Hyperthermia case poses a quandary for Bucks County prosecutors

Nearly a year ago, Bucks County prosecutors faced a legal quandary - whether or not to charge a day-care operator who inadvertently left a toddler to die in her van on a sweltering summer day.

Ultimately, they charged Rimma Shvartsman with involuntary manslaughter in the death of 2-year-old Daniel Slutsky.

A jury later acquitted her.

Now, District Attorney David Heckler faces a similar decision. This week, his office is expected to announce whether it will prosecute anyone in the July 24 hyperthermia death of Bryan Nevins, a resident at Woods Service in Langhorne.

Nevins, a severely autistic 20-year-old, was found in the back of a van outside the facility hours after a group trip to Sesame Place on a day of record-setting heat. Nevins' parents, who live in New York, said that despite his age, he had the mental ability of a 2-year-old.

Deputy Bucks County District Attorney Robert James declined Monday to discuss the case, except to say investigators continued to review police reports.

Dozens of children die of hyperthermia in cars each year, according to federal statistics and advocates who track the issue.

Jan Null, a San Francisco meteorologist who has compiled a database of U.S. child hyperthermia deaths, said there were more cases through this July - 28 - than in the first seven months of any other year since 1998.

"If anything," Null said, "it's a conservative number, because we keep finding cases."

Each case brings with it unique details and, ultimately, an agonizing decision for law enforcement officials: Is this a crime worthy of prosecuting, or merely a tragic accident?

The answer "is all over the map," said Jennifer Collins, a Wake Forest University law professor and former prosecutor who has studied the issue.

A 2007 Associated Press analysis of more than 300 heat-related deaths of children in cars concluded that half the incidents led to criminal charges - and that paid babysitters and day-care workers were more likely to be charged than parents in similar situations.

Janette Fennell, president of KidsAndCars.org, an organization that tracks cases and advocates for safety measures such as backseat sensors, said facilities for the disabled are often held to a tougher standard because they are expected, if not required, to constantly monitor their residents.

"When we work to get new laws . . . we always do try to make sure that there's language in there that covers the disabled, because we understand they're at some risk," Fennell said.

Heckler said last week that his office could consider bringing a charge as severe as involuntary manslaughter in the Nevins case.

"I believe that someone who takes on the responsibility of caring - typically it's for another person's child, in this case for a care-dependent adult - should be held to a high standard for how that care is provided," he said.

KidsAndCars.org has recorded nine Pennsylvania cases of fatal hyperthermia of children in cars since 1995. Four yielded no charges; two others, including Shvartsman's, led to charges but no conviction.

In the other three cases, the parents or grandparents were convicted and sentenced for manslaughter.

A case that might mirror the Nevins death occurred four years ago in Alabama, when authorities in Mobile found a 48-year-old mentally disabled man dead in a city social-services van.

Lee Fails had died from hyperthermia on a sweltering day. The van's driver said she never noticed Fails in the back of her vehicle, even as she transported other clients that day and parked the van back at home.

The prosecutor persuaded a jury to convict the driver of reckless manslaughter, a charge that carried up to 20 years in prison. But the sentencing judge dismissed calls for prison and ordered the woman to perform 500 hours of community service.

That same year, prosecutors in Riverside, Calif., declined to charge two caregivers after a 5-year-old autistic girl they were supposed to be watching accidentally drowned.

Michael Jeandron, a spokesman for the office, said prosecutors spent "multiple months" weighing whether to bring a case.

Ultimately, he said, they decided they had evidence of poor judgment, but not a crime.

In many cases, the legal standard is intent. Did a caregiver mean to leave a helpless child or adult unattended for a few minutes or more - or did that caregiver simply forget?

Shvartsman's attorney, Michael Mustokoff, argued that there was no evidence she was guilty of gross or wanton negligence. Instead, he said, she simply suffered a tragic but not necessarily rare memory lapse and did not deserve to be convicted and sentenced as a criminal.

"The normal justification for deterrence doesn't apply here," Mustokoff said. "You can't prevent somebody from forgetting."