Dilemma in Market Crash

Is George R. Weller simply the tragic victim of old age and circumstance?

Or is the 86-year-old who sped from the scene of a traffic accident into the Santa Monica Farmers’ Market in July, killing 10 people, a criminal?

A preliminary report by the California Highway Patrol, obtained by The Times, says Weller’s conduct was the sole possible cause of the 10 deaths July 16. The report specifically says that neither poor road conditions nor a mechanical failure was a cause of the tragedy, which also resulted in 63 injuries.

But Mark Overland, one of Weller’s attorneys, said an investigation conducted by the defense concluded that it was a tragic accident. He said their findings contradict those in the CHP document.

Now the Los Angeles County district attorney’s office has to decide whether Weller should be prosecuted. In theory, the charges could range from a misdemeanor to murder. Or there could be no charges at all.

“I hope the prosecutors will see it as we see it ... that it was a horrible, tragic accident that everyone, including Mr. Weller, wishes had never happened,” Overland said. “We think that it’s certainly not a crime.”

But his co-counsel, Jim Bianco, said he believes that prosecutors feel tremendous pressure to charge Weller because of all the deaths.

“The real issue here is what the prosecution wants to do in such a high-profile case,” said UCLA law professor Peter Arenella.

“I would think in a case where so much human life was lost, there would be a desire to send a message to other senior citizen drivers that the district attorney will come down heavily on a driver who does not take adequate precautions because of their age,” he said.

Several legal experts considered it highly unlikely that Weller would be prosecuted for murder, because there was no evidence that he intended to kill anyone.

But several attorneys and law professors said they thought he probably would be charged with a lesser crime, such as vehicular manslaughter, despite his advanced age.

“Being old is not a ‘Get Out of Jail Free’ card,” said Loyola Law School professor and former federal prosecutor Laurie Levenson. “At some level, there is a feeling you can’t just walk away when you killed 10 people and injured 63 others.”

Still, she cautioned that prosecution of Weller was hardly certain. Levenson emphasized that it was rare for someone as old as he to be charged with a crime, particularly one based on what appears to have been negligent conduct rather than an intentional act.

On the other hand, Tarzana lawyer Peter J. Korn, who prosecuted many vehicular homicide cases while he was a Los Angeles deputy district attorney, said that based on the facts publicly available, Weller “is at the very least guilty of vehicular manslaughter” as a result of simple negligence. And the charges could be more stringent, Korn said.

He emphasized that what ordinarily would be simple negligence, leading only to a civil case, can rapidly become a crime in California and many other states when a car is involved. Korn said that is a recognition of the indisputable fact that when a car is used improperly, it can be a lethal weapon.

In fact, California and 45 other states have specific statutes for vehicular manslaughter to ease the burden of prosecutors who otherwise would have to rely on the general murder and manslaughter statutes.

Depending on the facts, an errant driver can be charged under the California Penal Code with voluntary manslaughter for causing a death with a car, which carries a prison term of three to 11 years.

In addition, someone such as Weller could be prosecuted for involuntary manslaughter with gross negligence, which could result in a prison term of up to six years, or without gross negligence, which could put the offender in county jail for up to a year.

Arenella said he thought some kind of conviction in this case would be easy to obtain.

“You don’t have to be a rocket scientist to come to the conclusion that [Weller] operated his vehicle in a negligent manner, at the least, and that would support a charge of involuntary manslaughter,” he said.

Arenella, a former public defender, said a defense lawyer could argue, based on expert medical testimony, that Weller had lost consciousness at the wheel, providing an “involuntary act” defense. However, Arenella said such defenses rarely succeed.

The CHP report seems to discount such a possibility.

It says that before Weller drove through the farmers market in a 1992 Buick LeSabre, he struck a Mercedes-Benz. After the collision, Weller’s car “continued to push the Mercedes out of the way and partially into the crosswalk.” Eventually, Weller’s car cleared the rear of the Mercedes and accelerated toward the farmers market, according to the CHP report.

He then drove through the market at 30 mph to more than 60 mph.

Witnesses said that although Weller hit many people, he “was able to avoid parked vehicles” on the side of the street.

“The initial steering movement by Mr. Weller around the Mercedes-Benz and the fact that he was able to steer his vehicle and keep it primarily within the 20-foot-wide pedestrian walking area, without hitting any parked vehicles ... eliminates the likelihood that Mr. Weller was unconscious or having a seizure,” the CHP report says.

“Mr. Weller was observed by numerous witnesses as having his eyes open, hands on the steering wheel at the 10 o’clock and 2 o’clock position and staring straight ahead,” the report says.

Overland, representing Weller, said the description of his steering and staring straight ahead is “contrary to what we found from everyone we talked to.”

Witnesses also told the CHP they saw no brake lights.

Legal experts cautioned that not all the facts were known.

However, several observers, including Levenson and Korn, said they thought it likely that prosecutors would point toward statements in the CHP report that Weller left the scene of an accident as a sign that he was trying to evade taking responsibility.

Weller has told investigators that he might have mistaken his gas pedal for the brake when he drove through the market.

The CHP report says that “pedal misapplication (pedal error) cannot be ruled out as a possible explanation for why Mr. Weller had his foot on the accelerator, causing the Buick to continue to accelerate across the rear of the Mercedes-Benz and continue to accelerate toward the farmers market street fair.”

The CHP report also noted that Weller had a number of medical problems and that investigators believed that he was taking several medications.

Defense lawyers, who had not seen the CHP report, said their investigation concluded that Weller did not have any symptoms that would have hampered his driving ability.

Levenson and others said they thought that the case could ultimately turn on expert medical testimony about Weller’s condition at the time of the incident and the effect his medications may have had on him.

“It is not clear he was in control at the time. The car was working fine; the issue is whether he was working fine,” Levenson said.

Prosecutors plan to review the evidence and make a filing decision after the Santa Monica Police Department takes the case to them, which is not expected to occur until at least mid-December, district attorney’s spokeswoman Sandi Gibbons said Thursday.

Times staff writer Jean Guccione contributed to this report.