Amtrak 188 engineer Brandon Bostian

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Brandon Bostian operated the Amtrak 188 train that was speeding around a curve in Frankford at 106 mph, more than 50 mph above the speed limit, when it crashed. Eight people died, and dozens were injured. But how much responsibility does Bostian bear for the May accident?   

A little more than three months later that’s a question federal and local investigators are trying to answer but probably won’t for at least several more months. And it’s a question about whether Amtrak did enough to safeguard the train or put Bostian in a precarious position.  

Criminal charges are certainly a possibility. The Philadelphia District Attorney’s office told Billy Penn it is investigating the derailment but could not comment specifically on the investigation.

Since the accident, Bostian has been absent from public view. He lawyered up after the accident and spoke to authorities briefly. Robert Goggin, his attorney, told ABC News in May that Bostian had no recollection of the crash but that he had spoken with the NTSB and police. Goggin did not respond to multiple interview requests for discussing Bostian’s current whereabouts.

NTSB spokesperson Peter Knudson said the organization is still investigating Bostian’s actions and physical state from the time of the accident. As part of that investigation, the organization is still studying his sleep and rest history from the 72 hours before the accident to gauge his level of fatigue. The NTSB has also tested Bostian for drugs in his system but hasn’t released those results. In June, it revealed Bostian didn’t use his cell phone at any time during the train ride.

The NTSB doesn’t have the power to file charges and as part of its reports doesn’t even recommend charges. Knudson said the organization only makes safety recommendations. Any decision to press charges would come from the Feds or the district attorney’s office, who could use the NTSB’s work as part of its decision process.

Attorney Bob Pottroff, one of the nation’s leading authorities on train law, said for Bostian to be charged his conduct would have to be considered “gross neglect of duty” or intentional. From the information released and what Pottroff has heard about the accident, he said charges should not be filed.

“He’s human first of all and he shouldn’t be prosecuted for that,” said Pottroff, who is consulting lawyers representing some of the Amtrak victims. “He’s got one set of his eyes and he’s fallible.”

His theory is Bostian thought he had already cleared the curve and sped up.   

“Have you ever been driving and passed your exit?” he asked. “There’s a term for that in the industry. It’s called getting lost.”   

And to Pottroff, such an action does not rise to a criminal offense. He said the blame should be placed on Amtrak. After all, the company had not installed positive train control or even a less complex braking system that was in place at the same juncture for trains going in the other direction. Either of those measures would have prevented the crash, and Pottroff said Amtrak uses its technology to justify having one engineer per train. Without the technology, the entire responsibility for the train and its hundred-mile trip falls on the engineer.      

Train derailments lead to charges for engineers usually when it’s been determined they’ve been lax with safety regulations or have been found to use alcohol or drugs before the crash. In the case of a recent Quebec derailment, the engineer and several other train employees have been charged. Prosecutors allege they didn’t ensure the brakes worked properly. This summer, charges were not filed against a sleep-deprived engineer whose scheduled had been recently changed. He fell asleep while operating a Metro North train and its derailment killed four people.  

Pottroff views the Amtrak 188 accident as “an accident” and said Bostian should not be blamed. But he suspects Amtrak will try.  

“The railroad industry (are) absolute geniuses at public relations,” Pottroff said. “The first thing they do is go out and pin the blame on someone other than the railroad industry, and they will typically do that despite the truth. The industry set this human up to fail.”

Mark Dent is a reporter/curator at BillyPenn. He previously worked for the Pittsburgh Post-Gazette, where he covered the Jerry Sandusky scandal, Penn State football and the Penn State administration. His...