McBride Trial -- Day 1, 11/26/01
The first day of the trial was dedicated to jury selection. I was there for the entire day (which is only from 10 to 4, so that's a good racket for the lawyers and judges). The full jury of twelve, plus two alternates, was selected without too much trouble. The defense rejected five or six jurors, and I don't recall the prosecution rejecting any. The judge asked the usual questions about previous experiences with the law, either as a defendant or a crime victim, and also asked each juror if they knew anyone who was a bike messenger (only a few did, and they were rejected by the defense).
Bob Matter and I got pulled aside by the state's attorneys (prosecutors) at the end of the session, and they castigated us for wearing our Critical Mass T-shirts (the ones with the CCM logo on the front and "one less car" on the back). They were concerned that this could result in a mistrial. They said that the defense could wait until the end of the trial and then motion for a mistrial if the defendant is convicted, based on our show of support unduly influencing the jury. They said this was similar to when the victim's family wears buttons with the victim's picture on them, as if there is something wrong with putting a human face on the crime. Bob and I actually ended up sitting right in front of the jury box during the selection process, instead of in the public viewing area behind the tinted glass, but we were just sitting where the bailiff told us to sit. He probably thought that we were prospective jurors, but we weren't wearing "juror" stickers. In our defense, we just sat where we were told, and nobody told us there was a dress code. It's not like we wore shirts saying "He's Guilty." Would a Ford T-shirt unduly influence the jury? And aren't we allowed to show our support, and not just by sitting there so that nobody can tell whose "side" we are on? What good does it do to come to the trial if we can't show support in a recognizable way? That said, I certainly don't want to be the cause of a mistrial, so I guess I'll hold my proverbial tongue and wear something less political tomorrow. The prosecutors did say we could bring our bike helmets, so I'll make sure that mine gets seen. (I left my pump and air horn and other accoutrements at home and locked my seat with my bike.) They also encouraged more of us to come and sit with the McBrides, which I guess is a less overt way of showing support.
Some other observations: I didn't realize until today that the victim was white and the defendant is black. I hope that race doesn't factor into the jury's ruling, but I'm not so naïve as to think that it's not an issue for some people. Also, I was amazed at how many of the prospective jurors were either ex-cons or had been victims of crime. I suppose that I don't see the same cross-section of people in my everyday yuppie life as a group randomly selected from the whole county, and people don't usually talk about such things either.
Carnell Fitzpatrick himself looked like a decent, clean-cut looking guy, but then, looks don't mean much. He is out on bail, so he didn't have to show up in prison garb like some of the apparently less well-off defendants in the morning's hearings. His family was there, as was Tom McBride's. Anyway, I found the whole experience very interesting and educational, although it did get a bit monotonous.
Things should pick up tomorrow when the trial really begins. I don't know if Mr. Fitzpatrick is going to take the stand. He wasn't listed as a potential witness, but Tom McBride's mother was.
Come out to the trial if you can. You have to sit in the public viewing area, which is separated from the rest of the courtroom by oddly tinted glass, but there is a PA that lets you hear from the microphone on the judge's desk. (I will be sitting out there with the McBrides; I don't think I'll be able to sit right in the courtroom again.) You can bring a book for the slow parts, but they don't like newspapers. You can lock your bike to the railings in front of the courthouse (no racks were seen) and take your lights and helmet in, but I wouldn't try to bring in anything else. I didn't try to bring a backpack, but I don't think it's worth the trouble.
-- Dan Korn
McBride Trial -- Day 2, 11/27/01
Following is a lengthy summary of today's events. Keep in mind that I am writing this from the notes I scribbled down, but I couldn't write down everything, especially about photos that were shown to witnesses that I couldn't really see. If anyone else who was there wants to correct anything or add something I left out that would be great.
The trial finally got started today at about 11:20 after some other cases were heard and a long unexplained delay, presumably for jurors' instructions. The ADA, Ms. Peters, presented a fairly brief opening statement saying that the evidence would show that Mr. Fitzpatrick "deliberately" chased and drove over Mr. McBride with the intent to injure or kill him. She said that paint from McBride's bike and his blood were found on the undercarriage of Mr. Fitzpatrick's SUV. She enumerated his injuries, and ran down the list of state witnesses.
