It'd be hard for prosecutors to railroad Amtrak engineer

THE AMTRAK engineer at the controls of a train that derailed in Philadelphia, killing eight people, remains the focus of an inquiry by federal transportation safety investigators. But a second probe could prove more personally devastating: Prosecutors are trying to determine if he committed a crime.

Brandon Bostian, 32, could face criminal charges if law enforcement finds he was reckless or negligent when the train approached a curve at more than 100 mph, according to former prosecutors. But any prosecution would have to pass a high bar.

Federal investigators said Wednesday that Bostian used his cellphone the day of the crash, but his lawyer has said it was stowed away and turned off during the ill-fated trip to New York. The lawyer said Bostian then retrieved it from the wreckage and used it to call 9-1-1.

Lawyers suggest the charges under review would include reckless endangerment, involuntary manslaughter, third-degree murder and aggravated assault - especially if he were on his phone or intentionally distracted.

Jurors, though, must find significant negligence to convict someone of those crimes.

"Even for involuntary manslaughter, it's not just a mistake that caused death, it's negligence that caused death - something not reasonable for the situation," said veteran criminal defense lawyer Jack McMahon, a former Philadelphia prosecutor. "If it were truly an accident - if he tripped - then that wouldn't even be a crime."

District Attorney Seth Williams expects to wait until the National Transportation and Safety Board issues its findings before deciding on charges. U.S. Attorney Zane Memeger is also keeping tabs on the probe.

Bostian's lawyer, Robert Goggin, has not responded to repeated requests for comment. He told ABC that his client suffered a concussion and has no memory of the moments leading up to the May 12 derailment, which killed a U.S. Naval Academy midshipman, an Italian wine broker and six others and injured dozens.

That could cut both ways at trial.

"Sometimes not remembering what took place is a good defense, but sometimes that boxes you in, permits everybody else to get their story in, but you can't counter it because you can't remember," said former federal prosecutor Robert Goldman of suburban Philadelphia.

If charges were filed against Bostian, a jury would ultimately have to decide whether his actions meet the standard for criminal negligence.

"Absent a failure of the train, what will his explanation be, if any, as to why the train sped off going 106 mph in the curve?" asked defense lawyer Frank DeSimone.

DeSimone represented a tugboat operator convicted for using a cellphone while at the helm of his vessel in Philadelphia, causing a 2010 crash that killed two foreign students on a duck boat.

Meanwhile, Senate Democrats yesterday demanded that Republicans provide more money for Amtrak so the railroad can tackle a $21 billion maintenance and repair backlog, including replacing tunnels more than a century old.

Democrats at a news conference cited last week's deadly crash and said the backlog is compromising safety and service.

Investigators have said the crash could have been prevented if expensive safety technology called Positive Train Control had been in operation. The technology can prevent derailments due to excessive speed and collisions between trains. Amtrak says the system will be ready by year's end throughout the Northeast Corridor, which stretches from Boston to Washington, with the exception of some track owned by commuter railroads in New York.

Democrats want Congress to give Amtrak the entire $2 billion in subsidies the railroad requested for the budget year that starts Oct. 1. They say GOP lawmakers have starved the railroad financially for years.

A Republican-controlled House panel approved a spending bill the day after the crash that provides Amtrak with $1.1 billion, a cut of $251 million from this year.

The budget that President Obama submitted to Congress in February proposed allotting Amtrak $2.5 billion next year, with most of the increase dedicated to capital investment in tracks, tunnels and bridges.