A Deadly Wandering: A Tale of Tragedy and Redemption in the Age of Attention (32 page)

This motion wasn’t just aimed at limiting Rindlisbacher’s testimony. It would serve the perhaps more important aim of keeping Reggie off the stand. After all, if the prosecution could introduce nothing from Reggie’s own mouth, then the defense would not have to devise a strategy for refuting it. It would be easier for Reggie to assert his right not to testify in his own trial.

Also on February 8, Bunderson filed a motion that highlighted some of the new issues raised by the
State of Utah v. Reggie Shaw
. The motion had to do with what was going on inside Reggie’s mind, and it raised fascinating questions about the collision of technology, science, and law.

The motion sought to disallow the testimony of David Strayer, the professor at the University of Utah, who is expert in distracted driving. Bunderson wanted to avoid Dr. Strayer testifying to the jury that when a motorist is texting, or, for that matter, talking on the phone, they are unfocused and distracted. Bunderson argued that Strayer would be speculating about Reggie’s “state of mind,” something he argued is not allowed. In turn, Bunderson said, Dr. Strayer, an “expert,” would be telling the jury that Reggie was negligent, taking that decision away from the jury.

He wrote: “The opinion of an expert that texting or using a cell phone is distracting or even dangerous is nothing other than telling the jury that such activity is either negligent or criminally negligent.”

IN THE PROSECUTION’S RESPONSE
to the motion, Linton conceded one point: “With respect to a defendant’s state of mind when he committed an act, an expert cannot testify that a defendant acted with negligence (or for that matter, recklessness, knowledge or intent) because such an opinion would constitute a legal conclusion . . .”

But he also wrote that Dr. Strayer should be allowed to discuss the risks of texting.

“He is expected to testify that text messaging can cause a person to focus on things other than driving, and that at high speeds driving while texting is consistent with driving over center lines, and in general, erratic driving.”

Linton argued that the Utah Supreme Court had ruled that experts were allowed to testify about how certain acts are “consistent with” certain behaviors. For instance, he cited one sexual abuse case in which the Supreme Court had found that a doctor could testify that a sexually abused child could exhibit “sleeplessness, poor appetite, fear of certain individuals, clinging behavior, and urination problems.”

Linton argued that the Supreme Court found that such testimony didn’t necessarily say that a particular alleged victim was abused but, rather, that such behaviors could fairly be raised as evidence of such abuse.

“While Dr. Strayer’s opinions will touch upon the ultimate issues of this case, they will not include a conclusion by the doctor that the defendant was negligent.”

Linton had filed his response on March 17. A few weeks later, in early April, Bunderson fired back with a three-page motion that put a fine point on his argument about distraction and frame of mind.

“Focusing on things other than driving, and erratic driving, are the very definition of negligence,” Bunderson wrote.

And, he wrote, “this case is unique because the mental element is criminal negligence, and for an expert to testify that text messaging causes someone to fail to pay attention is, at the very least, testifying to an inference of a negligent mental state.”

What Bunderson was getting at was one of the essential aspects of the case against Reggie but also about the nature of texting or using a phone while driving: Is it inherently distracting? If that is the case, he thought, and the jury believed that the very act was distracting, then it might determine that Reggie was inherently negligent for having done it.

That was very different, Bunderson thought, from, say, eating, which no one was arguing was inherently distracting, not creating a cognitive load. Sure, of course, someone could get distracted by reaching for food, looking away from the road, or even by turning the dial of a car radio. But those were momentary acts, not systemically provable acts of distraction.

Bunderson didn’t yet know the neuroscience, but he understood the risk: If an activity was inherently distracting, then it could be seen as inherently negligent.

He didn’t want the jury to hear that at all.

ON OTHER POINTS RAISED
by Bunderson, Linton argued some and conceded others. For instance, the prosecutor agreed that there was no reason to bring in Reggie’s failed mission, and he had never intended to. He wrote in his own motion on this issue, “The state of Utah does not know why the defense believes this.

“Had the defense called the state, the state would have stipulated not to introduce any information regarding the fact that the defendant had to come home from his mission for personal reasons once, and then a second time for the charges in the case. The state agrees that this is not relevant.”