The defense's opening statement was made by Sam Adams. He started out by telling us that Mr. Fitzpatrick's nickname was "Corky." He said that the defense is not disputing that "Corky" hit Tom McBride with his SUV, only the state's assertion of intent. He stated that it was a "true tragedy" but that "accidents occur," that the SUV, which was registered to his grandmother, was a "big huge" vehicle that "just happened" to hit McBride. He said that Fitzpatrick turned onto Washington from Lorel looking for cars coming and "didn't see" the bike, and that "suddenly McBride was in front of him," and that Fitzpatrick tried to stop. He noted that "Corky" was not charged with leaving the scene, and that he "panicked," drove away, and didn't hear the scraping of the bike under his SUV for several blocks, at which point he stopped and discarded it. He then called his friend Demetrius, who is the son of Chicago cop Sidonia Terry. (I'm not sure of the spelling of some of these names.) Mr. Adams said that Fitzpatrick was distraught and had "defecated" on himself. Officer Terry then told him to go to a garage, where he was picked up by the police. He said that Fitzpatrick had only been going 25-30 mph and hit the bike no more than three or four seconds after turning the corner.
The prosecution's first witness was Tom's mother, Mary Ellen McBride, who described going down to the Medical Examiner's office to identify her youngest son's body. There was no cross-examination.
At this point it was noon and the trial was recessed for lunch. The second witness, Mr. Tyrone Hibbler, a 73-year old black man, took the stand at about 1:30. He stated that he was driving east on Washington and noticed a car "driving a little strange" and "changing lanes really fast" directly in front of him. He said that there were no cars parked in the parking lane due to rush hour restrictions, thereby leaving two lanes for traffic. He said he saw a "kid on a bike" in front of the SUV, and that the bike was close to the curb, with the SUV immediately behind. He said that the SUV swerved two or three times, and then it sped up and ran over the bike. He said that before the impact, he asked his wife, who was in the passenger seat but not paying attention, "Why's he messing around with that kid like that?" He said that after the hitting the bike, the SUV pulled up, went back and forth a few times, and then sped away. (I personally think that this going back and forth was an attempt to dislodge the bike, but the witness didn't say that.) He said that sparks were flying from underneath the SUV as it drove away. He then followed the SUV a couple of cars back but lost him. He flagged down a police car and returned to the scene. He also noted that the SUV had tinted windows.
On cross-examination, the defense got Mr. Hibbler to admit that since he was in a smaller car, he couldn't see over the SUV. He said that he was two to three car lengths back when he noticed the SUV swerving, and that he didn't see the bike before then. He reiterated that the SUV moved right and left two or three times while traveling 20-25 mph for about three or four car lengths before hitting the bicycle. There was some discussion about exactly where the witness' car was when the "accident" occurred. He said that he was west of Lorel at the time and that the collision occurred near the middle of the next block. He said "it all happened in seconds" and that after he returned to the scene he stayed for 10 to 15 minutes. Mr. Adams started to question him about the statement that he gave to police that day.
Then the attorneys took a short recess to the judge's chambers, presumably about admitting the statement to evidence. Before the recess, the witness had stated that he remembered the statement, which he had read that morning, as being handwritten, and Mr. Adams was quick to point out that it was actually typed. He said that the only saw the bike for a second and that he couldn't tell the intent of the driver, whether he was trying to hit the bike or avoid it. He said that the SUV backed up less than a car length after the accident, which was not in the police report.
On re-direct by the ADA, Mr. Hibbler said that he slowed down when he saw the SUV, and didn't see the bike until the SUV swerved to the left, when he saw the bike near the curb in front of the SUV. He said that the SUV then swerved right to get back behind the bike and hit it. The defense then re-crossed and got the witness to admit that he couldn't remember when he crossed Lorel and some other details. The state's attorney then ended by asking him if, even though he couldn't remember all of the little details, if he would ever forget what the driver did to McBride. Mr. Hibbler answered no.
My impression of Mr. Hibbler was that even though he didn't remember every detail, he was very honest about it and sincere in general.
