Superintendent Gregory Long

Boston Police Department

1 Schroeder Plaza

Roxbury Crossing, MA  02120

cc to Captain John Danilecki

RE:  Prosecution of Mr. Matthew Levari for the vehicular homicide of Dr. Anita Kurmann on August 7, 2015

Dear Superintendent Long,

We are submitting this letter and the accompanying video to request that your office reconsider the evidence and conclusions pertaining to the death of Dr Anita Kurmann, and recommend charges against and prosecution for involuntary manslaughter of Mr. Matthew Levari, the driver of the truck that killed Dr. Anita Kurmann.

Dr. Kurmann is one of 33 people who have been killed while riding a bicycle in Massachusetts since 2015. In 28 cases no charges were brought. In the five cases that were brought only two resulted in convictions. In the nine cases (more than 27%) where professional drivers operating large trucks killed a person riding a bike, charges were not brought.

This lack of accountability creates a serious threat to public safety for all citizens on public roads, particularly bicyclists. Bicycle use among Massachusetts residents has increased markedly in recent years and is expected to increase further. This prosecutorial indifference puts many residents at risk. It is the job of a district attorney to enforce the laws to protect ALL citizens on public ways.

Sufficient criminal liability can easily be established to justify vehicular homicide prosecution in the case of Dr. Kurmann’s death.

For the reasons detailed herein, we urge you to recommend that the office of the District Attorney prosecute Mr. Levari for the death of Dr. Kurmann, charging him with involuntary manslaughter under Massachusetts General Law c. 265 §13, which punishes in a House of Correction “whoever commits manslaughter” for operating to endanger and for reckless driving.

BACKGROUND

Involuntary manslaughter is “an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . . or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Campbell, 352 Mass. 387, 397 (1967). Commonwealth v. Sheppard , 404 Mass. 774, 776 (1989).  Wanton or reckless conduct may be established by showing that the defendant “knew, or should have known, that his conduct created a high degree of likelihood that substantial harm would result to another." Commonwealth v. Sneed, 413 Mass. 387, 393 (1992). See also Commonwealth v. Sullivan, 29 Mass.  App.  Ct. 93, 99 (1990).

Operating to endanger is the operation on a public way “in a negligent manner so that the lives or safety of the public might be endangered”.  Commonwealth v. Jones, 382 Mass. 387, 392 (1981).  Reckless driving is a separate and distinct offense from operating to endanger, involving reckless conduct or conduct which “consists of affirmative acts or ommissions undertaken in conscious disregard of the probable harm likely to be caused to others.” See Commonwealth v. Welansky, 318 Mass. 383, 399 (1944).

There is ample evidence to find Mr. Levari guilty of each of these criminal offenses based on his clear violation of Mass. Gen. Laws, c. 90 §14, which holds, with regard to the interplay of motorists making right turns across the path of bicyclists cycling to their right that “[w]hen turning to the right, an operator shall do so in the lane of traffic nearest to the right-hand side of the roadway and as close as practicable to the right-hand curb or edge of roadway. No person operating a vehicle that overtakes and passes a bicyclist proceeding in the same direction shall make a right turn at an intersection or driveway unless the turn can be made at a safe distance from the bicyclist at a speed that is reasonable and proper.”

The analysis below demonstrates that Mr. Levari was, or should have been, fully aware of Dr. Kurmann in the bike lane as a rider to his right, as he had just passed her on his right while he drove south into Boston across the Massachusetts Avenue bridge.  Further, since Mr. Levari came to a stop in traffic, he knew, or should have known, that she was likely to catch up to him as she proceeded in the same direction as he did on her bicycle on Massachusetts Avenue.

Mr. Levari knew, or should have known, that Dr. Kurmann was likely to be in the path of his truck when he made his right hand turn onto Beacon Street. He had ample opportunity to spot her in his mirrors to confirm her location, both prior to and when he initiated his turn and cut her off. Mr. Levari accelerated through the turn at excessive speed rather than proceeding at a slow speed, both reasonable and proper for the dense and populated environment

As Mass. Gen. Laws, c. 90 §14 makes explicitly clear, a motorist is required, for the safety of others, to make a right turn only “from the lane of traffic nearest to the right-hand side of the roadway”.  Because Mr. Levari was driving an oversized tractor trailer (the largest size permitted in Massachusetts) he was not able to do this, so, as set forth below and in the Boston Police Department reconstruction, he swung left into the middle lane such that his right turn onto Beacon street cut off not only Dr. Kurmann on her bicycle, but the two travel lanes to his right, as well. 

