Video of fire victims' final moments is key in Conception boat captain's manslaughter trial
Prosecutors say Jerry Nehl Boylan's gross negligence and inattention to duty caused the deaths of 34 people on a Labor Day weekend scuba-diving trip in 2019.
Two to three minutes after the captain jumped into the Pacific Ocean, one of the 34 people who died in a fire on the Conception diving boat in 2019 recorded a cellphone video of an increasingly desperate scene.
As flames rage and alarms blare, a man is seen in front of the fire as people yell.
“There’s got to be a way out!”
The voices sound more panicked after a loud noise.
“Oh my God!”
“What is that?”
“Oh my God!”
Jurors in the manslaughter trial of former Conception captain Jerry Nehl Boylan watched the 24-second video last week over the objection of Boylan’s attorneys, who acknowledge its relevancy but take issue with the timing of its airing in trial and the number of times jurors may see it.
U.S. District Court Judge George H. Wu allowed prosecutors to play it at the beginning of trial on Thursday after a last-minute argument over the accuracy of the accompanying transcript thwarted their plan to play it at the end the trial’s opening day on Wednesday.
The video is the most harrowing piece of evidence shown in trial so far. It was recovered from the broken cellphone of Patricia Ann Beitzinger, a 48-year-old Phoenix, Arizona, woman who was on the Labor Day weekend scuba-diving trip to Santa Cruz Island with her longtime boyfriend, Neal Gustav Baltz.
It shows some of the final moments of life in the cramped bunkhouse at the bottom of the 75-foot boat, where 33 people who’d paid for the recreational diving trip, along with a crew member, apparently were sleeping in triple-stacked bunk beds when they awoke to fire burning upstairs. The first three days of the trip had gone well, with passengers scuba diving during the day, eating meals together on the main deck and sometimes taking night dives.
The boat was anchored at Platts Harbor on the north side of Santa Cruz Island when the fire broke out. Boylan had been sleeping on an upper deck and was the first to jump overboard, followed by four crew members. Prosecutors say Boylan didn’t train his crew how to fight fires, didn’t maintain a night patrol as legally required and didn’t try to fight the fire or rescue the victims before he jumped overboard. They also say he should have known that it could take an hour for the U.S. Coast Guard to arrive at the harbor when he called for help before jumping overboard.
The video from Beitzinger’s phone is crucial prosecution evidence not only for its sobering effect but because of the time it was recorded: 3:17 a.m., three minutes after Boylan’s mayday call to the Coast Guard. He jumped overboard shortly after the 3:14 a.m. call.
About 30 family and friends of the victims watched with rapt attention but few audible reactions when the video was played on Thursday after Judge Wu warned them to contain their emotions or leave the courtroom. Boylan’s attorneys asked the judge to say something after a woman began sobbing when an FBI agent named 16-year-old Berenice Felipe, the youngest victim, and identified photos and videos of the trip that were retrieved from her cellphone.
Judge Wu said emotional reactions to such evidence are understandable, but “the problem that I have is when there’s a strong emotional response, it might affect the jury and their perception of the case, and that’s something I can’t have.”
“I don’t want to sound heartless. This is kind of a heartless thing for me to be doing, but again, I have to make sure the jury is not affected by the reaction of audience members during the course of the trial,” Wu said.
The judge initially rejected Deputy Federal Public Defender Georgina Wakefield’s argument that the video shouldn’t be the last thing jurors saw on Wednesday, but he ended up delaying its airing after a disagreement arose about the accuracy of the transcript.
Wu clarified the transcript about 5:10 p.m. Wednesday after watching the video several times in chambers, then said the jury would see it the next day when people in the gallery “will be better prepared for it.”
Inaudible to the judge, a woman sitting near the back of the gallery with her husband said, “We’re prepared now.” It was Kathleen McIlvain, whose son, 44-year-old Charles McIlvain, was the man visible in the video. She and her husband, Clark McIlvain, were seated in the front row of the gallery when the video played Thursday shortly after trial began about noon, delayed more than two hours because a juror arrived late.
I saw Kathleen in the hallway shortly after and she told me through tears, “That was our son on the video. That was our son. And they said we couldn’t show any emotion.”
I told her I was so sorry and that what happened to her son was very scary and very sad. She was crying so I put my hand on her shoulder and said, “Is it OK if I give you a hug?” and she replied, ”Oh yes, please. I need all the hugs I can get.” I hugged her, and then we went back in the courtroom.
