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This is a tricky one and I am not 100% sure where I come down on this. I would have fully backed the captain had his behavior after the suicide been different but he didn’t (apparently) follow some basic seamanship rules and now has been charged with manslaughter. Here is the story as we best can tell and I say ‘as best we can tell' because there are some big gaps that need filling in.

Captain Rick Smith runs a charter business out of Camden, Maine and St. John in the U.S. Virgin islands aboard his 43-foot yawl, Cimarron, and has been doing so for a number of years. In October 2015 he and a crew were delivering the yacht to the winter sailing grounds when one of the crew members, a man by the name of David Pontious, suddenly jumped overboard and drowned. In court filings Captain Smith said that Pontious had been seasick for three days and had been growing increasingly paranoid.

He also stated that Pontious had attacked him minutes before jumping overboard. Now, almost three years later, the federal court in St John has begun to lay out their case against Rick Smith. Why suddenly three years after the incident took place are they only now getting around to pressing charges? Beats me except it may just be that they are running on ‘island time.’

I would be calling total BS on the whole thing and would have stated that Smith, the captain, should not be charged had he acted differently in the moments after Pontious jumped overboard. According to the other crew there was zero attempt made to get Pontious back on board. No lifebouy was tossed and there was no grid pattern search done to look for him. Indeed it took Smith 32 hours before he managed to raise another vessel on the VHF asking them to keep a lookout for Pontious.

This kind of gross negligence has me feeling that there is something a little suspect about our good captain. The fact that he told authorities that he  didn’t try and locate Pontious was because he feared for his safety and the safety of the other crew members rings a little bit hollow to me. Smith stated that he saw Pontius go under and not resurface and that is why he did not turn back and search. Plus, he added, that he was scared to death that if Pontius got back on the vessel, he would throw other people overboard. I am calling BS on that statement as well. As I said from the outset I am not sure where I come down on this but I do think this whole incident is about a Ship of Fools and believe me I have come across some complete nut jobs in the 40-plus years I have been making a living sailing.

According to court documents, the prosecution plans to call at least two maritime experts who will testify that Smith, as captain, should have intervened long before Pontious jumped from the Cimarron. “I would say that there were a number of failures on the captain’s part that lead up to the situation in the first place,” wrote Capt. Glen Allen, a government witness and U.S. Coast Guard licensed captain for more than 30 years. Allen also stated that Smith did not do enough to vet Pontious before allowing him on board and should have altered course to the nearest safe harbor once it was clear Pontious was suffering.

“I find the action of the captain after the victim jumped overboard totally unacceptable,” Allen wrote. “It would seem to me that you would make some attempt at saving this life even if I thought it would do no good – every person deserves at least a fighting chance.”

I have plied the waters between Maine and the Caribbean for many years and can testify that there are some very sketchy people looking for rides too and from the tropics. That, in many ways, is the fun of it and Jimmy Buffett knew it as well when he wrote in his song Banana Republic, "some are running tons of ganga some are running from the IRS.” That’s not all they are running from or toward. I think  that the witness that Smith’s defense team engaged summed this whole mess succinctly when he wrote, “I believe the responsibility for the loss of Mr. Pontious is solely the fault of Mr. Pontious himself.”  That much I agree with. - Brian Hancock.

 

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I hate to say it, but that Captain deserves jail time. I was on his side right up until the MOB happened. I don’t care how crazy the dude was, you don’t just say “fuck it” and sail on. He could’ve radioed that a batshit crazy dude jumped overboard and requested help. He didn’t. 

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It is very difficult.  I had to grab a client's middle finger down to the TV camera!  And he was acquitted.  His friend was convicted of murder.  You have to do your best no matter your emotions.  I vote that the pilot no longer have paid passengers.  There but for...

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The quote that really stuck out to me was after the Capt threw Pontious off balance and took back the VHF, he supposedly said “Touch my equipment again and I’ll slit your throat.” And then Pontious jumped overboard. I can easily see the Capt saying “good riddance.”

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11 hours ago, guerdon said:

Two words, Jones Act.  The skipper is toast.

Two other words; Dead Calm.

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I never met David, but knew his parents pretty well when this went down.  They are some of the nicest people in sailing I've known.  If this apple was anywhere near the family tree I'd say this was manslaughter at the least.  This has to be so difficult for them....

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This was at night?  What point of sail and what weather conditions?  Anyone know?  If the "grid" would have involved beating back upwind into mountainous seas with a cruiser that doesn't like to go upwind, I would tend to think that nothing Smith could have done (though he should have at least tried) would have changed the outcome---lost overboard, likely drowned quickly.

Now if it was a light-air clear visibility night, I take back what I just said.

But you have to make the attempt, even if you conclude after trying that it's useless and dangerous.  And throw the life ring.  And Mayday for assistance

Ed, you're right--"tricky".   And the standard in criminal court is caused death beyond reasonable doubt--not what we or the jury think "probably" or even "likely" happened.  

Civil case under the Jones Act, it's the more likely than not ("preponderance of the evidence") standard.   Different animal.

 

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I have a perfectly normal, well loved by friends and family, family member who became sick with late onset schizophrenia at age 55.  He would switch back and forth from seemly normal to totally paranoid when off his meds, a big problem with this illness, (they feel better so they stop taking it).   Tin foil hat, several 6 week stints in a mental ward, real, shaking fear of and running inside at the site of any airplane,  same with gubmit surveillance,....... all of it.  At his worst he punched a colleague at an academic conference.  If you met him on the street he might be as normal as you and I but a few hours later he could be crazy.  Casual acquaintances have no idea.  We, family & good friends, look after him, it can be heart breaking.  Thankfully he has been doing very well the last 5 - 7 years.  However, I know him very well and sometimes I can tell he isn't the same old person.  I say this because you might never know if someone is truly crazy.  As for adequate vetting, Capt Smith would never know as medical history is confidential.  My family member had police called to his home a couple times but I don't think he was ever arrested so that might be a dead end.  Perhaps Pontious was sick in this way.  These people are really crazy and can do crazy things spontaneously, up to and including murder.    Smith could easily have concern for his safety while no one else would have a clue as to how crazy Pontious might be.  OTOH I think Capt Smith should have at least made a show of a search for the MOB and notified authorities or, as suggested, put Pontious ashore and/or called police once there.  I'd certainly give Smith the benefit of the doubt if his other crew testify that Pontious was acting crazy.  It could be that Pontious was just seasick and agitated until he really went off his rocker where upon he confronted Capt Smith in a hostile way then just jumped overboard.  Behaviour can be very spontaneous and unexpected.  Maybe Pontious was so paranoid that he though his life was in danger and his only escape was to jump overboard.  The above speculations could certainly happen in my family members case.  However I do think a review of Smith's captain's license (concerning his lack of MOB action) should be up for review.   Hopefully justice will be found.  I wish peace for Pontious' family and Cp Smith. This sounds awful for both.