After a short recess, the third witness, Mr. Lionel Dixon, took the stand. He is a 43-year old black man. He said that he was driving west on Washington when "something struck my eyes." It was a pedestrian under a car, a green SUV. He pulled over about 15 or 20 feet away and noticed a couple of other people standing nearby. He said that the SUV was stopped initially, then drove off and turned left on Lockwood. He said that he turned around and followed right behind, and that the SUV turned into an alley, at which point he saw a black man get out, pull a bike from the undercarriage, and throw it against the alley wall. He wrote down the license number of the SUV and returned to the scene, where about a dozen people had gathered, but no police. He said that the victim was "balled up" and conscious but not talking. He then noticed the license plate lying next to the victim, and picked it up. He saw that it matched the number he had written down, and gave it to the cops who had just pulled up. He led the police back to the alley and the bike was still there. At this point the bike was brought out as evidence. It was missing its front tire and was very banged up. The front derailleur was destroyed, and the chain was unattached. Mr. Hibbler also noted that the SUV had tinted windows. He said that the body was initially lying half under the passenger side of the truck (SUV) and half in front of it. He said that he didn't remember the truck backing up, that it just drove over the body. He said he saw the front wheel of the bike on Washington. The defense only asked one question in cross-examination, whether the witness had seen any of the events leading up to the crash. He said no and was excused.
This is when things really started to get interesting. The jury was recessed and the PA was turned off. Mrs. McBride told me it was because the next witness had had a change of heart about testifying. Sure enough, the witness, Jerry Carter, a.k.a. Jerry Howler, a thirty-something black man and ex-con, was brought before the judge and said that he didn't want to testify. The judge then ordered him to testify. After the jury was brought back in, Mr. Carter testified that he was jogging on Washington that morning, on the north side of the street, going east. He saw a man on a bike, also going east. He said he saw the SUV do a "roll stop" at the stop sign at Lorel, at which point the bike was three feet to the side of the SUV and was almost hit, then the bike went past the truck on the driver's side. The ADA then produced a signed police statement by the witness from the day of the incident. This statement was written in the third person with lines beginning "Jerry said." In the statement, he said that the bicyclist had slapped the hood of the SUV and called the driver a "stupid motherfucker," but he denied making this statement after it was read to him. The statement said that the bike swerved and the truck continued behind it, swerving with the bike, but he again denied making this statement.
At this point the ADA showed Mr. Carter the statement, and he agreed that he had signed it on each page but didn't remember reading it first. Then she read more from the statement, which said that the bike tried to get away, but that the SUV sped up and hit it, then drove away dragging the bike underneath, but the witness again denied saying this. The statement said that the SUV hit the bike with its front axle and dragged it from behind, but Mr. Carter said he didn't remember saying that. Then the ADA brought out a transcript of Mr. Carter's sworn testimony to the grand jury a few months after the incident and read from it. In this testimony, he had repeated the statement about the bicyclist striking the hood and the "motherfucker" remark. He had also said that the SUV stopped behind the bike and that he thought more words would be exchanged, but then the SUV bumped the bike from behind, the bike wobbled, and then the SUV hit the bike again and rolled over it.
But after hearing this grand jury testimony read back to him from the transcript, he said that he now can't remember the incident, although he does remember giving those answers. (What a character.) At this point, Bob Matter wrote "I think the Gangster Disciples got to him" on my notes. On cross-examination, Mr. Adams asked Mr. Carter if he thought the state's attorney who took the initial statement had wanted the statement in his own (the attorney's) words, and Mr. Carter said yes. He asked him what the weather was like on that day and he said it was cloudy, but Mr. Adams read from the statement where he had said it was sunny. Mr. Carter then said that he now can't remember any details. Then Mr. Adams set up a large aerial photo of the area and asked the witness to mark the locations of himself, the SUV, and the bike, but I couldn't see what he marked from my seat.
He again stated that he saw the SUV take a "roll stop" on Lorel before turning onto Washington, but that the bike reached the intersection first. He said that cars were parked along eastbound Washington, and that the bike was on the driver's side of the SUV, in front of it. He said the bike was weaving in front of the SUV and that the SUV tried to go around it, and that this lasted for 40 to 50 seconds, at 15 or 20 mph. Mr. Adams then read from the grand jury testimony where Mr. Carter had said that it was three or four minutes, but once again, he denied saying this. After some further questioning, Mr. Carter said that after talking to his pastor, he called ADA Rogers, who was the attorney previously assigned to the case, and told him that his statements to the grand jury had been inaccurate. He recalled saying to Mr. Rogers that the bike had been on the right (passenger) side of the SUV. Mr. Adams then tried to introduce a videotape of Mr. Carter's statements to the former defense attorney Mr. Miller. He wanted to show it to the witness to "refresh his memory." The state objected, and both the jury and the witness were sent out for the legal arguments, which went on for about a half hour.
