Fresno Bee Newsroom Blog

Big Trial: Warren/Woodrow vs. Patrick/TR

Here’s my prediction for 2013: Fresno’s trial of the year will be Warren Paboojian vs. Patrick Wiemiller.

The trial’s public-policy theme will be boiled down to Paboojian as Woodrow Wilson vs. Wiemiller as Theodore Roosevelt.

It will be a most serious trial.

As we all know, 7-year-old Donovan Maldonado was killed last July while riding his bicycle in northeast Fresno. He was hit by a car allegedly driven by Loren LeBeau, Central High School’s boy’s basketball coach at the time. Donovan was dragged about 800 feet and later died of his injuries. Donovan’s father, Jesse Maldonado, and his sister, Bella, were seriously injured during the incident.

LeBeau’s blood-alcohol level after the crash was 0.11; the state’s limit for intoxicated driving is 0.08. LeBeau has pleaded not guilty to several charges, including vehicular manslaughter and hit-and-run.

Paboojian, the well-known Fresno lawyer, filed a civil lawsuit last month on behalf of Donovan’s family. LeBeau, the alleged drunk driver, is one defendant. The City of Fresno is the other.

Paboojian says the intersection on Shepherd Avenue where Donovan was killed is unsafe.

“It’s not a safe crosswalk, and it needs to be taken out,” Paboojian told The Bee in November. “The city bears some responsibility for this accident, in addition to the drunk driver.”

Let’s emphasize immediately that there’s no justification for drinking and driving. If LeBeau is found guilty, he must pay the full price — under criminal law as well as civil law. He should not have been driving a car that evening.

And let’s make clear that Donovan’s death is tragic. We wish he were alive and well. We grieve for his family and friends.

But once the City of Fresno was sued, the Donovan Maldonado tragedy entered the realm of public policy. No one disputes that public-policy trials before a jury can be full of emotion. Anyone who saw Paboojian’s masterful performance during the Stacy Johnson-Klein sex-discrimination lawsuit in late 2007 knows what I mean. But in the end, public-policy trials are about facts and responsibility in a democracy.

Paboojian most likely will argue that the Shepherd Avenue-Sugar Pine Trail intersection was badly engineered by City Hall. The Maldonado family must be made whole for this failure of a fundamental city charge, he’ll say. The city must pay a penalty for its incompetence, he’ll say. The penalty, he’ll add, will spur City Hall to improve.
Public Works Director Wiemiller has already said he thinks the intersection was well-designed. He has said the city can’t be held responsible for the actions of drunks who break the law.

But I wonder if the city will also argue that the Maldonado outing on July 26 was itself flawed — poorly engineered, if you will. And the city may argue that Donovan’s family (but not City Hall) must bear some responsibility for the consequences of this flawed planning.

Two things have fascinated me about the Donovan Maldonado incident. The first is the geography of the Shepherd Avenue/Sugar Pine Trail area where Donovan was hit. I wrote a long blog about the landscape a few days after the incident.

I won’t repeat my thoughts. Suffice it to say that area is deceptively complex — two streets, a stop light, a much-publicized riding/walking trail, a slightly rolling ground surface, a forest of pedestrian-motorist signs and signals, an angled crosswalk without stop-lights, a wide median island separating Shepherd’s westbound and eastbound lanes.

Combine all this with the seemingly simple but actually quite complicated concepts of speed, time, near-darkness and an allegedly drunk driver and the result on July 25 at about 9 p.m. was the death of a child.

The second thing that has fascinated me is the nature of the Maldonado outing that night.

In a way, it was like a small-scale movement of an army. Call it the Maldonado Campaign.

Chain-of-command, communication, risk management, logistics and mission are the essence of any complex movement of an army over distance. Think Sherman’s March to the Sea. Maldonado family members faced the same leadership imperatives when they decided to get some exercise as the sun dipped below the horizon on July 25.

Were their planning and their execution of that plan up to the task of safely negotiating the Shepherd Avenue/Sugar Pine Trail intersection, regardless of what fate might throw their way? After all that surely was the main charge of the Maldonado parents when they left their house. If it wasn’t, the trip should have been cancelled.

We have a pretty good idea of some of the events leading up to the incident.