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I think there is a lot to this story that we all don't know.  Captain Smith is from Maine and there have been a few articles in the papers.  One thing that makes a difference for me is that Pontious was heavy and strong and in one of the articles it said it took everyone to control him. Not a good situation to be in.  They only had a VHF radio so could not contact USCG right away.  I have been on boats with a sea sick and strange crew and don't know how I would control one who was stronger than me.

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Yikes, I read the article just linked.  Pontious did sound crazy, like my family member, (or some med combo made him that way).  Smith shoulda thrown the damn life ring and done a few sweeps for the MOB.  However in such an emotionally charged, spontaneous situation (MOB at nite & threatening crazy on board), it could be hard to act rationally until calmed down.  Better to save the ring for when it might have done some good and was really needed?  Stupid act & comment to crew when he later thru it overboard.  The comment about "theres nothing we can do now" just after the MOB might have been the truth.  They may have seen or heard Ponious hit his head really hard to concluded that.  It will be interesting to follow.   Sad for all concerned.  Not the same but this reminds me of Russell Perdock killing the sailor in Lake County, Ca and what a travesty that was/is.

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Didn't hit the MOB on the GPS? Didn't do anything to locate him? Uh, even if he was belligerent he would be exhausted once found and if not just leave in the water until he is. Then pull him on board and duct tape his hands behind him until help arrives or reaching port. No excuse for leaving someone to drown. Unless there is info not made known the Captain would not want me on that jury.

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Not guilty..... Fuck Pontious 

If someone wants to commit suicide, let them achieve their goal as long as no innocents are going to be hurt. 

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1 hour ago, hoppy said:

Not guilty..... Fuck Pontious 

If someone wants to commit suicide, let them achieve their goal as long as no innocents are going to be hurt. 

I’m starting to think it’s a good thing you don’t own a boat anymore. 

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Here are the circumstances of that night as I understand them: This was the third day at sea; 350 miles offshore, 10 pm, 18 knots TWS, 10 ft seas, hard on the wind, with jib, staysail, main and mizzen. Pontius was around100 lbs heavier than Smith, and had been trying to wrestle control of the helm for hours. He had tried to strangle Smith and had punched him repeatedly. When Pepper tried to pull him off he had said "he'd be next". After a lull in his attempt at mutiny, Pontius stood up and said something to the effect of "alright then", stepped over the leeward lifeline and jumped into the water. The back of his head banged the cap rail as he went in and straight down. Bubbles were seen but no sign of him resurfacing in the beam of the flashlight. Smith's primary concern at that moment was for his own safety, safety of the other crew and the boat. He was relieved  that the threat was over when Pontius jumped overboard. Smith had no Satphone, and navigates using Navionics charts on an I-Pad that requires a code to access. He broadcast a Mayday with coordinates on SSB. Though Smith heard no response,It was picked up by a participant in a rally for cruisers and relayed to the USCG in Norfolk logged in at 0500 Zulu. There is no autopilot. The two other crew did not have much experience, and had been cowed by the strength and antics of Pontius. They were traumatized and didn't speak for the rest of the trip.The USCG was subsequently contacted by Chris Parker , the weather router after a scheduled SSB call by Smith many hours later. The USCG advised mariners in the area to keep a lookout. A plane was dispatched to search for Pontius ... A tragedy all round.

www.pressherald.com:.webloc

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4 hours ago, kent_island_sailor said:

"Could have at least faked it" :rolleyes:

Truth!   Go through the motions at the very least!

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With licence comes responsibility,

Maybe unfortunately, With responsibility comes consequences.

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I'm inclined to believe the USCG and FBI who cleared him over a year ago rather than the corrupt a shit USVI government and  pontius' family. I'm also inclined to trust the first hand account I was told of one of the crew who was on board when this happened. and not nothing the the community of people people running working sailing vessels on the maine coast is both small and tight knit. rick smith is not the type to just sail away and do nothing in the case of an MOB, regardless of circumstances. 

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On 12/21/2018 at 2:13 PM, eric1207 said:

I have a perfectly normal, well loved by friends and family, family member who became sick with late onset schizophrenia at age 55.  He would switch back and forth from seemly normal to totally paranoid when off his meds, a big problem with this illness, (they feel better so they stop taking it).   Tin foil hat, several 6 week stints in a mental ward, real, shaking fear of and running inside at the site of any airplane,  same with gubmit surveillance,....... all of it.  At his worst he punched a colleague at an academic conference.  If you met him on the street he might be as normal as you and I but a few hours later he could be crazy.  Casual acquaintances have no idea.  We, family & good friends, look after him, it can be heart breaking.  Thankfully he has been doing very well the last 5 - 7 years.  However, I know him very well and sometimes I can tell he isn't the same old person.  I say this because you might never know if someone is truly crazy.  As for adequate vetting, Capt Smith would never know as medical history is confidential.  My family member had police called to his home a couple times but I don't think he was ever arrested so that might be a dead end.  Perhaps Pontious was sick in this way.  These people are really crazy and can do crazy things spontaneously, up to and including murder.    Smith could easily have concern for his safety while no one else would have a clue as to how crazy Pontious might be.  OTOH I think Capt Smith should have at least made a show of a search for the MOB and notified authorities or, as suggested, put Pontious ashore and/or called police once there.  I'd certainly give Smith the benefit of the doubt if his other crew testify that Pontious was acting crazy.  It could be that Pontious was just seasick and agitated until he really went off his rocker where upon he confronted Capt Smith in a hostile way then just jumped overboard.  Behaviour can be very spontaneous and unexpected.  Maybe Pontious was so paranoid that he though his life was in danger and his only escape was to jump overboard.  The above speculations could certainly happen in my family members case.  However I do think a review of Smith's captain's license (concerning his lack of MOB action) should be up for review.   Hopefully justice will be found.  I wish peace for Pontious' family and Cp Smith. This sounds awful for both.

