Demian Bulwa
3/13/08
The attorney representing a Santa Clara County sheriff’s deputy who struck and killed two competitive bicyclists in Cupertino said Wednesday that the officer had worked a lengthy shift the day before and that fatigue may have been a factor in the crash.
She would not confirm witness reports that the deputy, 27-year-old James Council, told people at the crash scene Sunday morning that he had fallen asleep at the wheel. Council “doesn’t know what happened” when he veered across the center line of winding, two-lane Stevens Canyon Road, killing the two cyclists and injuring a third, attorney Mary Sansen said.
“The possibility exists,” she said, “that we’re never going to know what happened.”
Two men who came upon the accident scene a short time after the crash said Council had said he thought he fell asleep. Since then, Council has not spoken, publicly or to investigators.
Sansen said in a lengthy interview in her Pleasant Hill office that prosecutors who must decide what charges, if any, to file in the case may need to look at Council’s work schedule before the crash.
Council was 4 1/2 hours into a 12 1/2-hour shift when the accident occurred at 10:25 a.m. Sunday. He worked a 6 a.m.-to-6:30 p.m. shift on Saturday, the sheriff’s office said, meaning that with the switch to daylight-saving time Sunday, Council had 10 1/2 hours off between shifts.
“A 12 1/2-hour shift is brutal,” said Sansen, who specializes in representing law enforcement officers. “You’re not sitting behind a desk. Even if you don’t work in a high-crime area, you’re always on alert for 12 1/2 hours. It is exhausting.”
She added, “Nobody goes home at the end of a 12 1/2-hour shift and goes right to bed.”
Confident he was sober
Sansen declined to say exactly how Council, who lives less than 10 miles from Cupertino in Santa Clara, spent his time between his Saturday and Sunday shifts.
She said she had “not the least concern” that alcohol or drugs played a role in the accident. She said she has urged Sheriff Laurie Smith to turn over blood test results to the California Highway Patrol, which took over the crash investigation.
Council was charged in 2001 in Los Angeles with drunken driving and engaging in an exhibition of speed, records show. The more serious charges were dropped in a plea bargain, and Council pleaded guilty only to street racing, earning two years of probation. The Department of Motor Vehicles said Council had no other blemishes on his driving record in the past 10 years.
“I hate to see someone tagged for life for something they did when they were 20,” Sansen said.
8-hour shifts rare
Deputies in Cupertino, which contracts for services with the sheriff’s department, work either three 12 1/2 hour shifts a week or four 10-hour shifts, depending on the team to which they are assigned, said Sgt. Don Morrissey, an agency spokesman.
Shifts of 10, 11 and 12 hours are common in police work. Eight-hour shifts are rare.
Asked if the department was reviewing the length of shifts in light of Sunday’s accident, Morrissey said, “The sheriff hasn’t ruled out looking into any of these things. But we don’t want to jump to any conclusions.
“We want the investigation to run its natural course and reveal a cause,” Morrissey said. “We’re focused on the loss of life right now.”
Officials with the county’s Deputy Sheriffs’ Association, which represents deputies in negotiating contracts, did not return telephone calls.
In Oakland, a state arbitrator recently allowed city officials to switch some officers from 10- to 12-hour workdays over the objection of the officers’ union. The officers were represented by attorney Michael Rains, who works in the same law firm as Sansen.
Survivor in good spirits
Killed in Sunday’s crash were Kristy Gough, 30, of San Leandro and Matt Peterson, 29, of San Francisco, who were on a training ride with 10 other cyclists. Also struck was 20-year-old Christopher Knapp of Germany, who suffered broken bones. He was released Tuesday from Stanford University Medical Center.
Knapp is resting at his home in the San Mateo area, said Rob Artigo, 40, who was among the riders in Sunday’s training group. “His spirits are incredibly good,” Artigo said.
The CHP said Wednesday it could forward its crash findings to Santa Clara County prosecutors in 30 to 60 days so they can make a charging decision.
Sansen said she hoped Council would not be charged. She said, however, that she would not be surprised if her client faces charges of misdemeanor vehicular manslaughter.
She said she believed the case did not amount to felony manslaughter, which requires a finding of gross negligence.
Deputy advised not to talk
Sansen said she had advised Council, at least for the time being, not to speak to investigators.
“You want the truth on the record,” she said. “What you don’t want is someone having an emotional meltdown. There are cases where for days or weeks I don’t allow a client to give a statement because they’re not in an emotional state to give a coherent statement.”
Council is “completely devastated,” said Sansen, who added that she told him not to read newspaper stories about the crash.
Making matters worse for Council and his family, Sansen said, is that he had a sister who was struck and killed by a vehicle at age 7, when Council was 3 or 4.
Council was hired as a sheriff’s deputy 18 months ago, joining the department where his father is also a deputy. Council is on paid leave.
A memorial service for Peterson is scheduled for 7 p.m. tonight at Sports Basement, 1590 Bryant St. in San Francisco. A remembrance for Gough is planned for 2 p.m. Sunday at the Five Rings Cycling Center at 297 N. Amphlett Blvd. in San Mateo.
In addition, friends of Peterson and Gough are planning to ride to the accident site Saturday. The ride leaves from the parking lot of Foothill College in Los Altos Hills, 12345 El Monte Road. Organizers are asking cyclists to meet at 2:30 p.m. for a 3 p.m. departure.