It happened about 9 p.m., maybe a little earlier. It’s pretty dark at that time in late July. There’s a hint of light to the west, but not much. There’s a street light near the intersection.

There were seven people in the Maldonado group: Jesse Maldonado (Donovan’s father); Maria Greer (Donovan’s mother); 18-month-old Bella (Donovan’s sister); Adriana (Donovan’s sister, about 13 years old); two of Adriana’s friends; and Donovan.

The three teens were jogging. Maria Greer also was on foot. Jesse Maldonado was riding a bicycle, with Bella on a seat with him. Donovan was on his own bicycle.

The Sugar Pine Trail at this point runs on the north side of Shepherd from Cedar Avenue toward Millbrook Avenue. The trail extends a hundred yards or so west of Millbrook, then angles south across Shepherd and heads toward River Park shopping center in the far distance.

The Maldonado group traveled west on the trail, past Millbrook. The seven made it to the crosswalk. They attempted to cross Shepherd.

The three teens made it across Shepherd’s two westbound lanes. They were on the median island. Maria Greer made it across the two westbound lanes. She was standing on the median island.

Donovan made it across one of the two lanes. Then he was hit by a car. Jesse Maldonado and Bella were also hit.
Because of the crosswalk’s angle, the group was headed southwest as it crossed westbound Shepherd. If the seven people were to look back at where they had stepped off the curb, they would be looking northeast.

To travel southwest on the crosswalk is to have a hard time seeing westbound cars in your peripheral vision. I know — I walked the crosswalk many times this summer while researching my blog. To put Shepherd’s westbound lanes in your peripheral vision, you’d have to look due south. But you’re walking southwest, not south. To look due south while walking southwest doesn’t make sense. It’s not natural.

This would seem to buttress what will probably be one of Paboojian’s arguments. Peripheral vision is important for pedestrians crossing any street. Why would city engineers design a trail-intersection that places a higher value on following the exact route of a long-gone train than on maximizing the peripheral vision of pedestrians concerned with oncoming traffic?

But the effect of the intersection on peripheral vision works both ways.

To be standing on the median island, looking northeast, is to have a much easier time seeing westbound traffic in your peripheral vision.

I’m married. My wife and I have three children. Our two daughters and son are adults now. I know what’s it’s like to try to go from Point A to Point B with two adults and three young kids. Under the best of conditions, it can be a challenge.

Take a look at the Maldonado group on July 25: Seven members. Three of them young teens full of energy and high spirits. An adult on foot. A seven-year-old boy on a bicycle; perhaps he’s relatively new to bicycles. Another adult, but this one on a separate bicycle; and also on this bicycle is a toddler probably still in diapers. It’s getting pretty dark. The different ages and modes of transportation suggest this column of people expanded and contracted in length depending on the terrain. On the Sugar Pine Trail between Cedar and Millbrook the column might have spread out as everyone recognized the safe conditions and moved at their own pace. Perhaps the teens sprinted ahead. Perhaps Donovan pedaled ahead one moment to be with his mother, then sprinted back to see what Dad and Little Sister were doing as they brought up the rear.

Jesse Maldonado and Maria Greer were in charge. They were the group’s only adults. Three of the five minors were their children. The other two minors belonged to other sets of parents, parents who weren’t present on this night. Jesse Maldonado and Maria Greer had assumed full responsibility for the safety of these two non-family members as well as their own children.

Who — Jesse or Maria — kept an eye on the three teens?

Who — Jesse or Maria — kept an eye on Donovan?

Who — Jesse or Maria — had final authority on the actions of the group?

How did Jesse and Maria stay in touch with each other? Shouting at times because they were separated by varying distances? Or were they always so close to each other that they could talk in normal voices? Or had Jesse and Maria played it by ear, taking charge of the kids who happened to be with them at any particular moment?

One thing is certain. Circumstances — and the accompanying risk — were constantly changing from the moment the group left the Maldonado home.

Then the Maldonado group came to the Sugar Pine Trail/Shepherd Avenue intersection. The three teens and Maria make it to the median island. First Donovan, then Jesse/Bella, begin their trek across the two westbound lanes on bicycles.

Police Chief Jerry Dyer held a news conference in August, shortly after the accident. He and other government officials told part of what they knew at that moment about the accident. The Chief said Donovan’s mother had been on the median island, looking northeast toward Donovan, when the car hit her son.

