Four months after 21-month-old Zachary Wyles was run over and killed in a parking lot in Billings, his family thinks justice is a long way from being served.
The toddler’s parents, Zachary Sr. and Aleada Wyles, recently filed a civil lawsuit against Jamie Van Atta, the woman who was driving the truck that ran over the boy, and the owners and managers of the Rose Park Plaza Apartments on the 2300 block of Avenue C, where the incident occurred.
Meanwhile, the boy’s grandmother, Pamela John, Aleada Wyles’ mother, has been leading an effort to keep a police investigation of the accident open. She said the Billings Police Department conducted a sloppy investigation and its “crash investigator’s report” contained numerous errors of fact and misinterpretation.
John has also been telling anyone who will listen that the Yellowstone County Attorney’s Office is hesitant to bring charges against Van Atta, 35, for fear of shining a light on what John said was the “lax manner” in which that office previously treated Van Atta’s “habitual DUIs and multiple felonies.”
John has written to Montana Attorney General Tim Fox, asking him to appoint a special prosecutor to review the case and to consider bringing charges against Van Atta.
A special prosecutor might look into the incident and decide not to file any charges against Van Atta, John said, “but at least I could sleep at night knowing it’s not for political reasons.”
John has been acting as the family spokeswoman, she said, because her daughter and son-in-law have been so devastated by their son’s death that they are hardly able to function.
Police Chief Rich St. John defended the work done by the department’s crash investigator, Officer Robert Ellison. After asking R.D. Harper, captain of operations, to review the investigation, and having reviewed it himself, St. John said, “I’m satisfied it was a very thorough investigation.”
County Attorney Scott Twito said his office did nothing wrong or out of the ordinary in the handling of Van Atta’s previous crimes, and he said his office is still looking into the specific complaints raised by the Wyles family in regard to the police investigation.
Van Atta, for her part, said she had not seen a copy of the civil suit yet, but she said she is blameless in what was simply an accident.
“I know that I didn’t do anything wrong,” she said.
The lawsuit was filed in Yellowstone County District Court on May 20 by W. Adam Duerk and Dylan McFarland, attorneys with the Missoula law firm of Milodragovich, Dale & Steinbrenner. In it, Zachary and Aleada Wyles maintain that Van Atta, who has multiple DUI convictions and parole violations and was considered “a habitually reckless and negligent driver by many residents” of the apartment complex, caused the boy’s death through her negligence.
They also accuse her of malice for acting “with either conscious or intentional disregard for the high probability of injury to the Plaintiffs.”
As for the other defendants—Rose Park Partners and the Tamarack Property Management Co.—the suit accuses them of negligence for failing to post speed limit signs in their parking lot and for failing in their duty “to ensure that the parking lot was safe.”
A person who answered the phone at Rose Park Partners referred all questions to Tamarack Property Management, and a person there referred questions to Brooke Murphy, with the Billings law firm of Matovich, Keller & Murphy. Murphy did not return a call seeking comment.
The lawsuit seeks unspecified damages for pain and suffering inflicted on Zachary Jr., compensation for Aleada Wyles for having had to witness her son’s death, compensation for medical expenses, funeral expenses and lost future earnings, and punitive damages.
The incident took place on the afternoon of Feb. 5. The lawsuit says Aleada Wyles was walking to her car, carrying her 2-month-old baby in a car seat, while Zachary Jr. walked in front of her, “a close distance” away. As they were walking across the parking lot toward their car, Van Atta began backing her pickup truck out of her parking space.
The suit says Van Atta did not look to see if anyone or anything was behind her and backed up at a speed “inappropriate and careless for driving in a parking lot.” She also backed up much farther than a reasonable driver would have done, the suit continues, and nearly struck the car seat Aleada Wyles was carrying before running into Zachary Jr.
The lawsuit says the truck’s rear bumper picked Zachary up and then knocked him to the ground, at which point Van Atta drove over the boy’s body, killing him. The suit goes on to say that Van Atta had multiple DUI convictions and had violated parole by drinking alcohol “on numerous occasions,” but police officers responding to the accident “failed to administer a breathalyzer or field sobriety tests” to Van Atta.
“Defendant Van Atta,” the suit added, “is considered a habitually reckless and negligent driver by many residents of the Rose Park apartment complex.”
Van Atta “incorrectly and inappropriately” told a police officer on the scene that Zachary had run out behind the truck, the lawsuit says, and “from this false report, within minutes, the Billings Gazette published a story stating that Zachary Jr. ran out behind Defendant Van Atta’s truck.”
Van Atta, in an interview with Last Best News late last week, said she hadn’t seen the lawsuit yet, and she didn’t relay any comments on it after a copy was sent to her.
She did say, however, that the Wyles family had been “doing some fairly crazy things … slandering me all over the Internet.”
“They have been really attacking me on all kinds of websites,” she said. “I know that they were coming after me with a vengeance.”
Van Atta said she doesn’t believe she did anything wrong on the day of the accident, and she acknowledged having gotten in a lot of trouble in her life.
“I have a storied past,” she said. “I was a drunk for a very long time.”
But she said she paid her dues, that she couldn’t drive for a couple of years and that she has been sober since 2010. She also said she is completing the course work she needs to become an addictions counselor.
“This incident isn’t really that huge a part of my life … though I know it was for the families,” she said. “It was a bad thing that happened, but I was not at fault in it.” She said the Wyles family is “trying to create a criminal offense, and there wasn’t one.”
Van Atta did agree with one point raised by Pamela John. John said the police should have examined security cameras mounted in the parking lot of the apartment complex. She said Ellison, the investigating officer, told her that he checked with managers of the apartment and was informed that the cameras were only “for show.”