This was a dangerous maneuver that should have been made at a very slow rate of speed. It lays the foundation for a charge of operating to endanger and reckless driving.  Mr. Levari was a professional driver. He knew, or should have known, that Dr. Kurmann was on her bicycle to his right. He should have appreciated the risk in what he was doing.  Instead he swerved broadly and aggressively, cutting off a helpless Dr. Kurmann, who stopped in her tracks and tried to move out of his way. He hit her with his truck and crushed her to death.

Mr. Levari kept driving. He just drove away.

Such reckless conduct is intolerable if we care about safe streets and the safety of the public.  It is the duty of the district attorney to maintain the safety of our streets and of all persons using them. This includes the duty to prosecute Mr. Levari for conduct which not only put the lives and safety of persons on the streets at risk, but also caused the death of an innocent victim.  Justice and public safety require that Mr. Levari be punished for his criminal conduct and as a deterrent to others’ future reckless conduct. Such conduct has resulted in the death of too many innocent victims killed while riding bicycles. 

SUMMARY OF THE FACTUAL BASIS FOR PROSECUTION

• Bicyclists have the right to travel to the right of motor vehicles – M.G.L. c. 85 §11B, whether there is a marked bike lane there or not,
• A motorist must make a right turn from the right lane, not across another lane of traffic M.G.L. c. 90 §14,
• A motorist who approaches and passes a bicyclist may not make a right turn across the bicyclist’s path where not safe to do so M.G.L. c. 90 §14,
• Levari passed and saw, or should have seen, knew, or should have known, that Dr. Kurmann was on his right when he turned into her,
• Even though he knew, or should have known, that Dr. Kurmann was on his right, Mr. Levari proceeded anyway, oblivious to the risk of a person on a bike in his path.

Knowing that Dr. Kurmann was there, Mr. Levari’s reckless and willful decision to turn in front of her killed Dr. Kurmann. 

CRASH ANALYSIS

The Set Up

Mr. Levari was driving the largest tractor trailer truck combination allowed in Massachusetts.  It was comprised of a 2016 Mack Model CXU sleeper cab truck and a 48 foot flatbed trailer. Mr. Levari was a professional truck driver.

On the morning of August 7th, at 6:49:37 A.M., the Massachusetts Avenue at Beacon Street traffic camera shows Mr. Levari proceeding north in his tractor trailer truck, past Beacon Street. He apparently missed his left turn onto Beacon Street.  It should be noted that the southbound bike lane on the bridge is unobstructed.

At 7:01:36 A.M., Dr. Kurmann cleared the traffic signals at Memorial Drive and started over the Massachusetts Avenue Bridge.

At 7:02:01 A.M., 25 seconds behind Dr. Kurmann, Mr. Levari drove the truck past the traffic control signals on Massachusetts Avenue at Memorial Drive and entered the Massachusetts Avenue Bridge.

At 7:02:54 AM, Dr. Kurmann, on her bike, and Mr. Levari, in his truck, were at the same point approaching the intersection of Beacon Street and Massachusetts Avenue. The distance travelled at that point was four-tenths of a mile and 78 seconds had elapsed since Dr. Kurmann entered the bridge so her average speed was 18.5 mph. The truck took 53 seconds to reach this point yielding an average speed of 27.3 mph. Thus Mr. Levari would have passed Dr. Kurmann during the second half of the crossing of the Massachusetts Avenue Bridge.

The Intersection

There is a correct way that bike riders and motor vehicles negotiate the Massachusetts Avenue and Beacon Street intersection and traffic pattern. Proceeding south, from Cambridge entering Boston, which is the reverse of the north facing traffic camera view (pictured below), at the time of the crash the left lane was a through lane, the middle lane was a travel lane for both through traffic and right turning traffic, and the right lane was the bike lane, also used by motor vehicles as a right turn lane. From time to time the bike lane was used as a bus stop. A review of the first several minutes of the traffic camera video provides a full perspective of this proper and legal road usage.  Of particular note, these video stills document the correct, normal, and legal use of the bike lane and bus stop by bike riders.

