The Drowned and the Saved
Donald David Diener believes he is a messenger of God. The 67-year-old former Los Angelino is here to unite his Christian brothers and sisters across the world for the Second Coming of his Lord and Savior, Jesus Christ. "I was called to wake up the Christian community," Diener explained in a soft, unobtrusive baritone while sipping coffee in the living room of his Hollywood home in early February.
A tall, lean man with broad shoulders, thinning sandy blond-white hair and the weathered face of a charter boat captain, Diener even dressed with a nautical look: white khakis, navy polo shirt, sockless Top-Siders. He was leaning back in a worn wicker rocker, his twelve-week-old son, Daniel, sleeping peacefully in the nook of his right arm. Another son, two-year-old David, toddled into the room toward his father and hauled himself up one of Diener's legs. The boy peered up, eager for attention, and Diener reached down with a free hand and wrapped it around the boy's waist. He gently kissed the top of David's head. "Sometimes he gets a little jealous when he sees me rocking his brother to sleep," he said, smiling.
Setting his cup atop the circular wooden table to his left, Diener began his story: raised Baptist but became a born-again Christian at a "very, very young age." Married at 18, divorced at 47. Two children now grown: a daughter who lives in Los Angeles and a son who recently died of cancer. After divorcing his first wife, Diener led a nomadic life selling fine art and laying the groundwork for his role in the Second Coming.
Part of his mission, Diener said, is to mobilize Christians against abortion and other affronts by man against God. "I'm raising awareness to what is really going on," he explained, narrowing his eyes to emphasize the point. "Too many people are afraid to equate abortion to murder. I'm not." Diener's plan was to set up a foundation that would unite Christians around the world and raise donations. The money would then be used to film a documentary and to finance a nationwide billboard campaign against abortion. Diener said the billboards would consist of photographs of living, breathing babies with a tag line: "I choose life, do you?" However, Diener said, his strategy does not include picketing abortion clinics. "That just turns people off," he said. "I'm interested in reaching people intellectually, spiritually."
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In 1997 he traveled from Los Angeles to Miami, where he bought a 55-foot shrimp trawler that had been converted into a luxury yacht called the Alchemist. For two years the boat served as Diener's seafaring gallery, where he would promote and sell artwork up and down the southeast coast. He was on his way back to California in the summer of 1999 when he met Brigitte Bustamante, a 34-year-old Colombian. Married for four years, they have two little boys. Bustamante has a seven-year-old daughter, Melanie, from a previous marriage.
In 2002, Diener created a nonprofit foundation, Unite for Christ. A year later, the state gave the foundation permission to raise private donations from individuals. To spread his evangelical message of Christian unity, Diener markets the "Flag of Christ," a purple-and-gold standard that, he states, is the symbol that all Christians, whether Presbyterian or Roman Catholic, can hold high on the Judgment Day so that Jesus Christ can identify them as true believers.
These days, however, Diener doesn't have much time to work on his flag crusade. He has not been able to raise any funds on behalf of Unite for Christ and he no longer sells fine art. Thus, he has no time or money to work on his anti-abortion billboard blitz. Today, Diener earns a living with a part-time evening telemarketing job and receives financial help from his and his wife's family.
And he's seeking salvation of another sort: from the state criminal justice system as he awaits trial on one felony count of child neglect and one count of aggravated manslaughter in the January 23, 2003, death of Rainey Hillman, Bustamante's then-four-year-old daughter from her first marriage. The preschooler drowned when she fell into the bay at Haulover Park Marina in North Miami-Dade, in between Bal Harbour and Sunny Isles Beach.
The Miami-Dade State Attorney's Office charged Diener with the crimes after concluding that he had placed the deceased little girl in great danger by leaving her "unattended to and/or unsupervised while [she] played at or about a nearby dock area next to water deep enough to drown in," according to the February 12, 2003, arrest warrant.
"In cases such as this one, we're dealing with issues of adult accountability and responsibility for the children they care for," said Ed Griffith, a spokesman for the Miami-Dade State Attorney's Office, in a recent phone interview. "All child-neglect cases have a pattern where the adult abandons his or her responsibility to a child. This one is no different."
But Diener has rejected any responsibility in Rainey's death, even though prosecutors have offered him a plea deal that would require no jail time. He would, of course, have to admit guilt. But admitting or showing guilt and remorse for what happened to his stepdaughter would inflict serious damage to the messenger's divine mission. "How can I go before Congress or church groups and ask them for help, knowing that I admitted to killing my own child?" he reasoned. "I can't do that. I can't lie."
