November 19, 2010
Posted: 10:29 AM ET
Ft. Lauderdale, FL – Jurors began deliberating the fate of ex-Yankee James Leyritz on Thursday who faces a single count of DUI manslaughter after the judge tossed out a second DUI manslaughter concluding that there was insufficient evidence for it to be considered by the jury.
“I’m granting the motion for acquittal on count one,” said Judge Marc Gold. “As to what I’ve considered, it was the video presented to us, as far as those tests, if pass requires perfection; the majority of the people in this building would fail.”
The decision brought the former pro baseball player to tears as he wept for several minutes while the judge made his announcement and his attorney continued his argument that the case against Leyritz be dismissed.
The judge rejected the defense’s motion to toss out a second count of DUI manslaughter, based on Leyritz’s unlawful blood alcohol level.
Prosecutor Stefanie Newman urged the jury to find Leyritz guilty of the charge as evidenced by his BAC reading of .14 three hours after the crash.
Newman asked jurors to recall the testimony of defense expert Dr. Stefan Rose who testified that Leyritz told him he had seven drinks shortly before the crash. She said her expert Dr. Harold Schueler testified that Leyritz’s BAC at the time of the crash was .196, and that it could have been lower, but not lower than the legal limit of .08.
Newman told the jury that Leyritz “caused or contributed” to the death of Fredia Veitch because he was clearly impaired. She asked the jury to recall that Bruce Barger initially told police that Leyritz’s light had turned red. And while he testified on the witness stand that he did not recall ever seeing the light turn red, Newman said Barger was still their best witness.
“The problem is Jim Leyritz didn’t see the light, he was looking down reaching for something. It took his passenger to get his attention,” said Newman. “If Jim Leyritz’s motor skills were not impaired he could have avoided this accident. He had four seconds of yellow to apply his brakes.”
The defense also referenced the yellow light’s cycle, but used it to question the State’s other traffic light witness, Garth Henry who said he saw Leyritz’s light turn red.
The defense computed 1.4 seconds for Leyritz’s car to reach the point of impact. Another second to account for the screech or the yawing that occurred after impact, and another second for the bang-Veitch’s car to hit the pole.
“We’re over three plus seconds,” said Defense Attorney David Bogenschutz, who asked the jury to recall that Henry said he was drawn by the sound of the screech and the bang. “Anyone who has been part of an accident knows when you hear a bang you look at it…he’s looking at it 2.5 seconds after the collision.”
Bogenschutz argued that Leyritz’s blood alcohol reading was unreliable.
“We have the wrong kit, wrong tubes, wrong place, wrong time,” said Bogenschutz who argued that the jury could not rely on the BAC level reported by the State.
He argued that the wrong blood draw kit was used, so vials used to collect Leyritz’s blood did not contain the recommended amount of chemical to keep the blood from fermenting and releasing alcohol. Once the blood was drawn the vials were not properly inverted and refrigerated immediately.
He also criticized the State’s handling of the videotape evidence that his defense expert relied on to pinpoint the time of the accident. He described for the jury how the discovery of the video by a fellow law enforcement officer was ignored by lead investigator Jill Hirsch, ultimately causing the original video to be lost.
“It is my opinion that it is the height of gall to destroy the reliability of the video and then hire an expert to say that you can’t rely on it,” said Bogenschutz. “It’s like someone killing their father, then saying don’t execute me because I’m and orphan.”
A copy of the video was turned over to the defense nearly two years after the accident and only pursuant to public records, but by then the original data had been overwritten. Though it was inadvertent, the judge found evidence of a discovery violation, and agreed to instruct the jurors to give it what weight they deemed fit, including inferring that the original could have been exculpatory for the defendant.
Bogenschutz told the jury that if they found reasonable doubt they had to find his client not guilty.
“When you’re standing there on a street corner and a breeze gives you the chill, you can’t see it but you can feel it,” he said. “That’s what’s blowing through this case. If you have reasonable doubt, you report it as such.”
Stay with In Session for verdict watch of Florida v. Jim Leyritz!
-Grace Wong, In Session Senior Field Producer
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