by Matt Richtel
The company investigator, Scott Kimbrough, concluded that, no, Reggie had not hydroplaned. “It is extremely unlikely that Reggie Shaw’s vehicle hydroplaned. As his vehicle drifted across the center of the road, his wheels would have traveled over roughly textured asphalt that sat above the slight depressions of the wheel paths in the center of the travel land and would have been well drained,” the memo from the investigator read in its concluding section. It noted that there was only “scattered rain” at the time of the accident.
The “dynamics of the vehicles involved in the accident strongly indicate that the vehicles had much higher levels of traction than would be available in a hydroplaning situation.”
THE DAY AFTER THE April 15 hearing, Bunderson wrote a memo following a long conversation with a local lay official in the Mormon Church, Rod Merrell, who was the president of the Shaws’ region. The conversation had to do with whether Reggie could complete his mission, still his stated dream.
Merrell referred Bunderson to Terry Johnson, who worked in the field for the Canada-Winnipeg mission. Bunderson called Johnson, who told the lawyer that this was the sort of case that would need to be reviewed at a high level of the Church, the Counsel of the Seventy or even the Counsel of the Twelve, otherwise known as the Apostles.
“There are no real hard and fast rules,” Bunderson wrote in his internal memo. Reggie’s ability to start a new mission, would be “a function of the type of crime, so I believe that if he is convicted of a lesser offense that would be helpful.”
REGGIE LEFT FOR SALT Lake City. He lived in a spare bedroom with the family of a friend he’d made during his year in college in Virginia. Bunderson sent a letter on June 16 saying that he’d had several conversations with George Daines, “for the purposes of discussing a possible resolution in the case.”
Reggie worked for the Bees and took classes, thinking he might study English. He met a young lady named Elise and they chatted on Facebook and hung out a bit. He met another young lady named Nikki.
Jackie, meanwhile, got closer with Gary, who came for that weeklong visit in June. Leila made salads and read and watched television. For the Shaws, the legal bills crept up.
IN JUNE, JUDGE WILLMORE ruled on several of the motions that were discussed in the April 15 hearing. On the question of who would pay for Reggie’s expert witnesses, Judge Willmore ruled that the state and Reggie could split the cost.
On the much more significant question about whether Trooper Rindlisbacher could be allowed to testify about his conversation with Reggie, the judge found the testimony could be allowed. He ruled that Rindlisbacher didn’t have Reggie in custody and wasn’t interrogating the young man in a way that would require a Miranda warning.
He wrote that the conversation was friendly and that Reggie had gone voluntarily into Rindlisbacher’s car. “Defendant was not frisked or handcuffed and the tone of the conversation was cordial,” Judge Willmore wrote. “No evidence was presented to the court that indicates Defendant felt like he was not free to leave.”
This was a big one in the favor of Linton and the prosecution. If Rindlisbacher was free to testify then Bunderson would face a tough call as to whether to put Reggie on the stand, a proposition the defense attorney thought was fraught with peril.
At the time, the judge didn’t issue a ruling about the other big issue, about Dr. Strayer’s testimony. That would require deeper thought, and another hearing.
IN AUGUST, BUNDERSON WROTE Reggie for the first time with specifics of a possible plea, or, rather, of the offer from the county. It entailed Reggie pleading to two counts of negligent homicide, both class A misdemeanors. Reggie would be required to serve thirty to ninety days in jail, “watch a video of one of the deceased person’s lives,” and “for a period of six months they want to use you as a poster boy” for deterrence on texting and driving.
There was one thing Bunderson liked about the deal: It would be a plea of abeyance, a term of art that means the charges would be dismissed, removed from the record, if Reggie met the conditions of the sentence.
Still, Bunderson concluded, “I don’t expect you to find this what you want, but we do need to consider it as a settlement and discuss it thoroughly.”
