Joe O’Brien, 41, went on trial last week for a second time before Superior Court Judge Eric Smith. His first trial ended in a conviction of criminally negligent homicide, but a state appeals court ruled O’Brien should get a new trial because Smith ruled evidence that the victim was drunk was inadmissible.
Prosecutors said in both trials that O’Brien shouldn’t have been driving that night. He wasn’t drunk, nor was he charged with reckless driving, but his 1987 Mitsubishi pickup was in poor working order, with a defroster that couldn’t keep the windshield from icing up and dim headlights.
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In interviews played at trial, O’Brien described his pickup as a piece of junk, kept running on “a wing and a prayer.” He told troopers on scene that he’d had to scrape the windshield about every half hour. Just before the fireworks stands on the Parks Highway he hit a snowmachine, killing its driver, Calvin Toal, 30.
Eyewitnesses interviewed at trial said they saw the pickup swerving a bit as it drove up the Parks Highway and testified they saw it swerve into the guardrail at just about the same time Toal’s snowmachine popped up onto the highway from a nearby trail.
Smith ruled that Toal’s blood-alcohol content was inadmissible because it didn’t show whether O’Brien was negligent. Prosecutor Paul Roetman added that there was no testimony Toal had been driving recklessly.
But the appeals court ruled that if Toal was drunk it could make the defense’s version of events seem more likely. O’Brien’s attorney in the first trial argued that the snowmachine was driving down the highway and that both drivers swerved to avoid each other but ended up in the same place. During the second trial, which lasted for the better part of a week, the evidence regarding Toal’s blood-alcohol content was presented. Roetman said that new evidence was hard to overcome.
“I think the biggest hurdle was that we have a sober driver who was charged with a criminally negligent homicide and a victim who was intoxicated,” he said.
O’Brien’s new attorney, Gary Soberay, presented evidence that maybe the state of the windshield — which most agreed had significant icing in photos taken at the accident scene — was immaterial. A defense expert testified that O’Brien likely lost control on an icy, rutted road at just the same moment that Toal popped up onto the road.
That expert, Bob Butcher, said it also could have been the case that O’Brien saw the snowmachine’s headlight and tried to swerve to the right to avoid a head-on crash but wound up crashing anyway.
Whatever version of events the jury chose to believe, they didn’t believe that O’Brien negligently caused Toal’s death. Monday morning the jury voted to acquit. And, Roetman said, he’s confident they made the right choice.
“My opinion would be justice was served,” Roetman said. “If a jury gets to hear it and they make a decision then we’re confident with the verdict.”
Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.
Comments
12 comment(s)life long alaskan wrote on Nov 11, 2009 8:32 PM:
getthefacts wrote on Nov 11, 2009 6:05 PM:
rjp wrote on Nov 11, 2009 1:44 PM:
Hmmmm------- wrote on Nov 10, 2009 2:14 PM:
Both made a HUGE HIGH RISK decision.
I hope O'brien has lost his driving privledge for a long long time! "
Accident wrote on Nov 10, 2009 12:28 PM:
Witness wrote on Nov 10, 2009 10:47 AM:
Fair judgement wrote on Nov 10, 2009 9:48 AM:
What a Joke wrote on Nov 10, 2009 7:47 AM:
sandy wrote on Nov 10, 2009 7:38 AM:
NO ONE SHOULD HAVE BEEN ONE THE ROAD!!!!!!!!!!!!!!!!!! "
jmk wrote on Nov 9, 2009 11:47 PM:
RZ wrote on Nov 9, 2009 7:09 PM:
carol wrote on Nov 9, 2009 1:50 PM:
I think I'm gonna be sick. "