The Drowned and the Saved

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

Law enforcement officials are starting to take accidental drowning deaths more seriously, added Applebaum, who said he wasn't surprised to learn that Diener is facing criminal charges in Rainey's death. "Five years ago, these cases would never have been on the legal radar screen," he said, "unless the parent was a drug addict or dreg of society. Florida is also a very strict state when it comes to child-neglect laws. Given the circumstances, it becomes harder to defend a parent when you are talking about a four-year-old who doesn't have the eye and hand coordination to be out alone on a pier. I think this guy has a tough road to hoe."

Diener is certainly not the first parent or guardian to be charged with child neglect and manslaughter in the drowning of a child in Florida, either. Brevard County prosecutors charged Tabitha Brady in December 2003 with aggravated manslaughter of her two-year-old son, Michael, who drowned in a canal near his home on Merritt Island. Brady is currently awaiting trial, set to begin in June.

Media outlets are also applying pressure on child welfare agencies to investigate child drownings. The St. Petersburg Times ran an exposé last year about the state Department of Children and Families and Hillsborough Kids Inc., a child welfare agency contracted by DCF, based on public documents that showed caseworkers had failed to do everything they could to prevent the drownings of sisters Selia McLendon and Voncille Cannon, who drowned in the same pool only two years apart.

Brigitte Bustamante, toting Daniel, and her husband Donald Diener, 
holding David, hope a jury will find him innocent in Rainey's death
Jonathan Postal
Brigitte Bustamante, toting Daniel, and her husband Donald Diener, holding David, hope a jury will find him innocent in Rainey's death

Ed Griffith, the spokesman for the Miami-Dade State Attorney's Office, argued that Diener's case is no different from other child-neglect cases that have recently made headlines, like that of Antonio Balta, the 28-year-old horse groomer who pleaded guilty on February 16 in Broward County Circuit Court to the aggravated manslaughter of his nine-month-old baby. According to prosecutors, Balta was busy watching the horse races at Hallandale Beach's Gulfstream Park last March while his daughter Veronika slowly cooked to death inside his car. Balta faces at least twenty years in prison.

"While we are talking about different sets of circumstances in each case, the standard as to whether or not we press charges is always the same," Griffith said. "And that standard is determined by the accountability the person had over the child. Our goal is to get beyond the tragedy and get people to accept responsibility."

Besides, Griffith noted, Joshua Weintraub, the assistant state attorney who is prosecuting the case, has offered Diener a plea deal that consists of an admission of guilt and the state withholding adjudication. Diener would also have to agree to take parenting classes and would be under three years' probation. According to transcripts of his latest court hearing, Diener declined the state's offer, even though Weintraub warned the defendant he could receive the maximum prison sentence of fifteen years if they went to trial. "He said he was going to do everything in his power to make sure Donald spent the rest of his life in prison," said Michael Pizzi, Diener's attorney. "Mr. Diener is a great parent. He and his wife are victims of an unspeakable tragedy."

Pizzi also dismissed the state's plea offer. "No parent in a similar tragedy would accept such a plea," he grumbled during a recent interview. "The State Attorney's Office needs to come to its senses and drop this case. This is not an instance in which a child was deprived of food, beaten, or left to die inside a parked car. I don't think the state attorney should go around prosecuting every bereaved parent whose child dies in a tragic accident."

Griffith said the SAO's plea offer still stands.

Back at the Diener house, the 67-year-old evangelist can't help but play the doting father. Every time Daniel thumps around the living room, Diener grabs him and hugs and kisses him. "Come to Papi," he coaxes, caressing Daniel's mop-top hair. According to the sworn statements of witnesses, Diener showed just as much affection toward Melanie and Rainey.

Oscar Sotolongo, the man who helped Peter Tstrian pull Rainey's lifeless body from the water, told the defense attorney during a deposition last year that he regularly saw Diener playing with the two girls. "The last happy memory I have of that little girl was him, her, and the sister playing with those little windmills on a stick that he bought for them," Sotolongo recalled. "From what I observed, they seemed to have a normal relationship."

"I had the chance to raise Rainey since she was nine months old," Diener said, recalling his brief life with his stepdaughter. "I bathed her every day. I brushed her hair. She would always sit on my lap. She was such a wonderful little child." His voice trailed off as he fought back tears.

His wife, who is now feeding David from a bottle on the sofa, can't hold back. Tears flow down her cheeks, though she says nothing. Diener looks at his wife and son and sighs deeply. "I can't tell you what this case has done to me and Brigitte," he declared. "She went from one hell into another. We're fighting something and we don't have any money. Most of the furniture you see in here has been donated to us. Every dollar we have has gone to my legal defense."

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