Yep, and I would not want to risk my own safety and those of 2 others in order to bring a big strong crazy man who is trying to kill you back aboard either. That's just.....crazy.

I would bet that if they had brought Pontious back aboard and he had harmed someone they would be suing Smith for that instead.

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10 hours ago, Parma said:

Yep, and I would not want to risk my own safety and those of 2 others in order to bring a big strong crazy man who is trying to kill you back aboard either. That's just.....crazy.

I would bet that if they had brought Pontious back aboard and he had harmed someone they would be suing Smith for that instead.

Like I said - they needed to at least fake it. Throw something over, sail around in circles, motor back and forth, fail to find the guy, and go on home. "He was a PITA and he sank anyway" is not going to look good in court.

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3 hours ago, kent_island_sailor said:

Like I said - they needed to at least fake it. Throw something over, sail around in circles, motor back and forth, fail to find the guy, and go on home. "He was a PITA and he sank anyway" is not going to look good in court.

Bingo. Throw something for him to float with and hand him a rope until he settles his shit down.


 

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53 minutes ago, Swanno said:

Bingo. Throw something for him to float with and hand him a rope until he settles his shit down.


 

Towing him for more than a hundred miles or so could get really tiresome.

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6 hours ago, Ishmael said:

Towing him for more than a hundred miles or so could get really tiresome.

He won't be fighty 

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I think the skipper has to make at least a token effort. MOB drill plus some searching.

BUT I would have the zip tie restraints ready and that loonie would spend the rest of the passage tied into his bunk. 

 

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I have known Rick Smith in the sailing community in Maine for many years and have to say I can totally see him throwing a life jacket 72 hours later and saying something like, "At least we can say we tried".  I've always thought he was a dirt bag and I wouldn't trust him as far as I could throw him.  This is not surprising.  I mean, so the guy went under for a few seconds?  It didn't mean he was dead and Rick didn't make even the SLIGHTEST EFFORT to find him.  Jesus.  Cold.  I like the suggestions of letting the guy exhaust himself (while being safe) and them bringing him back aboard.  It sounds like he was definitely dehydrated and that can mess with your head.  He should have been calling for outside help and heading to the nearest port when the problem started to get serious.  Manslaughter.

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Mutiny. Mutiny at sea.

Don’t do that. Crew have been thrown overboard, keel hauled (ripped to pieces), and hung.

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This is a tragic story. I met Captain Smith a few weeks ago here in St. Thomas and have had numerous conversations with him about this horrible situation. Being a blue water passage making charter captain myself, I fully understand the mental, physical and psychological challenges that go with the territory. However, in this case, I believe the captain's state of mind at the time of the incident was purely focused on the defense of himself, his crew and his boat.  I would conclude that his subsequent actions were not negligence, but self-defense. Any attempt to bring the attacker back onboard the vessel would have invited more deadly incidents, putting the lives of his crew and himself  right back into harm's way. Given the conditions - 350 miles from anywhere, night time on a small boat, high seas and brisk wind, most likely sleep deprived captain and crew, and an uncontrollable, violent crew member that the captain had never met before - If Captain Smith was, indeed, attacked - and if Pontius did, in fact, jump over the side, then, Smith should not be found guilty of manslaughter and should be exonerated by the court as he was by the US Coast Guard at the time of the incident three years ago. Were there there things that could have been done differently? Of course - but, hindsight is always 20-20.

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Remind me not to book passage with said Capt. Smith.  Sounds like the situation got out of control unnecessarily, but WTF, who am I to judge, I wasn't there.  Seems some kind of intervention with 3 "sane/able" crew should have been possible though.

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Based on the account in the newspaper, it could be argued that it was nearly self-defense.

Very strange situation. Lesson: know your crew.

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On 12/29/2018 at 8:52 PM, Blue Crab Rock Hall said:

This is a tragic story. I met Captain Smith a few weeks ago here in St. Thomas and have had numerous conversations with him about this horrible situation. Being a blue water passage making charter captain myself, I fully understand the mental, physical and psychological challenges that go with the territory. However, in this case, I believe the captain's state of mind at the time of the incident was purely focused on the defense of himself, his crew and his boat.  I would conclude that his subsequent actions were not negligence, but self-defense. Any attempt to bring the attacker back onboard the vessel would have invited more deadly incidents, putting the lives of his crew and himself  right back into harm's way. Given the conditions - 350 miles from anywhere, night time on a small boat, high seas and brisk wind, most likely sleep deprived captain and crew, and an uncontrollable, violent crew member that the captain had never met before - If Captain Smith was, indeed, attacked - and if Pontius did, in fact, jump over the side, then, Smith should not be found guilty of manslaughter and should be exonerated by the court as he was by the US Coast Guard at the time of the incident three years ago. Were there there things that could have been done differently? Of course - but, hindsight is always 20-20.