The following photos are examples of two other bike lanes also on Massachusetts Avenue and occasionally used as bus stops that show the proper and correct flow of bike riders.

For bike riders coming southbound on the Massachusetts Avenue Bridge, as did Dr. Kurmann, when they enter the Back Bay neighborhood, the bike lane was uninterrupted by the bus stop, and it continued across Beacon Street. The shared-lane markings with a bicycle icon (referred to as a “Sharrow”) in the middle lane was there to notify motor vehicle operators that they may need to share the lane when bike riders move left to get around busses that were loading passengers.

Bicyclists are not required to switch to the sharrowed lane and are entitled to remain in their lane. They may move to the center lane if blocked by a bus. Depending on many factors, they may choose to take the middle lane with sharrows or wait behind the bus for the bike lane to clear. During heavy traffic periods, more riders will opt to wait for the bus to clear as it will be safer for them. The normal, legal, and safest route for a bike rider to take is to remain in the bike lane.

The Crash

Dr. Kurmann caught up to the truck 16 seconds before Mr. Levari turned the truck into her. During this time Dr. Kurmann was in various locations relative to the truck, beside the trailer, beside the cab, or in a perpendicular line to the driver -- for 16 seconds -- the time from which she caught up to the truck after the bridge to the time that the driver initiated his right turn. During those 16 seconds Mr. Levari should have seen her in his mirror, or out of his right side window, and made sure he did not crash into her.

7:03:05 AM: The truck was about 50 feet short of the intersection. Dr. Kurmann was about one-third of the way back on the trailer and about 6 feet to the right of the truck.

Dr. Kurmann crossed the Massachusetts Avenue Bridge in the bike lane. She was proceeding in the bike lane, through the portion occasionally blocked by busses, and would have ridden directly into the marked area of the bike lane, continuing through the Beacon Street intersection. As shown above, the bike lane continues through the bus stop. In this matter Dr. Kurmann did what was both legal and appropriate. The BPD investigator’s conclusion that she made a travel lane error or violated lane markings is wrong.

7:03:06 AM:  At about 30 feet from the intersection Dr. Kurmann’s front wheel is approximately equal to the front of the trailer and she has moved to the right. She is aware of the truck. One can see that there is about one lane of distance between her and the truck or about 10 feet. Mr. Levari has started to swerve into the left lane.

7:03:08 AM: At the intersection Dr Kurmann was parallel to the passenger window and passenger side mirrors of the truck cab in clear view of Mr. Levari. On her bike she was tall enough to be readily visible to Mr. Levari. By now the truck should have been proceeding at a slow speed, and she, having the right of way, (see below) would have been able to safely proceed into and through the intersection. [See M.G.L., c. 90, §14.]

7:03:10 AM: Mr. Levari obviously had not checked his right hand mirrors in some time nor had he looked out his right hand window for pedestrians and bicyclists. Rather than slowing, he aggressively accelerated into the turn, catching Dr. Kurmann by surprise.

The BPD investigator wrote: “At the time of the turn it is possible that the bicyclist, as shown in the video snips and photographs taken at the time of the tractor inspection, is outside the visual range of the truck operator.” (Emphasis added.)  This is an obvious error. Dr. Kurmann was immediately outside Mr. Levari’s passenger side window and was clearly visible; Mr. Levari had passed her on the bridge and so he already knew she was traveling to his right.  Because he slowed, he knew, or should have known, that Dr. Kurmann would catch up with him. She had been beside his truck for 16 seconds and was clearly visible through the right side mirror. (See more detailed analysis of her visibility below.)

Returning to the sharrows again, the investigator stated: “This would mean that all bicycle traffic coming from the bridge should move to the middle lane to cross over Beacon Street”. (Emphasis added.)  This is also wrong.  The bike lane does not terminate at the bus stop but continues through it. The above photos demonstrate that the lane was used as a continuous through lane.

