From: PORAC LDF
By: William J. Hadden, ESQ., 11/1/2014
It was about 7:30 p.m. on the night of December 16, 2011. It was a cool but clear evening, with no precipitation. Kern County Deputy John Swearengin was sitting in the parking lot of a church in the Oildale area of Bakersfield attending to some paperwork when he heard a Bakersfield P.D. dispatcher broadcast an urgent call involving a stolen vehicle and officers’ foot pursuit of the suspect. He knew that his own agency would soon be sending him to help. As he had so many times previously in his eight-year career, Deputy Swearengin attentively followed the information being relayed and began rolling to the call to render assistance.
Deputy Swearengin knew the area well. He had grown up in the City of Taft and had regularly patrolled the Oildale community. He turned west on Norris Road, about two miles east of sheriff’s headquarters. As Deputy Swearengin began to pick up speed, he continued to monitor the roadway, securing route information while listening to his radio and scanner. He reached down for his microphone to contact supervision, intending momentarily to activate his lights and siren, as his speed was in excess of 70 mph in a 45 mph zone. His path appeared unobstructed.
But to his horror, Deputy Swearengin found that the roadway was not completely clear after all. Two young adults, one male and one female, both around 30 years old, were in the roadway — dressed in black clothing (against a black background) and apparently pushing a small, disabled motorcycle, all without a trace of reflective material. Deputy Swearengin survived the ensuing accident, but the young adults pushing the motorcycle did not.
The matter was referred to the Multidisciplinary Accident Investigation Team (MAIT) of the California Highway Patrol, which many months later concluded that Deputy Swearengin’s actions constituted “vehicular manslaughter with gross negligence.” The Kern County District Attorney’s office heavily relied upon MAIT’s findings and recommendations, and proceeded to file two counts of felony vehicular manslaughter with gross negligence, of which each count carried a penalty of two, four or six years in state prison per Penal Code Section 193.
The MAIT investigators persistently pointed to Deputy Swearengin and the speed of his unit as exclusively responsible for the accident. In doing so, MAIT discounted the facts that the male and female decedents had blood alcohol readings of approximately .14 and .25, respectively, and were — at distances tested by the investigators themselves in their own visibility study — virtually invisible to approaching drivers, due to their attire and the poor lighting conditions. MAIT investigators claimed that such circumstances were irrelevant to the legal issue of causation. They insisted that the decedents, as pedestrians, were at all times proceeding lawfully in the roadway before being subjected to Deputy Swearengin’s allegedly unlawful actions in exceeding the speed limit without the activation of emergency equipment, although the decedents were neither in a marked nor unmarked crosswalk.
Furthermore, MAIT conducted its own walking study, designed to show that if the decedents walked across Norris Road at a “normal” speed, they would have cleared the roadway without incident if Deputy Swearengin had been going the speed limit. The investigators used data from this study as a foundation for other calculations that they performed to try to demonstrate Deputy Swearengin’s alleged gross negligence, a determination which requires a finding that the defendant’s actions were with “disregard for human life.”
The CHP investigators magnificently compiled volumes of data, materials and photographs, but failed to properly perform some basic police work. They conducted interviews in a sloppy and untimely manner, failed to tape record critical witnesses who later disputed the CHP’s summaries of their conversations and, in the absence of information, sometimes simply made things up. For example, in its walking study, the investigators purportedly sought to establish how long it would take for two adults to push a similar motorcycle across a distance equivalent to the width of two lanes of Norris Road, postulating that the decedents walked at a normal pace from a particular point on the north curb of Norris Road to the point of impact. The problem was in the premise, as no one witnessed the decedents together at any point prior to the impact. There was simply no evidence that revealed their path of travel, their speed of travel, the length of time they were in the roadway or their presence anywhere on the north curb. Any designation of their path was therefore nothing but gratuitous speculation. Moreover, the tests were not conducted under circumstances remotely similar to the events in question, as CHP acknowledged that its test subjects were not allowed to become intoxicated. Thus, the assertion that the decedents were walking at all, as opposed to recklessly running or stumbling and falling, was mere guesswork — but, unfortunately, guesswork that the investigators relied upon to make more detailed and critical calculations in trying to establish Deputy Swearengin’s guilt.
That was hardly the end of the story. One would have expected that of all agencies, CHP investigators would have been especially familiar with the provisions of the Vehicle Code. That was not the case here. Had the MAIT investigators reviewed the Vehicle Code and Section 305 in particular, they would have found that each of the decedents was not, under the law, a pedestrian but instead a “driver,” which is defined therein as one who is “in actual physical control of a vehicle.” Thus, CHP overlooked the critical fact that the decedents were, by law, drunk drivers, who were moving a vehicle across traffic lanes at night with black clothing and no reflective material against a completely darkened background, as if a black hole moving through space.
The matter came to trial before Judge John Lua, who was tasked with ruling on pretrial motions of both sides in regard to numerous issues, including those related to the driver/pedestrian status, alcohol consumption and a prior disciplinary letter of reprimand received by Deputy Swearengin for a low speed, one-car minor accident that occurred a year before the incident in question — a letter that the prosecution sought to put in front of the jury. The prosecution had described the prior disciplinary action as particularly critical to its task of proving gross negligence, hoping that jurors would be thereby persuaded that Deputy Swearengin’s efforts to rescue another officer on the night in question constituted a disdain for human life.
After carefully analyzing the issues, Judge Lua found that the “pedestrians” were, in fact, “drivers” under the Vehicle Code, based on facts even as offered by the prosecution, and held that the decedents’ alcohol ingestion would at least be allowed to be discussed before the jury. In addition, Judge Lua found that the prior disciplinary action was significantly dissimilar to the circumstances of the case at bar, and its introduction would be substantially more prejudicial than probative; accordingly, he excluded it pursuant to Evidence Code
Prior to the remainder of the motions being resolved, the prosecution again reflected on its ability to prove the gross negligence factor as alleged from the outset by CHP, which, again, would have required the DA to show that an on-duty deputy coming to the aid of another officer in trouble somehow had callous disregard for human life, understanding that based on Judge Lua’s rulings that the pedestrian/victims would be identified by law as intoxicated drivers. The prosecution concluded that the case could be more fairly resolved with an offer to the defense of a misdemeanor plea of one count of vehicular manslaughter with ordinary negligence, with no jail time and 480 hours of community service, which Deputy Swearengin accepted. Judge Lua formally adopted the plea agreement on September 4, 2014, at which time Deputy Swearengin gave an emotional apology to the family members of the decedents for the tragic accident that changed all their lives forever. The felony charges were dismissed.
The case was defended jointly by Bill Hadden of Silver, Hadden, Silver & Levine in Santa Monica, and the Law Offices of David Torres (separately retained) in Bakersfield, with David, Monica Bermudez and Alekxia Torres all doing great work in the courtroom to achieve the final result. The case could not have been fought without the support of Ed Fishman and Rebecca Mann of LDF, who provided us with accident reconstruction expert Paul Herman, human factors expert Dr. Tony Stein, jury expert Jan Spaeth and private investigator Jeff Niccoli. Deputy Swearengin is deeply grateful for the support he has received from LDF and other sources, and is hopeful that he may soon continue his law enforcement career.