Suicide at Sea and captain charged - Page 74 - SailNet Community
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post #731 of 790 Old 01-10-2019
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Re: Suicide at Sea and captain charged

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Originally Posted by outbound View Post
.... It’s sad that such responsibilities need to be spelled out so both professional and amateur crew can have some level of comfort that their captain will do what he can to ensure they will return to land alive.
First there should be a manslaughter law in line with all other similar statutes. No arguing that.

But will it change people’s actions? Will it assure competent Captain and crew? Not likely. This is one incident in how many years? What percent of sailors are aware of this case? How many of us will remeber this case in 3 years?

It should exist, the odds of it doing something to save lives in a recreational setting are small.

Now for large commercial operators? That’s why it was enacted, because some folks value their dollars over others lives. Those guys have lawyers who will remind them of this liability.

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post #732 of 790 Old 01-10-2019
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Re: Suicide at Sea and captain charged

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But continue to believe there should be some substrate that prevents death due to callousness, malice or just not caring for the individual. Hopefully better minds than mine can come up with a definition of what defines “criminal “ negligence. Is it feasible to provide such a statute?
Yes. Every state already has. They are commonly called "criminally negligent homicide." Under NY law (where I was a prosecutor back in the late '80's), "a person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person." As has been noted a zillion times in this thread, the punishment for crimes of this level is no where near as strict as the Seaman's law. Under NY law, criminally negligent homicide is a Class E felony, which means the max jail sentence is 4 years.

Why wasn't he charged with something like that here? Simple. The crime happened on the high seas in international waters. State criminal statutes do no apply outside their jurisdictions. The only option was to try the captain under federal law.
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Re: Suicide at Sea and captain charged

So MS do you feel such a statue should exist for the “high seas” or is one in place already?

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Re: Suicide at Sea and captain charged

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So MS do you feel such a statue should exist for the “high seas” or is one in place already?
Like any good lawyer, I have more than one answer...

There is one in place now (obviously), but I think I've made my opinion on the current statute know here (spoiler alert: I dislike it. It is poorly written, based on common negligence and has an inappropriate penalty).

Generally speaking, I am not in favor of the federal government expanding its criminal law jurisdiction. For the most part, I believe that criminal law should be left to the states. Federal criminal law should be limited to crimes that cross state boundaries or that are affect multiple states.

Crimes on the high seas are really one of the few times I think it would be appropriate for the federal government to step in, as the states cannot regulate conduct outside of their boundaries. I would not be opposed to a criminal negligence statute for federally-licensed captains operating in federally regulated or international waters. For a conviction, the government would have to prove beyond a reasonable doubt that a captain's criminally negligent conduct was the cause of a serious injury or the death of passenger or crew.

Mind you, I'm not advocating for such a law; I don't think it's necessary. I do think it is necessary to repeal that piece of dreck law that is on the books now.
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post #735 of 790 Old 01-10-2019
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Re: Suicide at Sea and captain charged

Here's the (likely) final word from the V.I. newspaper:


St. John captain acquitted of manslaughter

By SUZANNE CARLSON Daily News Staff



St. John charter Capt. Richard Smith was acquitted of manslaughter Wednesday after a federal judge found that prosecutors had failed to produce evidence sufficient to support the criminal charge against him, abruptly ending his jury trial after two days of emotional testimony.


The family of the deceased, David Pontious, were visibly devastated by U.S. District Judge Curtis Gomez’s decision, and his mother sobbed as she left the courtroom. The ruling is not subject to appeal and the statute of limitations for a civil lawsuit has expired.


“This is not an easy decision,” Gomez said. “It is not a light thing to do, but under the circumstance, I think the weight of the law doesn’t support the result the government wants.”


Smith, 65, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute” in connection with the Oct. 25, 2015, drowning of Pontious, 54, of Beaufort, S.C., a crew member who was helping transport the Cimarron from North Carolina to St. John.


Two other crew members aboard the Cimarron at the time, Jacob Pepper and Heather Morningstar, testified that Pontious attacked Smith in the midst of a psychotic delusion before jumping overboard approximately 300 miles offshore.


Prosecutors Daniel Huston and Sigrid Tejo-Sprotte argued that Smith was criminally liable for Pontious’s death because he did not stop the Cimarron to search for Pontious.


However, defense attorneys David Cattie and Michael Sheesley argued that Pontious’ mutinous behavior posed a threat to the remaining crew.