I asked the Chief: Did Donovan’s mother say she had seen anything in her peripheral vision, anything to suggest an oncoming car?

The Chief said: No, she just saw a car suddenly appear and hit Donovan.

The car — maybe six feet wide — perhaps hit Donovan and his bicycle flush. That would explain why he was dragged so far.

And the car’s right side perhaps hit only the front part or half of the bicycle with Jesse and Bella. That would explain why they survived.

It’s at this point that we come to a key part of the Maldonado case against the city of Fresno.

If what the Chief said is correct, why was Maria Greer looking at Donovan as he crossed Shepherd?

There are plenty of reasons for her to keep an eye on him while the group is on the trail. Donovan might tip over. He might veer toward Shepherd. He might go too fast. All of these risks were primary risks given the conditions in that safe little world called Sugar Pine Trail.

But once Donovan began to cross Shepherd on his own, the primary risk facing the two adults in charge of the Maldonado group was no longer to be found within that small space containing Donovan and his bicycle. The primary risk was to be found on those two westbound lanes of Shepherd Avenue. As they say in the army, the main thing is to keep the main thing the main thing. It takes about 14 to 15 seconds for a westbound car traveling about 40 miles per hour to go from the crest of Shepherd Avenue’s rise between Cedar and Millbrook to the Sugar Pine Trail/Shepherd crosswalk where Donovan was riding his bicycle. Once Donovan began his trek across Shepherd, the main thing for the Maldonado parents wasn’t to keep an eye on Donovan. If he fell and skinned a knee, so be it. The main thing was to make sure Jesse Maldonado and Maria Greer, as the group’s adults and leaders, had as much warning as possible should a 2,000-pound car appear and be headed in Donovan’s direction.

Such a warning — five seconds, perhaps 10 seconds — might have led to actions that saved Donovan’s life. Instead, according to Chief Dyer, the arrival of the car that hit Donovan came as a complete surprise to Maria Greer. It perhaps came as a complete surprise to Jesse Maldonado, as well, if he was still pedaling toward the median island when the incident occurred.

Now, there is no dispute that Loren LeBeau, should he be convicted of drunk driving, had no business driving a car that night. But for the leaders of the Maldonado group — Jesse Maldonado and Maria Greer — it made no difference whether the car that approached the crosswalk of the Sugar Pine Trail/Shepherd Avenue intersection at about 9 p.m. on July 25, 2012 was driven by a criminal or a saint. Their only job was to make command decisions that ensured that Donovan Maldonado got safely across Shepherd.

Let me emphasize again that my point isn’t to add to the Maldonado family’s pain. If Loren LeBeau is convicted, and if the Paboojian lawsuit had named only LeBeau as defendant, then what I’ve written would be irrelevant.

But City Hall is also being blamed in the lawsuit for what happened on July 25. Why is it City Hall’s fault — and, therefore, the fault of Fresno’s taxpayers — that Maria Greer and Jesse Maldonado didn’t make decisions that enabled Donovan to get safely across the street?

That is Warren Paboojian’s challenge in court. I’ve known and admired Warren since our days together at Fresno State some 35 years ago. He has told me nothing about his legal strategy in this case. But I’m guessing he’ll base his game plan on a Progressive vision for government’s role in society, a vision that dates back 100 years. Patrick Wiemiller will base his defense also on a Progressive vision for government’s role in society, a vision that also dates back 100 years.

Paboojian’s vision is Woodrow Wilson’s vision. Wiemiller’s vision is Theodore Roosevelt’s vision.
Give me a moment to explain.

Joshua D. Hawley wrote an excellent essay in the Fall 2010 issue of “National Affairs” titled “America’s Epicurean Liberalism.”

“The ancient Greek philosopher Epicurius taught that individual happiness was the aim of living and that pleasure was the sum of happiness,” Hawley begins. “He would have loved 21st-century America. Ours is a distinctly epicurean culture, from our arts and literature right down to our sports and popular entertainment. Self-fulfillment is our great national ambition.”

Hawley proceeds to dig at length into that theme — self-fulfillment in an America based on the contradictory impulses of liberty and egalitarianism. That conflict is as old as America itself. But in the late 19th century and early 20th century, Hawley notes, something unique happened in America. Large-scale industrialism and the scientific management theories that made mass consumption possible took off like a rocket. No one is putting that genie back in the bottle.

