CHAPTER ONE
Water clearance at the mid-span of the George Washington Bridge is 212 feet.
It was a perfect early fall afternoon. The wind had vanished, not a
cloud in a radiant blue sky. The air could be deeply breathed, the
colors bursting from nearby trees. And so, a Fort Lee resident, aged 61,
Tom Dolan and his wife decided to walk across the great gray bridge
they stared at every day from their apartment a few hundred yards away.
They had done this many times notwithstanding the fear that
accompanied each step of Mr. Dolan's journey. He always walked as far as
he could from the railing intended to act as impenetrable barrier to
the Hudson below. He almost seemed to list into the lane of traffic that
sped by no more than an arms length away. His gaze never veered towards
the water, his neck locked in place, peering straight ahead, or at his
own feet.
It was not the two legged occupants of this walkway that troubled him
so, but the two wheeled ones. Although he did worry that some unhinged
human might suddenly descend upon him and hoist him over the railing and
to a watery grave, he reserved almost all of his anxiety for
the hordes of bikers who fled the city on weekend mornings for their
ride up the Palisades.
They came in packs, a multi-colored flash that took up far too much
of the limited terrain. He would flinch internally each time one went
by, an imperceptible twitch in his step. He talked with his wife about
those who sped past, some giving fair warning and a thank you for moving
out of their way, while others offered neither notice or gratitude.
Yet it was not the ones he could see approaching, but those that came
from behind, that concerned him the most. He never heard them, never.
Whether it was the noise from the traffic close by, or advancing age
made no difference. The problem was the riders who thought he knew when he
didn't.
The New York/New Jersey Cycle Club was founded in 1927. It
now boasted close to 3000 members. It invited people of all ages and
abilities to join and offered the opportunity for "fun, friendship,
fitness and fantastic views of the metropolitan area."
Among its most popular rides were those that crossed the Hudson River
each Saturday and Sunday and headed into Bergen County, through
northern New Jersey and then into Rockland County, New York, before returning to where the journey began.
On this day a trip left from the east side of the city, at
72nd Street near the Central Park Loeb's Boathouse. 37 riders met at
6:30 AM to begin a 61 mile journey that promised "colorful foliage" and a
stop for lunch with free bagels and water.
When he read the description, Bob Smith immediately signed
up. Smith had been a member of the club for five years. He was 53, fit
after a full season of being a weekend warrior on the bike. He loved
everything about these opportunities. Living within blocks of the
Boathouse made it that much easier.
Tom Dolan had an uneasy feeling as he left the apartment.
Not that he didn't always have a similar sensation each time he was
about to place a shaky foot on the road to Manhattan. But he said
nothing, for anything he uttered would only make him look foolish. He
and his wife exited their building, telling the doorman about their
intended walk and received perfunctory congratulations on their choice
and their stamina.
Bob Smith enjoyed a remarkable day. Yet, coming back into Bergen
County he felt slightly depressed. As the bridge came ever closer to
him, he experienced a pang of anxiety that quickly passed. He wrote it
all off as a reaction to knowing that this experience would soon be
behind him.
As Dolan took his first steps onto the short pathway leading to the
bridge, Smith was about 300 yards behind, coming down the last incline
on Hudson Terrace. He was toward the front of the pack of riders, third
in line. He would pass under Route 95, the roadway above him that took
motorists through the toll booth and onto the mile long span that
connected New York and New Jersey. Shortly after, he would make a sharp
left turn, leaving Hudson Terrace and entering the same route that Dolan
was now on.
The website for the New York/ New Jersey Cycle Club had a
section devoted to the biker's responsibility code. Apart from warning
that no devices of distraction like headphones or ear-buds
should ever be used, it stressed that safety for yourself and others was
the first rule of the road. Bob Smith took this advice seriously, and
considered himself anything but a danger while on his bike.