I didn't say to actually retrieve the guy, but you have to make it look like you tried ;)

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On 12/21/2018 at 5:42 PM, whitecaps said:

Here are the circumstances of that night as I understand them: This was the third day at sea; 350 miles offshore, 10 pm, 18 knots TWS, 10 ft seas, hard on the wind, with jib, staysail, main and mizzen. Pontius was around100 lbs heavier than Smith, and had been trying to wrestle control of the helm for hours. He had tried to strangle Smith and had punched him repeatedly. When Pepper tried to pull him off he had said "he'd be next". After a lull in his attempt at mutiny, Pontius stood up and said something to the effect of "alright then", stepped over the leeward lifeline and jumped into the water. The back of his head banged the cap rail as he went in and straight down. Bubbles were seen but no sign of him resurfacing in the beam of the flashlight. Smith's primary concern at that moment was for his own safety, safety of the other crew and the boat. He was relieved  that the threat was over when Pontius jumped overboard. Smith had no Satphone, and navigates using Navionics charts on an I-Pad that requires a code to access. He broadcast a Mayday with coordinates on SSB. Though Smith heard no response,It was picked up by a participant in a rally for cruisers and relayed to the USCG in Norfolk logged in at 0500 Zulu. There is no autopilot. The two other crew did not have much experience, and had been cowed by the strength and antics of Pontius. They were traumatized and didn't speak for the rest of the trip.The USCG was subsequently contacted by Chris Parker , the weather router after a scheduled SSB call by Smith many hours later. The USCG advised mariners in the area to keep a lookout. A plane was dispatched to search for Pontius ... A tragedy all round.

www.pressherald.com:.webloc

Sounds like Pontius was using deadly force against the captain (and arguably crew with his mutiny) and could have lawfully been killed in self defense.   

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Trial is set for this month, I believe.  Anyone going to sit in?  Or a newspaper reporter we trust, such as in the Clear Lake / Dinius trial?

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On 12/29/2018 at 7:52 PM, Blue Crab Rock Hall said:

This is a tragic story. I met Captain Smith a few weeks ago here in St. Thomas and have had numerous conversations with him about this horrible situation. Being a blue water passage making charter captain myself, I fully understand the mental, physical and psychological challenges that go with the territory. However, in this case, I believe the captain's state of mind at the time of the incident was purely focused on the defense of himself, his crew and his boat.  I would conclude that his subsequent actions were not negligence, but self-defense. Any attempt to bring the attacker back onboard the vessel would have invited more deadly incidents, putting the lives of his crew and himself  right back into harm's way. Given the conditions - 350 miles from anywhere, night time on a small boat, high seas and brisk wind, most likely sleep deprived captain and crew, and an uncontrollable, violent crew member that the captain had never met before - If Captain Smith was, indeed, attacked - and if Pontius did, in fact, jump over the side, then, Smith should not be found guilty of manslaughter and should be exonerated by the court as he was by the US Coast Guard at the time of the incident three years ago. Were there there things that could have been done differently? Of course - but, hindsight is always 20-20.

Sorry, not buying it. You at least go back and look for the guy. Drag him through the water to wear him out if need be, but don’t just leave him to die. 

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7 hours ago, kent_island_sailor said:

I didn't say to actually retrieve the guy, but you have to make it look like you tried ;)

yep   "We searched and searched"    is difficult to offer when the GPS track is straight as an arrow

A swimmer would be difficult to consider as a risk, too - unless the captain can convince others that he could not put about safely after the MOB there's gonna be some 'splainin' to do.

I used to say to our the core crew that if your dumb ass fell off on a race between the islands you should swim toward the stern light because we were throwing your seabag off next,  "We're not carrying your shit around, this is a ULDB."   - To be clear,  this was just a dark JOKE. 

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Per the VI newspaper, trial starts this morning:

http://www.virginislandsdailynews.com/news/charter-captain-charged-in-death-of-crewmember-headed-to-trial/article_bd4efc52-e0e6-50f7-bc22-e2336e5299c4.html

So I subscribed to the V I Daily News.  Here's what reporter Suzanne Carlson relates:

Charter captain charged in death of crewmember headed to trial Monday

 
 
 

ST. THOMAS — The trial of Capt. Richard Smith, the St. John charter captain charged in connection with a crewmember’s death, is scheduled to begin Monday in U.S. District Court.

Smith, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute.”

Smith was charged in connection with the drowning of David Pontius, 54, of Beaufort, S.C., a crewmember who was helping transport the Cimarron from North Carolina to St. John for the winter charter season.

 
 

While a U.S. Coast Guard investigator found that Pontius jumped overboard in the midst of a violent psychotic episode and Smith was not at fault, federal prosecutors intend to present expert testimony that Smith was negligent in not seeking medical attention for Pontius before the fatal incident.

Through his attorneys, Michael Sheesley and David Cattie, Smith requested that the court allow defense expert Stephen Richter, a captain and marine consultant, to testify remotely, to avoid the cost of flying him to the territory. Smith said that fighting the charges against him has caused him to deplete his savings and borrow money from friends and family in an attempt to pay his attorneys.

U.S. District Judge Curtis Gomez denied that request, and Smith reiterated the request in court filings Friday.

Prosecutors have argued that Smith is not indigent and should bear the full cost of transporting Richter to the territory to testify in court, and cited a GoFundMe site set up by his daughter that’s collected a little over $4,000.

Cattie responded with a sharply worded motion, arguing that he and Sheesley are working “at a wildly discounted rate and Smith is in arrears” to his attorneys, and that prosecutors are engaging in needless prosecution and have driven his client to financial ruin.

 
 

“Government’s counsel has no idea what a defense costs in federal court because the United States uses taxpayer money to prosecute people like Smith. Perhaps government’s counsel should assess what it has spent prosecuting this frivolous case and determine if government’s counsel would have assets sufficient to defend himself before falsely asserting that Smith is not indigent. Smith is indigent because the United States made him so (despite the fact that the Coast Guard has already concluded that Smith acted appropriately),” Cattie wrote.

Cattie also filed a supplemental motion citing a section of federal law requiring that funds be allocated “to individuals when necessary for experts even when that defendant has retained private counsel.”

On Friday, Assistant U.S. Attorney Sigrid Tejo-Sprotte also filed a motion asking Gomez to block defense attorneys from referencing a report by U.S. Coast Guard investigator Lt. Jacob Hopper, who found that Pontius’ death was an accident.

