On a highway near Cle Elum last summer, a driver’s decisions in a span of 10 seconds led to the deaths of three Seattle boys.
Since the crash on Aug. 27, 2018, there have been long days and nights spent at hospitals and memorials. What would have been birthdays passed, sometimes marked with graveside visits, and a new school year began and came to a close. An eight-month investigation ended, and the driver began his six-year, three-month prison sentence.
Some of the boys’ parents aren’t satisfied with what happened in that Kittitas County courtroom on Sept. 20, where 52-year-old Seattle resident David J. Cohen pleaded guilty to three counts of vehicular homicide and one count of vehicular assault for driving with disregard for the safety of others.
Some feel prosecutors betrayed them by giving up on arguing that the driver was under the influence. Another saw the crash as an accident. And some who wanted the plea deal said that in the end, they just feel loss.
A Washington State Patrol (WSP) investigation found Cohen was the only person in the car wearing a seat belt and drove “in a careless manner,” causing his car to roll several times. His son, Max, died in the crash, and two other boys from Hamilton International Middle School died in the following months. A fourth boy, who attends another Seattle school, was injured.
At his sentencing, Cohen apologized. “I’m going to carry this for my whole life, and the boys are with me and I grieve daily,” he said.
“We will always wonder”
Max had an infectious laugh and clever sense of humor, his family said. He was a gifted artist who liked basketball and planning adventures with friends. Max and his friends were on their way to go whitewater rafting when the crash occurred.
Nico Luiggi suffered a traumatic brain injury and never regained consciousness. He died that October, about a month after his 13th birthday. His parents said he made friends easily, spoke German and was looking forward to joining an advanced drama program.
“I can’t let myself think about how he would be now, a year older, a year smarter, a year more the person he would eventually become,” his mother, Carmen Hagios, wrote in a statement to the court.
Leo Schneider died from his injuries in January at the age of 13. He spoke Spanish and Bulgarian and wanted to study computer science and design in college, said his parents, Matt Schneider and Sylvia Bolton. He was their only child.
“We will always wonder how our lives would have been, watching Leo learn, grow and go out into the world to make it a better place,” Schneider wrote in a 17-page statement to the court, full of photos of his son.
A “series of poor decisions”
Cohen was driving his SUV on eastbound State Route 970 near Cle Elum when he crossed the dashed center line, as if to pass the flatbed semi-truck in front of him. The next 10 seconds were recorded by the driver behind Cohen, who had a dash camera.
Investigators said it appeared that Cohen paced the truck as oncoming traffic approached. He veered sharply to the left, then countered by steering right. The SUV rolled multiple times and hit another car before coming to a rest.
The boys were ejected, and Cohen crawled out of the upside-down SUV with minor injuries, according to the report. Cohen later said he didn’t know the boys weren’t wearing seat belts, according to WSP.
According to troopers, Cohen said he thought someone was passing him on the right shoulder, so he panicked and swerved. However, no vehicle appears to be attempting to pass Cohen in the video. His attorney said he believes Cohen suffered a concussion and poorly explained what occurred.
Troopers took a blood sample from Cohen. They conducted field sobriety tests and arrested him on suspicion of driving under the influence.
The State Patrol toxicology lab found that the sample taken about an hour after the crash showed 4 ng/mL of THC, the active ingredient in marijuana, with a 99.7% confidence level in the readings plus or minus 1.1 ng/mL. It also found the presence of antidepressants. A second sample, taken about four hours after the crash, showed around 2.9 ng/mL of THC.
It’s illegal to drive with a THC level above 5 ng/mL in Washington, although people can be impaired by less, according to the state.
WSP determined that no weather, roadway or mechanical issues contributed to the crash.
According to its report, Cohen “made a series of poor decisions”: taking a “potentially impairing” substance before driving, failing to make sure the boys were wearing seat belts, attempting an unsafe pass, failing to notice oncoming traffic until nearly striking a car head-on, and swerving into a ditch without using his brakes.
The plea deal
Senior Deputy Prosecuting Attorney Craig Juris promised the families he wouldn’t pursue a plea deal. He thought he had a good chance of prosecuting the charges at the most severe level, driving under the influence.
But there would be challenges. The toxicology results didn’t show Cohen over the limit. And Cohen’s attorney, Diego Vargas, was preparing to argue that Cohen was concussed, not impaired.
Vargas also said Cohen uses products containing CBD, a cannabis compound that does not induce a high, and did not use THC the day of the crash. But State Patrol’s toxicology lab manager said their tests differentiate between the two.
Troopers trained in drug recognition said Cohen was unable to focus during sobriety tests, according to their reports. One said he was off-balance, while another said he had bloodshot eyes and slurred speech. Another trooper and sergeant noted he seemed oddly distant.
“Those symptoms are really kind of meaningless because he had a concussion and he was in shock,” Vargas said.
But Cohen wanted to accept responsibility for his unsafe driving, Vargas said. So he reached out to Juris with an offer.
The boys’ families had opposing desires. Jodi Cohen, Max’s mother and the driver’s ex-wife, thought the crash was an accident, Juris said.
“I can’t pretend to know what happened that day in the car, but I do know he is a good person with a good heart,” she said at the sentencing.
Two other families wanted to avoid trial. Nico’s parents wanted a conviction but said it wasn’t important to get the longest possible sentence.
That’s what Leo’s parents wanted. Bolton saw the plea deal as two years for each child who died, and it didn’t seem like enough after she watched her son fight for his life in the hospital. She and Schneider wanted the evidence to be heard in a trial.
But Juris agreed to the plea deal. He said a trial would be unpredictable and painful.
Judge Scott Sparks sentenced Cohen to the maximum time in the standard range, to be served consecutively, plus 18 months of Department of Corrections supervision upon release and a chemical-dependency evaluation.
The judge reflected on the case in his address to the courtroom, calling the legal system a “frustrating business to be in.”
“We end up in some courthouse … in front of a judge who’s supposed to make it all right,” Sparks said. “It doesn’t work that way, does it? We all know it doesn’t work that way.”