Entrance onto the walkway leading to the bridge was narrow. The lead
bikes in Smith's group bunched up, and he took the opportunity to move
to the head of the pack. It was the first time that he had taken on this
role for the crossing into Manhattan. He felt strong and there was a
small rush of adrenaline that accompanied this decision.
About 250 yards ahead, Dolan and his wife were just entering the
bridge expanse. Dolan's gait always changed as soon as this happened,
each step with a little wobble caused not by the tremors from the
automobiles so close by on his left, but by the acrophobia that
he tried to control.
Smith passed several walkers as he moved ever closer towards Dolan
and his wife. He gave small shouts of "on your left" as he came upon
those in front of him. Each of those he went by received a small nod of
thanks. Dolan and his wife were next up, now only about 50 yards from
the leader of the pack.
As the distance between him and the two walkers narrowed, Smith gave
his note of warning. Dolan heard nothing. A split second later, Smith
repeated his statement, this time with more urgency.
Dolan's
wife heard the second cry distinctly. She was walking no more than a
foot from the barrier that separated her from the waters more than 200
feet below. She reached her arm out to pull her husband away from the
bike that was now coming veryclose. She yelled for him to "Move, MOVE".
When Smith saw that the man in front of him was not reacting as
he should, but seemed to be veering INTO HIS INTENDED PATH, and would
leave no room to pass on the left, he panicked. In that instant, he
surveyed the options before him. He could try to move left but the railing
separating him from the cars on the bridge awaited this decision. He
could slam on his brakes and try to minimize the impact on the body now
looming almost directly in front. Or, he thought he saw an opening to
the right, between the man and his wife. If he could accelerate and
slither through...
As the arm of Dolan's wife and part of her left side came into
contact with the speeding bicycle there was a distinct snapping sound.
The force of the impact had broken her left arm and cracked several
ribs. In an instant she was pushed violently into the steel rail on her right.
She quivered momentarily from the pain.Then she bounced off
and pitched down head first onto the waiting concrete path.
At its worst, there was a three hour backup reported at the toll
plaza leading to the George Washington Bridge and passage into New York.
The first emergency vehicle arrived at the scene only four minutes
after the collision. The transit authority reported that it was the
first
biker-pedestrian fatality in the history of the roadway.
Tom Dolan was uninjured, not a scratch on him. He stood over the body
of his wife and let out small sobs, one after another, after another.
Bob
Smith was questioned briefly by the police at the scene and then issued
a Miranda warning. He refused to answer further questions.
The prosecutor's office is investigating the incident and said it had no statement to make at this time.
CHAPTER TWO
Bob
Smith had never been in trouble with the law, never questioned by the
police, never the subject of an investigation. He was much like almost
everyone who is reading these words and saying that could never happen
to me.
Smith had been a high school football player, a fullback, bulking up to 225 pounds. He was known for delivering
ferocious blows to defensive players who entered his domain. He was a
hitter.
After high school he had gotten out of shape, at one point
reaching close to 250 pounds. Now, and for the last two decades, his
weight had held steady between 190 and 195. At six foot one inch, he
was, for his age, built like a rock. He worked at being fit, not
only biking over 100 miles on most weekends, but being a constant
visitor to the gym weekday mornings at 6 AM.
Smith wasn't certain how fast he had been going when he struck
Mary Dolan. It was somewhat common practice for cyclists, at least
cyclists who were serious like he was, to travel across the GWB at
relatively high speed. There was an inherent belief in the capacity of
the skilled rider to deal with any situation that could arise and an
equally strong implicit understanding that all who walked on that
pathway quickly moved once a biker came near. And this time there was
also that rush of adrenaline Smith experienced as he led his group out
of New Jersey and back home.
Smith stumbled across a troubling story as he combed the internet
searching for something to help quiet his mind. The headline of the 2012
article in the San Francisco Chronicle read "Was the Cyclist Who Killed
the Pedestrian Reckless?" It appeared that biker may have been
traveling at a speed of over 30 MPH when the fatal collision took place.