ON SEPTEMBER 23, 2008, in Florida, half a country away, another tragedy occurred: A driver of a semi carrying a delivery to Home Depot slammed into the back of a school bus that had stopped to let children off. The bus had its warning lights on and its signs out, alerting drivers it had stopped.
The crumpled bus started to burn. Trapped inside was thirteen-year-old Frances Margay Schee. She died in the flames.
The semi driver said he never saw the bus. He told investigators he had been on the phone.
IN THE FALL, THE season ended for the Salt Lake Bees. Reggie got a job with the National Basketball Association’s Utah Jazz, taking drink orders in a fancy club at the arena.
Then, in September and October, there were more developments on the legal and personal front that underscored the numbing effect, the purgatory.
On September 29, Bunderson wrote Daines to put in writing the proposed settlement that had been the product of ongoing conversations. It was much as Bunderson had described it to Reggie in August, but there was an important caveat to the plea in abeyance. They would get Judge Willmore to agree to “hold the guilty plea in a confidential file so it doesn’t get recorded anywhere.” This was aimed at maintaining Reggie’s reputation and paving his path to return on a mission. It was intended to draw as little attention as possible to what happened on the morning of September 22, 2006.
This more serious discussion of settlement reflected the reality that an actual trial was quickly approaching. It was only prudent to take these steps. It also reflected, though, that Reggie’s will seemed to be wilting, something that was tough to put a finger on—he never said “I did it”—but the fight seemed to be going out of him bit by bit.
THINGS WITH NIKKI DIDN’T work out. Reggie couldn’t really open himself up. He wanted to, wanted to connect, but he was holding so much back. He talked about the accident in a distant way. Then there was Elise, the woman he’d met in the summer. She was blond and Reggie found her very attractive. They’d stayed in touch on Facebook. He asked her out again in October.
For their second date, he planned to take her to Bonwood Bowl, a bowling alley with a lounge and café on South Main Street in Salt Lake City, and then to a drive-in movie. He went to Elise’s house to pick her up.
While she finished getting ready, he sat down on her bed and looked around. He saw something taped to the side of her mirror that caught his attention, a newspaper article. He walked over and read it. It was about him, how he was facing charges for killing Jim and Keith, and was scheduled to go to trial. Elise walked back into the room.
“Where did you get this article?” Reggie asked.
“My dad gave it to me. He’s concerned about my driving behaviors.”
“Have you read it?” Reggie asked.
“Yeah.”
He smoothed back the article. “Do you know who this is?”
“No.” She couldn’t figure out what he was getting at.
“I want you to come over and look at this.”
Elise walked over. She read the first couple of lines. She started to cry. She put her arms around Reggie.
Later, he thought, it was a funny moment, but an awkward one. Something he should have laughed about. They went bowling and to the drive-in movie. He had fun. They connected. He called her to go out again. But he didn’t hear back.
CHAPTER 35
HUNT FOR JUSTICE
ALL THE STRANDS OF this story—the accident, attention science, the law, and Reggie Shaw—came together on December 11, 2008. It was a two-hour-and-twenty-three-minute court hearing, on its face just one more procedural step in more than two years of dug-in fighting. In this seminal case on texting and driving, the hearing examined how decades’ worth of attention science might be applied to the law. And, crucially
, it showed in the fullest detail yet just what really may have been happening inside Reggie’s mind on the morning of September 22, 2006.
Reggie, already worn down and terrified of trial, was left transformed.
“AT THIS TIME, I’D like to call Dr. Strayer to the stand,” Linton said.
David Strayer walked to the witness box. He wore a tan suit over a royal blue shirt and striped tie. His hair, a brown-and-gray mash-up, was shortish and scruffy in a way that might seem hip on someone half his age but gave him the look of an affable academic.
He took an oath promising to tell the truth. At Linton’s request, he talked about his education and training, his voice a decided tenor.
“My area of expertise is attention and performance,” he said. When he spoke, he sometimes looked up and to the side through his glasses, as if searching for what he wanted to say. He clasped and unclasped his hands when making a point of emphasis. About 30 percent of his research over the years had focused on driving issues, but in the more recent years, it had been the bulk of his research.
