BOSTON, April 22, 2013—The driver who inadvertently left a 1-year-old boy in a day care van where he died of hyperthermia will not face criminal charges, Suffolk County District Attorney Daniel F. Conley said after meeting with the boy’s family, their attorneys, victim-witness advocates, and Boston Police today. Those findings were announced after being withheld since last year at the request of representatives of the family and their attorneys. The meeting today was scheduled last month.

After a comprehensive investigation of the facts, circumstances, and legal issues surrounding Gabriel Pierre’s death, senior prosecutors assigned to the DA’s Homicide, Child Protection, and Appellate units agreed that Massachusetts’ criminal statutes do not provide a legal foundation for charges against LUIS MATOS, who left the boy in his van on the afternoon of Sept. 12, 2011.

Prosecutors considered a number of possible charges, including involuntary manslaughter and reckless endangerment of a child, both of which require intentional disregard for the grave risk of harm to another.  That is, the person charged must willfully choose to run a grave risk rather than alter his or her conduct.  In other words, prosecutors said, manslaughter is charged in unintended deaths that result from intentional actions.

The comprehensive investigation by Boston Police and Suffolk prosecutors yielded no evidence that Matos acted with conscious disregard for the boy’s life or welfare, leading to the conclusion that they did not have a good faith basis to proceed with a criminal case. Investigators also considered the Chief Medical Examiner’s determination that the boy’s death was accidental and not a homicide.

The evidence did suggest that Matos acted negligently when he failed to check the interior of his van and left the boy sleeping in a rear seat.  Massachusetts law, however, does not provide for prosecution for a homicide prosecution under a theory of negligence: the Supreme Judicial Court wrote in 1944 that “[c]onduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct.  There is in Massachusetts no such thing as ‘criminal negligence.’”

With the exception only of misdemeanor motor vehicle homicide, Massachusetts law leaves issues of negligence in the hands of civil courts and precludes the criminal prosecution of an accident, even one as terrible and tragic in its consequences as this one.  Prosecutors reached the same determination in another, similar Suffolk County case of child hyperthermia in 2000.

Prosecutors also considered charging decisions in similar cases in other jurisdictions.  The majority of charged cases were from states such as Virginia, Texas, Michigan, and Tennessee, which, unlike Massachusetts, have negligent homicide statutes and/or involved serious aggravating factors.  Those factors included parents and caregivers who intentionally left children in vehicles, whose drug or alcohol use led to the children being forgotten, or who had records of abuse or neglect of children. None of these aggravating factors were present in Gabriel’s case.

Prosecutors said today that they would join with Gabriel’s mother to seek new legislation that would mitigate to the greatest extent possible the likelihood that the tragedy of her son’s death is repeated. That legislation would include mandated full-vehicle checks, the elimination of tinted windows from child-transport vehicles, and an effective communication system among parents, transportation providers, and day care facilities in the event that a child isn’t dropped off as expected.

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