Instead, Diener would rather leave his fate up to a jury, which could find him guilty of both counts. Although Griffith has said the State Attorney's Office is not seeking a prison term, the judge could sentence him to serve five to fifteen years if he is found guilty. With his trial just days away, Diener passes the time lashing out at his perceived enemies.
He blames his wife's former husband, Drew Hillman, as well as Drew's father, Brian Hillman, for persuading the State Attorney's Office to prosecute him in the first place for a crime he didn't commit. "Accidents like this one happen all the time," he insisted. "I have not done anything wrong." He also claims that the elder Hillman was involved in a failed attempt by the state's Department of Children and Families to remove Melanie from her mother after Rainey's death. "Brian has been at all of my court hearings since day one," Diener said. "He is the driving force behind this case against me."
During separate telephone interviews a few weeks ago, Brian and Drew Hillman denied speaking to anyone from the State Attorney's Office or contacting DCF about removing Melanie from her mother's custody. Drew Hillman said he had one telephone conversation with the assistant state attorney handling the case when Diener was charged. "The State Attorney's Office," he noted, "is just doing its job."
Brian Hillman did acknowledge his attendance at Diener's court hearings. "He let my granddaughter drown!" Hillman fumed. "Obviously, I'm not happy with him! He needs to go to jail for a least a year so people understand that you can't let children play close to deep water without adult supervision!"
At the time of Rainey Hillman's death, the family lived aboard the Alchemist, which was docked in Haulover Park Marina's northernmost slip. Following the advice of his attorney, Michael Pizzi, Diener has declined to discuss the details of his actions on the day that Rainey drowned. He would only describe what his daily routine was prior to January 23, 2003.
The family's typical day would begin at dawn, he recalled. They would eat breakfast together; then Diener would drive Melanie to St. Mark's Lutheran School and drop off his wife and Rainey at First Presbyterian School, where Bustamante worked as a part-time teacher's aide and where Rainey attended preschool day care. After dropping his family off, Diener would return to the boat to work on his foundation, writing fundraising letters to church groups and making phone calls to pastors at churches around the nation.
By three in the afternoon, he would drive back to Hollywood and pick up his wife and stepchildren. On the way home, they'd sometimes stop at a market for groceries. "The girls liked going to the store because they always got a free cookie from the bakery," he recalled. "When we got home, Melanie and Rainey would usually change out of their uniforms and head out to the grassy area to play for about an hour with the other children living at the marina." That grassy area is a wide stretch of green that lies between the marina's parking lot and a bench-lined sidewalk running the length of the shoreline. On the bay side of the sidewalk a sea wall drops down to the water line, which is between six to twelve feet deep, depending on the tide.
According to Bustamante, Melanie and Rainey had gone out to play at about 4:15 that January afternoon. Witnesses recalled seeing the two girls and a number of other children who lived aboard nearby boats chasing and playing games with a dog named Silo in the grassy area in front of the boat slips.
James White, skipper of the Halua, which was berthed in the southernmost slip opposite the Alchemist, told police that his two daughters were playing with the Hillman girls in the grass behind a small dive shop at the northern end of the marina, just parallel to Diener's boat. White said he would periodically check on the children from his boat. "At no time did he observe the victim's mother or Diener, until several minutes after the victim had been removed from the water," wrote police during his statement to them.
White's children told police that they and a little boy were playing with Melanie and Rainey, and that Rainey must have walked away, unbeknownst to them. One of the girls said the four of them had ventured down to the end of the pier, near the stern of the Alchemist.
The boy, then a third-grader at Ojus Elementary in North Miami Beach, told Miller that he went to retrieve a fishing pole from the Big John, a vessel docked near the Alchemist, and that when he returned he didn't see Rainey and was unsure of her whereabouts. He also said that Rainey's "mommy and daddy" remained aboard the Alchemist until they were notified of the little girl's death.
Sometime between 4:15 and 4:44 p.m., diving instructor Peter Tstrian had just returned from an excursion and was unloading his clients dockside. He looked up and saw Rainey standing by the sea wall, "waving hello to me, as she does pretty much every day." He also told lead investigator Robert Miller, a homicide detective with the Miami-Dade Police Department, that he'd seen between ten and twenty other children playing by the dock, but didn't see any adults there. After Rainey waved to him, he saw her head back toward the grassy area along with the other children. "And that," he said, "was the last I saw of her."
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 I being 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."
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.
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."
Under normal circumstances, one might think that accepting the state's offer and moving on with his flag crusade would be the prudent thing to do. Diener, however, is adamant that he is innocent. "Yes, the state gave me a chance to plea," he rationalized, "but I have more faith in God than that, so I said no."
The trial is scheduled to begin this week.