I didn't follow all of this, but basically they were arguing about whether the videotape should be shown in front of the jury, and if so, whether it should be the whole thing or only the question and answer about which side of the SUV the bike was on. (Apparently in the tape he had said the it was on the right side, but he had testified earlier today that it was on the left.) The crux of the argument seemed to be whether the tape was consistent with his other testimony today and the other statements, in which case it could not be admitted as material evidence, or whether it was inconsistent and could be used to attack his credibility. The defense also argued that if the entire grand jury statement was admitted, then the entire videotape should be as well.
After a lot of arguing and anecdotal citations of the law and other cases as precedents, the judge finally agreed that the witness could view the tape, but not in the presence of the jury. He also chastised both sets of lawyers for bringing up the issue in the middle of a witness' testimony, rather than in the pretrial discovery motions when there would be time to file briefs and do research on the appropriate law. The judge told them to bring out the witness and show him the tape. He then went to chambers and told the lawyers to get him when they were done, which brought a chuckle from the audience. So, they set up the TV and Mr. Carter watched the tape. They didn't patch it into the PA and the TV was facing away from the viewing area, so it was hard to make out what was being said.
Afterwards, the judge and jury were brought back in and Mr. Adams continued with cross-examination. He asked Mr. Carter if his memory had been refreshed and he replied that it had. He then stated that the bicyclist had hit the car with his hand on the driver's side. The bike then went to the passenger side and was swerving in front of the truck, which was when it was hit, and then the truck left. He said the truck was going "normal speed" and did not speed up to hit the bike. He said that he went to help the bicyclist after the collision. He then stated again that contact was made prior to the SUV running over the bike, but in the videotape he said that there was no prior contact and that the truck only hit the bike once. He admitted making inaccurate statements to the grand jury and the state's attorney. He said that the reason he did this was because he was mad that the driver left the scene, but later had a change of heart after talking to his pastor. On re-direct, Mr. Carter said that he told ADA Rogers that the truck has tried to get around the bike, but that that wasn't put into the official statement. He was shown a map that he had marked during the initial police questioning but denied having made the mark. He then said that he saw the truck bump the bike before it was hit. The defense then re-crossed, and he said that there was only one hit, that the bump, which he had just said was before the fatal hit, was actually the fatal hit itself. ADA Peters then re-directed and asked him "You're calling that a bump?" and he replied yes. The defense than asked him if the truck had to bump the bike first before it was dragged under, meaning there was only one "hit," and he said yes.
Finally, Mr. Carter was excused and we were done for the day at about 5:15. Whew! If you were confused by Jerry Carter's contradictory testimony, so was I, and presumably everyone else. He is probably about the worst witness I could imagine. Not only did he contradict himself, he was uncooperative and a poor speaker. Hopefully, the jury will consider that his initial statements to the police on the day of the incident, and his grand jury testimony a few months later, hold more weight than his lousy memory and recantations over two years later.
Mrs. McBride assured me that there would be other witnesses whose testimony would be more reliable and just as useful to the prosecution. I hope she's right. The trial continues tomorrow.
[Fitzpatrick] has about twenty supporters there, some of whom look like family but most of whom seem to be friends his age. On the other side of the aisle are the Tom McBride's parents, and I think his sister and brother (he was the youngest of five), plus some other friends of theirs and various other supporters like me and Bob. So, the more of us the better. Come on out for the rest of the week if you can. The judge still says the trial should be done by Friday.
-- Dan Korn
McBride Trial -- Day 3, 11/28/01
Most of what I am reporting is my own paraphrasing of the questions asked to and answers given by the witnesses, and my own accounts of the proceedings, except where I use quotations marks. Some of today's report will consist of my paraphrasing of official transcripts that were read in court.
The prosecutors on the case are ASA Lynda Peters and ASA Pat Kelly. The defense attorneys are Sam Adam (not Adams as I wrote yesterday) and his son, Sam Adam Jr. The judge is Kenneth Wadas. Before I go into my very lengthy report (which is even longer than yesterday's), here is a summary of what happened today.