There is no legal requirement, instruction, or directive for bikes to move into a shared traffic lane. It defies logic to require one to do so. The purpose of the sharrows is to inform the motor vehicle traffic that they may be sharing the lane with bike riders, not to require bike riders to use it. The road markings clearly show the bike lane continuing from the right most lane shared with busses making stops to cross Beacon Street. The obvious and correct conclusion is that the bike lane continues through that lane and is to be used when no bus has stop to load.

See M.G.L., c. 90, §14 "No person operating a vehicle that overtakes and passes a bicyclist proceeding in the same direction shall make a right turn at an intersection or driveway unless the turn can be made at a safe distance from the bicyclist at a speed that is reasonable and proper. . . . It shall not be a defense for a motorist causing an accident with a bicycle that the bicycle was to the right of vehicular traffic.” The investigator never addressed this clear violation of statute by Mr. Levari.

7:03:11 AM:  The driver did not stop, as he was required to do by law and by all morality, and the truck ran over and crushed Dr. Kurmann to death.

The Driver’s Field of View

The BPD investigator made much of how Mr. Levari might not have seen Dr. Kurmann because she was outside his field of view. The investigator wrote “…it is possible that the bicyclist…is outside the visual range of the truck operator.” This is an implicit acknowledgement that the investigator actually thought that Dr. Kurmann might also have been visible to Mr. Levari.  This is not only wrong, because it reveals a bias that is unfair, it is factually wrong. The evidence available overwhelmingly shows that Dr. Kurmann was clearly in Mr. Levari’s field of view for quite some time. Had Mr. Levari, an experienced and professional driver, exercised a normal degree of attention he would have seen his victim.

Had Mr. Levari acted in accordance with the law, specifically M.G.L., c. 90, §14, he would have seen Dr. Kurmann from the time he entered the Massachusetts Avenue Bridge when she was ahead of him on his right.  He also would have seen her as he passed her on the bridge, which she entered 25 seconds before he did.  Thus he would have known to look as he slowed coming off the bridge preparing for his turn, as he knew, or should have known, that she was approaching on his right.  Had he driven with the most minimal precaution and concern for the safety of others, let alone complied with M.G.L., c. 90, §14, he would have looked and seen her before he turned across her path and killed her.

Having just passed Dr. Kurmann while she and he were crossing the bridge, Mr. Levari slowed for traffic waiting at the intersection of Massachusetts Avenue and Beacon Street and Dr. Kurmann caught up with the truck.  He had sufficient time to see her approaching from the rear - 16 seconds. Despite the well-known problem of blind spots, a proper consideration of where Dr. Kurmann was for substantial periods of time shows that she was in full view of the driver if only he had looked. After all, he knew, or should have known, that she was there on his right.

When properly considered, the BPD investigator’s “Versa Cone” photos below show that Dr. Kurmann was visible to Mr. Levari. Versa Cones are an industry standard evidence marking system. Each one measures 4.5 x 4.5 inches at the base. Using this to scale the photo we find that the columns, identified by numbers 1, 2 and 5 and numbers 3, 4 and 6, respectively, are at 6 foot intervals from the truck.  Column 1 is at 6 feet and column 3 at 12 feet.  It is not readily apparent where the first row, defined by cones 3 and 1, (Row A) lines up, but presumably this row is at the nose of the cab. Row B (4 and 2) lines up more or less at the first “dual” wheel of the truck and Row C (5 and 6) somewhat back into the trailer.

This photo, of the view out the passenger side window, shows that Mr. Levari had a clear view of Dr. Kurmann.  Note that the primary mirror may be mal-adjusted as it shows a view mostly of the forest and sky. So this photo shows LESS of the pertinent view than Mr. Levari would have had.

The view from the smaller convex mirror shows a view that at the first wheel position was about 10 feet, or nearly a full lane, and at the position slightly down the trailer, the width of view was about 18 feet, well up onto the sidewalk.

