OGDEN -- The next court trial in the fatal boating accident on Pineview Reservoir may not resemble the first two.
Last month's sentencing of the second and third defendants in the Aug. 21, 2011, death of swimmer Esther Fujimoto ends the criminal prosecution. A wrongful death civil lawsuit against the three young men awaits in the same Ogden 2nd District Courthouse.
The criminal charges were about what happened after the collision, where Skyler Shepherd, Colton Raines and Cole Boyer were convicted of leaving her to die. The civil suit is about the collision, and she may be partially liable, the defense contends.
Not allowed as part of the criminal case, but admissible in civil trial, is the defense claim that Fujimoto was subject to at least five near-misses in recent years with other boaters on Pineview because the strong swimmer always went well beyond the "wakeless" areas of the reservoir.
Greg Skordas, whose firm represents Raines and Boyer, said the five incidents are appropriate in the civil case, but were correctly excluded in the criminal cases.
"Fujimoto's assumption of risk is relevant in the civil case," he said.
The most recent near-miss came just a few weeks before Fujimoto's death, said Craig Raines, father of Colton. The senior Raines became a familiar face around the Ogden courthouse in December and February during the trials, the first for Shepherd, the second for Raines and Boyer jointly. He was joined by dozens of supporters of the three defendants, still incredulous at the charges and subsequent verdicts.
Raines sees the civil case as the other half of the story an angry public hasn't heard.
"You know what? We've got family, too, and the whole story was not told," he said. "The kids had been waiting for the hammer to drop for two years. They got a chance finally to have their say in court, somewhat. But there's still more to the story.
"My boy's got to live with what happened forever, and that's a long time. He's had his nightmares, and he'll have them again."
According to testimony, Fujimoto, often with her sister Denice, swam at Pineview up to 100 times a year in the last 10 years. Esther always swam out as far as a mile, well into areas where boats were allowed to run hard enough to create a wake -- not part of the case at the criminal trials, Raines and Skordas said.
"One hundred times a year," said Raines. "Boating and swimming are not inherently dangerous. But if you swim with boats, that's inherently dangerous. That's not an accident, that's statistics."
Shepherd has filed a notice of appeal, while officials expect the same for Colton and Raines. Raines and Skordas declined to comment on any appeal, focusing on the wrongful death suit, pending without date at this point.
Raines said Skordas took the case for free because he believed strongly in it, only charging the families when the civil lawsuit was filed.
Skordas did not want to talk about payment arrangements, but said he and wife and law partner, Rebecca Hyde Skordas, came to care deeply for "these kids. They're just kids. But we really love these boys. They're not monsters."
Skordas said they are committed to working with them "through the civil process, whether they can come up with any money or not. I believe with all my heart that they believed she was unhurt when they left her.
"I will go to my grave believing that, and so will they."
Raines is actually not worried about the wrongful death case going to trial.
"The civil trial is about the money," he said. "No one has any."