“Obviously I’m pleased, I think it was the correct result. Rick and myself, we feel bad for the Pontious family — you never want to have somebody lose a life, which occurred — but I just don’t think Rick did anything criminal, I don’t think he did anything civilly wrong. It was just a terrible circumstance,” Sheesley said.


Cattie agreed that the situation was a tragic anomaly that did not rise to the level of a criminal offense.


“Rick had to make an almost impossible decision,” Cattie said. “You heard what happened on that boat, that’s a nightmare scenario for a captain. Rick certainly had no ill will toward David and didn’t want him to die.”


U.S. Attorney for the Virgin Islands Gretchen Shappert declined to comment on the case.


Gomez’s decision came after defense attorneys filed a motion for acquittal late Tuesday, arguing that prosecutors had charged Smith under a statute that only applies to vessels engaged in commercial activity.


While Smith used the Cimarron for paid charters at other times, Gomez found that the voyage during which Pontious died did not involve commerce because none of the individuals aboard had paid for the trip and were not compensated as employees.


Pepper testified that he approached Smith about sailing with him to gain offshore experience, and Morningstar said she went on the trip “to do something completely different.”


A third crew member, Candace Martin, also said she went on the trip with Smith because she loved offshore sailing. Martin was unable to complete the journey so she posted an online ad with the Beaufort Yacht Club, to which Pontious responded. Martin left the ship in North Carolina and Pontious took her place.


Crew members testified that Pontious became seasick and severely dehydrated, but Morningstar said he was able to work his scheduled watch at the helm Saturday, ate breakfast and dinner, and his condition seemed to be improving.


The evening of Saturday, Oct. 24, Morningstar testified that Pontious slipped into a delusional state and became progressively more agitated.


“We thought he was kind of turning a corner at that point,” Morningstar said. “Saturday night was when everything started to change.”


Pontious believed the crew had kidnapped him to extort ransom money from his father, and hallucinated a door or portal in the sky, through which he believed was a room full of electronics that would help him get back to reality, according to trial testimony.


When Smith refused to take him to the portal, Pontious punched and choked him, attempting to wrest control of the helm.


Pontius announced to Smith and the other crew that “if you won’t take me there, I’ll go myself,” and jumped overboard at about 1:30 a.m. Sunday morning, according to trial testimony.


He was never seen again.


It’s unclear why Pontious had a psychotic break — his brother Andrew and others indicated that Pontious did not have a history of mental illness and his behavior on board the Cimarron was completely out of character — and Cattie said the reasons for his death will likely remain a mystery.


“Whatever the reason is, his behavior was altered and the result was fatal and it’s a tragedy,” Cattie said.


Prosecutors highlighted the fact that Smith did not deploy an EPIRB remote signaling device, throw a life ring, or stop to engage in a search for Pontious. Smith made contact via radio with a weather router on the morning of Monday, Oct. 26, who summoned the U.S. Coast Guard, which flew a C-130 plane over the Cimarron to establish radio contact and begin the search for Pontious.


Smith did attempt to issue a mayday call via radio after Pontious went overboard, to no avail, and Cattie said his decision not to stop sailing after the chaotic, violent episode was indicative of his concern for his remaining crew.


“He had to make a decision I don’t ever want to have to make,” Cattie said.


Sheesley said that had Pontious not jumped overboard when he did, it’s possible the situation could have resulted in additional deaths.


“Rick had a tough choice to make, he made the right one. It ended up saving Heather and Jacob’s life,” Sheesley said.


In terms of the government’s prosecution, Sheesley said prosecutors expended a “ridiculous” amount of taxpayer money to hire three experts, retain two case agents, and fly numerous witnesses to the territory to testify at trial — all for a case he believes never should have been brought in the first place.


“They have an obligation to know the law, and the law just did not fit the facts,” Sheesley said.


While defense attorneys routinely file a motion for acquittal when prosecutors have finished presenting witnesses, “they are denied almost as a matter of course,” Sheesley said.


The fact that Gomez granted the motion in this case speaks to prosecutors’ lack of evidence, Sheesley said.


“This was part of our case strategy, we knew for months that this law was not applicable to this factual situation and we tailored our examination and evidence to support it,” Sheesley said.


Smith had been facing a possible 10-year prison sentence, and even though he is now officially a free man, his life has forever been altered by the trial, Sheesley said.


“Emotionally, this is massively taxing. It’s essentially bankrupted him,” Sheesley said. “Like any criminal prosecution it has a huge effect on somebody’s life, even when they’re found not guilty.”