Notably, Linton had referred to Reggie returning from a second mission. Bunderson might not have wanted to have Reggie’s first failed mission admitted, but at the same time, the state didn’t need the jury to hear that Reggie was so powerfully committed to going on a mission that he tried twice. If not for the state’s zealous pursuit of Reggie, he would be serving the Church. The character issue could work both ways, and now it was coming out of play.

ON THE WAY TO
each court hearing, the Shaws avoided Valley View Drive. They never drove to the crash site, or directly past it. Reggie still hadn’t been back to the site. It was the elephant on the road, and it would remain unacknowledged.

On every trip to Logan, the family did, however, visit the city’s majestic temple, the second oldest in Utah, right up against the mountains, viewable from the Cache County Attorney’s Office. While she prayed, Mary Jane took to thinking about the Christmas song “I Heard the Bells on Christmas Day,” based on an 1863 poem by Henry Wadsworth Longfellow.

The verse that struck her had to do with hate:

And in despair I bowed my head;

“There is no peace on earth,” I said;

“For hate is strong

And mocks the song

Of peace on earth, good-will to men!”

Mary Jane prayed not to hate—not to hate the system, not to hate people who were saying things about Reggie and what a horrible person he was. She begged God for help.

“Bless us to get through this,” she prayed. “Bless us that those who are trying him will see what’s in his heart.”

CHAPTER 33

TERRYL

I
N JANUARY, JACKIE GOT
a visitor from Indiana, Gary Maloney, the longtime family friend who’d been the best man at her and Jim’s wedding. And, lately, a virtual friend.

Jackie and Gary had been bonding for months in World of Warcraft. They played after the girls went to bed. They’d pair up their characters: When she played with Moonrise, her night elf hunter, he played with Pam a dwarf hunter; when she was the human priest she’d named Serifim, he played a night elf he named Tsparhoc. They went on quests and explored dungeons, and they chatted.

When he came to Tremonton in January, visiting family in the area, he spent an evening hanging out at the Furfaros’. He and the family sat in the living room, watching
Battlestar Galactica
, and something special happened. Cassidy, the youngest girl, went over and sat with Gary. Stephanie then did, too.

“It was like a first moment for me,” Jackie says. “I could be with this guy.”

In April, after many more nights of online interaction, Gary decided on another visit in May. Jackie told the girls, and they asked: “Where is he going to sleep?”

“Probably on the couch,” Jackie told them.

“Why not the bedroom?”

They obviously were just trying to make sense of what kind of friends slept with what kind of friends. She explained about how married people share beds. “We’re not that kind of friends,” Jackie said.

Gary came in May, around his birthday. Up until that point, Jackie hadn’t had much of a social life, not a single date. She got a babysitter, and for Gary’s birthday, they went to an Olive Garden and then to the movies to see
Indiana Jones and the Kingdom of the Crystal Skull
. Then they went home and sat on the couch and put on
Lara Croft Tomb Raider: The Cradle of Life
. Media, movies, video games, television were their common interests.

They sat there quietly, each trying to figure out how to broach their mutual affection.

Finally: “I was wondering if we could be a couple,” Gary asked her.

“Yes.” Jackie’s reaction was immediate and succinct.

That summer, things blossomed further when Gary came for a weeklong visit while the kids were with their grandmother. They got some alone time, and watched a bunch of movies. For Jackie, their friendship seemed like a version of a real-world happy ending, a realization of her aspiration to move on from Jim’s tragic death and provide a stable life for the girls.

She told herself she didn’t feel guilty. But that June, she began having vivid dreams. In one, she was hanging out with Gary, and Jim showed up on the doorstep.

“I’m not dead,” he told her in the dream.

Still dreaming, Jackie told him: “That cannot really be.”

FOR THE VICTIMS—AND THEIR
advocate in Terryl—the year 2008 evolved into one of living with uncertainty, under the haze of an amorphous legal cloud, and an emotional one. They were adjusting to life without Jim and Keith. If Jackie was seeing some light at the end of the cloud, that was less true for Leila.

