A California skydiving instructor is about go to trial. Can his student’s death be mentioned?

A question looms over the upcoming trial of an instructor at a notorious skydiving center near Lodi: Will federal prosecutors be able to mention how one of his students died?

U.S. District Court Judge William Shubb has left that unresolved after recent hearings. He was sympathetic to arguments that the death not be mentioned but didn’t rule out that prosecutors be allowed to bring it up.

Robert Pooley is charged with four counts of wire fraud and two counts of aggravated identity theft. None of the charges address the fate of his student, Yong Kwon, who died during a 2016 jump with a tandem partner at the Parachute Center in Acampo.

The high-profile incident was just one of many fatal falls at the center over its decades in business.

Pooley’s defense attorneys don’t want the nature of Kwon’s death to be discussed at all. In court filings, and at the recent hearings, they have argued that mentioning those details to the jury could improperly harm Pooley.

It’s a concern the judge acknowledged.

“You can’t escape the fact that it is prejudicial to the defendant to make even a suggestion that as a result of his conduct, a man was killed,” Shubb told lead prosecutor Katherine Lydon last month, whom he accused of looking for an excuse to bring the information in at Pooley’s trial.

Lydon said prosecutors wouldn’t argue Pooley caused Kwon’s death, but they still want it to be mentioned.

They have recordings of Pooley referring to Kwon’s death in statements he made as part of an investigation into the incident, Lydon said during a hearing Monday.

In one, Pooley said he was the instructor of the man who died, said Mia Crager, one of his public defenders. She argued for that mention to be removed.

But Shubb said he would not force prosecutors to edit the recordings.

“You can’t prevent the government from putting in relevant evidence,” he told Crager.

Shubb suggested a possible resolution to the issue at a hearing last month: Address the matter with potential jurors at the start of Pooley’s trial, which is set to begin next week. The judge could advise them not to let it sway their views because prosecutors aren’t claiming that Pooley directly or indirectly led to Kwon’s death. If not, one of the jurors could bring it up during deliberations, and taint the jury’s decision.

“That’s the worst thing that could happen,” Shubb said.

Pooley’s defense attorneys did not agree to that approach. On Monday, the judge said he would evaluate the issue as it came up during the trial. He indicated that he could excuse potential jurors who are aware of the center.

He has, however, barred prosecutors from mentioning Kwon’s death during the case’s opening statements.

Prosecutors allege that in 2016 Pooley falsely led skydiving students to believe they could obtain necessary certifications by completing tandem instructor courses he taught at the Parachute Center. Pooley’s teaching credentials were suspended at the time and he couldn’t certify students on his own.

He normally taught with another instructor. But when the other teacher left the country for a few months, prosecutors say Pooley led the courses by himself. During this time, he is accused of signing off on student training by using forms pre-filled with the other instructor’s signature.

One of those students was Kwon, a 25-year-old from South Korea. On Aug. 6, 2016, he led a tandem jump with 18-year-old Tyler Turner, who had gone to the center with friends.

During the jump, Kwon had issues with the main and reserve parachutes before he and Turner crashed into the ground. They are just two of at least 28 people who have died at the Parachute Center since 1985, an investigation by The Sacramento Bee found.

The stakes are high for Pooley. According to prosecutors, he faces up to 20 years in prison for each of the wire fraud counts and a mandatory two-year sentence for each count of aggravated identity theft.

The trial is scheduled to start May 15.