Hopper is “not qualified to give an opinion as to what caused the death of David Pontius,” according to prosecutors, and “the Court should not permit defense counsel to argue or make reference to the Lt. Hopper’s report, knowing that its contents and conclusion is likely not admissible,” according to the motion.

Cattie fired back, calling prosecutors’ arguments “patently ridiculous” and writing that “the United States is aware that it is pursuing a frivolous case against Richard Smith, so it is seeking to limit or preclude his defense in this case,” according to a response filed Friday afternoon. “Because the evidence is damning to the United States’ case, it seeks to preclude the defense from referring to the contents of Lt. Jacob Hopper’s investigative report or its conclusions. Fortunately, the law explicitly permits the admission of both Lt. Hopper’s factual findings and the conclusions in his report.”

 
 
 

— Contact Suzanne Carlson at 340-714-9122 or email scarlson@dailynews.vi.

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And the Coast Guard report (interview) by LT Jacob Hopper, reads in part, as follows:

The Coast Guard investigator, however, said the captain and crew acted appropriately.

"Nobody on this vessel was trained for this sort of situation, and I believe they tried to handle it as best they could without comms (communcations) and being so far from shore for assistance," Hooper states in his report.

"Once David jumped off the vessel and the Captain saw him sink into the water and not come back up, he was relieved, because at this point David was not a threat to the crew. Hindsight is 20/20 and when not placed in a situation like that, one may ask why didn't you search? Why didn't you throw a life ring and an EPIRB out? The Captain saw him go under and not resurface, and that is why he did not turn back and search, plus he was scared to death that if he [Pontius] got back on the vessel, he would throw other people overboard," the investigator's report states.

"I asked the Captain face to face about why he did not throw the EPIRB out with a life ring, and he told me that he never even thought about that with all the fear and terror that was going through his mind," the report states.

unquote

So the admissibility of this is what the arguments in court are about.  It's favorable to Smith, and unfavorable to the Prosecution.  Allowing jurors to hear about it would not help the goverment's case, and would indicate to jurors that the Coast Guard probably did not refer this matter for further prosecution.  Which is an important point, as typically the US Attorneys have a potential criminal matter "referred" to them by a federal agency (FBI, Coast Guard, etc).   And usually don't bring such charges if that agency didn't make such a referral or request.

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There is also a possibility that the crew were so traumatised that they pushed him overboard in defence.  Going back and rescuing him alive would also be a little difficult to defend in court.

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There is also the possibility that he was transported to outer space by the Starship Enterprise and the crew doesnt want to appear cray cray when they say, "He just dematerialized right in front of our eyes."

Who's next for Making Up Shit That Has No Supporting Evidence Whatsoever Anarchy?

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Here's the V.I. News account of opening statements:

 
 

St. John charter captain Richard Smith’s manslaughter trial began Monday on St. Thomas, and it’s unclear whether the family members of the deceased, David Pontius, will be allowed to remain in the courtroom to hear testimony.

Smith, 65, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute.”

Smith was charged in connection with the Oct. 25, 2015, drowning of Pontius, 54, of Beaufort, N.C., a crewmember who was helping transport the Cimarron from North Carolina to St. John for the winter charter season.

 
 

While a U.S. Coast Guard investigator found that Pontius jumped overboard in the midst of a violent psychotic episode and Smith was not at fault, federal prosecutors argue Smith was negligent in not seeking medical attention for Pontius before the fatal incident.

Pontius’s sister and parents, Frank and Marilyn Pontius, traveled to the territory for the trial, and were issued subpoenas by defense attorneys when they walked into court Monday.

Assistant U.S. Attorneys Daniel Huston and Sigrid Tejo-Sprotte argued that defense attorneys Michael Sheesley and David Cattie issued the last-minute subpoenas in an attempt to keep Pontius’ family members out of the courtroom for the duration of the trial. Tejo-Sprotte also cited federal law requiring that victims in criminal trials be allowed to be present in court.

Sheesley and Cattie said the Pontius family’s testimony is necessary, and they intend to question them about Pontius’ mental state prior to leaving North Carolina.

U.S. District Judge Curtis Gomez agreed that federal law requires witnesses to be sequestered so they are not influenced by other testifiers’ statements, and ordered the Pontius family to leave the courtroom for the remainder of Monday’s proceedings, which began at around 2:30 p.m. and ended shortly before 7 p.m.

Gomez ordered defense attorneys to file an ex parte statement justifying the continued sequestration by 10 p.m. Monday, and said he would further consider the issue today.

Following jury selection, attorneys made their opening statements, beginning with Huston, who calmly gave a straightforward account of what he said led up to Pontius’s death — a lack of action by Smith.

“This case is about a man who needed help” and Smith “failed to provide that help at every opportunity,” Huston said.

Smith had recruited three volunteers to help him sail the Cimarron from Maine to St. John, Jacob Pepper, Heather Morningstar, and Candice Martin. Martin left the vessel in North Carolina and arranged for Pontius to take her place for the remainder of the journey because of a prior commitment, and Smith and the other two crewmembers met Pontius for the first time when he boarded the ship.

Pontius immediately became seasick when the ship departed North Carolina on Thursday, Oct. 22, and was so ill and dehydrated he started to hallucinate and grew progressively worse Friday into Saturday, Huston said.

Late Saturday evening, Huston said Pontius hallucinated a door in the sky — he apparently believed he had been transported to a fake world, and the door would lead him back to reality — and ordered Smith to take him to it.

Smith “responded aggressively, something to the effect of, ‘touch my equipment again and I’ll slit your throat,’” Huston said. “After that verbal threat is made, the situation escalates.”

Pontius announced to Smith and the other crew that “if you won’t take me there, I’ll go myself,” and stepped off the boat at about 1:30 a.m. Sunday morning — according to testimony by Pepper — never to be seen again, Huston said.

Smith did not stop the Cimarron and “did not even throw a life ring,” Huston said.

He acknowledged Smith made “some effort to make radio contact, belatedly,” and did not officially report Smith missing until about 8 a.m. the following day when he told the ship’s weather router via single sideband radio that Pontius had gone overboard more than 24 hours earlier.