John said that simply is not true, because her daughter had seen images on monitoring screens in the apartment office on several occasions.
Van Atta said she, too, wishes police had reviewed any surveillance footage because she’s convinced it would have shown she wasn’t at fault in the accident.
Like Zachary Jr.’s mother, she said she had reviewed surveillance footage on at least two previous occasions—once when she lost her cell phone and again when a friend reported the theft of her child’s bicycle.
“I know that some of them (the security cameras), at least, aren’t for show,” Van Atta said.
Capt. Harper, in a written response to questions posed by Last Best News, said Ellison was told on the day of the accident “that the camera was not working. Subsequent investigation confirmed that there is not video footage of the accident.”
John said she is suspicious of the police department’s statements about the camera because when Ellison interviewed her daughter six days after the accident, he said to her, in effect, “I’ll bet you dinner there’s nothing on there,” referring to the cameras.
“He didn’t say they were just for show,” John said.
The timing of the interview with Aleada Wyles is also a sore point for the family. John said no officer took a statement from Aleada at the scene, and that she was not interviewed by Ellison until she and her daughter “made several attempts” to contact the officer.
Harper, in his written response, said Ellison waited until after the boy’s funeral to interview Aleada Wyles, “in consideration of the mother’s grieving.” He also said Aleada “was thankful” for that.
John vigorously disputed that account. She said she and her daughter “had been calling Ellison for days in an effort to get him to take her statement and to give him the names of witnesses who asked to be interviewed.”
She said Ellison did not respond until Feb. 10, the day of the funeral, when he called John. He said he wouldn’t think of interviewing Aleada on the day of the funeral, and that was what her daughter was thankful for, not for his failure to interview her earlier, John said.
“It is not ‘considerate’ to ignore phone calls from a Mother whose child has just been killed,” John wrote in an email to Last Best News.
Regarding John’s contention that Van Atta, given her criminal history, should have been subjected to field sobriety tests, Harper said that history would not in itself provide “reasonable suspicion to jump to field sobriety tests.” He also pointed out that Van Atta consented to a blood test at the DUI center an hour and 33 minutes after the accident, and lab tests showed she had no drugs or alcohol in her system.
John had numerous other complaints with the investigation, including her belief that Van Atta couldn’t have been backing up with the intention of getting out of her vehicle on the other side of the parking lot to check her mail, as she supposedly told investigators. John said she would have walked past the mail boxes on her way to the truck. She also had questions about other details of what occurred, such as whether Van Atta saw flashing lights on Aleada Wyles’ car when she pressed her key fob to unlock the doors, and exactly how and how far Van Atta backed up across the lot.
In response, Harper said “everything was considered” by Ellison and it would be “impossible to prove or disprove the grandmother’s theories.” He also said that the accident report was reviewed by Deputy County Attorney Victoria Callender, “and she found that there was insufficient evidence to file any charges in this case.”
County Attorney Twito, however, said his office had not made a definitive decision in the case, and in a meeting with John and other family members in mid-May, he assured them that he considered the review still open.
Twito said he did tell the family his office was unlikely to file any charges, but that he had instructed Callender to look into several allegations raised by John. He said a final decision in the case could come “relatively soon.”
John said she asked for the state attorney general to look into the case because she believes Twito, who was a deputy county attorney in 2008, was lax in his prosecution of Van Atta, who pleaded guilty to felony DUI. She was arrested on May 20, 2008, after hitting several parked cars on the 1200 block of Avenue D.
Arresting officers said she was wearing only a T-shirt and sandals and stated that she was driving to a gas station to buy more beer, at 1:40 a.m., even though she also said she had earlier bought eight Bud Ices and had drunk only four of them.
She was sentenced to 13 months in the custody of the Department of Corrections, with a concurrent two-year suspended sentence for violating an order of protection against the wife of her ex-husband.
In 2010, she was charged with numerous probation violations, including failing to provide urine samples and failing to check in with her probation officer. Two days after Twito was elected county attorney in 2010, a judge revoked her suspended sentence and sentenced her to the Department of Corrections for three years.
In her letter to the attorney general, John said she believes Twito does not want to bring charges against Van Atta in connection with her grandson’s death because “he would prefer that Zachy’s case disappear with as little public attention as possible rather than charge Van Atta with her obvious crime of negligent homicide and re-open any inquiry to the 2008 cases, thereby risking public criticism for his lax prosecution of those matters prior to the next election.”
Twito said felony DUI prosecutions in Montana are “pretty standard; the sentence you get is pretty much set in stone.” He said Van Atta received a sentence that was not at all out of line with state standards. And in 2010, when her suspended sentence was revoked, he said, the county attorney’s office followed the recommendations of the Department of Corrections and the judge sentenced Van Atta to three years under DOC supervision.
She was sent to Passages, a community correctional facility in Billings, and served her three years, with credit for the 84 days she spent in jail before her court appearance, Twito said.
John said Van Atta, who had four previous DUIs before the incident in 2008, according to court records, should have been punished more severely, despite Twito’s assurances that she was given a standard sentence.
“I understand that that is the norm in Montana,” she said. “But why? Are we really OK with letting this happen until they kill our kids?”
John Barnes, a spokesman for the attorney general, confirmed that Fox had received John’s letter, which was still being reviewed. He also said that the office’s prosecution chief “will be speaking with Twito” about John’s concerns and allegations.
John, for her part, said she is not giving up.
“People always say they don’t know what we’re going through,” she said. “Well, neither do we. It’s too big to wrap your head around.”
Details: To see the full lawsuit, click here. The copy linked to was provided by Pamela John. There is a copy on file in the Yellowstone County Courthouse that is properly stamped and dated May 20 on the front page.