Dr. Strayer said he’d published more than fifty articles in major scientific journals, around twenty of them on issues pertaining to driving impairment, attention and distraction behind the wheel.
Reggie, sitting in his usual spot next to Bunderson, on the left side of the room (from Judge Willmore’s perspective), looked impassive as usual. He chewed gum. And yet he was primed with nerves. The trial was coming up. That could mean a felony, jail time, real stakes. On top of it, he just couldn’t stand glancing up at the families of Jim and Keith.
They were sitting just behind Reggie’s parents. In between Jackie and Leila sat Terryl. She was concerned about how to prepare Jackie and Leila for trial. It was Terryl’s impression that neither woman wanted to testify, to relive the thing. And they both just seemed incredulous that, with all this evidence, Reggie would contest the charges and there would have to be a trial at all.
Soon, though, Terryl was riveted by Dr. Strayer. All along, Linton had told her that they needed an expert, and they’d found the expert. She was hoping this testimony was going to seal it, vindicate all the effort, the pretrial preparation, the way she and others had extended themselves to take on Reggie.
As Dr. Strayer began, Bunderson, sitting next to Reggie, had a powerful, initial visceral reaction: This Dr. Strayer sounded very credible, like a good witness. All the more reason to pick apart the testimony and get as little of it admitted as possible.
THE PURPOSE OF THE proceedings was to determine to what extent Dr. Strayer’s testimony would be allowed at trial. Was it relevant and based on sufficient and credible information?
At Linton’s request, Dr. Strayer described the driving simulator he used to test how well people drove. The simulator was in a small windowless room down the hall from his office at the University of Utah and was basically the seat and dash of a Crown Victoria. On a computer screen in place of the windshield, the study subject would see animated views of cities and highways and navigate among them while, say, trying to text, or while dialing a phone, or talking on a phone, or, for the sake of comparison, while lightly intoxicated (under, obviously, a tightly controlled laboratory setting).
Dr. Strayer talked about other equipment, including the EEG, which allowed the researchers to “measure brain activity,” and “various changes in brain activity as someone is engaged in an activity—driving or texting or talking to a passenger.” They used eye-tracking technology to study where a driver was looking, say, at the road or at the phone.
Linton asked what Dr. Strayer had found when it came to texting and driving.
“The scientific data says there is a sixfold increase in crash risk.”
That’s because, he explained, the distracted driver didn’t watch the road, lost track of the lanes, might miss hazards that came up or, even when seeing the hazards, lacked the focus to be able to react. He said that when drivers text they lose “just about all characteristics associated with safe driving.”
He repeated that the texting driver faces a sixfold crash risk, whereas a driver talking on the phone faced a four-times increase in likelihood of a crash, which he said was roughly equivalent to someone who is legally drunk. A drunk driver and a person on a phone were equally likely to crash, whereas “we’re seeing the risk factor for accidents when someone is texting exceeds the level when people are legally drunk.”
“How many times have you testified in court?” Linton asked, pacing the middle of the courtroom floor.
“In terms of text messaging, this is the first,” Dr. Strayer answered.
But, he said, in about thirty other cases, he’d been deposed—meaning interviewed by attorneys in a case but not in the actual trial—on the subject of the general risks of using a phone while driving. And he’d testified once, he said, in an actual trial.
“All of those are civil cases?” Judge Willmore asked.
“Yes.”
“No criminal cases?”
“I’ve never testified in a criminal case,” Dr. Strayer answered the judge.
“To my knowledge this is the first criminal case I’ve found on this issue.” Linton directed this comment to the judge.
“You’ll be able to get into that later.”
It was Bunderson’s turn.
THE DEFENSE ATTORNEY STOOD.
“You couldn’t testify whether texting caused this particular accident?” he asked Dr. Strayer.
“Not this particular accident.”
