PALMER — For the second time in his life, a jury is deliberating the fate of Joseph O’Brien.

O’Brien, 41, was convicted in 2006 of negligent homicide for a wreck on the Parks Highway in January 2003. O’Brien wasn’t drunk and wasn’t charged with reckless driving.

But prosecutors said — in his first trial and in his new one — that he shouldn’t have been driving his 1987 Mitsubishi pickup that night. Its headlights were dim and the defroster didn’t work. In taped conversations with Alaska State Troopers, he described having to scrape the ice every half hour or so. At Mile 52.6, just before the fireworks stands in Houston, O’Brien hit a snowmachine, killing the driver, Calvin Toal, 30.

O’Brien got a new trial after an appeals court agreed that he should have been able to present evidence that Toal’s blood-alcohol content was over the legal limit for driving that night. Superior Court Judge Eric Smith had ruled that evidence out of bounds in the first trial because it had no bearing on whether  O’Brien acted negligently, causing Toal’s death.

The appeals court disagreed, saying the evidence factored into the defense’s theory that the snowmachine and the pickup were in the same lane and both swerved at the same time, meeting in the same spot. The appeals court reasoned if Toal was drunk he would more likely have driven in the road and then swerved off to the shoulder where O’Brien also swerved.

At trial Wednesday, again before Smith, an eyewitness to the wreck testified that he’d first noticed O’Brien’s pickup four or five miles before the crash when the pickup pulled out of a gas station.

“It was swerving on the road,” said William Wilkes. “It was enough for us to talk about it and slow down.”

Wilkes said he and his wife were heading up to his cabin on Big Lake to make sure the pipes weren’t freezing. It was 5 degrees out that night. He was waiting in the turn lane to get onto Big Lake Road when he saw the wreck.

“At the last second it looked like he just turned without warning and hit the snowmachine,” he said.

But Bob Butcher, a former police officer and current accident scene expert that O’Brien’s attorney called to testify Friday, poured water on Wilkes’ recollections.

“When I first read through the material, I read statements that were made by Mr. and Mrs. Wilkes,” he said. “Based on the evidence that’s clearly not the case. That’s their perception of what happened.”

He said Mr. Wilkes was driving at the time, making the turn, and was either not paying attention to his driving or glanced back, got a brief view of the scene, then put the sequence of events together in his mind.

What did happen? Well, Butcher said the frost on O’Brien’s windows — extensive, judging by the pictures presented at trial — didn’t relate to the accident at all.

Butcher said he believed O’Brien lost control on an icy, rutted road at just the same time Toal popped up onto the highway. That loss of control sent O’Brien into the guardrail and, at the same time, into Toal’s snowmachine.

What could also have happened was that the light on the snowmachine suddenly appeared in front of O’Brien and he reacted.

“So what do you do? Your instinct is to pull to the right,” he said. “Joe O’Brien might have veered to the right in order to avoid a head-on collision, only to end up in the same situation.”

Prosecutor Paul Roetman spent a great deal of time battling with Butcher over his assertion that the iced up windows were immaterial. He showed him pictures of the frosted windshield troopers took on scene and asked if he could see anything out of them.

Butcher said the photos were taken on a dark winter night with a flash. The light from the flash bounced off the frost, which showed up bright and clear in the photograph, but at the cost of the view out the windshield, which, he said, the camera obscured.

“That photograph doesn’t accurately reflect what a person could see out of that window,” he said.

“Would you have driven that truck?” Roetman asked.

“No, I personally would not,” Butcher replied. “I would have stopped that vehicle in an instant when I was an officer if I’d observed it.”

The jury went back to deliberate Friday and is expected to continue Monday.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.