Parker knew the odds were against her. During her career, she had investigated probably fifty workplace fatalities. Of those fifty, she felt that only about five had sufficient evidence to demonstrate criminal recklessness. And of that handful, the office had chosen to prosecute just one. In that case327, the previous attorney general had charged the owner of a scrap metal processing company with manslaughter in connection with the deaths of two workers. That man had eventually pleaded guilty to two lesser counts of assault and battery and been sentenced to probation and community service. Parker felt that, in this case, a manslaughter charge against Harald would be even stronger because there was a more direct line between his actions and the resulting worker deaths.
As the attorney general opened the meeting now, he gave a clue to his thinking. “I understand that this is a very complicated case,” he said. “I also understand that it is very unusual to pursue this kind of case under common law. It’s risky.”
Parker tried to avoid letting her facial expression convey her sinking heart. To his credit, though, the AG said he would hear Parker’s presentation with an open mind.
Parker spoke for more than half an hour. As the AG’s director of safety, she was one of the few people in the room who did not have a law degree. She realized how that might put her at a disadvantage, but she leveraged her fluency with the statutes to make a forceful argument. As she methodically took the AG through the contours of the investigation, she hewed closely to the detailed memo she had written to her supervisors, arguing that Harald “took full responsibility to design the system, intentionally and blatantly keeping his plans from others, precluding any meaningful participation or assistance.” She conceded that other parties, from the contractor to the construction manager to the MWRA, had failed miserably in their oversight of the mission. But because Harald had kept key details of his plan from everyone, she argued, he alone was responsible for the circumstances in the tunnel during the three days in which the divers were relying on the mixed-gas system, and he alone understood and controlled this intricate system that the divers were counting on to stay alive. She rattled off all the unnecessary risks she believed Harald had taken, the grave danger he had subjected the divers to, and his pattern of dismissing the valid concerns that the divers had raised with him. All this, Parker argued, made Harald’s conduct willful and put him on a different plane of blame.
When Parker was finished, the attorney general paused for a minute. Then the soft-spoken, cautious man turned to her and said, “I’m willing to take the risk.”
The attorney general, however, wanted something from Parker. In order to build the strongest possible criminal case, he asked her to deepen her investigation, leaving no facts unexamined. For five months, she did just that, although her effort was complicated by a family crisis. Her mother was battling end-stage renal failure, requiring Parker to travel frequently to Florida to care for her.
On the last Friday in March 2001, Parker returned to the office from Florida to find a Post-it note attached to her desk chair. It had been written by her supervisor. His message was short but devastating: We’ve decided not to prosecute the Deer Island case.
Parker was enraged. And shocked. Having found Harald’s behavior to be so egregious, she had told herself more than once, If we can’t prosecute a case like this, there’s no case we can prosecute. After spending a year of her life putting all the pieces together, she was now being told, essentially, Thanks, but we’re dropping it and moving on. Via a Post-it note.
She stormed into her supervisor’s office. Resisting the urge to swear or scream, she made it clear just how strongly she disagreed with him. He told her the decision had been an extremely difficult one. Although he agreed with Parker that Harald had ignored basic safety precautions and showed an obvious disregard for the wellbeing of the divers, he didn’t feel the Canadian engineer’s actions rose to the level of a manslaughter charge.
To prove involuntary manslaughter, the prosecution would have to establish beyond a reasonable doubt that the killings of the divers had been unlawful and unexcused, and that they had been caused by wanton or reckless conduct on the part of Harald. In other words, it would have to prove that Harald had intended to commit the act that caused both divers’ deaths, although he had not intended to cause the deaths themselves. Her supervisor explained that the office had to be mindful of the “blame the victims” defense strategy hinted at by Harald and Norwesco’s lawyer—the suggestion that because Hoss had acted quickly to switch to the backup system and save the lives of the three divers on the excursion crew, somehow Billy and Tim should have been able to do the same. While Harald’s breathing system had clearly been a disaster, Parker’s supervisor said he didn’t think the divers’ deaths could be solely and definitively attributed to the system’s failure. Ultimately, he said, he did not feel it would be fair to prosecute only Harald when the long list of parties—Kaiser, Kiewit, MWRA, OSHA, and others—shared responsibility. It might also create perception problems for the attorney general, if people believed he was going after one employee of a small company while turning a blind eye to the conduct of several large corporations.
Parker’s supervisor had already written a thirteen-page memo to his bosses explaining his recommendation. She wasn’t going to be able to change his view.
After stewing about it all weekend, she fired off an e-mail to her supervisor’s boss, the chief of the bureau that housed her division. She acknowledged the concerns about the perception of the office “picking on the little guy.” But, she asked, what about the perception of letting everyone go scot-free? The answer, she argued, shouldn’t be to drop charges altogether. The answer should be to charge Harald individually and then draw up corporate charges under the criminal statutes against Kaiser, Kiewit, and Norwesco. Because those corporate charges involved a lower standard, she felt there was sufficient evidence to prove them.
By Monday evening, she received her reply. The bureau chief reaffirmed the decision not to prosecute Harald or anyone else.
Parker would not give up that easily, and she was successful in getting one more audience with the attorney general. This delayed the final decision328 for a few more months. Eventually, though, Parker had to confront the reality that the office was simply not going to prosecute. It all had the finality of an extinguished cigarette, ground into the dirt. She knew she had no choice. She tendered her resignation.
15. The Long Tail of Trauma
It wasn’t a big dive, but the sounds and especially the darkness left Hoss rattled. He had taken this Norwesco assignment at a hydro plant in Washington State right after leaving Deer Island, to try to get past the haunting reminders of the tunnel. It hadn’t taken long, however, for him to realize he’d made a big mistake. The trauma he’d experienced was too severe for him to simply dust himself off and splash back into the water. Later that night he was alarmed to discover that he couldn’t remember how to tie basic knots, the type of routine task he’d learned as an eighteen-year-old during his first week of dive school. He told himself: Something’s wrong with me.
327 (Chapter 14, note 48)
In that case: The case involved Tewksbury Industries, Inc., and its CEO, Thomas E. Bowley. See Henry Goldman, “Death in the Workplace: It’s Becoming a Crime,”
328 (Chapter 14, note 49)
This delayed the final decision: Commonwealth of Massachusetts, Office of the Attorney General, Harald Grob & Norwesco Marine, Case status: Closed on September 17, 2001.