Guest post: No justice, no closure for family of a fallen Palm Spring cyclist

This story breaks my heart. And it scares the crap out of me.

Last spring, Donny McCluskey was waiting at a red light when he became collateral damage in a violent vehicular collision.

He did everything right. He was exactly where he was supposed to be, and obeying the law in every way.

And yet he still died when a speeding driver ran a red light, and was broadsided by a drunk driver who was crossing on the green, sending the van tumbling into him.

The pickup driver who was otherwise obeying the law was arrested on the spot for DUI. Yet the driver who caused the collision and took the life of an innocent cyclist got a relative slap on the wrist, charged with a single count of misdemeanor vehicular homicide.

The victim’s family thought they’d see justice and get closure at his hearing. They were mistaken.

I’ll let his sister, Patti McCluskey-Andre tell the story.

No JUSTICE

Update on Donny McCluskey’s case with opening court date completed on February 13, 2013. It appeared to be held in Indio traffic court where most of the crimes were DUI, not showing up for DUI work (warrants) or driving without a license. After hearing these cases, there was Donny’s case: MISDEMEANOR vehicular manslaughter. No bail, no driving suspension, no reason to even show up in court for the driver (Armando Gomez of Cathedral City) who killed Donny-HE NEVER has to go to court because as the judge said several times: he was only charged with a misdemeanor (never mentioned manslaughter again) and he hired an attorney to represent him.

The judge explained the charges and the law as the DA had but the DA had no way of knowing he had hired a lawyer. As a family, we believed we would see the man and have some kind of closure. We agreed it was a terrible tragic accident caused by one man’s inattention and selfishness but not intentional. Yet, after court we realize the man who killed my brother, NEVER HAS TO GO TO COURT. Court was imagined as a form of cathartic movement for us to check off our grief list. We know there is no bringing Donny back, no matter what our actions are. We left the court in disbelief as to what kind of message are these charges delivering? Donny’s life was not worth more than paying a lawyer and going on with your life without much ado?

I could literally feel my 82 year old dad’s heart break as he sat next to me. I sensed him using sheer will to keep on breathing through the impersonalization and lack of importance attached to the death of his son. He also had to go home to tell Donny’s wife and mom what occurred. My heart breaks for everyone. My sister, my dad and I came to INDIO as we felt it was Donny’s day in court and since he was dead, his family would represent him.

Seems there are no laws protecting cyclists who die from gross vehicular operation unless the driver was texting, drunk or leaves the scene. Mr. Armando Gomez ran a light and accelerated an additional 30 mph when he realized it. Unfortunately, Mr. Gomez and his van were hit by a truck traveling through a green light resulting in his van flipping and skidding into my brother causing massive life ending injuries (Donny was following ALL the laws).

Mr. Gomez’s lawyer actually stated it was possibly the OTHER man’s fault. Now that is taking responsibility for your actions. I don’t know what the green light man did, but he was arrested at the scene for being under the influence. Maybe he could have stopped, if he was not under the influence but he was not the root cause of the accident. I am sure this driver will have more profound consequences.

Meanwhile, we grieve and acknowledge every month that goes by without our amazing husband, brother, son and uncle. Today is the 10 month anniversary. February 28th would have been his 50th birthday.

We need to change CA law. A car is a weapon and when not following laws that govern their use, even if you did not intend to kill someone and you do, then there needs to be consequences. It could be you or someone you love next time!

We need guidance on how to change these laws!
Patti McCluskey-Andre

The scary thing is this could happen to any of us. The actions of a careless driver can cause a chain reaction that can put us at risk; I’ve jumped the curb myself to avoid a car careening from a collision.

And if it does, the driver will probably get off. Or face the most meagre of charges, despite the damage he or she may cause.

Patti’s right.

The law has to change to ensure lawbreaking drivers who kill or maim innocent people face consequences equal to their actions.

Because their victims do.

13 comments

  1. Biker395 says:

    I remember this crash. What a sorry set of circumstances. And frightening to think there are that many DUIs on the road at that time of day. The statistics I’ve heard are staggering.

    I’m not all that familiar with the facts of the case, but as I recall, the van simply ran the red light, and by chance, the driver of the pickup truck that struck them was DUI. There was no evidence that the driver of the van was driving recklessly before that, nor that running the red light was intentional. They weren’t DUI, texting or doing anything else that would support a charge of recklessness, and they didn’t flee the scene.

    I know I’m going to take some heat for this, but on those facts, I believe a felony charge would have been inappropriate.

    Patti can get her date in court, however. That can be done via a civil suit, and I would recommend that she seek counsel to initiate that immediately.

    As I’ve said before about when this kind of thing happens … it might just as well have happened to me. Condolences to the victim’s loved ones.

    • Biker44 says:

      Biker395 – wrote: “There was no evidence that the driver of the van was driving recklessly before that, nor that running the red light was intentional.”
      After a thorough investigation by the Police Dept. and the District Attorney’s office, the evidence presented in court was that the driver of the van was speeding 30 miles over the speed limit when he ran the red light (reckless driving) therefore, the charges were MISDEMEANOR involuntary manslaughter.
      Appreciate your post.

      • Biker395 says:

        With that, I withdraw my comment. 30 MPH over the speed limit IS reckless driving, and a felony charge is therefore appropriate, IMHO.

  2. Allan says:

    Thank you for being able to read your statement Patti. I agree with you completely that the CA laws have to change to stop favoring drivers causing harm to cyclists and pedestrians. It very sad that you had to learn it this way.

    I hope your family continues to carry on the best they can and continue with the wonderful memories Donny provided.

    (Comment on the two comments)

    I really don’t think there needs to be any enhancements to the running a red light for the case to continue on as a more forceful charge. What does someone expect would happen if someone runs a red light, by accident? You run the risk of nothing at all, to killing someone or more. That should be part of the risk of driving a car. Not to have casualties for each mile you drive and the view being, $hit happens!

    • Biker395 says:

      Its pretty consistent in the law that conviction of a felony requires intent to do harm or at least reckless disregard for the possibility of such. That same rule applies to cyclists and motorists alike.

      There are two problems with charging felonies for what amounts to simple negligence:

      (1) You’d have an awful lot of people in jail, including you or I.

      (2) It would do nothing to deter similar behavior. Personally, of the list of things that keep me from blowing through red lights, the possibility of my own death or serious injury is enough of a deterrent.

      • Allan says:

        That’s interesting, I consider someone that blows through red lights when there’s cross traffic as someone that has a “reckless disregard”. The thing that differs between you and me is that I believe it would change behavior of drivers on the road. They’d slow down a little more and pay attention ALOT more.

        Now don’t get me wrong. I’m not advocating better laws for the users of the road for ticketing an infraction. I’m advocating better (stiffer) laws for people that cause harm to others on the road.

        • Biker395 says:

          You’re assuming that the person saw the red light and made an intentional decision to pass through it. And yes, that is reckless. I’m assuming the more common case where the motorist simply misses the green light and passes through it. That happens. I’ve done it. I know others that have done it. there isn’t a person on this earth who hasn’t been negligent in one aspect or another numerous times in their life. Let’s be honest now.

          Punishing someone with prison time for that is no deterrent and would not change their behavior because the behavior is not intentional.

          Suggesting that they’d pay attention more if there was the prospect of a felony? Frankly, I don’t think so. They could easily be killed or maimed running a red light. I don’t think the potential of a felony charge is going to make a whit of difference. It sure wouldn’t to me.

          There already ARE stiffer penalties when harm is caused by negligence. You can charge someone with involuntary manslaughter for running through a red light and taking someone’s life, but if no one is killed, it’s a simple traffic ticket.

          And lets not forget the specter of a civil suit. That can subject the defendant to penury. Even if they have no assets and are judgment proof, judgments are good for 10 years and can be renewed for another 10.

          Listen, I understand the “someone was killed and someone’s gotta pay with prison” emotion. I just don’t think it’s wise or provides any deterrent value.

          • Allan says:

            No, I’m assuming the driver wasn’t paying attention that well. And no, when I was driving I NEVER ran a red light, cluelessly missing that that was a red light I just blew through! BTW, my “driving record was alot cleaner than it is now as a biker. I had over 10 yrs of a squeaky clean NOTHING on my record at one point.

            And yes driving habits can be changed with higher deterrents. If there were stiffer assements to all that cause injury to someone, more than likely the first thing they’ll do is slow down and start paying attention more, and that’s a BIG change.

            (I am through with posting on this thread. You can have it.)

            • Patti says:

              Allan, we need you. I agree wholeheartedly with what you are expressing in these posts. The driver admitted he was in a hurry and was not paying attention. Really? Yes, more airtime, education and penalties for breaking laws would deter this behavior.

              The big change is in the mindset of the drivers. There are cyclists who break rules too and some pay dearly. In the scenario where the van driver breaks all the laws vs. cyclist following all the laws, the van always wins. That picture is one I cannot shake.

              I do not think our laws cover this scenario adequately, involuntary manslaughter does equate to a ticket when you never have to go to court, post bail, lose privledges. The judge was impressed that Mr. Gomez had a driver’s license, insurance and no criminal history.

              I agree with the post by gneiss regarding spending too much time trying to find the distraction taking away from the focus on the aggressive and dangerous driver. Most drivers do not even understand how a bike lane works or what rights a cyclist has let alone that their driving may cause a collateral death.

              To stretch this out to civil court runs the risk of wasting our precious time. We don’t want Mr. Gomez’s money, we want someone to tell us that we are doing something so this senseless type of death need not happen again. I know 395 that it was consellation of events but so was your birth and why can’t we have 0 tolerance for killing innocent VRUs?

              If we expect to ever become less lethargic as a society, we do need to address these basic perceptional and value issues.
              The fight needs good people like you!
              Patti

  3. Patti says:

    I appreciate everyone taking the time to post on this and do need different perspectives.

    If I try to put my personal feelings aside, I think there is nothing that is “simple” when someone dies as a result of another’s actions. Jails would not be full if you kept that in mind. Running a red light by itself would not equate a higher charge but running a light 30 miles over the speed limit and killing someone should. There are lots of studies in the transportation realm that demonstrate MPH is closely correlated to morbidity in auto vs. bicycle scenarios.

    Maybe I am a simpleton but in a country that values human individuals’ rights and life so dearly, how can there be no tangible ramifications for unnecessary loss of life? Donny’s death was directly related to Mr. Gomez’s actions. Had Mr. Gomez not made those choices, Donny would be planning a trip for his birthday. A car is like a loaded gun and when you do not follow the rules of the road, there should be penalties that are consistent and align with our societal values. Had Mr. Gomez merely missed the red light and was not traveling at an excessive speed, maybe his car would not have flipped and skidded into Donny.

    There are no winners in this sad story. If we have to go to civil court to “see” Mr. Gomez, so be it but we were willing to let the courts decide the case (yet are starting to appreciate how the system will not give Donny justice). I do feel bad for Mr. Gomez but feel worse for Donny, my parents, my sister in law (who was 20 years old when they got married and married for 24 years), the rest of my family but most of all I feel bad for the world that lost a guy who loved, lived and respected life. Nothing we can do will bring him back but maybe we can change something….so all of this is not just a simple act of negligence.

    I am sure no one will argue that our society needs to be active. We should feel protected by laws as vulnerable road users. The awareness of drivers, pedestrians and cyclists can and should be maximized with laws to protect all.

    Patti

    • Biker395 says:

      Actually, Patti … I have no quarrel with what you said at all. I didn’t know that Mr. Gomez was going 30 MPH over the limit when he ran the light. That’s certainly reckless driving and that warrants a felony charge.

      When I read about cyclists being seriously injured or killed, I find myself reading the details and trying to learn something from them. Or maybe it’s because I’d like to find a reason … any reason … why it the same thing isn’t going to happen to me. I think that’s just human nature.

      Your brother’s case is memorable to me because is one of the all-too-many cases where there is really nothing to learn from it, and there is no reason, no reason at all why the same thing wouldn’t have happened to me. I occasionally vacation in the area, and I’ve been through that same intersection, using the road the same way that your brother did. The only reason that I’m still alive (so far) and your brother is not is sheer dumb luck. That’s why collisions like his rattle me.

      I wish there was something I could say to make it any better. If there are any such words, I’m not smart enough to utter them, because this sort of thing makes no sense to me.

      One last thought. If you do decide to file a civil suit, don’t delay. There are statutes of limitation that could bar your suit if you wait too long.

      Peace to you and your loved ones.

  4. gneiss says:

    The difficulty we face in our society is that people on bikes and walking have been pushed so far out of the streetscape and that it is not considered normal to be on the roads unless you are in car. Our justice system is a reflection of this dynamic. Since very few people walk or bicycle for transportation, people who serve on juries more easily identify and sympathize (it could happen to me!) with car drivers rather than someone walking or riding a bicycle.

    Everywhere that our public roadways have been built primarily to facilitate fast car traffic we see this dynamic. It’s only in communities where walking and biking are reconsidering what is normal do we get juries that provide a better balance.

    In some ways, I think the emphasis on trying to establish negligence through outside factors, such as cell phone use or DUI make it more difficult to prosecute people who speed or drive aggressively, as those behaviors are no longer considered out of the norm – so long as you are sober and not distracted. If we instead focused on how people drove rather than what they did before or while driving, then I think it would be far easier to get convictions in these types of cases.

  5. JD says:

    Law abiding citizens are usually patsies in the eyes of most. We tend to obey the law only because it is right to do so, to many this concept is completely unknown. My heartfelt prayers for your loss.

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