For Alison McKellar, the hardest thing she has ever faced is the sudden loss of her beloved sister, Kristen McKellar, who was fatally injured one year ago by a motorboat when she was swimming in Damariscotta Lake.
She never imagined that her loss and grief would be compounded by a decision made by prosecutors from the Lincoln County District Attorney’s office to drop the most serious charges against the person operating the motorboat.
Although Jonathan Roberts, 44, of Waban, Massachusetts, had been charged with manslaughter, reckless operation of a watercraft and operating a watercraft at an imprudent speed, if he meets the terms of a three-year deferred disposition agreement, he will admit only to a civil violation of operating a watercraft at greater than headway speed in a water safety zone.
The terms of the deal seem light. He needs to avoid violating any laws, performing 100 hours of community service and paying a $400 fine.
For Alison McKellar, the agreement felt like a bad joke. In an effort to obtain a different outcome another way, her family has hired an attorney to represent them in a civil suit.
“If you hit somebody in a water safety zone, you do 100 hours of community service. That is the unmistakable message from the state right now. And I think we’re all a little bit less safe because of it,” she said Monday afternoon.
A hot day in August
Kristen McKellar, 32, was a dynamo who never wasted a minute, according to her family. She loved animals and was often seen around the midcoast with her rescue squirrel, Paul, perched on her shoulder and her rescue pit bull, Diego, riding on her motorcycle with her. She even taught herself carpentry in order to remodel a house in Belfast, a job that she had been doing on Aug. 2, 2018.
It was a hot day and McKellar decided to go for a swim after work, heading to Jefferson to join a family friend at his camp on Damariscotta Lake. They were in the cool water at 8:45 p.m., after sunset but before full darkness, when the motorboat approached them. The friend told the McKellars later that the boat was close and coming fast. Kristen McKellar pulled off a flipper she was wearing and waved it frantically above her head, and she and her friend were both screaming. After the boat passed in between the two swimmers, the friend swam over to Kristen McKellar to ask if she was OK. She wasn’t. She had been struck by Roberts’ propeller and likely did not live very long after being hit, Alison McKellar said.
On Monday, Roberts’ attorney, Walter McKee of Augusta, called what happened an accident, according to the Village Soup news website.
Certain facts about that day, such as Kristen McKellar’s death, have a terrible solidity. They cannot be disputed, no matter how much her family and friends wish otherwise. But others are blurrier. They’re up for interpretation.
Those include how close to the shore Kristen McKellar and her friend were swimming, a detail that matters because Maine law has delineated a 200-foot “no wake,” or water safety zone. Within this zone, it’s illegal to operate a watercraft at greater than headway speed. It is also against Maine law to operate a watercraft to endanger any person or property.
Alison McKellar said that immediately after the incident, witnesses said that her sister had been swimming about 150 feet from shore, well within the water safety zone. But after Maine game wardens did a forensic investigation, including a reconstruction, there were uncertainties, according to Irving.
The Maine Warden Service concluded that the incident may have happened more than 400 feet from shore, and that the boat may have been going about 17 or 18 miles per hour.
There were not any other aggravating factors — Roberts was not intoxicated and was on a cruise with his family, the district attorney said. Although Roberts was indicted in January by a Lincoln County grand jury on charges including manslaughter, which could carry a penalty of as much as 30 years in prison and a fine of up to $50,000, prosecutors chose not to bring the case to trial.
“We knew we had a difficult case, if not impossible case, to win at trial,” Irving said, adding that she gave prosecutors her blessing to resolve the case in the way they thought just. “That’s what they do on a daily basis. This just happens to be an extremely serious and grave case that we didn’t think we could win … criminal negligence is a difficult standard to prove.”
A question of justice
But that decision doesn’t feel right to Alison McKellar, who said that a primary part of the forensic investigation was sending a diver down to find Kristen McKellar’s lost flipper, which was located 420 feet from shore. Then they dropped it again to make sure it would float straight down.
“That was case-closed forensics,” McKellar said. “But did they try to see what happened if it got hit by the propeller? Couldn’t it have gotten propelled by the propeller? They didn’t even hire an expert to look into that.”
What’s more, McKellar said that she felt that the previous district attorney, Jonathan Liberman, took the case more seriously than Irving has done since she took office at the beginning of January. The previous prosecutor told the McKellar family that he did not think it was central to the case to prove that Kristen McKellar was in the water safety zone when she was hit because she had a right to be in the lake, Alison McKellar said.
“It was deeply comforting to think that justice was going to be handled by the state, and it’s not something that a grieving family has to think about,” she said. “My kids were feeling angry at the boater, and I was able to say to them that they are taking this really seriously at the district attorney’s office. Their interpretation of the law was exactly what I hoped it would be.”
But things seemed to change when Liberman left. Irving, who won her seat just four years after being admitted to the bar, ran on a platform of restorative justice, a theory that emphasizes repairing the harm caused by criminal behavior. The district attorney has said she wants to seek restorative justice solutions in all but the most violent cases.
McKellar said that she generally supports restorative justice and wants Irving to succeed. As well, restorative justice was not an explicit part of the agreement between Roberts and the state. Still, she feels that her sister deserved more justice than she ultimately got.
“What we saw as the case evolved was a drastic change in philosophy which coincided with the change in leadership in the district attorney’s office,” she wrote in the victim impact statement she read to the court Monday during the hearing to finalize the agreement between the state and Roberts. “Kristen’s death is the result of the negligence of Mr. Roberts. I can forgive him and I will. I hope he uses the rest of his life to do good work. But today, I blame the state of Maine and the district attorney’s office for sending out a message which I believe will have a chilling impact on all of us who use our shared spaces.”
Changing the law
For her part, Irving said that part of the problem lies in current Maine boating laws, which are not enough to keep people safe on the water.
“The laws need to be changed. We need to have stricter laws regarding how fast people can operate,” she said. “Everyone’s driving too fast. I’m surprised that it doesn’t happen more. I think it’s beyond time to do something about it. We cannot make any excuses.”
That’s why she has been talking to lawmakers about sponsoring legislation aimed at slowing boaters.
“As far as the criminal case, we’ve entered a plea. As far as changing the law, our work has just begun,” Irving said. “We need to sit down and have a real meeting with the warden service and folks with the Legislature to figure out the best legislation to keep us safe … the law the way it is now, our hands are tied. We’re unable to get justice for victims.”
None of this, though, makes Alison McKeller feel better, although she said she is planning to work with Irving to craft the best possible law to protect swimmers.
“I also think that you can’t legislate everything,” she said.
When she addressed the court on Monday, she talked about the laws that already exist to protect swimmers like her sister.
“We have laws that require boaters to act prudently. We have an expectation and a normal standard of care that demands you be able to see what’s in front of you and travel no faster than your ability to avoid obstacles such as moorings, floats, boats, kayakers, loons, logs, lobster pots or swimmers,” she said.
Those are the laws she feels that the state did not fight to uphold.
“My 9-year-old put it best,” she said. “Basically, you can kill someone with your boat and nothing happens.”