EXCLUSIVE: Prosecutors in the Midnight Rider trial, set to begin March 9, are looking to become the first ever to convict filmmakers on manslaughter charges. In the 100 years between the death of Sarah Jones and the first film-related deaths — on July 1, 1914, when 16-year-old actress Grace McHugh drowned and cameraman Owen Carter died trying to rescue her while filming a scene for the movie Across The Border – more than 80 people have died in 52 fatal accidents while filming in the U.S. Only two resulted in indictments, none in convictions.
The last time a manslaughter case went before a jury was nearly 30 years ago, in the infamous Twilight Zone case, which ended in the acquittals of director John Landis and four co-defendants. “It was a very difficult case to prosecute,” Lea D’Agostino, the deputy district attorney who prosecuted the Twilight Zone case, later said. “You didn’t have people who went in maliciously to do something. They went in to create a movie.”
The same could be said of the defendants in the Midnight Rider case: Clearly, no one involved in the production intended for anyone to be injured or killed on the old train trestle over the Altamaha River. The prosecution will have to convince a jury that the defendants should reasonably have foreseen that someone would be killed if a freight train came barreling down those tracks in rural Wayne County, Georgia.
That may be more difficult than you might think. Harland Braun, a defense attorney in the Twilight Zone trial, told Deadline that the Midnight Rider case “sounds like a tough case for the defense.” The fact that one or more of the four defendants, including director Randall Miller, were on the trestle when the train came down the tracks suggests that they didn’t think it was all that dangerous. “They were in equal danger,” Braun said. “They could have been killed too, and if you can show that any of the defendants were in equal danger, then you’ve got a pretty good argument that they didn’t put themselves in danger because they didn’t foresee the danger.”
That same issue of foreseeability was raised in the Twilight Zone trial. Three of the four defendants – pilot Dorsey Wingo, unit production manager Dan Allingham and associate producer George Folsey Jr. – were in the helicopter that was blown out of the sky by a powerful special-effects blast, sending it crashing to the ground on top of actor Vic Morrow and two children, Renee Chen and Myca Dinh. The prosecution asked jurors to believe that the defendants – including the ones in the helicopter – knew that the stunt they were filming was so dangerous that they too were likely to be killed. The jurors didn’t buy it.
No one, Braun said, could have foreseen that a misfired special effects explosion would envelope the helicopter’s tail rotor. No one could have foreseen that the heat from the blast would cause the tail rotor blade to delaminate, causing the helicopter to crash. As the defense experts testified at trial, no helicopter’s tail rotor blades had ever delaminated before, not even during the Vietnam War. That kind of thing just wasn’t foreseeable, so acquittal was the proper verdict.
The facts in the Twilight Zone trial, of course, are different from those in the Midnight Rider case, but foreseeability is expected to be central defense issue during the trial. “Should they have foreseen the possibility of a train coming down the track?” Braun asked. “That’s much easier for a jury to understand.”
In the Midnight Rider case, however, the question of foreseeability is complicated by the fact that a hospital bed had been placed across the railroad track for a dream sequence. There were 20 people on the trestle that day. Some managed to get off the bridge before the train arrived. Others squeezed onto a narrow wooden walkway as the train roared by at 57 miles an hour. Jones might have survived were it not for that bed. As the train approached, several crew members tried to pull it from the tracks, but it fell apart before they could drag it off. When they all scrambled to the side of the tracks for safety, the train hit the bed.
“The train hit the bed and the bed hit her and slung her into the train,” Wayne County deputy coroner Ted Mathis told Deadline. “The train hit the foot of the bed and the head of the bed is what sent her into the train.” Her head then hit the edge of one of the large diesel fuel tanks on the right-hand side of the locomotive. “She hit it right between the eyes,” Mathis said. “She hit her head right on the edge of the tank. It was like an axe hitting her, for all practical purposes. Ms. Sarah died from massive blunt force trauma.”
The entire case may hinge on whether jurors believe that that was a foreseeable danger, or whether this was a terrible accident for which no one could have prepared.
In Burbank, California earlier this year, actor Greg Plitt was hit and killed by a Metrolink train while stealing a shot for a power-drink commercial. As on Midnight Rider, Plitt and his crew didn’t have permission from the railroad to film on its property. That accident is still under investigation by the Burbank Police Department, the Los Angeles County Sheriff’s Department, the Los Angeles District Attorney’s office, Cal/OSHA and Metrolink.
Since 1930, in every fatal filming accident before and since the Twilight Zone trial, prosecutors have declined to file criminal charges, even when law enforcement investigators determined that they were preventable. That was the case in 1995 when Janet Wilder was killed on the set of Gone Fishin’ in Florida when a speedboat misjudged a jump-ramp, flipped and slammed into a crowd of extras where she was standing. Collier County prosecutor Mike Provost decided not to press charges, he said, because “the culpable negligence statute requires a recklessness or indifference to what might happen almost to the extent that it’s an intentional act.”
And it happened in 1993, when prosecutors in North Carolina declined to file charges against anyone in connection with the death of Brandon Lee, who was accidentally shot to death while filming The Crow, even though the state’s Occupational Health & Safety Division slapped the production company with an $84,000 fine, including $70,000 for allowing live ammunition on the set. Wilmington District Attorney Jerry Spivey said he found no evidence of the “willful and wanton” negligence needed to prosecute the production company. That case, like so many others allegedly involving some degree of negligence, ended up in a wrongful-death suit filed in civil court.
No one was prosecuted after Mike Huber was killed in New Orleans on the set of G.I. Joe 2: Retaliation last year, when a high-powered scissor lift fell over on him, or when driver Bill Vitagliano was crushed to death between two lighting equipment cranes on the Los Angeles set of The Bodyguard in 1992. Nor when camera assistant Rodney Mitchell was killed and eight other Dukes Of Hazzard crew members were injured in 1980, when a three-quarter ton camera truck they were riding on flipped over while rehearsing a chase scene, or when actress Martha Mansfield was burned to death in 1923 on the set of The Warrens Of Virginia, when a cast member carelessly tossed a lit match that set her Civil War costume on fire,
Prior to the Twilight Zone case, the last time anyone was prosecuted for a film-set death was in 1929, when ten people were killed, including four young chorus girls, when a fire swept through the Pathé Film Studio in Manhattan. Production manager Harry Lalley and John C. Flinn, the studio’s vice president, were arrested and indicted on charges of second-degree manslaughter after it was discovered that the sound stages had no sprinkler system, as required by the city’s fire ordinance. Those indictments were later dismissed by the New York Court of Appeals.
Filmmaking can be a dangerous business. Sometimes there are accidents, and sometimes, too often, people get killed. Until now, however, no one has ever been convicted. In the end, as the indictments state, the Midnight Rider prosecutor will have to prove beyond a reasonable doubt that the defendants “did unlawfully cause the death of Sarah E. Jones, a human being, without any intention to do so by the commission of an unlawful act other than a felony, to-wit: criminal trespass.” History suggests the odds are not in his favor.