Experts: Pool case won't be an easy one

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According to federal statistics, from 1990 to 2005, 130 people were trapped by the suction of pool and spa drains, and 27 died.

Prosecutors could convict Lionetti of manslaughter if they show he chose not to outfit the Cohn's pool with the devices despite knowing of the legal requirement to do so, said Jeffrey Meyer, a professor of criminal procedure at the Quinnipiac School of Law in Hamden.
"The proper evaluation the prosecutor has to make when moving forward with the case is the degree to which there has been a violation of a clearly articulated and stated standard and to the degree that was done willfully," said Meyer, a federal prosecutor in Connecticut from 1995 to 2004.

If Lionetti maintains he was ignorant of the standards, prosecutors could counter with a "willful blindness" argument, that Lionetti deliberately overlooked learning about the building requirements, perhaps to avoid the expense or trouble of following them, Meyer said.
"That can be hard to prove," he said of willful blindness. "The prosecution is going to be better off to the extent it can prove he knew the standards than that he should of known them."

Yale Law School Professor Steven Duke said to obtain a conviction for manslaughter, prosecutors will have to prove that Lionetti was aware of the serious risk of death posed by not installing the safety features and furthermore that he was aware that employees didn't install the devices in that specific pool.

"I think it quite doubtful that the state can succeed in imposing criminal responsibility on the president of the company vicariously and hold him responsible for what an employee of his company did or failed to do with regard to the pool at issue," Duke said.Eugene Riccio, a Bridgeport-based criminal defense attorney, said while the case appears unusual, he could imagine a successful prosecution being made on the theory that the missing safety measures reflected a reckless level of disregard for safety.

Under state law, one factor in a manslaughter charge is "recklessness," defined as performing an action with the knowledge of a significant and unjustifiable risk of death or injury to another.

"Manslaughter is not just taking out a gun or a knife and taking somebody's life," Riccio said. "It is not unheard of for business owners to be arrested for something they do in the conduct of their businesses that is deemed illegal and results in death."

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