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It is not enough that they prove the defendant was negligent, but rather, they must prove that he was criminally negligent - a higher degree of negligence - and that his criminal negligence was a substantial cause of the death, Attorney Chris Van Wagner said.
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Was Criminal Negligence A Substantial Factor?

Case Against Truck Driver May Be Difficult To Prove
By Mark Gunderman

It may not seem readily apparent to most people, but the trial of Michael Kozlowski to start in a St. Croix County courtroom on Monday is much like the Chippewa County trial of Michael Berseth four years ago.

Berseth was hunting deer when he shot a woman who was out walking her dog.

Kozlowski is accused of causing the accident that led to the deaths of five people and injuries to dozens of others. A bus filled with members of the Chi-Hi marching band, teachers and chaperones slammed into the underside of Kozlowskis overturned semi, which was blocking both lanes of the highway at night.

Although the facts of the case are widely different, both cases turn on a subtle point in the law: The question of when someones horrible mistake has crossed the line into a criminal act. Its a difficult case to prove, and a difficult one to defend.

In Berseths case, the jury acquitted, finding his negligence not of a criminal nature.

Eau Claire County District Attorney Rich White will prosecute the trial expected to last two full weeks. Prominent Twin Cities defense attorney Earl Gray will defend Kozlowski, with Judge William Gabler presiding. The case has been moved from Eau Claire County, where the accident took place, to St. Croix County because of pretrial publicity.

The charges

Kozlowski faces five counts of homicide by negligent operation of a vehicle, seven counts of causing great bodily harm by reckless driving, and 19 misdemeanor counts of causing injury by great bodily harm. White previously converted some felony charges to misdemeanors in order to simplify the case.

The homicide charges relate to the deaths of band director Doug Greenhalgh, his wife Therese, their granddaughter Morgan, student teacher Branden Atherton, and bus driver Paul Rasmus. White had plenty of victims to pick from in filing the injury-related charges. For the seven most serious counts, he will have to show that the injuries constituted great bodily harm.

The criminal complaint alleges that Kozlowski was westbound on Interstate 94 when the right wheels of his semi slipped onto the right shoulder of the road. When he tried to steer back onto the road, the truck jackknifed, and turned on its side, with the dark underside facing oncoming traffic in both lanes.

Kozlowski told officers at the scene that he did not fall asleep, and later said he was trying to pull off to the side of the road to go to the bathroom. However, he had just passed an exit about a mile before, and the truck was found in a high gear, not consistent with someone deliberately pulling off the road intending to stop a large truck.

The prosecution also claims to have evidence that Kozlowski had been up all night the night before, with cell phone records and other evidence showing he did not get sufficient sleep during the day before leaving Indiana with his rig the evening before the 2 a.m. crash.

Degree of negligence

The prosecution will contend that Kozlowski fell asleep, and should have known that he was not in good condition to drive because he had not had enough rest. To prove the case, White will have to show that these factors, or others he presents into evidence, constitute a criminal level of negligence.

Thats the hard part.

Chris Van Wagner of the Madison law firm of Van Wagner and Wood is one of the most prominent criminal defense attorneys in Wisconsin, and was named one of the nations Super Lawyers in 2006. According to Van Wagner, it is not enough for the prosecution to show that Kozlowski was at fault in the crash, or even that he fell asleep. It is not even enough to show that Kozlowski was negligent.

Normal negligence is kind of driving when youre changing the radio station. . .failing to exercise ordinary care. We all fail to exercise ordinary care sometimes, Van Wagner said.

Criminal negligence is a higher degree of negligence, he went on. Circumstances in which there is a substantial chance of death or bodily injury, he said. Criminal negligence is an invention of the legislature. It doesnt exist in common law.

Van Wagner further defines the issue in a statement on his website: Negligent homicide is defined by Wisconsin law as a criminal offense that is committed by a person whose negligence is the direct cause of another persons death. Negligence in law occurs when a person does not observe an obligation or duty where a legal obligation or duty exists or behaves in a manner lacking reasonable care.

Van Wagner says such cases are hard to prove, requiring a jury to not just find that a person committed a certain act, but to make a judgment call on whether the criminal negligence standard had been met.

Juries generally acquit. Why do they do that? Because every single juror feels that at some point they have exhibited the same kind of behavior, Van Wagner said.

Gray, of course, knows very well that criminal negligence is a higher standard, and wants the jury to know it, too. At a final motions hearing on Thursday, Gray even asked Gabler to specify in jury instructions that they have to find that the deaths and injuries were caused by the criminal negligence, not just the negligence of the defendant.


Of course, anyone who has followed the bus crash story knows that other factors may have been involved in the accident. Much attention was focused initially on a defect found in the bus brakes. Later analysis seemed to show that the brakes were never applied to a degree that would have left skid marks.

Still, the defense is likely to try to generate doubt by introducing factors that have nothing to do with the defendant.

The statute has a causation element. (The defendants) [criminal] negligence has to be a substantial cause of the death, Van Wagner said.

Intense interest

White and Gray wont be the only attorneys intensely interested in the case. Several civil lawsuits have been filed, and attorneys for the plaintiffs and defendants will watch carefully how the evidence is presented, how the case is defended, and which witnesses are most effective. And, of course, they will be most interested in the verdict. A finding by this jury of criminal negligence would have a profound effect on how the civil cases proceed.

Printed with permission.

Related Topics:
Negligent Homicide | Criminal Liability & Negligence
Legal Analyst Attorney Chris Van Wagner