Gross Negligence?

A sudden change of direction in the prosecution of a cyclist's death



A high-profile case involving the death of a beloved community member and bicyclist took a puzzling turn last week in Humboldt County Superior Court, causing some to question the attentiveness of the D.A.'s office and law enforcement.

The preliminary hearing in the case of The People vs. Alan Bear was about to begin last Wednesday in Judge Joyce Hinrichs' court, when District Attorney Paul Gallegos announced that the most serious of the charges he'd filed against the defendant had just been refuted by the investigating officer.

The case involves the Aug. 25 incident in which a pickup truck allegedly driven by Bear, 27, of Hoopa, swerved 10 feet into the shoulder off Highway 299, according to the police report, and struck bicyclist and Bureau of Land Management botanist Greg Jennings, 42, of Blue Lake, with the left front bumper as Jennings rode his bike home from work. Jennings, who was wearing a helmet and bright clothing and observing traffic laws, died at the scene.

Gallegos charged Bear with vehicular manslaughter with gross negligence, giving false information to a peace officer and making an unsafe lane change. Bear plead not guilty to the charges.

But immediately before Wednesday's court hearing, Gallegos was in the hallway outside the courtroom going over the case with the investigating officer, S.W. Hartman of the California Highway Patrol. According to Gallegos, Hartman said he didn't think the collision involved "gross negligence." (Gross negligence, under California law, is defined as behavior so extremely careless that it indicates a lack of concern for the consequences.)

That prompted Gallegos to ask for a continuance to June 18, so that he could have the officer interviewed and get a report containing the new "evidence" -- the officer's opinion about the charges -- to the defense attorney, Manny Daskal. Judge Hinrichs granted the request.

The doubt over the key charge against Bear sparked concern among the dozen-plus cycling activists who'd come to court with Jennings' widow, Lisa Hoover. They said they feared the charges would be reduced and that, consequently, Bear might not face jail time. Even after Gallegos had pulled them into a private, extended huddle to explain the situation, they still seemed confused at how things could get this far and then so suddenly change.

Rick Knapp, vice president of the Humboldt Bay Bicycle Commuters Association, said he was disappointed at what he thought looked like "a lack of preparation."

"I think you could say we're dismayed," added Hoover.

It's unclear exactly how Gallegos didn't know until the last minute that the officer didn't agree with the main charge against Bear. It's also unclear when Hartman changed his mind.

But it wasn't the first time there'd been wavering on how to charge Bear. On the citation signed by Officer Hartman, dated Sept. 5, 2008 -- which the Journal viewed on file at the courthouse in March -- Hartman had originally written up the violation as "192 (c) (2) P.C. vehicular manslaughter (without gross negligence)," but at some point parts of the citation were crossed out and rewritten to read "192 (c) (1) P. C. vehicular manslaughter (with gross negligence).

On Thursday, CHP Sgt. Doug Tupen talked to Officer Hartman, who was out in the field, and later relayed what Hartman told him:

"He said that originally they wrote what they did, but then they got to thinking there might have been some marijuana influence -- maybe something more serious -- and so they changed it [to 'with gross negligence']," said Tupen. He explained that it is easier to reduce charges than to increase them.

Hartman, reached later, wouldn't elaborate, and another supervisor deferred further questions to the D.A.'s office.

Gallegos, last week, said cases can be dynamic, with changes occurring at any time, and he didn't want the officer to be made to feel like a scapegoat for what had happened.

"Yes, it was a different opinion than we had before -- but that's not a problem," Gallegos said. "We want candor under all circumstances. ... I want all officers and all witnesses to tell the truth. That's due process, that's fundamental fairness." He added that he's grateful the officer told him before he put him on the stand.

The officer's opinion didn't necessarily mean that the original charges would be dismissed or reduced, Gallegos said. But, he noted, it was only fair to give the defense a chance to explore the new evidence, as it potentially could exonerate his client.

Daskal, Bear's attorney, said Friday evening that he "really did not ever see 'gross negligence' in this case."

"The only thing we were looking at was if he was impaired by marijuana," said Daskal. "But he wasn't."

Daskal said the initial police report said that a "presumptive test" right after the incident indicated Bear had marijuana in his system. But a confirmatory laboratory test later indicated that the amount was negligible. Further, the CHP report says Bear told officers he'd been putting a soft drink into a cup holder just before he hit the cyclist -- which Daskal said indicated inattention as the cause of the accident. "And the jury instructions say that inattention is not enough for 'gross negligence.'"

Gallegos confirmed that a toxicology report had been completed on Bear, but he could not divulge its contents.

"I can tell you that we do not have sufficient evidence that the defendant was operating a vehicle while under the influence," he wrote in an e-mail Thursday.

As for the altered citation, Gallegos said that while law enforcement officers make recommendations on how to charge a suspect, based on probable cause, the D.A. decides what the actual charges will be. And in this case, said Gallegos, he didn't even use Officer Hartman's citation to determine how to charge Bear (and he hadn't noticed the alterations on it, he said), because a citation contains only the briefest of information.

"I looked at the reports," Gallegos said.

The cycling community has ramped up public interest in the case, using it to raise bicycle safety consciousness in the community and to put pressure on planners, politicians and law enforcement to improve traffic conditions for cyclists. The Humboldt Bay Bicycle Commuters Association even circulated a petition regarding the case involving Jennings' death -- and posted it on KHUM radio's Web site -- which demands that the D.A. "do everything in his power to assure that justice is served for the senseless fatal collision."

"Anything less than a felony manslaughter conviction is unacceptable in this case," reads the petition. On KHUM's Web site, Knapp wrote a note: "I can't think of a single case where the D.A. has prosecuted a motorist for running down a cyclist. Let's be sure this losing streak is broken."

Jennings' widow, Hoover, delivered the petition, with 300 signatures, to Gallegos' office the Friday before the hearing.

But Gallegos said last week that, while he sympathizes with the family and friends for their loss, he couldn't let public pressure affect his legal decisions.

"Petitions don't work in the justice system," he said. "We can't make judgments based on popular opinion. ... And justice can't be vengeance."


Add a comment