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Complaint lays out case against Amtrak engineer


State Attorney General Josh Shapiro charged Amtrak engineer Brandon Bostian with involuntary manslaughter and reckless endangerment Friday, but the heart of the case lies in the criminal complaint brought earlier by the father and husband of Rachel Jacobs, a young mother who died in the May 12, 2015, derailment of Amtrak Train 188.

That complaint, filed initially with the Philadelphia District Attorney's Office, lays out the factual basis for charging Bostian: He had traveled the route many times before, was aware his train carried hundreds of passengers and crew, and was well familiar with speed limits on the route as he accelerated into a curve that caused the derailment.

In effect, the complaint says, he had to have known the dangers his actions posed.

"Defendant Bostian was an experienced engineer who was aware of the route the train was to take that day and the speed limits throughout that route," the complaint said.  "With hundreds of people's lives in his hands and knowing the speed limits on the route …, defendant Bostian unlawfully exceeded the speed limit on the route."

The possibility that Bostian might be criminally charged appeared all but over Tuesday when the Philadelphia District Attorney's Office announced it would not file criminal charges, citing a lack of evidence of criminal wrongdoing. Jacobs' father, John, a Michigan attorney, and Jacobs' husband, Todd Waldman, filed their criminal complaint the following day using a little-known process permitting citizens to lodge, on their own, misdemeanor criminal complaints with the district attorney.

The District Attorney's Office rejected that complaint early Thursday, and Jacobs and Waldman went to court to obtain an order requiring the office to charge Bostian.

Just after President Judge Marsha Neifield of Philadelphia Municipal Court handed down the order, the District Attorney's Office issued a statement saying that its earlier decision not to charge Bostian created a conflict and that it would refer the matter to the state attorney general.

Shapiro charged Bostian on Friday afternoon with eight counts of involuntary manslaughter, one count for each of those who died in the crash, and numerous counts of reckless endangerment. The charges were filed just hours before the two-year statute of limitations, which would have barred criminally charging Bostian, was to run out.

Shapiro's office was in discussion with Bostian's lawyer over the weekend to work out a time and place for Bostian to turn himself him, a spokesman for the attorney general said.

The derailment, which occurred around 9:20 p.m. north of 30th Street Station on the Frankford Curve in the Port Richmond section of the city, claimed eight lives and injured hundreds. Bostian told investigators with the National Transportation Safety Board that he had no recollection of the moments leading up to the crash. There was no evidence that Bostian had alcohol or drugs in his system, the NTSB said.

Amtrak accepted responsibility for the crash and settled lawsuits that had been filed by victims for $265 million last October, one of the largest rail-crash payouts in U.S. history. As part of the settlement, court-appointed special masters assign a dollar value to each claim, parceling the money out under a formula crafted by lawyers for the victims and approved by federal District Judge Legrome Davis.

Even as the criminal case against Bostian was revived, voices emerged that track closely with the district attorney's original rationale for not prosecuting the case: There was no evidence that Bostian, possibly distracted by reports of rocks being thrown at a nearby SEPTA train, knew he was approaching the curve that caused the derailment.

"You need a conscious disregard" of the risk that your actions pose, said Temple University law professor Jules Epstein. He points to a 2003 Pennsylvania Supreme Court decision in Commonwealth v. Huggins requiring prosecutors to show that a defendant charged with involuntary manslaughter was aware that his or her actions posed a risk, and that the defendant consciously disregarded the risk.

Joe McCarthy, a retired train engineer who often traveled the route from Philadelphia north to New York, said that it was common for trains to be pelted with rocks and other objects on the route and that the incidents proved a dangerous distraction.

"Every railroad employee who operates between New York City and Washington, D.C., has to go through the gantlet," McCarthy said. "They know all too well the dangers inherent. Self-preservation is a strong incentive to perhaps momentarily forget where you are."

Yet Bostian's critics, including many of the crash victims, are emphatic that he should face criminal charges.

Mike Walsh, an executive with the International Anticounterfeiting Coalition in Washington, who was a business-class passenger on Train 188 and almost lost his life due to injuries from the crash, said Bostian should have been aware of the risk of traveling at high speed into the Frankford Curve.

"Bostian understood the risks … and disregarded them," Walsh added.  "The subsequent death, injury, and destruction is for him to explain."

Other crash victims said they were relieved to learn that criminal charges were filed against Bostian.

Robert Mongeluzzi, one of the lawyers who helped Jacobs and Waldman bring the original complaint to the district attorney, said one of his clients in the civil litigation against Amtrak, Bob Hewett of Nutley in North Jersey, who was severely injured in the crash, endorsed Shapiro's decision to bring charges.

"He felt relieved that the justice system seems to be working," Mongeluzzi said.

Mongeluzzi is in the camp who believes Bostian must have known he was traveling at a dangerous speed as he entered the Frankford Curve; he'd traveled that route so many times before.

"The example I would give is you are going down a road with a 50-mph speed limit and then you hit a 15-mph speed zone near a school," Mongeluzzi said. "Let's say you have taken this road many times and you are aware of it and you are going 50 mph through the school zone and you kill eight students and injure others. Can the attorney general indict that person with those facts? The answer is yes."