Liberty plus equality plus the industrial revolution created a volatile political landscape in and around 1900.
Jefferson’s yeoman farmer, whose independence and grit were to be the stuff of a civic-minded and virtuous democratic self-government, was still admired even as he disappeared.

“The American tradition had always regarded such free government as a strenuous undertaking,” Hawley writes. “It was the best means of protecting the individual’s natural rights, to be sure; in fact, it was the only certain way of doing so. But free government could succeed only with the help of a particular kind of citizen — one who was competent and responsible, and able to exercise authority with his own and other citizens’ best interests in mind.”

But what is the nature of liberty in a complex, hyper-industrialized society where millions are crammed into cities, working constantly by the stop-watch, and strangers to even those living in the apartment across the tenement hall?

“The Progressive movement was born of these worries,” Hawley writes. “Progressives began with the assumption that the changes ravaging American society would indeed destroy the older way for good. Preserving liberty for the new age would thus require a new approach to government and society.”

Theodore Roosevelt and Woodrow Wilson came to represent two distinct, competing Progressive answers to the changes sweeping America in the early 20th century, Hawley writes. The fight came to a head in the 1912 presidential election, but had brewing for years.

Roosevelt had the national stage largely to himself for nearly eight years, from September 1901 when an assassin killed President McKinley to the end of his only full term in March 1909.

Federal regulation was in the air. Trusts, combines, pools, interlocking directorates — big business used them all to destroy or compromise competitors, expand markets, make consumer goods in abundance and generate huge profits. Roosevelt saw that this was not fertile ground for creating the strong-willed citizens of yore, Hawley writes.

If the circumstances of 1901 couldn’t create the virtuous citizens of 1776, then Roosevelt figured government must step in.

“Indeed, Roosevelt believed virtue was one of government’s proper concerns,” Hawley writes. “If democracy required certain characteristics in its citizens, as the older yeoman ideal suggested, then government should work to preserve those virtues in the industrial era. Roosevelt famously explained his corporate regulatory program to Congress by claiming that ‘we are for manhood first, and for business as an adjunct to manhood.’”

Now, without a doubt, Roosevelt’s style of Progressive policy was statism writ large. “State” in our context here refers not to something like the state of California but to something like the nation-state — centralized political authority with a monopoly on the legitimate use of force.

Writes Hawley: “The state would be the chief agent of the people’s sovereignty; the state would be the chief reformer of society; the state would ultimately be the bond that linked one citizen to another in an ever more diverse and pluralistic republic. This was Roosevelt-style progressivism.”

But keep in mind the key word from that Roosevelt quote of several paragraphs above: “manhood.” Roosevelt had said that in America “we are for manhood first.” Merely mentioning the concept of “manhood” in the 21st century is sure to get you in trouble, let alone being in favor of manhood first and foremost. But manhood and Jefferson’s yeoman farmer went hand-in-hand in Roosevelt’s mind. The rise of Big Business spelled the end of the Founders’ yeoman farmer. But there was still an honored and pivotal place — there would always be such a place — for manhood (properly understood) in American democracy, Roosevelt believed. Manhood in the sense of personal responsibility combined with a joyous, prudent confidence. There’s a reason the word that pops into our minds when we see a photo of a smiling Theodore Roosevelt is “Bully!”

Wilson took dead-aim at Roosevelt’s ideas in the 1912 presidential campaign, Hawley writes. “Whereas Roosevelt purported to offer a ‘New Nationalism,’ Wilson dubbed his platform the ‘New Freedom.’ ‘Ours is a program of liberty,’ Wilson said, using a phrase that would become the refrain of his campaign. ‘\[T\]heirs is a program of regulation,’” Hawley writes.

Hawley proceeds in 30 sparkling, idea-packed paragraphs to explain how Wilson used the language of liberty to attack Roosevelt’s seemingly undue statist beliefs, yet actually preached a statism that could have no bounds. “Self-fulfillment” was Wilson’s secret weapon.

Hawley writes: “Wilson argued that the growth of government, even if carried out in the name of the people, would eventually suffocate the people by suffocating individual choice. Liberty meant ‘the enlargement of the sphere of independent individual action,’ Wilson said.”

