A Suffolk Superior Court judge on Thursday sentenced a drain company owner to two years in jail for failing to take safety precautions at a job site in Boston’s South End where a trench collapse killed two of his workers in 2016.
As relatives of the victims looked on — and over prosecutors’ objections — Judge Mitchell H. Kaplan permitted Kevin L. Otto, 45, to remain free for at least several weeks while the defense files a motion to reconsider the verdict.
Otto was at the job site on Dartmouth Street on the afternoon of Oct. 21, 2016, when a 14-foot trench quickly filled with water after a hydrant collapsed. Kelvin Mattocks, 53, and Robert Higgins, 47, were submerged and drowned. He was convicted during an October bench trial of two counts of involuntary manslaughter and one count of witness intimidation. His company, Atlantic Drain Service, was found guilty of the same counts.
The two victims’ relatives were furious that Otto was allowed to remain free pending his legal motion.
“I think he should have went to jail,” said Higgins’s stepfather, Gerald Biancuzzo. “That’s my comment. What about our Christmas?”
Mattocks’s relatives left court in tears and declined to speak to reporters.
Prosecutors said Otto knew he was supposed to install cave-in protections known as trench boxes at the site, but the safeguards weren’t present when dirt buried his workers up to their waists before the hydrant collapsed, unleashing a torrent of water.
In addition, prosecutors said, OSHA had warned Otto at job sites in 2007 and 2012 that he needed to install cave-in protections in trenches that were deeper than 5 feet.
Otto’s lawyers argued that the government couldn’t prove the lack of a trench box caused the hydrant to collapse. The city is responsible for installing hydrants, which are supposed to be equipped with devices called thrust-blocks to keep them stable, but there’s no evidence such safeguards were ever placed on the hydrant involved in the deaths of the workers, the defense maintained.
On Thursday, Kaplan said from the bench that Otto “engaged in shoddy, risky business practices,” and that the evidence showed Mattocks and Higgins wouldn’t have died “but for that reckless conduct.”
Kaplan said trial testimony showed Otto normally hadn’t been directly supervising jobs at the time of the trench collapse, but he was present at the Dartmouth Street site the day of the deaths because the foreman was ill.
The judge said state law doesn’t permit him to “send a message” to other contractors with his sentence, though deterrence, punishment, and rehabilitation are appropriate factors to consider.
As for deterrence, Kaplan said, Otto is now indigent, his company has ceased operations, and he remains a defendant in ongoing civil litigation. If those consequences don’t serve as a deterrent, Kaplan said, “I doubt any sentence I impose on Mr. Otto” will.
Kaplan said he wasn’t aware of any prison rehabilitation programs that would address Otto’s shoddy safety practices. “Perhaps his conscience will,” the judge said.
He said Otto is currently cleaning drains to make money, and he’s the sole provider for an elderly mother, a disabled sister, and a disabled adult son, who all live with him.
The judge acknowledged the suffering of the two victims and their families, calling the deaths a “terribly tragic event. . . . The manner of death was truly horrible.” No sentence, he said, could reflect “the degree to which [Higgins and Mattocks] were loved and cherished.”
District Attorney Rachael Rollins’s office had sought a prison term of seven to 10 years for Otto. A spokesman for Rollins said Thursday that prosecutors will withhold comment on the sentence until Otto’s motion to reconsider the verdict is resolved.
In addition to jail time, Kaplan sentenced Otto to three years of probation once he’s released. During that time, Otto will be barred from employing anyone on excavation jobs requiring trench work deeper than 4 feet.
Otto’s lawyers have until Dec. 31 to file their motion to reconsider, and prosecutors must file their opposition by mid-January.