Suit Blames TV Crew And Officer In Fatality -- Lawsuit Targets Media, High-Speed Police Chases

MARTINSBURG, W.Va. - Trooper Kevin Plumer began the fatal chase with professional dispassion, guiding his West Virginia State Police cruiser to 100 mph with one hand while using the other to radio that he was pursuing a suspected drunken driver.

But when the drunk collided with Plumer's car and drove off again, the trooper started cursing. And seven minutes into the chase, he was exulting at the sight of the car skidding out of control. "Die," he said.

But the driver did not die. Regaining control of his battered Nissan, he rounded a curve and came suddenly upon a Ford Escort that Amanda Smailes, 21, was driving home from the late shift at Wal-Mart. The Nissan driver bumped the Escort sideways into a utility pole. When Plumer ran panting to the wreckage, he knew at once that Smailes was dead.

Plumer's actions might have remained between him and another trooper but for a crew riding along from a TV series called "Real Stories of the Highway Patrol" in the wee hours of Nov. 24, 1996. Their compelling videotape of the chase, crashes and accident scene never aired, but it forms the basis for a groundbreaking lawsuit that lays a share of the blame for Smailes' death at the feet of Hollywood.

The wrongful-death suit, brought by Smailes' parents, starts with the assumption that the presence of the television camera further excited a perilous situation. The allegation is supported by a vivid moment picked up on the videotape: the sound of one of the TV crew members apparently urging Plumer on.

"Go get him," the voice says.

"That has to affect him," said Amanda's mother, Cynthia Smailes. "That has to make his adrenaline pump, so he's going more on emotion. And they are hyping the situation. How much of this is their responsibility?

"Had they not been there, would my daughter be sitting here?"

Is danger worth the risk?

The question adds an uncomfortable dimension to the continuing controversy over high-speed police pursuits and the crucial question of whether the long-established danger of a chase is greater than the usually unknown risk involved in allowing escape.

The U.S. Supreme Court in December heard arguments on what standard of reckless conduct would leave an officer liable when a pursuit turns fatal, as federal surveys show hundreds of police chases do each year.

The case before the high court involves the death of a passenger on a motorcycle fleeing Sacramento police. Although the Smailes case does not hang on the constitutional question at issue, the family's attorney found encouragement in Justice Antonin Scalia's aside: "I'd be more sympathetic if your client were a bystander."

Framed by the ratings success of Fox network specials such as "World's Scariest Police Chases," the Smailes case also underscores the reality in "reality TV." The pursuit lasted more than eight minutes - an epic length for a police chase.

And depending on the point of view, the video record of it either documented or exacerbated the emotional surge that experts say makes any police pursuit so dangerous.

"That's a really important issue, because officers may be influenced by the fact they've got a crew in there," said Geoffrey Alpert, a criminology professor at the University of South Carolina who is a leading authority on police pursuits. A trooper on camera, Alpert said, may be less likely to back down from a chase.

"They (may) want to make sure that they `get' the person," he said.

The West Virginia State Police declined to make Plumer available for an interview.

But at the drunken-driving trial of Robert Sparkman Jr., who in June was sentenced to one to 10 years in prison, the trooper testified that he was indifferent to the presence of the crew.

"Was it in the back of your mind at all that you have these cameramen in the car, that you are pursuing this guy and that maybe you shouldn't back off?" the defense attorney asked.

"That is not the case," Plumer replied. "The camera is the least of my concerns."

A lawyer for the West Virginia Department of Public Safety called the Smailes suit misguided.

"The officers acted appropriately," said attorney Steven McGowan, himself a former state trooper. "This is an unfortunate tragedy for which the police are not responsible, but in fact the person who was fleeing from the police is solely responsible."

Many chases end in accidents

Any police pursuit is fraught with risk. Four in 10 chases end in accidents, according to a Justice Department study, and 1 in 10 produces injuries.

"Chasing in any shape or form is a very dangerous tactic," Alpert said. "It's just like firing a weapon. It should only be reserved for the most serious of offenses."

In the pursuit that ended Smailes' life, the suspected offense was drunken driving. Alpert called it "just absurd" and "contrary to the police mission" to pursue a suspected drunk at high speed.

The decision whether to pursue, under West Virginia's state police policy, lay entirely with Plumer. His supervisor, a sergeant driving in one of at least four cruisers that lined up behind Plumer, chose not to intercede.

The chase took place about 1 a.m., but there was considerable traffic. One of 26 cars that went by in the opposite direction would have been driven by Smailes, headed to her parents' home in Inwood, W.Va. She lived with her parents while studying nursing at Shepherd's College in Shepherdstown, W.Va.

At the busy intersection with state Highway 45, Sparkman spun out and his car hit Plumer's head-on. But as Plumer opened his door to climb out, Sparkman backed up, tires squealing and accelerated in the direction from which he had just come.

"Go get him," said someone in the car.

The trooper's frustration surfaced repeatedly as the chase retraced its route. He testified that he shouted "whoo hoo hoo" and urged the driver to "die" because "I was ready for it to be over."

A few moments later, it was. As the Nissan swerved to pass Smailes' car, the fleeting collision is marked on the videotape by a spray of flying metal. The Escort, traveling near the 40 mph speed limit, hit the pole in the worst possible spot: the driver's door. The Nissan rolled, throwing Sparkman clear. He recovered from critical injuries.

The footage never aired, the West Virginia State Police having exercised a contractual option with the production company to suppress it.

Neither the camera operator in the front seat, identified in court papers as Jim Allen Porter of Richmond, Va., nor the sound man in back, identified as Peter Schmidt of Arlington, Va., could be located to testify at the criminal trial. Neither could be reached by a reporter at the phone numbers they gave police.

"Real Stories of the Highway Patrol," a syndicated series sold to local stations, has stopped production. The phone for the Los Angeles company that made it, Leap Off Productions, has been disconnected. New World Entertainment, which distributed it, was purchased in 1997 by Fox, which now peddles the existing episodes.

"We are deeply saddened over the loss of life in this unfortunate accident," Fox said in a statement. The network declined to comment further, citing the lawsuit filed in August in Berkeley County (W.Va.) Circuit Court.

"We've not seen the video," Cynthia Smailes said. "But that doesn't mean we don't run things through our minds constantly."