— Contact Suzanne Carlson at 340-714-9122 or email

unquote


So, we won't get to know how the jury would have sorted all this out. They, unlike us, would have heard and seen the witnesses and judged their credibility accordingly. That aside, I expect the jury's discussions would have been very much like ours here, with the overarching principle being proof of guilt beyond reasonable doubt, which is an intentionally high hurdle.

I hadn't been aware this was an unpaid crew, who went along because they liked offshore sailing. That being so, I believe Judge Gomez got it right, and the US Attorney got it wrong. Could have been prosecuted under the federal manslaughter statute, one would think. The Seaman's Manslaughter Statute originated from catastrophic boiler explosions and fires on passenger and cargo boats and ships in the mid-1800s, culminating with a disastrous fire, sinking, and loss of life on a New York excursion boat in the East River in 1904.

Lurking behind the decision yesterday may be the judge's recognition that the evidence wasn't that unequivocal, and that the Coast Guard, which normally would be the ones referring a criminal prosecution to the DOJ, did not find probable cause and hence did not refer the case onward. The defense wanted the jury to consider the Coast Guard's informal report, which opined that the captain handled it about as well as was possible under the difficult circumstances, while the prosecution did not want the jury to see it at all.
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Last edited by nolatom; 01-10-2019 at 11:20 AM.
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Re: Suicide at Sea and captain charged

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Could have been prosecuted under the federal manslaughter statute, one would think.
I think nolatom is right. The federal manslaughter statute is excerpted at the end of this post.

If the case had been charged under this statute, I think it would have at least proceeded to a jury decision.

Anticipating the next question, "Can a new charge be filed under this section?" Probably not. Double jeopardy prohibits not only the re-filing of a new charge under the same statute, but it also prohibits the filing of a new charge under any lesser included offense. I think a court would conclude that this is a lesser included offense of the Seaman's Manslaughter offense, and a new charge under this section would be barred by double jeopardy. Besides, the US Attorney would not be anxious to roll the dice again on the case after having suffered such a humiliating defeat.

18 U.S. Code § 1112 - Manslaughter

(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;

Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.
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Re: Suicide at Sea and captain charged

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But the attitude by some in this thread is they should have all been killed off.
In case that aimed at me and my "hit them in the head with a winch handle" position:

It ISN'T my position that the mentally ill or crazy people be killed off!!!

It IS my position that once they become dangerous to others that it is not acceptable to place others at risk.

You guys can pick it apart all you with "could of" and "what abouts", but to me it is not reasonable to place yourself or others in danger to protect someone from their own actions.
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post #738 of 790 Old 01-10-2019
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Re: Suicide at Sea and captain charged

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Originally Posted by Sailormon6 View Post
[...] Besides, the US Attorney would not be anxious to roll the dice again on the case after having suffered such a humiliating defeat.

18 U.S. Code § 1112 - Manslaughter

(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;

Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.
Is leaving someone to die ever manslaughter?

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Re: Suicide at Sea and captain charged

That’s where further information would help. I still can’t see how a man in the water presents a risk to anyone but himself. You’re right none of us know the details so it’s all speculation. But do you agree you could deploy a MOM, find him (presuming he didn’t go straight down) pull him near with a life sling or similar device , reassess and then decide to get him up or wait until tired enough to haul up. Of course you would restrain him until you got him off the boat ASAP. Even if he’s a big fit guy and you’re a petite lady he’s not getting on a boat without your consent. Maybe I got it all wrong if so please explain.
Do agree recovery of a mob is no walk in the park. Think there should be a very high bar or no bar for any sanctions for unsuccessful attempts. Would hope folks gave it their best attempt.

Find what the lawyers said somewhat scary for both captains and crew. Be nice if you knew what standard you’re held to as captain and what to expect as crew. Appreciate their patience in putting up with me. Like to think with a bit of common sense this is a situation I’ll never face but that maybe just hubris on my part.
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Re: Suicide at Sea and captain charged

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Originally Posted by Sailormon6 View Post
Any time you "catch" me inaccurately stating an unimportant fact in an online chat, feel free to correct me.

Some people might think that's just quibbling, but people want to know the exact nature of the US Attorney's genitalia.
You clearly misunderstood the motivation behind my comment, but your attitude makes it difficult to apologize or feel the need to explain.

As you seem to have a real axe to grind, with my participation, I invite you to not respond to it. To that extent, I’ll let yours stand without comment as well. I tried it once. Your call.


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