As he read, Smith worked at
distinguishing those facts from what had happened to him. Smith had
been a lawyer for almost 30 years but he had only dealt with one
criminal matter in his entire career. As a young associate at a small
firm, he had been handed a file involving a clear case of mistaken
identity. The defendant had been hundreds of miles from the scene of the
crime at the time it occurred. He had his time card from his employment
and the sworn statement of a fellow worker. Smith, even though he was
totally incapable of handling that case, or any case involving something
other than equitable distribution of assets and establishing a fair
level of support, had been able to convince the prosecutor to drop the
charges. This time he feared would not be so simple.
A 2011 study in New York City reported there were at least 1000 reported injuries sustained every year by pedestrians struck by
bicycles. The report had been a response to questions raised by a group
that had been formed in 2009. A widow, whose husband had been struck and
killed by a delivery man on a bike on 42nd street, had begun a crusade
to investigate the issue of bike safety and what could be done to insure
safe passage for pedestrians on the streets of New York.
In April of 2013 New York City issued rules to protect the public from
the ever increasing menace of those darting through the streets and
sidewalks on the way to their appointed rounds. The new law mandated
that delivery riders carry ID cards, wear helmets and reflective upper
body clothing. The name of the business and the ID number of the cyclist
was to be displayed. Headlights and bells were mandated. Both the
Department of Transportation and the police were given the power to cite
violators.
Yet the problem only grew worse as a result of what could be considered a
mad dash to beat Amazon to the finish line. What had begun years before
as the phenomenon of overnight delivery, had been ratcheted up by
Amazon's fulfillment centers throughout the country. Products could now
be ordered and received the same day. But for those in New York City,
and in areas around the country, this was not soon enough. And so,
"valets" were now being dispatched, personal shoppers on bicycles.
Orders were placed, bikers dispatched, and promises of same hour service
were made. At holiday time, the madness only escalated. And the
"accidents" multiplied, as pedestrians became collateral damage in this
war against the clock.
One more matter increased the possibility of harm. On May 27, 2013 New
York City initiated its CitiBikes program.
By mid-September it had been declared a big success. As of September
12, 2013 there had been nearly 3.2 million trips on these bikes, and
288,000 subscribers to the program. Bikes had never been more popular or
more prevalent on the streets and sidewalks. Bikes were now news and,
in October of 2013, were the subject of an oped piece in the Sunday New
York Times.
Bob Smith had been more than in the wrong place at the wrong time. He was at the wrong moment in history.
A thousand thoughts rushed through his mind, but two
persisted: "What will the rest of my life be?" and "I killed her."
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Tom Dolan met Mary Walters the year after college. He had earlier been
in a serious relationship that had started the first week he entered
the small liberal arts university in New England. Through Tom's four
years there, he and his girlfriend had been almost inseparable. When he
thought back on those days, he decided he had made a mistake, depriving
himself of far too much of what the experience should have been.
After college, Tom returned to his parent's home in New Jersey. Distance
proved the undoing of his college romance, and even though there was no
official decision to end it, both he and his soon to be former
girlfriend began to create new lives without one another.
Tom discovered Mary that fall. She was a year younger than him, small,
only five feet tall and weighing no more than 100 pounds. She was
pretty, and best of all, she was athletic. Although Tom was only five
feet seven inches (on a good day) and 140 pounds, he considered himself
an athlete. He had been a "natural", able to throw a ball earlier than
almost anyone else his age. Until his early teens, when others started
to mature physically and pass him by, Tom was a star. Even now he had a
hard time not thinking of himself in the same terms as he did at 10.
Mary had decided to stay in the area for college. She went to school in
the city, often commuting from her parent's home in the suburbs of
Bergen County, for a semester or two living in the college dorms.
Her first date with Tom had been memorable for him if not for her. They
had dined at a local restaurant after having played an hour of tennis.