Smith caused Pontius’s death through negligence, Huston said, and “failed to make any effort whatsoever” after he went overboard.

Sheesley shot back in a fiery opening statement that “I’m a little bit upset because I don’t believe that the government has given you the whole story.”

Smith is an experienced sailor who has been traveling around the Caribbean since the 1970s, and has made 70 trips to and from Maine and St. John over the decades, Sheesley said.

Pontius was also an experienced sailor and sailing instructor, and Smith and other crew members attempted to help Pontius through his bout of seasickness and provide what aid they could while he was incapacitated by nausea, he argued.

 
 

Sheesley highlighted apparent improvements in Pontius’ condition in the hours before he stepped overboard — including that he ate dinner and stood a two-hour watch from 6 p.m. to 8 p.m. — and said crew members were hopeful he would stop hallucinating and return to normal.

Instead, Pontius made distressing statements to other crew members indicating he believed he’d been kidnapped and was unsure where he was, and had apparently been taking medication for medical conditions he did not disclose to Smith, Sheesley said.

“We don’t know what else David Pontius was on, we don’t know if he was on illegal drugs,” Sheesley said.

When Pontius grabbed the ship’s only spotlight in an effort to search for the portal in the sky, Smith wrestled him for it and said if he touched another piece of equipment “I’ll slit your throat you son of a bitch,” Sheesley said.

Smith was angry and disoriented by Pontius’ unusual behavior, and was worried for the safety of Pepper and Morningstar, as all three were physically smaller than Pontius, who was more than 6 feet tall and weighed about 260 pounds, Sheesley said.

“Imagine, midnight in the middle of the ocean,” Sheesley said. “You can’t get away from him.”

Pepper took the stand Monday and described the events leading up to Pontius’ death, at times struggling to recall specific statements or details three years after the incident.

Pepper testified that Smith plotted the coordinates where Pontius went overboard and attempted to make mayday calls a few minutes later, but the ship was approximately 300 miles offshore, too far for either the VHF or single sideband radio to make a successful communication.

The call Monday morning to a weather router resulted in the U.S. Coast Guard flying a C-130 plane over the boat to enable radio communication with Smith, who continued sailing to St. John, Pepper said.

Smith did not throw a life ring overboard or activate an emergency beacon when Pontius went overboard, Pepper testified, but after the plane flew off to search for Pontius’s body, Smith threw a ring into the water and told the remaining crew, “can’t say I didn’t throw a life ring.”

Pepper will return to the stand today to continue giving testimony.

 
 
 

— Contact Suzanne Carlson at 340-714-9122 or email scarlson@dailynews.vi.

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2 hours ago, nolatom said:

Smith did not throw a life ring overboard or activate an emergency beacon when Pontius went overboard, Pepper testified, but after the plane flew off to search for Pontius’s body, Smith threw a ring into the water and told the remaining crew, “can’t say I didn’t throw a life ring.” 

Peppers testimony is not endearing for Smith.

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What Smith failed to do (basic MOB procedure), for whatever reason (antipathy?  panic?  shock and confusion of the moment?) sounds ugly and is ugly, but if his (and crew's?) account that crewmember Pontius, who hit his head on the way over, went under and did not come back up, is uncontradicted and found by the jury to be what happened, then the proximate cause of death would not be the result of Smith's shortcomings.  

Why we have trials.  Juries usually get it right in the end.

My news subscription is for 30 days.  If you don't want to hear the daily report, let me know.  Otherwise I'll keep passing it along.   As a very occasional charter captain, and former Coast Guard officer, I'm interested in how it turns out.

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Here's reporter Suzanne Carlson's writeup of the Tuesday testimony at trial:

Testimony continues in charter captain's manslaughter trial

 
 
 

ST. THOMAS — Two crewmembers of the sailing vessel Cimarron testified in federal court Tuesday that Capt. Richard Smith never stopped to search for fellow crewmember David Pontious after he jumped overboard in the midst of a psychotic episode while hundreds of miles offshore.

Meanwhile, defense attorneys worked throughout the day to establish that Smith’s actions were driven not by callousness, but out of concern for his remaining crew, after Pontious physically attacked him and tried to wrest control of the boat, endangering the safety of everyone aboard.

Smith, 65, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute” in connection with the Oct. 25, 2015, drowning of Pontious, 54, of Beaufort, S.C., a crewmember who was helping transport the Cimarron from North Carolina to St. John for the winter charter season.

 
 

Pontious’ name is misspelled in court documents as “Pontius.”

Candace Martin testified Tuesday that she traveled from her home in Beaufort, S.C., to Maine in Oct. 2015 to help Smith deliver the Cimarron to St. John, but could not complete the journey and sought a replacement crewmember by placing an ad on an online forum for the Beaufort Yacht Club.

Pontious responded to the ad and boarded the Cimarron in North Carolina, joining Smith and two other crewmembers, Jacob Pepper and Heather Morningstar.

The ship left North Carolina on Thursday, Oct. 22, 2015, and Pepper and Morningstar testified about the days leading up to Pontious’ death at around 1:30 a.m. the morning of Sunday, Oct. 25, 2015.

Defense attorneys Michael Sheesley and David Cattie highlighted various inconsistencies in their testimony and prior statements to U.S. Coast Guard investigators made in 2015, and Martin, Pepper and Morningstar all said at times that they were struggling to recall certain details of the incident three years after it occurred.

While Martin was an experienced sailor, Pepper had only begun learning to sail at the time and Morningstar said she had some sailing experience, but had never embarked on such a lengthy offshore journey. All three testified that Smith did not conduct any safety drills prior to starting the journey.

Pepper and Morningstar’s testimony conflicted at times, with Pepper asserting that Pontious became seasick almost immediately and his condition steadily declined, preventing him from eating, drinking or working his scheduled shifts at the helm.

Morningstar said that Pontious was indeed seasick, but felt well enough to work nearly all of his scheduled watches, and did eat breakfast and dinner on Saturday, Oct. 24.

