COAC's Misconduct and Failures to Act

Tom Green, a deputy sheriff summoned to Cathedral Oaks Athletic Club (COAC) left the scene a mere twelve minutes after he arrived. Although he chatted briefly with the lifeguard, Deputy Green departed without conducting any formal interviews, without pursuing any kind of investigation, and without apparently taking any notice of the video cameras or attempting to secure the video recording. The deputy did nothing to designate the pool area a crime scene and took no action to preserve the integrity of the scene until a full investigation could be conducted. Instead, because Deputy Green so quickly left the scene, COAC employees immediately hosed down the pool deck and nearby objects, and removed all soiled towels. The deputy did not even write a report until sometime later when he was asked to do so by his supervisor.

Even in the most routine traffic incidents - in which no one has died - officers obtain the identification of all witnesses, check for the influence of drugs or alcohol, check for a history of prior events and check licensing. None of these things, especially checking to ensure that COAC was running a licensed child care facility, was done in connection with Yoni’s death.

More than a year after Yoni died, a Sheriff’s department spokesman, Sgt. Erik Raney, said it stood by its investigation, adding that he didn't remember hearing anything about dunking. That is hardly a surprise given the delayed, incomplete review that was conducted. So sloppy was the investigation that the Sheriff’s department did not even realize that the original time stamp on the video was approximately twenty (20) minutes off from the actual time of events.

When the Coroner was notified of Yoni’s death, the Sergeant in charge of the Coroner Bureau, Deputy Court Williams, and the Sheriff Coroner Investigator, Deputy John Kolbert, conducted only a cursory investigation and summarily concluded Yoni’s death was an “accidental” drowning. Remarkably, Deputy Kolbert did not even bother to go to COAC the day Yoni died. Instead, he first went to the Club the following day, the same day -- and before he even watched the video -- that he made the conclusory statement to the media that Yoni's death was "an accident." In addition, Deputy Kolbert was only two (2) weeks from retirement when he was appointed to "investigate" Yoni's death, and much of his work was done after he was retired. The Coroner’s report contains two startling conclusions that are directly contradicted by the video: (1) That, in reviewing the video, the Coroner “saw nothing to indicate that Jonathan was either accidentally or intentionally struck or handled in a manner that would cause him to drown”; and (2) that “there is nothing to indicate that these employees were not performing their duties at this time.” The report also erroneously stated that Yoni was floating for only five (5) minutes when in fact he was floating face down for over eight (8) minutes.

Any focused review of the video shows that Yoni was repeatedly and aggressively dunked under water by the counselor who was supposed to protect him. It also shows that the employees at the pool clearly were not performing their duties; had they done so, Yoni would be alive today.

Until Mr. and Mrs. Gottesman retained legal counsel who hired a private investigator to conduct an investigation and undertake extensive witness interviews, no real inquiry was made into how a four-year-old child, otherwise completely healthy, possibly could have died in plain view of numerous adults who were charged with his care and safety.

The District Attorney’s Inadequate Investigation and Baseless Refusal to Prosecute

The drowning of a small child at a summer camp should have led to an immediate and thorough investigation by the Sheriff’s department. It did not. Sheriff’s Department and Coroner personnel conducted no real investigation at the time of Yoni’s death, did not preserve evidence at the scene or interview percipient witnesses. Witnesses who contacted the Coroner with evidence of prior unsafe conditions and incidents of near-drowning at Cathedral Oaks Athletic Club (COAC) were ignored. And, until pressured by the Gottesmans and their attorneys, the District Attorney’s office did nothing to obtain the most critical piece of evidence: the video of the drowning.

Because the authorities did not conduct the complete investigation required, the Gottesmans and Cappello & Noлl pursued the matter with the District Attorney’s office. They provided the D.A.’s office with written memoranda, and met with both District Attorney Tom Sneddon and his successor, Christie Stanley. When the Gottesmans and their attorneys noted the impact the aggressive dunking would have had on Yoni, District Attorney Sneddon dismissed the seriousness of the action and excused the conduct saying that he dunks his own kids. However, this was not a game played with your own children, closely under your supervision. A child died as a result of the inexcusable dunking and the subsequent failure of anyone to save him.

The video alone, which clearly shows gross negligence on the part of the lifeguards and counselors, should have caused an immediate investigation by the District Attorney’s office. It did not. Instead, D.A. investigator Paul Kimes did not begin his investigation until 4 months after Yoni’s death, and did not issue his report until 9 months after Yoni’s death. Most of the key witnesses were not interviewed until six months after Yoni’s death, and most of those witnesses were not interviewed in person but only by telephone. Worse, in many instances Investigator Kimes suggested facts to interviewees rather than letting them respond to non-leading questions uninfluenced by his suggestions. Many aspects of the report are vague as to time, place and dates. Many statements contained in it are conclusory and not based on established facts. Most important, Investigator Kimes failed to follow up on key pieces of evidence and witnesses.

In addition, District Attorneys Sneddon and Stanley both completely ignored and refused to consider the fact that COAC was an unlicensed facility in violation of California law. The D.A.’s office never sought to determine if the Camp’s failure to meet licensing requirements was one of the causes of Yoni’s death. District Attorney Sneddon also whitewashed Berti’s connection to the Sheriff’s Council. When Investigator Kimes interviewed law enforcement personnel and other witnesses, he did not ask questions to elicit facts about the witnesses’ knowledge regarding any connection between COAC’s owner and the Sheriff’s Council. Rather, he began his interviews by telling the witnesses about the allegations of favoritism and conflict of interest and then essentially invited witnesses to deny those allegations. Berti’s notable financial contributions to the Sheriff’s Council lead to an unavoidable appearance of impropriety. In spite of this, the D.A.’s office never checked phone records between Berti and the Sheriff immediately following the incident. The conclusion is that the D.A., one small-town, good old boy to another, either didn't take the allegations seriously or didn’t want to pursue a prosecution that might support the allegations against the Sheriff and/or the owner of COAC.