She had more than held her own and, whether she knew it or not, Tom was
very impressed. At dinner, Tom had brought a bottle of wine, but even
then he was not much of a drinker. Mary had finished off far more than
her date and was slightly drunk by the time they headed back to Mary's
home. As Tom dropped her off, he said he was low on gas and would call
her when he got home. As the phone rang, she was in her nightgown and
almost asleep. Tom thought he had not made much of an impact.
They were engaged within six months and married a year after meeting. Now, almost forty years later, there was no more Mary.
Tom thought that he had never been alone, really alone, his entire life:
a college girlfriend as soon as he left home, then a return to his
boyhood bedroom and finally, Mary. She had been taking care of him from
the moment she said "I do". His life and hers were even more inseparable
than that he experienced during his college years. They had worked in
business together for more than 30 years. Out of the office she covered
up almost all of his faults with her abilities. While he was known for
being inept, she was anything but. Every lightbulb that had to be
replaced, every knob that needed fixing, every meal that was cooked,
every important piece of Tom's life, every good thing that had happened,
everything was because of Mary.
And now he cursed himself for his lack of courage on the GWB.. With the
image of his fallen wife seared into his brain, a thousand thoughts
rushed through his mind, but two
persisted: "What will the rest of my life be?" and "I killed her."
CHAPTER THREE
In late 2013 the George
Washington Bridge became a central figure in a bizarre episode of
political payback. In its aftermath, not only was the career of the
leading candidate for the 2016 Republican presidential nomination
seriously threatened, but the careers of several of those in charge of the
care and protection of this bridge were, in an instant, destroyed.
"Bridgegate" left Governor Chris Christie playing the
role of the betrayed, befuddled and bewildered. For four days in early September of
2013, his underlings, with or without the knowledge and
consent of their chief, had orchestrated a massive tie up on the roads
of Fort Lee by closing two lanes of access from that community to the
bridge. An apparent act of political retribution for the unpardonable sin of
the Democratic mayor of that borough not publicly endorsing the
re-election of the Governor, it painted both Mr. Christie and
those in command of the Port Authority of New York and New Jersey as petty, vindictive and possibly criminal co-conspirators.
The Port Authority is an entity responsible for the operation and maintenance of the most important transportation
and bridge assets in the metropolitan area. Its purview includes six
airports and six bridges and tunnel crossings. It also owns and runs the World Trade Center site. Their website's declared
mission is simple, "keep the region moving". Bridgegate would put the
lie to that phrase.
Construction on the George Washington Bridge began in
October of 1927. Its upper level was opened four years later. In August
of 1962, the bottom level began operation. 14 lanes of traffic handled
the most heavily used crossing in the world. As of 2011, each day more
than a quarter of a million vehicles traveled its roadways. It was one of the most critical of all the properties in the control
of the Port Authority of New York and New Jersey. And now it appeared to be in the hands of the worst of political hacks.
One of the many pieces of damning evidence that came to light after the disaster in Fort Lee involved the death
of a 91 year old resident of that community. The actions of those
at the Port Authority had not only led to congestion of the borough's
streets, but were, at least for a time, suggested as a possible contributing factor in the demise of
one elderly resident. Emergency response time to get to distress calls
had been substantially delayed .This woman, who
suffered a fatal heart attack, was not tended to as quickly as she
should have been. Whether her life would have been saved was, in a
larger sense, almost irrelevant.
Christie's principal appointments at the Port Authority,
David Wildstein and Bill Baroni, were shown to be active participants
in the lane closing debacle. They were forced to resign, in disgrace and
Wildstein was quickly paraded before an investigative committee. A bewildering episode
ensued with Wildstein almost exclusively relying on the Fifth Amendment in responding to even the most benign of inquiries. Answers were almost
non-existent. But in great abundance was the public's disdain
and disgust for the way in which the Port Authority conducted itself.