A confusing exchange ensued that is nonetheless significant. It had to do with the use of the phrase “significantly greater risk.” Bunderson began by asking Dr. Strayer whether a “significantly greater risk,” which is a relative term, implied that it was a “substantial risk,” which is a more objective term. In other words: Is the fact that texting creates more of a risk the same thing as saying that it is an inherently substantial risk?
There are plenty of examples where a behavior is an increased risk without being particularly risky. For instance, eating in a car might be more likely to cause a crash than not eating. But that doesn’t necessarily mean that eating in a car is a major risk that should be illegal. Or, what if a regular coffee drinker drives to work in the morning without his usual cup of caffeine? He’ll be less alert on the road, but few people would say he shouldn’t be allowed behind the wheel.
Now, it might be completely true that the risks of texting and driving are inherently risky. But that was, Bunderson was arguing, beside the point under Utah law. He was arguing that Dr. Strayer’s testimony would run afoul of a rule preventing him from suggesting a legal conclusion to the jury.
Linton was beside himself. What Dr. Strayer was saying, he argued in a back-and-forth that followed, was merely fact. It was a fact, he said, that there was a six-times increase in the risk of a crash. That wasn’t inference. He objected to the line of questioning.
Judge Willmore didn’t see it as so open-and-shut. As he looked at the Utah statute while sitting on the bench, he appeared almost pained. He was trying to figure out whether Dr. Strayer might overly influence the jury were he to testify to the inherent substantial or significant risk.
“I’m overruling the objection,” he said.
The defense attorney turned back to the academic. “When talking about driving, I remember that old song: ‘Keep your hands on the wheel and eyes on the road ahead . . .’ ”
Dr. Strayer interjected. “What we’ve found even more on then those two is your mind on the road,” he explained. “Something that takes your mind off the road, or hands off the wheel, creates a risk. But [the bigger risks comes from] . . . mind off the road than hands off the wheel.”
It was a powerful point, made in an offhand way, but it hit Reggie hard. Bunderson seemed to want no part of it. He redirected the conversation.
“As far as texting, have you actually published an article on texting?”
“No, what you’ve seen is a draft version,” Dr. Strayer answered, re
ferring to the paper showing a sixfold increase in crash risk.
Bunderson asked if anyone had published a paper on the risks of texting.
“Yes.”
“When?”
Dr. Strayer said he couldn’t recall exactly, but it was sometime between 2005 and 2007, probably 2007.
Bunderson asked where it was published.
By researchers at a university in Australia, Dr. Strayer answered.
Bunderson asked if it was available in the United States and Dr. Strayer said everywhere.
“Are you aware if it’s been published in any way that became known to the general public?”
“That I don’t know.”
WHATEVER THE LEGAL IMPLICATIONS of Strayer’s testimony, it was scoring big points with Reggie. He found it revelatory. What he was hearing, and beginning to comprehend, was that it was possible for him to have his hands on the wheel and eyes on the road, and still be lost somewhere else. He thought: I was so distracted by my phone device that I wasn’t aware what was happening in the car, and had no memory of it.
That dawning idea got reinforced just a few moments later, when Bunderson asked: “Did you ever in your study have someone text and then quit texting and determine how long it takes to get back into safe driving mode once they’ve quit?”
“We have been looking into that. It’s not easy to determine how long impairments last—generally those costs can persist for ten seconds or fifteen seconds.”
Even after the texting ends? Bunderson asked.
Yes, Dr. Strayer explained, noting that it takes time for the person to become reacquainted with the road. “Depending on the complexity of the driving task, it may take fifteen seconds or more after you’ve pushed ‘send’ before you’re fully back in an unimpaired state.”
From the perspective of the law, this was another moment where Dr. Strayer was touching on the state of mind of the person texting. Judge Willmore interrupted and asked the professor to elaborate. Dr. Strayer said he was presently doing experiments in how long it takes to regain “situational awareness” once a person was finished texting.
