The Drowned and the Saved

An anti-abortion crusader faces manslaughter charges for the accidental death of a child

Manfred and Carole Maier, a couple on vacation from Ohio, had stopped to check out a nearby roadside kite concession stand. The couple were on a leisurely stroll of the marina when they saw what looked like a body in the water. "I thought it was not real, and it looked like a mannequin," Mrs. Maier told Miller. Her husband agreed, and they were about to continue their walk when she was hit by a "terrible instinct that it was a real person."

The frantic couple saw Tstrian tying up his boat and began to yell for help. When he got to their side, Carole pointed toward the water and asked him if someone could have thrown a mannequin overboard. Tstrian looked down at the glassy surface and immediately saw Rainey's foot and pants leg. He turned to his friend, Oscar Sotolongo, and told him to call 911, then leaped into the water.

When he got to the little girl, Tstrian said, Rainey had no response, was foaming at the mouth, and was "pure white." He held her up to Sotolongo, who pulled her out of the bay and laid her on the dock. Meanwhile Tstrian rushed to fetch an oxygen mask to help Sotolongo and another boater, who were performing CPR on the child. Then, Tstrian said, he went to the dock where the Alchemist was moored.

Miller: What did you do next?

Tstrian: I then ran to get Don and Brigitte.

Miller: Upon approaching their vessel where were they located?

Tstrian: They were inside the main cabin.

Miller: What did you say to them?

Tstrian: I didn't say anything, just screamed for Don and they came out and said "what's wrong" and I said, "your daughter," and then he saw what was going on.

Bustamante, who was four months pregnant with David when Rainey drowned, told Detective Miller that she'd come home and lain down in bed, feeling ill. "She went on to advise that Don was to remain in the front portion of their boat, which she referred to as the 'office,' and was responsible for watching the kids while she napped," Miller wrote. A few minutes later, however, she awoke to a commotion outside. Dressing quickly, she left the boat and approached a gathering crowd of paramedics, police officers, and bystanders. Someone she didn't know was holding Melanie, who was crying and screaming.

With her mother at her side that day, five-year-old Melanie explained to police that the last time she saw her sister, Rainey was possibly chasing pigeons by the sea wall's edge, near the Retriever, a boat moored close to Diener's. She'd gone to use the bathroom aboard the Alchemist, and when she came back out to play she didn't see her sister until Rainey was lying on the ground, surrounded by fire rescue personnel.

Diener was the last family member Miller questioned. Miller wrote that a shell-shocked Diener told him that he'd instructed the children to remain in the grass behind the dive shop so that he could keep an eye on them while he worked in his office in the boat's front cabin. Jason Ochoa, a Sunny Isles police officer who was at the scene, later stated that he'd heard Diener reprimanding little Melanie. "I overheard something to the effect of, 'What happened? You were supposed to be looking over your sister. How could this happen?'" Ochoa said. Diener has denied making such comments.

Diener and his family now live in a rented single-story house on a corner lot in east Hollywood, not too far from A1A. The Alchemist, meanwhile, is docked at a private residence in Fort Lauderdale. The interior of their modest home is decorated with a mishmash of Seventies-style wicker and wood. Bookshelves lined with business manuals and hardbound copies of great American novels share space with framed pictures of Diener, his wife, their sons, and the Hillman girls. One photo shows a beaming Melanie holding her sister. Both girls have dark blond hair and big brown eyes that appear solemn despite beaming smiles. A simple wooden cross hangs on a wall in the living room. It is the only symbol in the house that sheds light on Diener's deep faith.

Diener has gotten up from his rocking chair and handed Daniel to his wife, who is sitting on a beige sofa next to his rocker. Bustamante does not speak English well but manages to get by conversationally. She has long, thick black hair and the same sorrowful brown eyes as her sons. With Daniel on her lap, she engages in a motherly pantomime game, softly clapping the baby's tiny hands together. The infant appears to smile.

Diener sits back down on the rocker. He gazes at his wife before pondering aloud why he faces charges in Rainey's death. "Drowning is the leading cause of death among small children in this state," he intoned. "But how many other parents are held criminally liable? Why am Ibeing prosecuted? It just doesn't make sense."

Indeed, Diener is correct with respect to the first statement. According to the National Center for Injury Prevention and Control, drowning is the leading cause of death among children under age four in Florida. Between 1999 and 2002, 302 children under age five drowned in this state. "It is known as the silent death because it usually occurs within a parent's eyesight of the child," said Todd Applebaum, founder of PoolSafetyNetwork.org, a Los Angeles-based nonprofit organization that educates parents about the perils of child drownings. "In the time it takes to get a soda pop from the refrigerator, a child may already be underwater. It only takes 90 seconds for a child to drown."

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