The
death of Mary Walters was, in this context, an almost forgotten blip on
the radar screen. But for the Port Authority, looking for any way it could to begin to
resurrect its image, it was a small lifeline. This
agency would demonstrate in concrete fashion each and every day going forward that it would
be vigilant in protecting the citizenry in its care. And thus, the
investigation into the potential criminal wrongdoing of Bob Smith, which
had begun with a flourish in the days after the accident but laid
mostly dormant in the last months of 2013, picked up unexpected momentum as the
new year began.
While the "Bridgegate" episode was the latest story
to feature the George Washington Bridge as a central character, it was not the only one of recent vintage. In
September of 2010 it had played a highly publicized role in a gruesome matter
that garnered national attention.
Tyler Clementi was an 18 year old freshman at Rutgers
University in the fall of 2010. He also happened to be gay.
Over the course of many years, there had been a conversation
in this country about bullying and harassment in general, and about
mistreatment of gays in particular. Soon after Mr. Clementi began his
college career, the Supreme Court would decide a case concerning the
equal protection right of all its citizens to marry, no matter their sexual
orientation. But Tyler Clementi would never live to see that day.
On September 22,2010, Mr. Clementi jumped off the George
Washington Bridge. His college roommate, Dharun Ravi, was charged with
15 counts of criminal wrongdoing relating to this death, principally focusing on invasion of privacy and anti-gay discrimination. Ravi set up a
webcam in the room he shared with Clementi and caught his roommate in
the act of kissing another man. It was estimated that a half dozen
others watched this video, and Ravi tweeted of what had occurred. Clementi's response to this betrayal was to take his own life.
In late February of 2012, Ravi went on trial and was found
guilty of all charges. It was anticipated that he could serve up to 10
years in jail, and face deportation to India. Instead, he received a
prison sentence of 30 days and a recommendation from the judge that
deportation was not warranted.
As the events swirling around Bridgegate heated up, and as renewed
attention to the death of Mary Walters followed, Bob Smith thought of
Mr. Clementi's death and the highly debated light sentence of Mr.
Ravi. While Smith had "lawyered up" in the days immediately after Mary Walter's death, he decided that the next phone call he would make would be to the counsel who
handled Mr. Ravi's defense.
Dennis Wilson had been in the practice of law for almost 40 years. A graduate of Yale Law School in 1975, he embarked on a career in the area of criminal practice from the first. Like many others, he started on the other side of the equation, working in the attorney general's office for four years, then as assistant prosecutor in Hudson County for another four. In 1983, he moved to private practice. He partnered with 3 others of similar background. Over the years he had been involved in thousands of cases, from the mundane to the very high profile. Murder, manslaughter and vehicular homicide cases he had handled were among those advertised on his website.
Wilson had been named one of the top attorneys in the State of New Jersey and in the United States for nearly two decades. He was known for being extraordinarily thorough and diligent. And, as his reputation grew, he was also able to hammer out some of the best plea agreements with prosecutors. Whether by way of trial, or by settlement, the word on the street was that Dennis Wilson was one to be reckoned with.
The Clementi case had proven difficult for him. With so much attention focused on the issue of bullying in general, and of bullying of gays in particular, there was a very fine line to be walked in trying to have Mr. Ravi considered a victim of an overaggressive prosecution. As the facts of the case unfolded, Wilson worried that he had not done enough to convince the judge that his client was not evil, but merely a misguided young man whose life should not be destroyed by what was, at its essence, an act of stupidity.
His passionate closing argument must have had the intended impact. The sentence imposed by Judge Berman demonstrated to those who were watching, including Bob Smith, how effective good counsel could be.
When the phone rang, and the message came that Bob Smith was on the phone, Dennis Wilson did not recognize the name. As he picked up the call he had no idea what would soon transpire.
CHAPTER FOUR
In 1966, an investigation was commenced into a
series of suspicious deaths at Riverdell Hospital in Bergen County New
Jersey. Four years earlier, an Argentinian born surgeon by the name of
Mario Jascalevich had been hired by the hospital.