In arriving at his refusal to file any criminal charges in connection with Yoni’s death, District Attorney Sneddon not only ignored the facts, he also ignored clear legal precedent in his own and other jurisdictions. Cases with circumstances very similar to those leading to Yoni’s tragic death have caused district attorneys in other California counties to file criminal child endangerment charges against the operators of day care centers, caretakers and even parents. And, district attorneys in other states repeatedly have charged third-party child care providers with child endangerment in the drowning deaths of toddlers or young children left in their care. Yet while District Attorney Sneddon refused to prosecute this case that so clearly should have been prosecuted, he had no problem expending vast taxpayer resources in the failed attempt to prosecute celebrity Michael Jackson.

But neither the facts nor the law had any influence over two separate Santa Barbara District Attorneys who refused to prosecute this matter. The D.A.’s office simply turned a blind eye to the grossly outrageous misconduct of the Club owner, the managers, supervisors, counselors and lifeguards, the people who are responsible for Yoni’s death.

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After the District Attorney refused to prosecute, the Gottesmans and their attorneys, Cappello & Noël, pursued the matter with William Lockyer, then the Attorney General of California.

“COAC demonstrated a callous indifference toward the safety of the children left in it's care. The facts supporting this include past incidents of near drowning, numerous complaints of inattentive lifeguards, non-responsiveness to complaints, and lack of licensing. The latter deprived the parents of children left in COAC’s care of Department of Social Welfare oversight regarding safety; appropriate credentials and facilities; and the propriety of young, untrained and unsupervised counselors. COAC’s indifference rose to the level of criminal negligence when its conduct resulted in the death of a 4-year-old child – a little boy who repeatedly was dunked by a large male counselor who then swam away leaving him to drown under the “watchful eyes” of two lifeguards and three counselors. What happened to Yoni Gottesman was a crime. It should be prosecuted as such.

In any other county in the State, this incident would have resulted in the filing of criminal charges. The result can be no different in Santa Barbara. On behalf of the Gottesman family, we ask that the Attorney General’s office take all steps necessary to ensure the equal application and enforcement of the criminal laws of the State of California.”

Attorney General Lockyer, who was about to leave office, did not substantively respond. His successor, Edmund G. Brown, agreed to speak with Mr. Gottesman and his attorneys on the telephone, and as a result of the phone conversation sought additional information regarding examples of other counties in the State that had filed cases for child endangerment or involuntary manslaughter in similar situations.

Despite the fact that the circumstances of Yoni’s death would have resulted in the filing of criminal charges against COAC in other counties, a deputy attorney general responded for Attorney General Brown: “Our conclusion is that the District Attorney’s Office did not abuse its discretion in declining to file a criminal complaint against Cathedral Oaks Athletic Club or its owner or employees.”

The “abuse of discretion standard” in fact does not exist as a legal standard of review applicable to the Attorney General. During the telephone conversation with Mr. Gottesman and his attorneys, Attorney General Brown stated that he did not endorse the “abuse of discretion standard.” The Gottesman's attorneys reminded Attorney General Brown of this in a letter.

“Clearly, the application of an abuse of discretion standard is an abdication of your constitutional authority which, given your comments in our telephone conversation, certainly did not appear to be your intention. We cannot find any basis in law for the "policy" of following an abuse of discretion standard; indeed, such a standard is antithetical to the power and responsibility of the Attorney General as the chief law enforcement officer in the State of California.”

The Attorney General did not find that the actions of the District Attorneys were justified; rather he simply chose the easier path of abdicating his responsibility, as the chief law enforcement officer, to equally enforce the laws of the State of California. Although it was within the power of the Attorney General to apply a standard of review that was “legally sound and morally correct,” he did not. Instead, he placed his seal of approval on the travesty of injustice that began with the District Attorney.

After the Attorney General refused to become involved, the Gottesmans and Cappello & Noël next turned to Governor Schwarzenegger’s legal affairs office in an effort to both draw attention to the fact that the Club was not licensed, and also to attempt to put some teeth in the laws requiring the licensing of child care facilities.

Cappello & Noël’s letter received a proforma response – not from the Governor’s office, but from the Department of Social Services – simply stating that since COAC terminated its child care program, nothing could be done. The response ignored a major issued raised by the Gottesmans: The welfare and safety of the children of the State of California. Cappello & Noël wrote again to Andrea Hoch in the Governor’s office:

“We wrote to you because we believe the Governor needs to be aware that the State’s licensing requirements for day care facilities are not being enforced. The issue is not whether this particular facility does or does not provide child care any longer (and therefore whether it needs to be licensed at this time). The issue is that child care facilities all over the State are not being regulated appropriately, and the Health & Safety Code is being ignored on a wholesale basis.”

The Governor’s office, however, failed to take any action to investigate or rectify the failure to enforce the laws regulating child care facilities.

Because no government agency or office would act, the Gottesmans and Cappello & Noël finally decided to enlist the assistance of Maria Shriver, the First Lady of California, because of her strong interest in family issues, including child safety. Cappello & Noël wrote to the First Lady, asking for her assistance.

Cappello & Noël subsequently was advised that Mrs. Shriver does not get involved in this type of matter.