Skip to main content

Is New York train derailment a criminal case?

By Paul Callan, CNN Legal Contributor
December 5, 2013 -- Updated 1644 GMT (0044 HKT)
STORY HIGHLIGHTS
  • Paul Callan: Train operator could face charges if evidence supports criminal negligence
  • Callan: Criminally negligent homicide very difficult to prove, but possible in this case
  • Callan: Grounds seem adequate to seek an indictment against train engineer Rockefeller
  • Gov. Cuomo says tragedy related to "excessive speed and reckless handling of the train"

Editor's note: Paul Callan is a New York trial attorney and a senior partner at Callan, Koster, Brady and Brennan, LLP. He is a CNN legal contributor.

(CNN) -- While tragedy envelops the families of the injured and dead in New York's Metro North train derailment, the train's operator could be facing a crisis of his own from criminal charges, if compelling evidence supports them.

Although such charges are difficult to prove in accident cases, this one may prove to be an exception to the rule.

It is the kind of high-profile case involving multiple deaths and many injuries that will undoubtedly attract the careful scrutiny of the prosecutor in charge: Bronx District Attorney Robert Johnson. Even at this early stage of the investigation, it would appear that a determined prosecutor could find adequate evidence to support an indictment.

New York's Gov. Andrew Cuomo, a former prosecutor himself, made it clear he believes law enforcement will look into the engineer's actions, and that the derailment was related to "excessive speed and reckless handling of the train." He focused on the investigators' assessment that the train was traveling at least 82 mph through a sharp "deadman's curve," which requires a speed of 30 mph for the safety of the train and its passengers.

Paul Callan
Paul Callan

"I wouldn't be surprised if criminal agencies looked into the facts of the matter once they're fully developed," Cuomo said.

Should these facts prove to be accurate, the framework of a criminally negligent homicide prosecution begins to emerge from the twisted rubble on the Hudson River. Under New York law, criminally negligent homicide can be charged in cases where death is caused by acts of grossly negligent or reckless conduct.

New York characterizes these charges as criminally negligent homicide, manslaughter or "depraved indifference murder," depending on the particular facts and circumstances of the case. The penalty for these crimes increases exponentially as the degree of negligence escalates to killing with "depraved indifference" to human life. The depraved indifference murder charge carries essentially the same penalty as a deliberate and intentional murder, usually known as "Murder One" in other states.

Unlike civil cases, in which the only penalty is the award of money damages, criminal liability for a homicide based on gross negligence, recklessness or "depraved indifference," can result in substantial prison sentences, ranging from a year-and-a-half to life. For this reason, the standard or proof required to prove such charges is quite rigorous.

Certainly operating a commuter train at such an excessive speed would easily constitute either reckless or grossly negligent conduct. Historically, New York courts have required more than a single act of negligent conduct before upholding a very serious charge like criminally negligent homicide.

Train engineer to face criminal charges?
Who's driving your train?
NTSB takes action against train union
Was the train engineer asleep at the controls?

In most cases in which the charge of criminal negligence or recklessness is upheld by appellate courts, a defendant must exhibit at least two forms of negligent conduct in the commission of the crime. For example, in drunken driving prosecutions for criminally negligent homicide, cases are often based on the claim that the defendant was not only drunk but was also speeding or ignoring other traffic laws when the person was killed. (In Mr. Rockefeller's case, blood tests for alcohol were negative.)

But it's possible that the prosecution could meet this high standard if investigators find evidence that Mr. Rockefeller was not only speeding at 82 mph when entering the dangerous curve, but was also operating a train while inattentive or impaired. That is similar to running a red light or a stop sign because of inattention -- the law does not grant a waiver for the failure to perceive an obvious risk.

His own lawyer's surprising admission that Mr. Rockefeller was driving a train while dazed or "zoned out" could constitute yet another form of gross negligence -- at the first sign of such a condition, prosecutors will argue, a reasonable person exercising due care for the safety of his passengers would have stopped the train and radioed for assistance.

Even if the engineer avoids a criminal indictment, he will most certainly be involved as a witness or a party in many civil lawsuits filed by the victims and their families.

Both he and Metro North officials will have to fight claims of negligence in the training and monitoring of railroad personnel. They will also have explain to the families of those whose loved ones perished on a routine commute to New York City why this happened when technology has long existed to stop an out of control locomotive from speeding into a dangerous curve.

Rockefeller's real worries, however, should be focused on possible criminal charges. In November of 1992, 39-year-old New York Subway motorman, Robert Ray, was sentenced to 5 to 15 years in prison for the reckless manslaughter of five subway passengers in a derailment caused by speeding. He was drunk, however, and had walked away from the accident. He served 10 years.

A robbery suspect who ran over a nun while fleeing police in a minivan was convicted of murder in yet another example of reckless homicide while operating a vehicle in New York.

The National Transportation Board's findings are not yet in. But if the investigation finds the accident was not related to track conditions or a terrible mechanical problem, but was because of human error, the defense will have to prove the existence of something that struck him suddenly and unexpectedly -- or Mr. Rockefeller could soon be traveling "up the river" in handcuffs toward a new residence.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions expressed in this commentary are solely those of Paul Callan.

ADVERTISEMENT
Part of complete coverage on
December 20, 2014 -- Updated 0242 GMT (1042 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT