A Dangerous Road

June 10, 2016

Death on a curve near Buckley prompts a question: Who is responsible for safety on our roads — the people who maintain them, or the drivers who drive them?

Alyssa Goch took an unfamiliar road back downstate after a business trip to Traverse City last summer. When her 2007 Pontiac Vibe reached the first half of the S-curve on M-37 north of Buckley, the sharp turn took her by surprise.

Coming the other way, Deanna and Anthony Erving straddled their silver 2003 BMW motorcycle. The couple, ages 50 and 57, were one day shy of their third wedding anniversary.

Goch told police that she had felt unsteady when she reached the top of the curve, so she hit her brakes, causing her car to slide across the center line of the rain-coated highway. The vehicles crashed head-on. Anthony Erving died at the scene; Deanna Erving died later that day at the hospital.

A VERY COMPLICATED CASE

How do you make sense of such a terrible crash, such senseless loss of life?

Grand Traverse County Sheriff ’s investigators and county prosecutors summed it up like this: Goch violated traffic laws by driving too fast for conditions; she caused the crash and should be held responsible for the deaths.

Goch’s attorney deemed the case more complicated. He claimed that Goch shouldn’t be held responsible because Michigan Department of Transportation (MDOT) officials have known for years of the danger this section of highway presented and have failed to realigned the curve.

Goch, now 27, was charged with two counts of moving violation causing death for the Aug. 2, 2015 crash. The case surrounding the misdemeanor grew into one of the most complicated and time-consuming ever seen in the 86th District Court in Traverse City. The trial was held over four days in May, and Goch was found guilty of both counts. She faces up to a year in jail when she’s sentenced June 17.

“I JUST KILLED TWO PEOPLE”

Kit Tholen, assistant prosecuting attorney for Grand Traverse County, said the decisive evidence in the case was testimony from an Indiana pastor whom Goch passed just prior to the crash.

Brandon Collins testified that his cruise control was set to 55 mph when Goch came up from behind; he said her impatience at driving the speed limit was visible in his rearview mirror. He testified that she tailgated him and made expressions he believed were meant to show her frustration.

At the crest of the hill, before a descent to the first curve, and before signs warn drivers to slow to 40 mph, the pastor said Goch passed him.

“He sees the recommended speed sign, the curve, and then he says audibly to his wife and friend, ‘She’s got to slow down, she’s going to crash,’” Tholen said. “Then he sees the motorcycle coming the other way.”

In the wake of the crash, Goch exited her smashed-up car in a daze.

“[According to Collins’ testimony] she’s saying repeatedly, over and over, ‘I was going too fast. I just killed two people. It was my fault,’” Tholen said.

A BOMBSHELL AT TRIAL

The testimony of Goch’s spontaneous confession came as a surprise to her defense team.

Goch’s attorney, Jesse Williams, said that had they known Collins would attribute such a statement to his client, they likely would have urged Goch to plead guilty.

Williams said he was shocked by Collins’ claims. He said there was no indication in police reports or in communication with the prosecutor’s office that forewarned of that kind of testimony.

“That was, in my opinion, just flat out sandbagging,” Williams said. “A prosecutor’s job is to pursue justice, not to seek mere convictions.”

Williams believes the testimony is the reason the jury only deliberated for 74 minutes after a trial that lasted four days.

Tholen said that everything about the case — the motions, the pretrial hearings, the posture of the defense team — told him this case was going to go to trial no matter what. He felt it was unnecessary to inform the defense about the bombshell testimony. “She doesn’t think she did anything wrong,” he said. “That was the sense I got, and I got that through the pretrial phase.”

TUG-OF-WAR OVER EVIDENCE

Williams tried everything he could to focus the case on MDOT’s ongoing management —or mismanagement — of the road.

For Williams, documents going back to the 1980s, as well as more recent emails about road repairs he received through Freedom of Information Act requests, suggested an institutional failure at work. He believes officials have known for decades that the corner is deadly. They’ve made recommendations to realign the curve. And yet nothing has happened to remedy the issue.

“There’s a very long documented history of a known problem,” Williams said. “The geometry of the roadway is the problem.”

An MDOT spokesman said he cannot comment on ongoing court cases.

Williams ran into roadblocks when he attempted to mount this defense, but he was tenacious; he didn’t stop arguing that the road was at fault, even after judges told him to stop.

After District Court Judge Thomas Phillips ruled against him, Williams convinced Phillips to disqualify himself, because Phillips had inadvertently made a comment during a hearing that assisted prosecutors in coming up with a strategy. Williams objected, and Phillips recused himself.

Williams later argued that Judge Michael Stepka also should disqualify himself, saying he believed Stepka was biased against his client after Williams demanded an evidentiary hearing on MDOT admissibility issues; Stepka denied that was the case. Tholen argued that Williams was merely attempting to revisit a legal question he had already lost.

The court agreed with Tholen’s argument, confirming that what mattered in the case was how Goch drove her car.

As trial approached, the frustration of all sides leaps off of the pages of transcripts: Williams became furious that he could not argue the road was at fault. Stepka grew frustrated that Williams would not accept the ruling. Stepka ultimately allowed a limited amount of MDOT evidence to be introduced, ultimately enabling the defense to establish a basis for bringing in a defense expert to testify about the crash.

HISTORY OF A DANGEROUS ROAD

MDOT’s process for making roads safer isn’t foolproof. It identifies problem sections of roads, calculates what a fix would cost, and determines — through complex formulas that include the costs of injury and death — which projects are worth completing and which are not.

Officials considered reengineering this particular S-curve on M-37 in the 1980s and again in the early 1990s, but ultimately, both proposals were scrapped.

In 1990, the value of a statistical human life was placed at $410,00, according to MDOT documents; by 2015, a human life was valued at $9.4 million, according to a United States Department of Transportation calculation created in 1993.

Juxtapose that with the estimated cost of making the road safer: In 1986, a proposal was floated among MDOT and USDOT to either flatten each of the curves for a cost of $950,000, or to re-route the road on a diagonal between the two curves for $1.16 million.

Today MDOT officials estimate the cost of realigning the curves as being between $3 an $4 million. Williams believes fatality statistics prove the road should be realigned; four people have died on the curve since 2013. (The total number of fatalities at that curve for years prior is unknown.)

Still, officials have made other changes to the road, which they believe have made it safer.

Yellow and black chevron signs were added in the late 1980s to mark the curve, and when officials revisited the idea of realigning the road in the early 1990s, they determined the signs had made the curve much safer.

In 2014, in reaction to a double fatal crash in 2013 involving a semi and wet conditions, MDOT approved the resurfacing of the curve with a high friction surface material made of crushed aggregate and resin, an endeavor that totaled $131,000.

Unfortunately, the announcement that MDOT would the apply the new surface material to the curve was made days before the crash that killed the Ervings; the actual application wasn’t completed until weeks after.

NEGLIGENT OR NOT

Goch was charged under a relatively new Michigan law titled “moving violation causing death,” a misdemeanor that in 2010 replaced negligent homicide. The important distinction is that the state is no long obligated to prove a person was negligent in order to hold them accountable for a highway death. The state needs only to prove that a driver was guilty of a moving violation and that the infraction caused someone to die.

That change of law was meant to simplify prosecutions, but in this case, it had the opposite effect.

Prosecutors argued that because they didn’t have to prove negligence, the condition of the road was irrelevant; all they needed was to prove that Goch was driving too fast for conditions.

Tholen wrote: “Evidence which tends to show that she was not negligent, or perhaps less negligent, is not relevant at trial. This would include not only evidence of roadway surface changes or plans to change the roadway's path but also evidence of other crashes at that location.”

Nonetheless, after the trial, Tholen said he is confident that even if he would have had to prove negligence, he could have proved it based on the testimony.

Williams said he doesn’t believe Goch was shown to have been negligent or to have committed a moving violation.

“She wasn’t cited for speeding, and there was no forensic evidence indicating that she was — it’s pure speculation,” he said. “We’re saying that the accident did not occur because of human error. The accident would not have occurred but for the road.”

THE BIG QUESTION

Even Williams concedes that a poorly designed road does not absolve a driver of his or her responsibility to drive carefully.

But he insists that the state failed when it failed to redesign the road after earlier fatalities at the same section. Had the curve been softened, he argues, the crash would not have happened.

Tholen said the road conditions are taken into account in the law. Goch was found by a jury to have committed the moving violation of driving too fast for conditions, and that takes the entirety of the circumstances into consideration.

If MDOT memos and emails and the history of the highway would have been allowed at trial, said Tholen, it would have only complicated the issue. “I think the biggest thing is, it’s a distraction,” Tholen said. “The focus was on her actions and her behavior that day. For example, the fact that a semitruck driver two years earlier to that had lost control on wet roads with an empty trailer when he was going approximately 40 miles an hour — I don’t think that has any bearing on her actions and behavior that day.”

Some roads are more dangerous than others, Tholen argued in a motion. Most drivers pay attention and drive accordingly.

“Literally millions of vehicles pass through this curve each year without incident,” Tholen wrote. “Her moving violation, not the roadway, caused the deaths of Anthony and Deanna Erving.”

There is one question in which both sides agree.

Should the state take more drastic efforts to ensure safety at that curve?

Williams said rumble strips or a lower speed limit should be considered. The state also could install flashing lights to warn drivers as they approach the curve.

Tholen agrees. “There could be more markings.

Whether it makes it better or not, I don't know,” he said.