dead, and some 200 injured.

To be sure, the National Transportation Safety Board is working feverishly to establish how this happened, and the findings will no doubt be shared with us once a definitive conclusion is reached. But in the meantime, there has been relatively little officially established, aside from the total number of passengers and crew member on board.
This vacuum has, unsurprisingly, left plenty of room for speculation, especially about the train engineer, Brandon Bostian. After all, early reports after the incident suggest that the train may have been traveling at more than double the speed limit for that stretch of track. If true, this raises a number of questions, not least whether the engineer could be criminally prosecuted.
    Joey Jackson
    But in trying to answer the question of whether criminality occurred in this case, investigators first have to determine whether the accident was the result of human error, and then whether it was due to criminal negligence or otherwise reckless behavior. Specifically, if a manslaughter or criminally negligent homicide prosecution is ever undertaken, prosecutors would have to prove that Bostian acted in a manner that was either unreasonably negligent or was otherwise so reckless as to constitute a crime.
    Establishing this could be complicated.
    First there's the issue of negligence. From a criminal perspective, this would entail the train being operated in such an unreasonably unsafe, careless manner, as to subject the passengers and crew to the harm caused. This is carelessness of a degree that a reasonable person would not engage in as it would be deemed unacceptable. In this specific case, Bostian's failure to perceive the risk of an accident would have to be directly related to this carelessness.
    Here, the specific nature of his conduct would be evaluated to determine whether he was, for example, speaking on his cell phone, texting, listening to music, or otherwise distracted. At this point in the investigation, there is no indication that this is the case. In fact, his lawyer has indicated that his phone was secured in his bag. Investigators will certainly be looking at his cell phone records to corroborate this assertion. But no other distractions have been reported upon or seem apparent. In fact, people familiar with Bostian have described him as a consummate professional, who enjoyed his job, took pride in it, and performed it competently.
    Then there is the issue of recklessness, which would involve the conscious disregard of the riskiness of your actions while subjecting others to the dangers of your unreasonable behavior. Here, it will be relevant whether any drugs or alcohol were involved. Again, there is nothing to suggest that this was the case, and Bostian's lawyer has indicated that he voluntarily gave a blood sample so as to demonstrate that no drugs or alcohol were present in his system.
    Another critical line of inquiry will be whether he was sleep deprived while operating the train. No facts have been revealed that would indicate that this was a factor. However, we don't yet know the amount of sleep he had or what, if any, role fatigue or sleep deprivation may have had in this case.
    The train's rate of speed would also be critical to a recklessness inquiry, although pursuing the speed angel could be tricky. Although the train was apparently going too fast, that in itself does not definitively establish that he is at fault for causing the train to speed. There could, for example, be other factors at play here, such as faulty track conditions that could have led the train to unduly accelerate. Additionally, there could have been some system or mechanical failure that caused the train to reach excessive speeds. Further, there could have been a manufacturer or design defect that contributed to the train's acceleration. In short, simply because the train may have been going twice the speed limit should not lead to the automatic conclusion that the engineer is at fault for it doing so.
    Investigators will most assuredly be poring over Bostian's service records to see what his level of skill, training and experience is -- including how many times he has operated a locomotive of this type, and how many times he has taken this route.
    This is critical to an assessment of human error. While it certainly would not mean that traveling a route successfully on multiple occasions previously would rule out human error this time around, it would be suggestive of his comfort level and degree of skill. Similarly, should investigators find negative assessments in his background on train operation, it would shine light on the type of person and engineer he is.
    If there are any deficiencies, prosecutors would ask the judge to allow them to use it to establish prior bad acts, although rules on evidence would not permit such evidence for the purpose of establishing his propensity to engage in negligent or reckless acts. Instead, such evidence could be used to highlight a common pattern on his part. Again, there is no evidence of this at this point that this was the case. And should any surface, a judge could certainly ban such evidence anyway as being overly prejudicial.
    Finally, complicating the investigation still further, are reports suggesting that a projectile might have hit the train, although the FBI appears to have ruled out the idea that it was caused by a firearm. Still, any kind of involvement of a projectile would add yet another layer of complexity in determining exactly how this tragic accident occurred. In the event that investigators conclude that this was the case, that would add a further impediment to any prosecution, as it would suggest that an extrinsic factor outside of anyone's control led to this deadly event.
    Ultimately, the derailment was an awful tragedy that claimed the lives of innocent passengers, and saw others critically injured. As a result, the need for accountability and answers weighs heavily on our collective minds. But the seriousness of the incident doesn't necessarily mean that a prosecution for these deaths and injuries would be viable.
    No one is suggesting that Bostian acted with criminal intent, and so the focus for investigators is on the degree to which these deaths and injuries may or may not have been caused by criminal negligence or recklessness. Establishing that will not be possible until this investigation has fully unfolded -- however agonizing the wait is for those involved.