May 19, 2017 by Robert Zaller
What goes around, comes around.
Seth Williams, the now-disgraced but still-serving district attorney of Philadelphia, made his bones by prosecuting a gaggle of local politicos accused of penny-ante bribery when State Attorney Kathleen Kane, had declined to do so.
Kane observed that the grafters targeted were all African-American and the sums involved, by the standards of Pennsylvania corruption, trivial.
She smelled a political witch-hunt, and, rightly or wrongly, decided to take a pass. That decision set in motion a chain of events that cost Kane her job, reputation and career, and may well cost her her freedom too. Williams himself, in the meantime, was allegedly taking bribes far larger than those of the small fry he was prosecuting.
In what will likely be the last significant action of Williams’ tenure, his office said last week that it would not bring criminal charges against Brandon Bostian, the Amtrak engineer whose train, carrying 258 people, derailed two years ago this month at Port Richmond, killing eight people and injuring scores more.
Bostian caused the derailment by suddenly accelerating his train to 106 miles per hour at a junction posted at no more than 50. Of these facts there was no doubt; the question was why he had speeded up instead of slowing down. Bostian claimed to have had no recollection of the event. He was an experienced engineer; he had no alcohol or drugs in his system at the time of the accident; he was not medically impaired.
The National Transportation Safety Board, in investigating the accident, concluded that Bostian had been become “disoriented” after hearing radio reports that stones had been flung at another train in the vicinity, and lost “situational awareness” of his responsibilities.
Williams’ office, disoriented itself by his suspension from duty, declared in its statement that the evidence in the case did not “rise to the high level necessary to charge [Bostian] or anyone else with a criminal offense” (emphasis added).
So, Seth Williams, the man who had successfully prosecuted some local pols for pocketing lunch-money level bribes, goes out as the man whose office couldn’t find anyone to charge in a matter of eight deaths.
There the story would have ended — except for a law peculiar to Pennsylvania, and possibly of dubious constitutionality, that enables complainants to file a court appeal challenging a decision not to prosecute.
This what a group of the victims’ families in the crash of Northeast Regional Train 188 did, and a Municipal Court magistrate, Marsha H. Neifeld, upheld their case, ordering Williams’ office to charge Bostian with involuntary manslaughter and reckless endangerment. The office refused, and the case was referred to the State’s Attorney, Kathleen Kane’s successor Josh Shapiro. Thus, Williams’ shattered career winds up in the very office whose authority he had challenged to begin it.
If Ms. Kane is taking some small satisfaction in this, it is hard to begrudge her.
Questions of poetic justice and separation of powers aside, though, and granted the horrific nature of the accident — whose death toll could easily have been dozens higher — is Bostian judicially as well as factually liable? Had he suffered a blackout at the Port Richmond junction that left him clinically incapacitated, it would be hard to argue that he was responsible for what ensued.
The NTSB, though, didn’t conclude that he had suffered any lapse of consciousness. It simply pitched on a term, “disorientation,” that told us nothing we didn’t already know.
Amtrak engineers on the Northeast route were well aware that objects were not infrequently hurled at trains showing up at Port Richmond, and Bostian was well acquainted with the risk factor. Assuming him to have heard a specific warning, why would that alone have sufficed to have fatally distracted him?
It may never be possible to answer this question satisfactorily, but the place to address it, it seems to me, is in open court and not at a closed hearing whose examiners were part of the system they were investigating.
Lay jurors might not come to any better conclusion than transportation experts, but victims and survivors in a tragedy of such magnitude surely deserve something more definitive than, “It just happened.” Williams’ office clearly didn’t do its job. Legal niceties aside, it won’t be such a bad thing if it gets done by another agency.
The real issue, though, isn’t what was or wasn’t on Brandon Bostian’s mind. The fact is that, even had Bostian suffered a blackout or for that matter a fatal heart attack at the switch, the derailment of Northeast 188 need not and should not have occurred. An automated system called Positive Train Control, had it been in place, would have automatically braked the train had its programmed instructions not been followed. This system had been available for 20 years. It’s standard on rail lines throughout Europe. Amtrak, though, had failed to install it at one of the most dangerous junctures on one of the most critical transportation corridors in the world.
The reason for this is, simply, money. Amtrak, sharing its tracks on the Northeast Corridor with the local transit systems of several states, has been starved of funding for years. Its rolling stock is antiquated, and its rail and signaling networks are shockingly fragile and obsolete. Its central facility, New York’s Penn Station, is a mare’s nest of converging lines in a greater or lesser state of disrepair.
Since the Port Richmond disaster, a slow-moving New Jersey Transit train has fatally jumped its tracks, and breakdowns are now increasingly common. Penn Station will have major shutdowns this summer to implement emergency repairs, and New York City will be partially paralyzed. None of this will give the Northeast Corridor, or any other line in the country, a system to serve a country three times as populous as it was when the original lines were laid down, and mostly still run on them.
And Seth Williams’ office couldn’t find anyone to hold to account for a disaster obviously waiting to happen? And can we find none ourselves for a national infrastructure, including air, rail, motor traffic, water and gas lines, telecommunications and power grid, that rates a collective grade of D from structural engineers, and whose repair, retrofitting and modernization is $2 trillion in arrears and counting?
How about, all of us?
For reasons deeply rooted in our culture and our economic system, we do not care for what we share. We not only fail to keep up roads and bridges and rail lines and air and seaports, but public institutions in general: schools and museums and libraries and parks local or national, or pretty much anything except for Confederate monuments.
We are also catastrophically indifferent to the larger commons we share not only among ourselves but with the rest of the world, namely the planet itself. Like King Canute, Barack Obama promised to hold back the oceans, but in practice he preferred his golf greens, and we now have a president who, astonishingly, wants to roll back every step taken to “protect” the environment — more accurately, to halt or at least slow its degradation under human impact — in the past half century.
This may seem to be taking us far afield from a trainwreck, but what happened in Port Richmond is not only symbolic of but deeply connected to the deadly course we’re on as a society and even as a species.
What degree of liability Brandon Bostian had for the derailment of his train is important for a number of reasons, not least for the victims and survivors themselves. But the failure of Amtrak to install a system that would have prevented it in the first place is of far wider significance, not merely as indicative of the wilful neglect of our technological infrastructure but (in the unlovely phrase) of our human capital as well — the millions in poverty, the millions who lack healthcare and education, the millions who die prematurely after suffering needlessly.
Barack Obama, citing an old chestnut, said recently that people get the politicians they deserve. I assume he meant Donald Trump, but the remark applies as equally to him. Obama’s failure to lead, his mediocre to abysmal record on jobs policy, infrastructure and the environment, helped to make Trump possible.
We are indeed getting the politicians we deserve, and the world we have made. That powerful interests are satisfied to reap their profit from it at whatever cost or consequence is no excuse for the rest of us. We will strive for justice, or lose our souls. We will love and cherish the globe that sustains us, or lose our survival.