A federal maritime law manslaughter case
Boylan’s trial has brought an unfathomable amount of grief to the Los Angeles federal courthouse, where the 70-year-old longtime boat captain is being prosecuted under a little-used seaman’s manslaughter statute brought under federal maritime jurisdiction.
Boylan was first indicted on 34 counts in December 2020, but Judge Wu in September 2022 granted a dismissal motion brought by Boylan’s lawyers that said though the statute doesn’t explicitly require gross negligence, “under a long line of Ninth Circuit decisions,” it does.
Prosecutors filed a new indictment six weeks later charging Boylan with a single count of misconduct or neglect of ship officer, brought under the same statute as the previous indictment. It does not mention manslaughter, but Boylan’s own lawyers have told jurors that he’s charged with manslaughter. The indictment also names each victim and says Boylan’s actions caused their deaths.
Assistant U.S. Attorney Matthew W. O’Brien told jurors in his opening statement that the passengers and crew “were dependent on the captain to keep them safe.”
“Each time defendant took a group of passengers out to see their lives were in his hands,” said O’Brien, who is prosecuting Boylan with Assistant U.S. Attorneys Brian R. Faerstein, Mark A. Williams and Juan M. Rodriguez.
O’Brien said Boylan jumped overboard then “instructed his crew to jump overboard rather than fight the fire.”
“So that’s what they did. They jumped into the ocean like a captain. The 34 people were still in the bunk room alive,” O’Brien said on Wednesday. “How do we know? There’s a few reasons. But the main one is this: There’s a video. During this trial, either this afternoon or tomorrow, you’ll see a video of the passengers alive.”
Boylan’s attorneys blame Conception owner Glen Fritzler, whom Wakefield said in her opening statement instilled a lax approach to safety in Boylan that she called “the Fritzler way of doing it.” Wakefield said a Coast Guard inspector certified the Conception as safe six months before the fire, along with two other boats owned by Fritzler.
“To Fritzler employees and to his passengers, that meant these boats were safe,” Wakefield told the jury on Wednesday. (The families of the victims are suing Fritzler and his company, Truth Aquatics, Inc., for wrongful death, but jurors in Boylan’s criminal trial don’t know that.)
Wakefield told jurors that Boylan “didn’t abandon ship,” rather, he stayed in the wheelhouse to call for help, then re-boarded the boat from the back after jumping off to try to see if he could do anything to save anyone, which she said he couldn’t.
“Jerry didn't want any of this to happen. He cared about the people who lost their lives,” Wakefield said.
Wakefield said Boylan “didn’t know” his approach to safety “was putting anyone in harm’s way.” Fritzler’s procedures included encouraging passengers to board the boat the night before departure, when no staff were onboard.
Boylan “did things the Fritzler way. The way they’ve been done for 45 years. The way he had learned to do them when he started as a deckhand,” Wakefield said.
Wakefield began her opening by “acknowledging the immenseness of this tragedy.”
“I don’t think there’s a single person in this courtroom who doesn’t feel the weight of this, including Jerry Boylan,” Wakefield said. “And over the coming days and weeks, we’re going to hear and see really tough evidence together.”
She called the video from the bunk room “really hard to watch”
“You’re going to see that there’s no way out. And there was no way in, either. And that’s because both exits from the bunk room led to the same place. And that place was on fire,” Wakefield said.
O’Brien told jurors the video shows “the passengers…starting to panic.”
“The passengers didn’t know, but their captain had already jumped in. The video was the last time any of them would be seen alive,” O’Brien said. “After the fire, some of their bodies were found together in the wreckage, huddled against a wall in the bunk room. They were hugging each other when they died.”
All family members of the victims who wished to see the video had seen it before it was played in court on Thursday. Kathleen told me she and her husband first saw it in November 2022. She said it was particularly difficult because they didn’t know going in that Charles was the man visible.
The cry of, “There’s got to be a way out!” is loudly audible. I heard it from the back of the gallery on Thursday, and I couldn’t hear everything said in the video.
The utterances I missed include several statements Judge Wu said in court on Wednesday when clarifying the transcript. The defense and prosecution disagreed whether someone said “thing to the rear” or “think to the rear,” but the judge said he heard “stick to the rear.” He also said someone says “We’re gonna die,” not “We gotta try” or “We’re going to try.”
The video played for jurors with a rolling transcript of the statements finalized by Judge Wu, but he instructed them that what they hear is evidence, not what they read. Each has a monitor in front of them that displays the evidence.