“We thought he was kind of turning a corner at that point,” Morningstar said. “Saturday night was when everything started to change.”

While his nausea subsided, Morningstar said Pontious began slipping into delusions and hallucinations, and believed that the crew had kidnapped him to extort ransom money from his father.

Pontious hallucinated a “door or portal” in the sky, through which he believed was a room that contained electronic equipment that could transport him back to reality.

Smith’s watch began at midnight, and Morningstar said Pontious grew increasingly agitated after he was denied access to the ship’s dinghy and life raft so he could seek out the portal in the sky.

“My goal was to just keep him calm because I didn’t know what to physically do at that point,” Morningstar said.

Morningstar went below deck but remained on the staircase to the companionway and had a clear view of Smith, Pepper and Pontious in the cockpit.

She watched as Pontious attempted to physically wrestle control of the ship’s wheel from Smith, and told him to “just sit down, you’re going to fall.”

Pontious punched Smith and at one point put his hands around his throat, Morningstar said.

Smith told Pontious, “if you do that one more time, I’m going to slit your throat,” and Pontious said he was going to the portal regardless.

“Rick was like, ‘OK, go,’ ” Morningstar said.

Pontious jumped overboard and was never seen again.

Sheesley seized on Morningstar’s assertion that Smith told Pontious, “OK, go,” — a statement she had never before mentioned in previous interviews with Coast Guard investigators, and suggested she fabricated the detail after discussions with federal prosecutors, Assistant U.S. Attorneys Daniel Huston and Sigrid Tejo-Sprotte.

Morningstar said she and Pepper tried to look for Pontious with a spotlight, and asked Smith what to do.

“He said Dave was a bigger threat to us in the boat,” Morningstar said.

She said Smith refused to throw out a life ring, turn the ship around or put the dinghy overboard.

“I wanted to turn the boat around,” Morningstar said. “He did not want to turn the boat around because he thought Dave was too big of a threat.”

Morningstar said her fear of Pontious turned to fear of Smith, after she realized she was trapped onboard a ship hundreds of miles offshore with no viable radio communication with a captain who did not stop to search for a missing crewmember.

 
 

“I’m terrified at this point,” Morningstar said. “We had no training at all for what to do on a man overboard.”

Morningstar insisted she marked the coordinates where Pontious went overboard and that Smith did not make any attempt to call for help via radio — assertions Sheesley vehemently challenged, and said Smith did take the coordinates and went below deck to make a mayday call, to no avail.

Prosecutors highlighted the fact that Smith did not activate the ship’s VHF radio emergency beacon or the EPIRB device, which issues a distress call that summons U.S. Coast Guard rescuers.

Smith made contact with the ship’s weather router via single shortband radio Monday morning — some 36 hours after Pontious went in the water — who summoned the Coast Guard, which flew a C-130 plane over the Cimarron to establish radio communication and begin the search for Pontious.

After the plane flew off, Morningstar said Smith threw one of the ship’s two life rings overboard and said “at least it’s going to look like I tried something.”

Martin, who said she had a brief flirtation with Smith, testified to her communication with him after Pontious went missing, and said he insisted he’d stopped and searched for Pontious for several hours until dawn.

Following interviews with Coast Guard investigators in which they said Smith had kept sailing on to St. John, “he confirmed that he had left David in the middle of the ocean,” Martin said.

Sheesley suggested Martin was a jilted lover with a vendetta against Smith, an accusation she adamantly denied.

“I’m looking for justice for David,” Martin said.

Pontious’ brother Andrew Pontious also gave emotional testimony, describing their close relationship and the family’s heartbreak when David was lost at sea.

He and his father Frank traveled to St. John to meet Smith upon his arrival, and he took them out to the Cimarron by dinghy.

“We wanted to know the last moments,” Pontious said.

Smith told him they’d stayed in the area searching for several hours, and “he said he threw a life ring over immediately after,” Pontious said. “He complained he’d lost a good life ring that had been expensive.”

The trial continues today.

 
 
 

— Contact Suzanne Carlson at 340-714-9122 or email scarlson@dailynews.vi.

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On ‎1‎/‎7‎/‎2019 at 10:49 AM, nolatom said:

 

While a U.S. Coast Guard investigator found that Pontius jumped overboard in the midst of a violent psychotic episode and Smith was not at fault, federal prosecutors intend to present expert testimony that Smith was negligent in not seeking medical attention for Pontius before the fatal incident.

 

If that really is the gov't angle, would the events after the MOB really have that much bearing? sure it would highlight Smith's attitude towards Pontious, but the few articles one can read paints a pretty bleak picture of the man's health

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This doesn't sound too good for the Captain. If the biggest a-hole ever in history is chasing me around my boat with a chainsaw in one hand and a machine gun in the other and manages to fall off the boat, I am making damn sure the MOB gear goes over* and a Mayday goes out.

* just slightly out of swimming range ;)

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Wow.   Not yet in the Virgin Islands Daily News. 

This means the defense did not have to put on its case, as the judge essentially ruled as a matter of law that the evidence wasn't sufficient for any reasonable jury to convict.   Principally because, it seems,  the judge held that the Seaman's Manslaughter statute doesn't apply to noncommercial vessels, where seamen (crew) aren't "employed", or where passengers pay for their passage.   

 

 

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Here's the last word, I would guess, from the daily V I paper.   It may have been a charter boat primarily, but not on that delivery trip, said the good Judge, seeing as how the crew were neither paying for passage, nor paid for service.   And the US Attorney made a poor choice in trying to make the little-used Seaman's Manslaughter statute (born from boiler explosions and excursion boat fires) fit this trip legally.  

We don't get to know what the jury would have decided, but I would expect the arguments in the deliberation room would have been much like the discussions here, and on Sailnet:

St. John captain acquitted of manslaughter

 
 
 

St. John charter Capt. Richard Smith was acquitted of manslaughter Wednesday after a federal judge found that prosecutors had failed to produce evidence sufficient to support the criminal charge against him, abruptly ending his jury trial after two days of emotional testimony.