• On the 7:03:05 photo Kurmann was about one-third of the way to the back of the trailer and 6 feet wide of the truck. This was clearly within view of the driver.
• On the 7:03:06 photo Kurmann's front wheel was approximately parallel with the back of the cab, while she and the bike were parallel to the front portion of the flatbed. She looks to have been about 8 feet wide of the truck. There were at least 14 feet of view in the driver’s mirror. She was clearly visible to Mr. Levari, if he had checked his mirror.
• On the 7:03:10 photo Dr. Kurmann was adjacent to the truck’s right hand mirror. Referencing the photo above, Dr. Kurmann was fully in Mr. Levari’s field of view.

If Mr. Levari did not see Dr. Kurmann, it was because he didn’t look, which he had a legal duty to do before turning right. [See M.G.L., c. 90, §14.]  Had he done so he would have seen her as she clearly was visible.  He had 16 seconds in which Dr. Kurmann was within his plain view.  It defies credibility to conclude that he did not see her before turning right across her path. If he didn’t, he should have, as he knew, or should have known, she was there.

The Crash was the Driver’s Fault

About 25 seconds before turning right onto Beacon Street, Mr. Levari passed Dr. Kurmann on the Massachusetts Avenue Bridge. He slowed and came to a stop for the traffic light.  Where she was in plain view alongside his truck in his rear view mirror he knew, or should have known, that she was close to his truck.  His mirrors provided ample opportunity to observe Dr. Kurmann on her bicycle.

Dr. Kurmann was visible to Mr. Levari in his mirrors most of the time he was initiating his right turn. She was visible to him immediately outside his passenger side mirror as he turned.  He had a view of her proceeding correctly in the bike lane to his right through the empty bus stop. He had a view of her as she properly exercised her right of way to proceed across Beacon Street in the bike lane to his right.

Rather than proceeding at a safe and reasonable speed, as the law requires, Mr. Levari aggressively accelerated through the turn, swinging wide across the left lane in order to maneuver his oversized trailer.  Given the urban density, the mix of cars, trucks of different sizes, pedestrians and cyclists, and the very large size of his rig, a safe, reasonable and proper speed, as required by M.G.L., c. 90, §14, was very slow.  In swinging wide, effectively turning from the left most of the three lanes, he also violated a second portion of M.G.L., c. 90, §14, which reads: “When turning to the right, an operator shall do so in the lane of traffic nearest to the right-hand side of the roadway and as close as practicable to the right-hand curb or edge of roadway.”

The evidence, most clearly shown through the video, establishes without a doubt that Mr. Levari, recklessly failing to notice Dr. Kurmann on her bicycle, or noticing her and recklessly proceeded anyway, violated two separate parts of M.G.L., c. 90, §14.  This is the definition of operating to endanger; operating on a public way “in a negligent manner so that the lives or safety of the public might be endangered”.  Commonwealth v. Jones, supra.

Conclusion

Mr. Levari’s deliberate turn across the path of the oncoming Dr. Kurmann caused her death by an act of “such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." This is involuntary manslaughter and should be prosecuted as such.  Failure to do so represents a callous disregard for the life of Dr. Anita Kurmann and 31 other Massachusetts residents killed while riding a bicycle on Massachusetts streets and for every Massachusetts citizen who seeks to ride a bicycle on a public way without fear of being killed for being on his or her bicycle.

Given these facts, it is the duty of the Suffolk County District Attorney to charge Mr. Matthew Levari with involuntary manslaughter and prosecute him for the death of the innocent Dr. Anita Kurman. Failure to do so will be an abrogation of the duties of the office to which the District Attorney was elected and entrusted with the safety of the citizens of the Commonwealth of Masschusetts who reside in or travel to Suffolk County.

Your assistance in the review and recommendation to the DA that charges should be brought would be an immense help not only for justice in this particular case but as an important message to the general public, that the times are changing, that drivers will be required to pay attention to bike riders and pedestrians, and that there are consequences when they do not.

Thank you very much for your time and consideration.

Respectfully Yours,

Richard Fries (author), Executive Director, Massachusetts Bicycle Coalition

Joel Feingold (author), Ride of Silence Boston & Brookline Town Meeting Member

Andrew Fischer (author), Attorney at Law, Jason & Fischer, and Bikeattorney.com

Alan Wright (author), Rozzie Bikes, Walk UP Roslindale

Peter Cheung (video editor), Boston Bike Party organizer