BNSF pays witnesses to testify in train deaths

  • Article by: PAUL LEVY , Star Tribune
  • Updated: June 26, 2009 - 12:03 AM

The verdict is a year old. The train-car crash was six years ago. But witnesses are still surfacing, some receiving a "reward" to testify.

Six years after a horrific train-car accident that killed four young adults in Anoka, four new witnesses have emerged. Two were paid thousands of dollars by an attorney to help the railroad in its bid to fight a $24 million wrongful-death verdict.

The two paid witnesses were paid $10,000 and $5,000, respectively, in what a St. Paul attorney representing Burlington Northern Santa Fe called a "reward" in court documents. Burlington Northern is expected to ask for a new trial at a hearing today in Washington County District Court.

Since last June's verdict, attorneys for the victims' families have asked for $45 million in sanctions against the railroad. With the stakes higher, the railroad's search for witnesses intensified.

The two unpaid witnesses -- a Coon Rapids police sergeant and his wife -- weren't recruited by anyone. They contacted Anoka County authorities after reading about the April hearing in which the sanctions were requested. Sgt. Kevin Smith said Thursday that he and his wife, Colleen, have since been ordered to have no contact with attorneys from either side by Judge Ellen Maas.

Legal experts say they have never heard of a witness -- excluding experts -- being paid beyond travel expenses and incidentals in Minnesota court cases. Nor does Burlington Northern Santa Fe, the defendant in the wrongful-death civil suit brought by the victims' families, approve of paying witnesses to testify, according to a company spokesman

When the families of the victims were awarded one of the largest wrongful-death awards ever in Minnesota, there were no known witnesses other than the conductor of the train that struck Brian Frazier's car at 60 miles per hour around 10 p.m. on Sept. 26, 2003.

The families' lawyers said the crossing gate wasn't working properly. The jury agreed, saying the railroad was 90 percent responsible for the crash. Then, in April, the attorneys for the victims' families charged that Burlington Northern destroyed, withheld, misplaced or manufactured railroad records and asked for the $45 million in sanctions. Maas has yet to rule on the sanctions.

Burlington Northern's attorneys, hoping for a new trial or appeal, began scouring for witnesses last year.

"I've advertised for witnesses, but I've never paid them a dime," said Ron Meshbesher, who is among Minnesota's most respected attorneys and has no involvement with this case. "To pay an expert a flat fee is one thing. But this sounds unethical. I've never heard of anything like this in Minnesota."

Megan Ricke, the St. Paul lawyer who paid the two witnesses with checks generated by the Spence Ricke law firm, did not return the Star Tribune's calls. She prefers not to be interviewed, said Burlington Northern spokesman Steve Forsberg.

Traveling stipends for witnesses are common, said C. Peter Erlinder, a William Mitchell College of Law professor. No Minnesota statutes suggest that paying witnesses is illegal, said Marie Failinger, associate dean of Hamline University Law School. But not disclosing the payments of rewards to an opposing legal team could be grounds for appealing a criminal case, she said. Regardless, "the credibility of the witness is suspect," she said.

Jason Beringer, 31, a wireless-phone-service salesman from Maplewood, said on Nov. 25, 2008, in a statement to Ricke in court documents that he "didn't want to come forward. I didn't want to get voluntarily involved."

But last fall, his mother found a note on her door, saying Ricke was interested in talking to him. Ricke and Beringer met at a Perkins in Bloomington. Beringer said he suggested she offer a reward if she wanted to attract witnesses. He says she said she had considered offering $5,000 to the first two witnesses.

"I asked for both" $5,000 payments, "thinking it was unreasonable," Beringer told the Star Tribune. "I was surprised she said yes."

"I should have asked for more," he said of the $10,000 he was paid.

An acquaintance of two of the victims -- Frazier, 20, of Newport, and Corey Chase, 20, of Coon Rapids -- Beringer said he had gotten alcohol for the minors before, according to court records.

According to court documents: Beringer said he met with Frazier, Chase and the other victims -- Bridgette M. Shannon, 17, of Ramsey, and Harry Rhoades, 20, of Blaine -- in a parking lot the night of the accident. He delivered a backpack or knapsack containing what he believes was a bottle of vodka. He said he knew they were underage.

He then recalled driving away quickly, wanting to go home alone. But Frazier and Chase had been to his place before and he was certain they were following, he said. He said the rail caution gate at Ferry Street was working that night, but that it hadn't in the past.

"I had a lot of guilt," he told Ricke last November.

He was concerned about possible legal ramifications for supplying minors with alcohol, but was told by Ricke that the statute of limitations in a civil case is three years and he needn't worry. However, there are no statutes of limitations in criminal wrongful-death cases, the Anoka County attorney's office said.

The other paid witness, Karianne Olson, 41, of Ramsey, received $5,000 from Ricke, according to court documents. She said she was picking up her daughter from the Anoka High School football game on Sept. 26, 2003, and was in the area when the accident occurred. She said, according to documents, she was hesitant about giving testimony because "I didn't see the accident." She said she learned about the $5,000 payment via a flier.

The Smiths were picking up their son and niece, who also had attended the football game. They remembered commenting to each other about crossing the tracks, noticing a train and that "we made it." They recalled another vehicle coming around the curve.

The next day, Kevin Smith was notified by the county medical examiner's office that a vehicle had been struck by a train around 10 p.m. Smith told Anoka County officials he had gone through the intersection at about the same time and saw the railroad arms come down.

After the bodies were identified, Smith was among those who had to assist Corey Chase's mother in notifying relatives.

This past April 27, the Smiths crossed the tracks and the arm came down immediately after. "Déjà vu. You remember this?" Kevin Smith asked.

The next day they read about the civil suit. They decided it was time to contact the Anoka County sheriff.

Paul Levy • 612-673-4419

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