The prosecution continued their case with seven witnesses, including the four of the cops and detectives on the case, the former prosecutor, the assistant state's attorney who took Jerry Carter/Howard's grand jury testimony, and one of the forensic investigators. Most of the testimony from the former prosecutor and the other state's attorney dealt with Mr. Carter/Howard's statement to the police, his grand jury testimony, and his subsequent recantations, which seem to be turning into the central focus of the case. Ms. Peters said that tomorrow we should expect to hear from an evidence technician at the state crime lab, and then the state will rest and the defense will begin their case, which is expected to include two or three witnesses and should continue into Friday, when the closing arguments are expected, followed by the jury's deliberations. They are hoping for a verdict on Friday, but it may not be until next week.
Now here are the details of the day's proceedings. The day began at 10:30 with the fifth state's witness, Chicago Police Sgt. Henry Harris, a black man who appeared to be about 35 years old, being questioned by Ms. Peters. He testified that he was called to an "aggravated battery involving a motor vehicle" along with Officer Dan Jacobs and Detective Harry Collins. He went with Jacobs to the scene and Collins went to the hospital where the victim had been taken. At the scene, he saw some other uniformed officers, and interviewed a few people, none of whom were witnesses, for about an hour and fifteen minutes to an hour and a half. He then returned to the 15th District police station. Ms. Peters showed the witness some photos of the scene, which he identified as the bike wheel lying in a "grassy area," a "spot of blood" on the street, and crime scene cordoned off with yellow tape. He stated that he also saw "unusual scarring" on the street, like "something had been dragged and gouged." He was then shown a diagram of the area and pointed out the location of the crime scene. On cross-examination, he said that he did not see officer Secdonia Terry at the scene, and that although he interviewed 3 or four people, he did not take any witness statements, and made no notes of the conversations or the names of the people he talked to. Mr. Adam asked him about the location of the stop sign at the corner of Lorel and Washington, and he responded that it was about 10 to 15 feet from the curb, but he could not see it in the state's photograph. On redirect, he said that he does not usually take notes about conversations with non-witnesses. Then Mr. Adam re-crossed and asked him if he could have taken statements from people who had been at the scene but had left before he arrived, and he said no. This brought a groan from the audience.
The sixth witness, Officer Dan Jacobs of the Chicago Police, a white man who appeared to be about 30 to 35 years old, was also called to an aggravated battery involving a vehicle and went to the scene with Mr. Harris. He later talked to Jerry Howard about the events. He asked Mr. Howard where he was at the time, and drew a diagram for him to mark. Ms. Peters showed Mr. Jacobs the diagram, which he identified and noted the marks made by Mr. Howard. On cross-examination, he said that he went to the scene with Officer Harris, but could not remember if they went in the same car.
The next witness, Harry Collins, an investigator for the State's Attorney's office, was called to the stand by ASA Kelly. He is a white man, about 45 to 50 years old, who was a detective for the Chicago Police when he responded to a homicide call on Washington. He went to the hospital, but Tom McBride had been pronounced dead at the scene. He examined the body and then went to the crime scene at around 10:00 or 10:15. Officers Jacobs and Harris were already there, and the forensic investigators arrived during the hour and a half that he was there. Then he went to the alley where the bike had been found, and saw the bike there, some other officers, and the evidence technicians arrived shortly after. He then returned to the 15th District station where he saw the green Chevy SUV and again waited for the investigators. After some investigation there, the vehicle was towed to another location to look at its undercarriage, and then taken to the impound. Later, at about 7:45 that evening, he met with Assistant State's Attorney Trug Minneart to interview Jerry Howard. He stated that Mr. Minneart identified himself as the state's attorney and interviewed Mr. Howard for about 15 minutes. Mr. Minneart then asked Mr. Howard if he would sign the statement if it was reduced to writing and Mr. Howard said yes. Mr. Minneart then asked Mr. Howard a series of questions that Howard answered. At this point, Minneart and Howard were sitting next to each other at a desk and Collins was seated across the desk from them. This questioning lasted another 15 minutes. Then Mr. Minneart asked Mr. Howard to read the first paragraph of the statement aloud to show that he could read English, which he did. Then Mr. Minneart read each word of the statement to Mr. Howard and told him to make any corrections he wished to, which they would all initial. Mr. Howard made several corrections. Another paragraph was then added to the statement about Mr. Howard's treatment during the questioning, and Mr. Howard signed the statement. Then Mr. Minneart took a Polaroid picture of Mr. Howard. Mr. Kelly (the prosecutor) asked Mr. Collins to describe Mr. Howard's demeanor during the interview, and he replied that it was "relaxed and normal," that Mr. Howard's memory was fine, and that he answered the questions without hesitation.