But how, in the strange new world of 1912 where scientifically-managed industrialism was certain to overwhelm individual souls, could average Joes and Janes enlarge their “sphere of independent individual action”? Answering this question required Wilson to successfully redefine in the political arena that old American concept of “self-determination,” Hawley writes.

“Self-determination” would become “self-fulfillment.” It would become, in Hawley’s phrase, “epicurean liberalism.”
Writes Hawley: “The revision was significant. The older idea of self-determination suggested that liberty required a certain way of life, or, more accurately, that it WAS a certain way of life. Free government and personal liberty belonged together. In order to be truly free, the individual had to be a member of a free state. What is more, he had to acquire economic and personal independence, participate in the affairs of his community, and keep in repair the public institutions and private groups that made free government possible.”

Wilson did not urge voters in 1912 to acquire certain virtues so they could do their civic duty as independent Americans, Hawley writes. Wilson urged voters to consider what they wanted for themselves.

Wilson, Hawley writes, told voters that they faced a simple question: “By what means and by which choice can we best serve ourselves?”

This question was fitting, Hawley writes, “because Wilson’s conception of liberty severed the link between personal freedom and self-government, and defined freedom instead as the absence of constraint on the individual’s choices.”

It’s at this point, halfway through his essay, that Hawley hits his main point.

If America is a democracy where the majority rules, and the majority says self-fulfillment is the be-all and end-all of life, then what kind of government do the people get?

Wilson, Hawley writes, believed the citizens’ “ability to pursue their own ends was at the heart of personhood, and therefore the measure of political justice. It was akin to a natural right — the closest thing to a natural right, in fact, that Wilson ever endorsed. But unlike the natural rights the founders wrote about, the right to self-development was not easily limited. It was an inherently subjective thing, for each individual to define. A government charged with protecting it would have a broad warrant indeed.”

In other words, doing my thing is what America is all about; the government must ensure I can do my thing; the government gets all the power it needs for me to do my thing; if I don’t get to do my thing, it’s the government’s fault.

Here we have the central question of American politics circa 1912 serving as the foundation for Fresno’s biggest trial of 2013.

Public Works Director Patrick Wiemiller will say City Hall has many responsibilities. He will say designing safe crosswalks is one of them. He will say the Sugar Pine Trail/Shepherd Avenue crosswalk is safe. He will say parents in a democracy have a responsibility, as well. He will say there are limits to government responsibility in a country that prizes personal liberty.

Wiemiller as Theodore Roosevelt, advocating a certain type of personal character for America.

And noted Fresno lawyer Warren Paboojian will say City Hall has many responsibilities. He will say designing safe crosswalks is one of them. He will say the Sugar Pine Trail/Shepherd Avenue crosswalk is not safe. He will say Jesse Maldonado and Maria Greer were not responsible in any way for the death of their son. He will say it was the government’s responsibility to ensure that they and Donovan got across the street safely.

Paboojian as Woodrow Wilson, advocating a certain type of personal character for America.

Should be quite a trial.

By the way, Wilson easily beat TR.

Responses

Dan says:

…putting the wonderful premise of your blog George…

…your earlier reporting revealed the City no longer had any studies (if in fact there ever had been any) in the files supporting how the Shepherd crossing had been designed…

…those missing records may make it impossible for the City to claim a design immunity defense. That inability may doom the City to liability-contributory liability to be sure-but the deep pocket to be picked…

Rock0044 says:

One of the most interesting and lucid commentaries on the choices we are facing as a democratic republic right now. Lets hope we can get this right on the local level. If we don’t restore the link between personal freedom and personal responsibility we may lose this most amazing form of free democracy…we’re not far from losing it right now. #liberty#responsibility#freedom=#citizen

AnnB says:

Excellent column, Mr. Hostetter. Very interesting historical perspective. Also, Rock0044 and Dan’s comments on right-on.

Thank you for being brave and eloquent enough to make the comments about Donovan’s parents. I completely agree with you while I also grieve for the family’s loss.

Unfortunately the would-be jury pool likely consumed with Dancing with the Stars or Duck Dynasty tonight and is not paying any attention to the dangers of self-fulfillment. Mr. Paboojian will once again abscond with taxpayers’ money as our society deteriorates.

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