Trial Day 4: Testimony revolves around what bus driver saw

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By MARK GUNDERMAN mark.gunderman@lee.net
Thursday, April 19, 2007 1:41 PM CDT

HUDSON — What did Paul Rasmus see and when did he see it?

That question may be critical to the outcome of the trial of Michael Kozlowski underway in St. Croix County.

Kozlowski is facing five negligent homicide charges after a motor coach bus driven by Rasmus struck the underside of his overturned semi in the early morning hours of Oct. 16, 2005.

While there is no dispute that the overturning of the semi was Kozlowski’s fault, his defense team has focused on Rasmus, suggesting that the bus driver should have been able to see the danger and stop in time.

While no one will ever know exactly what Rasmus saw, Eau Claire District Attorney Rich White tried to give the jury of 10 women and six men an idea through the use of a videotape and testimony of a recreation of the accident in court Thursday morning.

The National Transportation Safety Board, along with state and local officials, took Kozlowski’s semi back to the accident scene five days later, set it on its side and approached it with a similar bus, observing and videotaping what could be seen.

The evidence almost was not admitted in court. The defense voiced strong objections, based on dissimilar circumstances and an argument that any observations were mere opinions of the observers.

Judge William Gabler eventually allowed the testimony and videotape, but his concerns were different.

“This is terribly confusing to me, and if it is confusing to me, it will be to the jury,” Gabler said after hearing the evidence outlined outside the presence of the jury. He asked that it be simplified.

“Why don’t we talk in English?” Gabler said. “Why don’t we just hear what the witness saw and be done with it?”

The witness, Burton Simon of the NTSB, said the bus was run along the course five times, with measurements taken at certain locations. Conditions were varied with low and high beams and cars parked in the eastbound lanes to simulate oncoming traffic.

Simon said that in one of the recreations with the bus’ headlights on low beam, there appeared to be an unidentifiable object off on the right shoulder of the road at the crash site 1,217 feet away.

As the bus approached, it slowly became more visible until at 480 feet there appeared to be some hazard on the shoulder of the road.

At 354 feet it appeared to be something that would require braking. At 227 feet, what came into view required immediate emergency braking.

In one high beam recreation, something that required braking was visible at 766 feet. Another low beam recreation showed an object requiring braking at 281 feet and emergency braking required at 258 feet.

In the videotape of the recreation that was played in court, the bus was stopped at the 258-foot mark when Simon identifies it as an object that required emergency braking. Still, it was not clear at that point from the video that both lanes were blocked and that the object was an overturned semi.

When the bus’ headlights were switched to high beams for a few seconds on the tape, the object became clearly visible.

The defense attacked this and more in cross examination, showing that the moon was full on the night of the accident and not on the night of the recreation.

Simon testified that the moon was 98 percent full the night of the accident and 84 percent full at the recreation, but at a different angle.

The cross examination also focused on the vehicles parked in the eastbound lanes, which certainly would not have been there the night of the crash.