After a short recess, Mr. Kelly distributed copies of the statement to the witness and the jury, and the witness read the statement aloud. The remainder of this paragraph summarizes the statement. The Miranda warnings were stricken from the statement because they were not issued, as Mr. Howard was only a witness, not a suspect. The statement was taken at 8:40 p.m. All the lines of the statement begin "Jerry states..." There is some background information about Mr. Howard at the beginning. In the statement, Mr. Howard says that he was walking east on Washington on a bright, sunny day, when he saw a white man riding a bike with a backpack. He said that there was one lane of traffic going east on Washington and a parking lane. He saw a green SUV on Lorel. The SUV did not come to a complete stop at the stop sign on Washington and Lorel and almost hit the bike as it was passing. The bicyclist then hit the SUV with his hand and called the driver a "stupid mother fucker." The SUV turned onto Washington and followed the bike, then bumped its rear tire. The bike swerved, then sped up and tried to get away. The SUV also sped up and then ran over the bike. It first ran over the bike with its front axle and then dragged it from the rear. The SUV then sped away with sparks flying from the bike underneath it, and never slowed down or stopped to help. Mr. Howard then went to assist the bicyclist.
In the statement, Mr. Howard stated that he was treated well during the questioning, given popcorn and water, and allowed to use the bathroom, and that the statement was given freely. The last page of the statement says that the entire statement was read to Mr. Howard and that he was allowed to make corrections. This page was also signed by Mr. Howard. Mr. Kelly asked the witness to point out the corrections that were made by Mr. Howard, which he did.
On cross-examination, Mr. Collins said that he was retired from the police and was currently an investigator for the state attorney's office, which is the same office that employs the prosecutors in this case, Ms. Peters and Mr. Kelly. He said that he took the statement from Mr. Howard about twelve hours after the accident, and that nobody was present at that time except for himself, Mr. Howard, and Officer Jacobs. He reiterated that Mr. Howard was not hesitant during the questioning. He agreed that the statement was not a word-for-word account of Mr. Howard's testimony. He said that a court reporter was available at the time the statement was taken, but that none was present. Mr. Adam got Mr. Collins to admit that during the questioning, Mr. Howard said that he had had 12 years of formal education, but that he was never asked to write the statement himself. Mr. Howard asked no questions, and he was not asked any questions that were not in the statement. Mr. Howard read the statement before he signed it, and after reading it, no other questions were asked before it was signed. Mr. Collins stated that he knew that Mr. Howard had seen the events himself, but he did not ask him, "Where were you when you saw this?" He said that it did not occur to him to ask that. The statement does say that Mr. Howard was walking east on Washington, but not exactly where. (Mr. Adam really harped on this point.) Mr. Collins said that he does not know Assistant State's attorney Mike Rogers, and that he has not seen Mr. Howard since the incident. (Mr. Adam attempted to ask him if he knew that Mr. Howard had later recanted his statement, but the state objected, and the objection was sustained.)
On redirect by the state, Mr. Collins reiterated that at the time he took the statement he was working for the Chicago Police, not the state's attorney's office. He stated that he wrote down a routine GPR, or general progress report, as notes before taking the statement. He said that Officer Jacobs had already made the diagram showing where Mr. Howard was standing at the time of the accident and that he had seen it before taking the statement. Mr. Howard was told that the statement was only a summary and that he would be able to make corrections to it, and he in fact did make corrections and signed every page. The defense then re-cross-examined and Mr. Collins admitted that he was not present when the diagram was made. He said that he was a friend of Officer Jacobs. He also said that there was no signature on the diagram. He stated that although he looked at the diagram beforehand, he did not have it in front of him during the interview. He said that he didn't know if the state's attorney had seen it, and that he did not tell him about it. He did not ask Mr. Howard to draw a diagram. On re-redirect by the state, he said that all diagrams and statements are made part of the case file, and that the state's attorney would have seen the file.