The family of the deceased, David Pontious, were visibly devastated by U.S. District Judge Curtis Gomez’s decision, and his mother sobbed as she left the courtroom. The ruling is not subject to appeal and the statute of limitations for a civil lawsuit has expired.

“This is not an easy decision,” Gomez said. “It is not a light thing to do, but under the circumstance, I think the weight of the law doesn’t support the result the government wants.”

 
 

Smith, 65, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute” in connection with the Oct. 25, 2015, drowning of Pontious, 54, of Beaufort, S.C., a crew member who was helping transport the Cimarron from North Carolina to St. John.

Two other crew members aboard the Cimarron at the time, Jacob Pepper and Heather Morningstar, testified that Pontious attacked Smith in the midst of a psychotic delusion before jumping overboard approximately 300 miles offshore.

Prosecutors Daniel Huston and Sigrid Tejo-Sprotte argued that Smith was criminally liable for Pontious’s death because he did not stop the Cimarron to search for Pontious.

However, defense attorneys David Cattie and Michael Sheesley argued that Pontious’ mutinous behavior posed a threat to the remaining crew.

“Obviously I’m pleased, I think it was the correct result. Rick and myself, we feel bad for the Pontious family — you never want to have somebody lose a life, which occurred — but I just don’t think Rick did anything criminal, I don’t think he did anything civilly wrong. It was just a terrible circumstance,” Sheesley said.

Cattie agreed that the situation was a tragic anomaly that did not rise to the level of a criminal offense.

“Rick had to make an almost impossible decision,” Cattie said. “You heard what happened on that boat, that’s a nightmare scenario for a captain. Rick certainly had no ill will toward David and didn’t want him to die.”

U.S. Attorney for the Virgin Islands Gretchen Shappert declined to comment on the case.

Gomez’s decision came after defense attorneys filed a motion for acquittal late Tuesday, arguing that prosecutors had charged Smith under a statute that only applies to vessels engaged in commercial activity.

While Smith used the Cimarron for paid charters at other times, Gomez found that the voyage during which Pontious died did not involve commerce because none of the individuals aboard had paid for the trip and were not compensated as employees.

Pepper testified that he approached Smith about sailing with him to gain offshore experience, and Morningstar said she went on the trip “to do something completely different.”

A third crew member, Candace Martin, also said she went on the trip with Smith because she loved offshore sailing. Martin was unable to complete the journey so she posted an online ad with the Beaufort Yacht Club, to which Pontious responded. Martin left the ship in North Carolina and Pontious took her place.

Crew members testified that Pontious became seasick and severely dehydrated, but Morningstar said he was able to work his scheduled watch at the helm Saturday, ate breakfast and dinner, and his condition seemed to be improving.

The evening of Saturday, Oct. 24, Morningstar testified that Pontious slipped into a delusional state and became progressively more agitated.

“We thought he was kind of turning a corner at that point,” Morningstar said. “Saturday night was when everything started to change.”

Pontious believed the crew had kidnapped him to extort ransom money from his father, and hallucinated a door or portal in the sky, through which he believed was a room full of electronics that would help him get back to reality, according to trial testimony.

When Smith refused to take him to the portal, Pontious punched and choked him, attempting to wrest control of the helm.

Pontius announced to Smith and the other crew that “if you won’t take me there, I’ll go myself,” and jumped overboard at about 1:30 a.m. Sunday morning, according to trial testimony.

He was never seen again.

It’s unclear why Pontious had a psychotic break — his brother Andrew and others indicated that Pontious did not have a history of mental illness and his behavior on board the Cimarron was completely out of character — and Cattie said the reasons for his death will likely remain a mystery.

“Whatever the reason is, his behavior was altered and the result was fatal and it’s a tragedy,” Cattie said.

 
 

Prosecutors highlighted the fact that Smith did not deploy an EPIRB remote signaling device, throw a life ring, or stop to engage in a search for Pontious. Smith made contact via radio with a weather router on the morning of Monday, Oct. 26, who summoned the U.S. Coast Guard, which flew a C-130 plane over the Cimarron to establish radio contact and begin the search for Pontious.

Smith did attempt to issue a mayday call via radio after Pontious went overboard, to no avail, and Cattie said his decision not to stop sailing after the chaotic, violent episode was indicative of his concern for his remaining crew.

“He had to make a decision I don’t ever want to have to make,” Cattie said.

Sheesley said that had Pontious not jumped overboard when he did, it’s possible the situation could have resulted in additional deaths.

“Rick had a tough choice to make, he made the right one. It ended up saving Heather and Jacob’s life,” Sheesley said.

In terms of the government’s prosecution, Sheesley said prosecutors expended a “ridiculous” amount of taxpayer money to hire three experts, retain two case agents, and fly numerous witnesses to the territory to testify at trial — all for a case he believes never should have been brought in the first place.

“They have an obligation to know the law, and the law just did not fit the facts,” Sheesley said.

While defense attorneys routinely file a motion for acquittal when prosecutors have finished presenting witnesses, “they are denied almost as a matter of course,” Sheesley said.

The fact that Gomez granted the motion in this case speaks to prosecutors’ lack of evidence, Sheesley said.

“This was part of our case strategy, we knew for months that this law was not applicable to this factual situation and we tailored our examination and evidence to support it,” Sheesley said.

Smith had been facing a possible 10-year prison sentence, and even though he is now officially a free man, his life has forever been altered by the trial, Sheesley said.

“Emotionally, this is massively taxing. It’s essentially bankrupted him,” Sheesley said. “Like any criminal prosecution it has a huge effect on somebody’s life, even when they’re found not guilty.”

 
 
 

— Contact Suzanne Carlson at 340-714-9122 or email

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8 minutes ago, nolatom said:

“Like any criminal prosecution it has a huge effect on somebody’s life, even when they’re found not guilty.”

An over reach by the prosecution.  I often had to hold my tongue because I had more court the next day and the day after that.  Deals are common.  You don't get deals when you stick someone's face into there own poo in front of the newspapers and TV.

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