Her life was a blur of grief and humdrum, punctuated by periodic court hearings. She went back to work as a bookkeeper, keeping the same schedule she had when Keith died, working Mondays, Tuesdays, and Thursdays. Her income was modest; she made between $25,000 and $30,000 a year, and she now had to grapple with a new bill, health care insurance for her and Megan, something Keith’s job once covered. The policy cost her $400 per month initially, then leapt to $850.

Aggravating the costs was Megan’s ongoing struggle with severe kidney stones. More than once, the young lady called her mother in the middle of the night in pain, and the pair rushed to the emergency room.

She felt her relationship with her daughter was decent, even improving. Megan would come over regularly for dinner. One of Leila’s pleasures was cooking, lots of hearty soups in the winter, and salads as things got warmer. When Megan wasn’t there, which was most nights, she’d cook for herself and then sit down with a book and read with the television going in the background. She’d watch the news and stock shows that bore increasingly bad news about the economy as 2008 wore on. She tried to keep track of her and Keith’s once comfortable savings, which she had hoped to not touch until later but now was forced sometimes to dip into. She watched police dramas,
NCIS
and
Law & Order
, and she popped back and forth with her book, having to go back and reread parts she’d missed when focused on the TV.

It was television, she thought, that brought out the rare hint of judgment from Keith. Not the medium, but some of the people who were on the shows, like Jerry Springer. They were all the things he tried not to be, showy and self-referential. “ ‘Who are these people seeking attention?’ ” she recalled him saying. “ ‘Who on earth would go out there and act that way and air their personal issues to the max?’

“He was an introvert to the max. I’m an introvert, and he was more of an introvert than me.”

It explained in no small measure the depth of her grief. She’d found someone she could share the world with, quietly. She wasn’t comfortable putting herself back into the world. And if she didn’t do that, could she ever share herself with someone else?

OF THE TWO WIDOWS—JACKIE
and Leila—Terryl really connected to Jackie. The pair were becoming friends. It wasn’t so much that Terryl didn’t connect to Leila, but, rather, there was just less chance to do so. Their lives didn’t naturally intersect quite the same way, and Leila’s introversion didn’t invite much else.

In Jackie, Terryl particularly appreciated someone who looked at the glass as half full, and who forged ahead with her life—in Terryl’s own mode.

But as their relationship strengthened, there was one place Terryl harbored a quiet reservation about Jackie. Terryl didn’t understand her family’s heavy media use. Well, more than that, she was silently critical of it. She worried that Jackie’s girls would get lost in media or escape to it. Her observation came at a time when media use in general was exploding among children, up to an average of around ten hours a day of screen time, according to the Kaiser Family Foundation.

Broadly, Terryl associated heavy media use with a lack of engagement between parents and children, and less emphasis on school.

Jackie felt her girls were doing fine and that media use was part of the family dynamic. And the girls, Stephanie and Cassidy, were doing well in school, particularly in math. Besides, Jackie pointed out, Utah was cold a lot of the year, and computers, television, and video games were a better way to spend time than “sending them outside when it’s thirty degrees or less, which is not practical.”

Jackie conceded that some of the television shows the family watched together, like crime dramas, “are probably not great,” and could be “kind of gruesome.” But homework always got done, and the girls spent plenty of time with their friends.

Later research would show that Jackie’s views are consistent with the perspective of the majority of American parents, according to a survey published by the Center on Media and Human Development at Northwestern University. The 2013 survey found that 59 percent of 2,300 parents surveyed did not worry that their kids would get addicted to technology, and 78 percent said they do not have concerns or conflicts inside the family around media use.

The responses surprised one of the study’s authors, Vicky Rideout, a pioneer in the study of children’s media use. But there was another finding in the survey that perhaps explained why parents were not all that concerned: They themselves were massive consumers of media. In nearly 40 percent of families, the parents consume eleven hours of screen media a day, which does not include work time. (The survey double-counts the time that a person uses two sources of media at once; for instance, if a person spent one hour simultaneously watching TV while surfing the Internet on a laptop, that counted as two hours of media time.) And in another 45 percent of families, parents consumed five hours of screen time per day. These figures “startled” Rideout, but she said they also helped explain why parents weren’t worried about their children, given that the parents were setting a tone and the children were following.