Jurors see photos, videos of boat and trip pre-fire
Boylan’s lawyers have tried to limit the video’s presence in trial, but they did not try to exclude it as evidence, writing in an Oct. 18 motion that prosecutors should use it in place of autopsy photographs to demonstrate that the victims “were still alive” when the fire broke out.
“The defense does not object to the admission of this video and some of the individuals in this video can be seen alive and wearing shoes and holding flashlights. Unlike the autopsy photographs, which were of course taken well after the fire was over, the video was taken during the fire and has a timestamp,” according to the motion, which added in a footnote: “Though it submits that the Court should impose limitations on the number of times it is played.”
The motion began, “This is not a sadistic, pre-meditated murder case with a contested cause of death.” It asked Judge Wu to bar from trial the “devastating autopsy photographs” of the 34 victims, as well as videos of the dives that recovered their bodies after the Conception sank and photos from the diving trip before the fire. One of the photos shows a girl “smiling and…about to blow out the candles on her birthday cake” as others wait “to eat the cake, ice cream, and whipped cream set out on the counter.”
“It is unclear what relevancy these photographs and videos could possibly have to the trial. The government does not need to prove that the decedents were unaware they would die in a fire,” the motion said. “It does not need to prove that they were happy people, people who celebrated birthdays, people who liked ice cream.”
Prosecutors called the request “a particularly outrageous attempt to exclude basic evidence.” The photos “prove that the victims were alive and well during the trip on the night before the fire; and they show the layout of the Conception and how easy a roving patrol would have been to conduct.”
‘These photographs and videos are essential to explain the Conception, the trip in question, and how defendant was grossly negligent in causing the 34 victims’ deaths,” prosecutors wrote in their opposition. “The jury is entitled to hear about the victims’ last days alive and how they died.”
Judge Wu has not issued a written ruling, but photos and videos from before the fire were entered as evidence last week, including a photo from the 17th birthday celebration for Tia Salika, who was best friends with Berenice Felipe. The girls were on the trip with Salika’s parents, Steve Salika and Diana Adamic.
Jurors also saw photos from Jacque Palmer, who went on a watercolor journaling trip on the Conception the weekend before the fatal fire.
Palmer took several photos showing the boat’s inside layout and of the crew, including 26-year-old Allie Kurtz, who died in the fire the next weekend. Palmer’s testimony also supported prosecutors'’ argument that Boylan never showed the victims the emergency hatch: She said “we were told about it, but not shown.”
Still, Palmer said in cross-examination that a crew member identified the hatch’s location during the boat safety briefing. She also described the crew as “totally awesome” and said the trip and other trips she went on “were just fabulous trips.”
Jurors last week also saw photos taken by victim Justin Dignam, a 58-year-old married father of two teenagers who was CEO of a payroll company he founded in Orange County, California. His daughter, Taylor Dignam, testified about finding the photos through her father’s iPad after his death by accessing the photos folder that synced with his phone.
Like Palmer’s photos, Dignam’s photos showed the inside of the boat and the bunk room, including a video he took while walking down the stairs and into the bunk room to his bed.
Another witness testified about Boylan’s demeanor after the Coast Guard picked him up.
Paul Barrera, a captain with the Ventura County Fire Department, saw the Conception sink about 9 a.m. or 10 a.m. the day of the fire. Boylan was with him and “just seemed, like, in a daze,” Barrera testified.
“You don’t recall that he became completely distraught after the conception sank?” asked Federal Deputy Public Defender Julia Deixler, who is defending Boylan with Wakefield and Federal Deputy Public Defenders Gabriela Rivera and Joshua D. Weiss.
“I do not,” Barrera answered.
Barrera said he “just directed my crew to keep an eye on [Boylan].”
“I was afraid that he would possibly jump in the water or something,” Barrera said.
Deckhand Milton French testified Friday that he could hear Boyln snoring in his bed about 11:45 p.m. French was dating the crew member who died, Allie Kurtz, and they stayed up watching bioluminescence light shows in the ocean with passengers before going to bed. He awoke to shouts of fire and recalled seeing 15-foot flames. He saw Boylan jump out of the wheelhouse with fire and smoke and “I thought he was on fire.”
“It really looked like that to me,” French testified. He said Boylan had never shown him how to unspool the boat’s fire hose.
Crew member Mickey Kohls also testified Friday. I didn’t hear all his testimony, but the wrongful death lawsuit says he “apparently” heard 16-year-old passenger Berenice Felipe “cry out as she pushed open the escape directly above her bunk and fled overboard through the fire” while everyone else remained trapped in the bunk room.
