Deputy John Swearengin had a rough week.
There was Kern County's settlement of a civil lawsuit with the families of the two pedestrians Swearengin struck and killed while driving at speeds of more than 80 mph on Norris Road the evening of Dec. 16, 2011. And there were the depositions obtained Tuesday by The Californian revealing Swearengin thought he needed to call for permission to go Code 3 -- activate lights and siren -- when in fact the county requires no such authorization.
But local attorneys say the outcome of his criminal trial -- pushed back to late April -- is still very much up in the air. He's charged with two counts of vehicular manslaughter with gross negligence.
Defense attorney H.A. Sala, who is not connected to the Swearengin case, said people need to keep an open mind.
"Folks should not rush to any conclusions at this point because the field is wide open in the criminal case," Sala said. "The fact that a civil judgment has occurred has no impact on the criminal case."
For one, the burden of proof in a criminal trial is considerably higher than in a civil trial. The standard of proof in civil trials is referred to as a "preponderance of evidence," meaning the plaintiff must have just enough evidence to show what the claimant is trying to prove is true.
In criminal trials, prosecutors must prove "beyond a reasonable doubt" that the charges against the defendant are true. It's the highest standard of proof in any trial, and it means the jurors or judge have no doubt -- or if there are doubts, they're unreasonable ones -- about the defendant's guilt.
Sala compared the proofs to a balance scale. Starting with an equally balanced scale, if the evidence moves the scale even slightly in one direction, that's a preponderance of evidence.
To illustrate proof beyond a reasonable doubt, the scale would be weighted entirely in one direction, Sala said.
Michael C. Lukehart, another local defense attorney with no ties to the Swearengin case, put it another way.
"Fifty percent plus a smidgeon is what you need to prove in a civil case," Lukehart said. "You can't even get a warrant on the kind of information you can win a civil case on."
He said a settlement doesn't necessarily mean a person did anything wrong. It's in the county's interest to minimize its liability, and by settling it eliminates the risk of having to pay more if a jury ruled in favor of the plaintiffs.
The families of the two people killed in the crash -- Daniel Hiler and Chrystal Jolley -- had initially demanded $25 million. Kern County settled for $8.8 million.
Sala said prosecutors will have to prove certain elements in the criminal trial, including that Swearengin committed an unlawful act in an unlawful manner. And since Swearengin is charged with vehicular manslaughter with "gross negligence," prosecutors will have to convince the jury that he committed an unlawful act with complete indifference and disregard to human life.
He believes the prosecution won't be able to overcome that hurdle.
"How can they say (it's gross negligence) when a deputy on duty is responding to assist another officer who may be in jeopardy, and he doesn't know what the circumstances are?" Sala said.
The attorney said gross negligence is usually applied to cases where there's no justification for the conduct. For example, it could be applied to someone who was driving while highly intoxicated, running red lights and stop signs and causing a crash, Sala said.
There are other factors that will almost certainly be brought up by Swearengin's defense team. Both Hiler, 24, and Jolley, 30, were intoxicated as they pushed an inoperable motorcycle across Norris Road. Hiler's blood alcohol content was .137, and Jolley's was .253, both well above the .08 legal limit to drive a car.
County attorneys have said that, from a legal standpoint, Hiler and Jolley were operating the motorcycle that night and should not be considered pedestrians. Both were dressed all in black, and there were no reflectors on the motorcycle.
A California Highway Patrol investigation revealed Swearengin was traveling at 80 mph just before the crash as he responded to a grand theft auto call. The posted speed limit on Norris is 45 mph.
The deputy was traveling without his lights and siren activated, and therefore was subject to the same driving laws as any member of the public.
Swearengin's trial had been scheduled for Monday, but was pushed back to April 28 following a hearing this week.