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October 01, 2004

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Publication Date: Friday, October 01, 2004

Drivers in court for killing cyclists Drivers in court for killing cyclists (October 01, 2004)

Two cases demonstrate limits of criminal penalties

By Jon Wiener

David Espino's trial, regardless of the outcome, will not bring Jim Dein back to life. Had Harvey Hereford been sentenced to life in prison, Alan Liu's life would still be over.

But friends and family members of the two dead Mountain View bicyclists have been closely watching the two cases, in hopes that the prosecution of the killers saves others from having to endure a similar grieving process.

When it comes to pursuing justice for dead bicyclists, they are learning the legal process has its limitations.

At Monday's sentencing of Hereford -- the driver in the Santa Rosa collision that killed Liu and maimed his girlfriend, Jill Mason of Cupertino -- Liu's supporters complained that the sentence was too lenient.

"They call it manslaughter, we call it murder," said Laura Schuster, a friend and fellow swim coach at Mountain View Masters. At Monday's hearing, she said she let Hereford know she hopes he dies in prison.

Hereford, 69, will serve eight years and eight months without parole for driving drunk and crashing into Liu and Mason while the two were out for a ride on Highway 12 in Santa Rosa April 11. He pled guilty in July.

Only eight months of the sentence stem from the vehicular manslaughter charge for Liu's death. The other charge, causing injury while driving under the influence -- Hereford's blood-alcohol level was at 0.29 percent, more than three times the legal limit -- carried a three-year sentence plus an additional five tacked on due to the severity of Mason's injuries. She was in a coma for five weeks after the crash, and only two weeks ago left the hospital to move in with her parents in Grass Valley. She remains bound to a wheelchair.

Ironically, Hereford could have received more jail time had Liu survived. As it stands now, he will be eligible for a new driver's license when he finishes his sentence, which several people lamented at Monday's hearing.

Prosecutor Bill Brockley said he could not charge Hereford with murder because it would have required proof that he was conscious of the risk inherent in driving drunk. Governor Arnold Schwarzenegger recently signed into law a bill that would officially notify drivers of this risk. This was Hereford's first offense.

"Believe me, if I could have charged him with second-degree murder, I would have," said Brockley.

On Feb. 19, Dein, a 56-year-old computer programmer who rode upwards of 100 miles a week, was also cut down from behind by an allegedly intoxicated driver. Dein and a friend, Palo Alto resident Ted Aberg, were biking on Highway 9 in Monte Sereno when David Espino crashed into them, leaving Dein dead and Aberg in a coma, from which he continues to recover.

Espino, 38, was arraigned Tuesday in San Jose on charges of second-degree murder, along with hit-and-run, and driving under the influence of the hallucinogenic drug PCP. Evidence that he had just rear-ended a car and sped around it played a key role in the prosecution's determination that Espino knew he was driving recklessly.

"We spent seven months investigating this, and that investigation has led us to believe that he was aware of the risk and chose to ignore it," said Santa Clara County deputy district attorney Matt Braker.

Both the Espino and Hereford cases, in fact, are remarkable for having made it this far.

According to a study released last October by the nonprofit Silicon Valley Bicycle Coalition (SVBC), only one third of drivers found to be at fault in pedestrian and bicyclist fatalities in Santa Clara County end up being charged with a crime.

SVBC executive director Rebecca Lucky cited a need for aggressive sentencing to hold drivers responsible for these tragedies. She said, "Motorists need to become more aware that the road is not solely for cars."

Liu's friends at Mountain View Masters will dedicate a memorial to him before their Oct. 24 swim meet at Eagle Pool.

A memorial fund has been set up in Dein's name. Donations can be sent to the Silicon Valley Bicycle Coalition, P.O. Box 831, Cupertino, CA 95015. The money helps subsidize bicycle road skills training classes.

E-mail Jon Wiener at jwiener@mv-voice.com


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