The eighth witness for the state was ASA Karen Dooley, formerly Karen Worley, a white woman who appeared to be about 35 years old. She was assigned to the homicide unit of the grand jury. On May 6, 1999, she directed Jerry Howard's testimony before the grand jury that ultimately indicted Carnell Fitzpatrick. Before the grand jury testimony, she met separately with witnesses Lionel Dixon and Mr. Howard alone in her office. Before meeting with Mr. Howard, she read the statement he had given the police. She talked to him for about 10 or 15 minutes, not referring to the statement. She explained how the grand jury works, that only the grand jurors, the state's attorney, the witness, and the court reporter are in the room during testimony. She said that Mr. Howard was sworn in by the jury foreperson and that he testified for about 10 or 15 minutes to her questions. The grand jury then asked several questions. Afterward, she read over the transcript of the testimony for accuracy. Mr. Kelly then distributed copies of the transcript of Mr. Howard's grand jury testimony to the witness and the jury. The transcript is summarized in the remainder of this paragraph. Mr. Howard was sworn in. The testimony was regarding the homicide of Thomas McBride.
Mr. Howard testified that he was in the area of 1553 West Washington, coming home from a friend's house, walking east on Washington. He saw the truck come to a stop sign at Lorel and Washington, "in front of him," but it didn't stop. The truck almost hit the bike, then the bike rider hit the truck with his hand and called the driver a "stupid mother fucker." The bike left and the truck sped after it. The truck got behind the bike, and Mr. Howard said that he thought the truck would stop and the driver would exchange words with the bicyclist, but instead it bumped the bicycle. At this point Mr. Howard testified that he was 40 to 50 feet away from the truck and bike. He approximated it relative to the length of the room he was testifying in, and Ms. Worley noted the distance for the record. The bike wobbled, then the truck hit it again and ran it over. The bike had been swerving, but the truck was not. Mr. Howard testified that the entire incident took about three or four minutes. (Yes, that's what the transcript says. I wonder if this was a mistake by the court reporter and really should have read "seconds" instead of "minutes.") He then ran towards the scene, the truck ran over the bicyclist, and then left. He saw the bicyclist gasping and noticed the bike under the truck, causing sparks to fly. The truck continued east on Washington and turned north onto Lockwood. He said that the truck was going 20 mph before the collision and 45 mph afterward. Mr. Howard stayed with the victim. He said that it seemed like the bike was "trying to get away" when the truck ran it over. He could not see if there was a passenger in the truck. He testified that he had met with the state's attorney and had said the same things, and reviewed and signed the statement on every page, that he was not under the influence of drugs or alcohol, that no threats or promises had been made to him, and that Ms. Worley had identified herself as the state's attorney.
All the questions after this point in the transcript are asked by the grand jury. One juror estimated the length of the room that Mr. Howard had compared to the distance between himself and the truck as only 15 feet rather than 40 or 50 as had been previously noted. Mr. Howard agreed with this. A juror asked him to elaborate about the bicyclist touching the truck, and he reiterated that the bicyclist hit the bike with his hand and the curse word. A juror asked about the direction that the bike and the truck were traveling, and Mr. Howard responded that the bike was traveling east and the truck turned to pursue it. Ms. Dooley stated that the transcript she was shown was the same as the one she had seen before, and that Mr. Howard was cordial, cooperative, pleasant, calm, and not hesitant during his testimony. Ms. Dooley was cross-examined by Mr. Adam and said that she had been a state's attorney since 1994, and worked for the same office as the prosecutors. She stated that she had not seen the crime scene herself, and that although she may have driven by that area at some point, she was not familiar with it. She did not remember seeing any other documents or pictures besides the police statement and the transcript. She said that there was no one else in the grand jury room, and that she was free to ask any questions she wanted.
The defendant or his lawyers were not present during the grand jury testimony. (Mr. Adam really harped on this point as well, I suppose to insinuate that the questioning was one-sided, but Dooley wouldn't go along, since that's how grand juries work.) From the transcript, she read that Mr. Howard had testified that he was "in front" of the events, but when she asked him exactly where he was, he had answered "I was like running towards" them. He had said that he was walking down Washington. Ms. Dooley said that Mr. Howard told her the same story before he testified to the grand jury, but had not specifically mentioned the three to four minute time frame. (Mr. Adam tried to ask her if she thought that three to four minutes made sense, but the state objected on the grounds that her opinion was irrelevant.) She did not have Mr. Howard draw a diagram. She said that there is not usually an easel or blackboard in the grand jury room. She stated that she has not spoken to Mike Rogers about the case, but that she does know him.
