At least one group of lawyers wasn’t clinking champagne flutes when state Attorney General Josh Shapiro filed criminal charges against the engineer of Amtrak Train 188, which derailed May 12, 2015, claiming eight lives and injuring hundreds.
Shapiro’s decision to charge Brandon Bostian on Friday has triggered skepticism and concern in the criminal defense bar, if only because the Philadelphia District Attorney’s Office days earlier had declined to file charges against him.
Lawyers who defend clients against criminal charges say the decision to charge Bostian raises constitutional questions and could have a chilling effect on prosecutors who try to make objective decisions in emotional cases such as the Amtrak crash.
“The concern that I would have is that there will be a chilling effect on a prosecutor’s exercise of discretion to decline prosecutions in appropriate cases,” says Mark Sheppard, president of the Pennsylvania Association of Criminal Defense Lawyers, who practices with the Center City firm Montgomery McCracken Walker & Rhoads LLP. “To have him or her publicly second-guessed in this manner is bound to chill that, and to discourage that process would really be a shame because we want our prosecutors to achieve not just convictions but also to do justice.
“Sometimes, the right thing to do is not to bring charges.”
Investigators from the state Attorney General’s Office handcuffed Bostian on the street Thursday morning outside the Philadelphia Police Department’s Ninth District station, where Bostian had turned himself in to be arraigned. He faces eight counts of involuntary manslaughter, one for every person killed.
Bostian was at the controls of the northbound train with 248 passengers and crew when he accelerated to more than twice the speed limit of 50 mph as he entered the Frankford Junction curve in Philadelphia’s Port Richmond section, causing the derailment.
The National Transportation Safety Board later found no evidence of alcohol or drugs in Bostian’s system. Nor had he been on his cellphone. In the end, the NTSB concluded that Bostian, possibly distracted by reports that rocks had been thrown at a nearby SEPTA train, lost track of where he was.
Bostian, 34, ended up in the dock under a long-established process in Pennsylvania permitting private citizens to bring criminal complaints. After the Philadelphia District Attorney’s office declined to charge Bostian last week, the father and husband of Rachel Jacobs, one of the passengers killed in the crash, appealed to First Assistant District Attorney Kathleen Martin to accept their private complaint.
The District Attorney’s Office declined and lawyers for the father and husband, led by two of Philadelphia’s best known lawyers, Richard A. Sprague and Thomas Kline, obtained a court order requiring the district attorney to reopen the case. “There are people in relentless, debilitating, brutal pain, who have lost their jobs, and who have lost their futures, because of Mr. Bostian’s actions,” Kline explained. “I think it becomes even more important to hold people like him responsible.”
The District Attorney’s Office, citing a conflict resulting from its earlier decision not to prosecute, punted to the state attorney general.
It is entirely permissible under Pennsylvania law for private citizens to bring their own criminal complaints. Since colonial times, Pennsylvania has allowed citizens to bring charges on their own, although local prosecutors must sign off on them. There are well-established procedures and plenty of judicial opinions saying how the process is supposed to play out.
But it is rarely the case that prosecutors who have decided not to press charges in high-profile criminal cases are countermanded by a judge. That means a prosecutor faces a potential contempt-of-court order for failing to prosecute a case he or she may have already decided could not be made legally or morally.
Sheppard worries that prosecutors, rather than having to face down a judge or deal with political blowback, will take the easy way out when there is public pressure for an indictment but not a terribly strong case.
Michael Engle, a prominent white-collar defense lawyer with the Philadelphia firm of Stradley Ronon, said there always is pressure on prosecutors to charge someone in the event of a mass catastrophe such as the Amtrak crash, and that tendency seems to be intensifying. That a judge ordered a prosecution in this case, he said, was “disturbing.”
“There is going to be a knee-jerk reaction to say that someone has to pay for this,” Engle said. “The idea seems to be today that every time there is a tragedy, there must be criminal responsibility, and that is not necessarily the case.”