Prosecutor Asks for the Public’s Guidance on Homicide Retrial

About an hour before dawn, David Daigle was driving his 11-foot-wide, 50-ton crane north on Interstate 93 when he noticed a car down an embankment in the median.

He stared in the dim light. He thought about radioing for help. Then a terrible thing happened. His giant vehicle hit something he hadn’t even seen.

Bringing the crane to a halt, he discovered he’d struck three people.

Fatally injured were the driver of the stranded car, Boris Matunin, 49, and Melissa Panzieri, 26, one of two people who had stopped in the highway’s breakdown lane to help him. The other, Thomas Ghigliotty, 34, suffered a broken back and neck.

Daigle, 33, was charged with negligent homicide.

But now a question has arisen: Did the events that morning in November 1996 add up to a crime? Or was it simply a horrifically tragic accident? A prosecutor has asked the public for advice.

The crane driver went on trial earlier this year. When testimony ended, only one of 12 jurors voted to convict him. The judge declared a mistrial Jan. 27.

Prosecutor Michael Johnson thinks Daigle committed a crime: It was illegal to drive his crane more than a half-hour before dawn, and he wasn’t paying attention.

Still, Daigle’s near-acquittal, coupled with a not-guilty verdict in a similar but unrelated case, suggests the public disagrees, he said.

“I didn’t and don’t want to run my office by polls. It is nonetheless important to know how the public feels,” said Johnson, the Merrimack County attorney. “I’m prosecuting the state’s laws and the public’s values.”

Daigle’s lawyer, Paul Maggiotto, said, “The community already has spoken” in the jury’s 11-1 decision.

“I have to believe that there are better places for the county attorney’s office to be putting their scarce resources,” he said.

Daigle’s commercial and regular driver’s licenses were revoked for 18 months after the crash. But he should not be treated like a criminal, he said.

“In the eyes of the state, there’s no such thing as an accident. I feel they expect us to be superhuman,” he said.

“We’re driving a bigger vehicle, there’s obviously more responsibility put upon us, but I think they have to recognize the fact that accidents do happen.”

Commercial drivers should be expected to meet high safety standards, Johnson countered. And yet he said juries in New Hampshire seem reluctant to convict commercial drivers on negligent homicide charges, instead treating them like passenger car drivers.

In another recent case, a jury found dump truck driver Frank Rzaza not guilty of negligent homicide for crashing into the back of a car on I-93 at high speed, killing four people.

“There’s a ‘There but for the grace of God go I’ attitude,” Johnson said. “The jury in [Daigle’s] case seemed not to care that this vehicle was 35 times the weight of a car, three times as long as a car and two times as wide. It’s a man driving a machine as big as your house.”

The prosecutor made his appeal to the public the day the trial ended, when a Concord Monitor reporter asked him if he would try Daigle a second time. Johnson said he wanted to hear what other people thought.

A second trial has been set for the end of this month, but Johnson said he might call it off if there is little public sentiment for it.

So far, he’s received about an equal number of “ayes” and “nays,” he said.

“Enough time and resources have been spent attempting to turn a tragic accident into a crime,” Raymond A. Heroux of Allenstown wrote to the Monitor. “It’s time to move on and let the healing begin.”

One juror in the first trial wrote a letter to the Monitor criticizing Johnson’s quest for public opinion.

“Have we developed a new, subtle formula for gang rule?” wrote James V. Carr of Concord. “That . . . seems as far from due process as you can get. I am surprised this case got to court the first time.”

But an American Bar Assn. official does not fault Johnson’s appeal to the public.

“That’s where the jury pool is going to come from,” said Tom Smith, head of the ABA’s criminal justice section. Johnson sits on the section’s governing council, which develops national policy.

“The real trial is not just facts and the law. There is a certain amount of psychology involved in that, and that’s where the public comes in,” Smith said.

Prosecutors have a responsibility to seek justice, he added, “and part of that is you don’t bring a case unless you feel you can win it.”

Along with the interests of the community as a whole, Johnson is weighing the feelings of the victims and their families about a new trial.

Ghigliotty, the only surviving crash victim, is ambivalent. He said he would be willing to testify against Daigle again but also wants to put the incident behind him.

“I don’t think he’s a criminal, but . . . it’s more than an accident. We’re not talking about a pickup truck and a car,” he said. “None of this would have happened if he’d followed the law.”

Panzieri’s former roommate, Norm Bouley, wants a second trial.

“I’m a truck driver myself, and he broke the law,” Bouley said. “Something has to be done.”

Whether there’s another trial or not, Daigle said the tragedy will not leave him.

“I keep wondering how I couldn’t have seen those cars,” he said. “How could I have not seen those people there? What keeps going through my mind is how I ruined the lives of these victims’ families. It’s a terrible thing to live with.”

‘I didn’t and don’t want to run my office by polls. It is nonetheless important to know how the public feels. I’m prosecuting the state’s laws and the public’s values.’