What caused the inquiry was that eighteen vials of curare,
most virtually empty, were found in the locker of Dr. Jascalevich. All
of those who died had been admitted to the hospital for routine surgical
procedures, and the cause of these unexpected casualties defied logical
explanation.
Despite what appeared to be a link between the doctor and the
deaths, no motive was clear and his explanation for his activities was
sufficient to keep the prosecution of the matter from moving forward.
It was only a decade later, after a reporter from the New York Times
received a letter claiming that the chief surgeon had been responsible
for as many as 40 deaths that the investigation gained renewed fervor.
In January of 1976, an investigative report from the Times referred to
an unidentified doctor, whom the paper dubbed "Dr. X" as the person
likely behind these deaths. The local paper, The Record, the same one
who would almost 50 years later lead the charge concerning the
Bridgegate scandal, assigned an army of its reporters to investigate the
alleged criminal wrongdoing.
The Bergen County Prosecutor, faced with mounting
evidence and a demand for justice, re-opened its long dormant inquiry.
In May of 1976, Dr. Jascalevich with charged with the death of five
patients.
In 1978 the matter proceeded to trial. Two of the five murder
counts were dismissed for lack of evidence. The trial lasted 34 weeks.
At its conclusion, Dr. X was acquitted of all charges. The deaths at the
Riverdell Hospital remain unsolved.
On the night of February 26, 2012, 17 year old Trayvon Martin was
killed after an altercation with George Zimmerman. Zimmerman was a
neighborhood watch coordinator in the gated community in which Martin
found himself that evening.
After Martin's death, Zimmerman was taken into custody by the police
and almost immediately released without charges being made against him.
Florida was one of a number of states that had "Stand Your Ground"
statutes that gave the legal authority to use deadly force in defending
oneself without any requirement to first attempt to evade or retreat from the
danger.
The public outcry over the decision not to indict was
loud and growing louder with each passing day. Six weeks after the
shooting, and after Florida Governor Scott named a special prosecutor
to handle the matter, George Zimmerman was indicted on charges of second
degree murder and manslaughter.
Trial began on June 10, 2013. On July 13, 2013 Martin was found not guilty on all counts.
As the Dr. X and Zimmerman cases demonstrated, there are often many forces at work in deciding whether or not to move forward with prosecutions. And sometimes the ultimate decisions seem to run contrary to the law and to the dictates of prosecutorial conduct.
The
stated mission of the Bergen County Prosecutor's office is to
effectively and efficiently investigate and prosecute criminal offenders
fairly, impartially and justly. The office maintains special squads of
investigators to assist in crimes requiring increased personnel. The
homicide squad is given the responsibility to work with the local
police department in the municipality where a death occurs and to report its findings to the
prosecutor.
Under New Jersey criminal homicide law there are various forms of manslaughter including but not limited to aggravated and reckless.
Aggravated manslaughter is a crime of the first degree.
In
an aggravated manslaughter charge the state must prove that a defendant
caused the death of another under circumstances manifesting extreme
indifference to human life.
To
prove recklessness the state must show that a defendant had a conscious
disregard of a substantial and unjustifiable risk that death would
result from his conduct and such disregard involved a gross deviation from
the standard of conduct that a reasonable person would observe in the
defendant's situation.
If the killing was caused by the negligence
- accidental - of the defendant then there is no crime because
negligence does not rise to the level of recklessness.
In the fall of 2013, when the first
fatality ever caused by a bicycle on the George Washington Bridge occurred,
the Port Authority police and the homicide squad of the Bergen County
Prosecutor's office conducted a joint investigation.
When the report issued, the
determination was made by the chief Assistant Prosecutor, Henry Winston,
not to arrest, nor seek to indict Bob Smith. It was the belief of their office that
under the criminal homicide laws of the State, Smith could not be proven
beyond a reasonable doubt to have committed an act of manslaughter.
As the events of late 2013 and early 2014 unfolded, this decision would come under the type of intense scrutiny that led
prosecutor's offices, in this and other jurisdictions, to make difficult and uncomfortable reassessments.