Crew member Ryan Sims, who broke his leg jumping from the upper deck during the blaze, also is expected to testify. He is suing Fritzler and Truth Aquatics, Inc., for negligence, and the docket indicates possible problems securing his appearance in Boylan’s trial: Prosecutors had a witness arrested last week, and U.S. Magistrate Judge Steve Kim imposed a $5,000 bond.
The filings are sealed, but Judge Wu on Friday granted “material witness Ryan Sims’ request to exonerate his bond” and ordered U.S. Pretrial Services “to return Mr. Sims’ passport and remove his ankle bracelet.”
It’s unclear if Boylan will testify. Judge Wu told Wakefield on Wednesday after the jury left that her opening statement indicated he would, but Wakefield told him that Boylan’s testimony isn’t assured.
One thing jurors won’t hear is the victims referred to as victims. Judge Wu on Oct. 12 granted a defense motion to “preclude referenced to decedents as victims” during a pre-trial conference. Prosecutors argued that “use of the word ‘victim’ is a fair comment on the evidence.”
“The defense ignores that, unlike in most other cases, here it is undisputed that 34 people died, irrespective of defendant’s role,” prosecutors wrote in their opposition.
Given the judge’s ruling, prosecutors are calling the victims “passengers” instead of victims.
Jurors also won’t hear about Boylan’s cigarette-smoking habit.
“His cigarette smoking is of no consequence and it has no tendency to make any fact more or less probable than it would be without it,” according to a defense motion. “Yet the risk of prejudice is at its zenith here, where 34 people tragically perished in a fire.”
Prosecutors wrote in their opposition that “a cigarette may have started the fire.”
The Bureau of Alcohol, Tobacco, Firearms and Explosives said the fire started in a garbage can on the main deck, but the National Transportation Safety Board concluded “was likely inside the aft portion of the salon, not in the garbage can identified by the ATF,” according to a defense filing. Prosecutors said both agencies said a cigarette may have caused the fire, but the defense said the prosecution experts “will testify that the cause of the fire is undetermined.”
Judge Wu granted the motion but said he’ll “allow testimony that smoking was permitted.”
Trial continues Monday in Los Angeles and is expected to go into next week.
Read the National Transportation Safety Board’s report on the deadly Conception fire here.
Here is a list of the 34 victims:
Carol Diana Adamic, 60, of Santa Cruz
Tia Salika-Adamic, 17, of Santa Cruz
Neal Gustav Baltz, 42, of Phoenix, Arizona
Patricia Ann Beitzinger, 48, of Phoenix, Arizona
Vaidehi Campbell, 41, of Felton
Kendra Chan, 26, of Oxnard
Raymond “Scott”Chan, 59, of Los Altos
Andrew Fritz, 40, of Sacramento
Daniel Garcia, 46, of Berkeley
Justin Carroll Dignam, 58, of Anaheim
Marybeth Guiney, 51, of Santa Monica
Yulia Krashennaya, 40, of Berkeley
Alexandra Kurtz, 26, of Santa Barbara
Charles McIlvain, 44, of Santa Monica
Caroline McLaughlin, 35, of Oakland
Angela Rose Quitasol, 28, of Stockton
Evan Michel Quitasol, 37, of Stockton
Nicole Storm Quitasol, 31, of Imperial Beach
Michael Quitasol, 62, of Stockton
Steven Salika, 55, of Santa Cruz
Ted Strom, 62, of Germantown, Tennessee
Wei Tan, 26, of Goleta
Adrian Dahood-Fritz, 40, of Sacramento
Lisa Fiedler, 52, of Mill Valley
Kristina “Kristy” Finstad, 41, of Santa Cruz
Fernisa Sison, 57, of Stockton
Kristian Takvam, 34, of San Francisco.
Juha Pekka Ahopelto, 50, of Sunnyvale
Berenice Felipe, 16, of Santa Cruz
Xiang Lin, 45, of Fremont
Sanjeeri DeoPujari (Nirmal), 31, of Stamford, Connecticut
Sumil Sandhu, 45, of Half Moon Bay
Kaustubh Nirmal, 33, of Stamford, Connecticut
Yuko Hatano, 39, of San Jose
Read the complaint in the wrongful death lawsuit here.
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Why won’t the attorney general - Estrada , allow the victims families to inspect and test the salvaged lithium battery’s? The captain was found guilty. Allow these families to pursue this svenue