On redirect, Mr. Kelly had Ms. Dooley re-read a question from the transcript where she had asked Mr. Howard, "Was the distance you were from where the events took place 15 to 20 feet?" and Mr. Howard had responded yes. She also said that she would have known the distance from the case file. At this point it was 12:45 and the trial was recessed for lunch.
After lunch, at about 2:10, the lights were turned off in the courtroom and a TV was set up. Some legal arguments were made to the judge before the jury was brought in. The defense was arguing that some of the pictures that the state was planning to show the jury were prejudicial, as they were bloody and disturbing. Both sides agreed to defer this argument until the next day when the medical examiner was scheduled to testify and they knew exactly which pictures would be shown. The state then asked the judge for leeway in questioning the next witness about Jerry Howard's alleged admission to the witness that he had been threatened into recanting his testimony. The defense said that this would be hearsay, that they would not get to cross-examine Mr. Howard about it, and that the state should have asked Mr. Howard (Carter) this during his testimony if they wanted to bring up the issue. The state noted that they had been barred from asking Mr. Howard about it by a previous motion that the judge had granted the defense (due to the alleged threats being prejudicial to the defendant), and that the witness cannot explain Mr. Howard's sudden change of heart to the jury without bringing this up. After about fifteen minutes of wrangling, Judge Wadas decided that the witness can be led about Mr. Howard's truthfulness, but cannot be asked about the alleged threats. Ms. Peters then went to brief the witness.
At 2:30, the state's ninth witness, Assistant State's Attorney Michael Rogers, a white man who looked about 40 years old, took the stand. He was the original prosecutor assigned to this case. He met with Karen Worley and Jerry Howard. He talked to Mr. Howard alone and gave him his business card and told him to call him if he had any problems. They had about three conversations on the phone and Mr. Howard never said that he had made inaccurate statements or made a mistake in his testimony, and he never said that he had talked to his pastor. Mr. Rogers asked Mr. Howard if everything he said had been true, and he said yes. On cross-examination, Mr. Rogers said that he talked with Mr. Howard several more times between May 1999 and January 2000, when he was taken off of the case. Mr. Howard had initiated the conversations by calling or paging him. In January 2000, Jerry Howard told Mr. Rogers that his statements in May of 1999 were not true. At this point the lawyers and the judge recessed to the judge's chambers for about 10 minutes, after which the jury was excused and the lawyers from both sides interviewed Mr. Rogers in the conference room for another 20 minutes, which I could not hear. Then Mr. Rogers was re-directed by the state and said that Jerry Carter (Howard) said that he had told the truth. It was not until eight months later that he said anything about making a mistake. Jerry called him and said that he no longer wanted to cooperate in the case, and that although his previous statements were true, he would deny them if he were called to testify.
The tenth witness called was Officer Secdonia Terry of the Chicago Police, a black woman who appeared to be about 40 to 45 years old. She works in the 15th District as a patrol cop. She received a call about a traffic accident, and was told that someone at the scene wanted to talk to her. Upon arriving, she saw her son and some other beat officers there. Her son's name is Demetrius Terry and he is now 29 years old. She is a long-time friend of Corky's (Carnell Fitzpatrick) family, and she is Carnell's godmother. Her son grew up with Carnell, and he used to spend time at her home. Her son called Corky (Carnell) on his phone from the scene, and Officer Terry talked to him for two or three minutes. She asked Mr. Fitzpatrick if he knew what he had done, and he admitted hitting a guy on a bike. She asked him why he had left the scene, and he said that he was scared and had "soiled his pants," so he went home. She agreed to meet him at the Amoco station. She first talked to some other cops and then went to the Amoco station with Officers O'Grady and Alexander at about 9:05. Carnell arrived there about 15 minutes later in the SUV, with his girlfriend Tinada and his two young children. She arrested and handcuffed Carnell and took him back to the 15th District. Officer Alexander drove the SUV there. That afternoon, she spoke to Jacobs, Harris, and Collins at the Grand and Central station. She did not see her son at either police station. She wrote no reports. On cross-examination, she guessed that there had been about four uniformed police officers at the scene. She was there for about five or ten minutes. Officers O'Grady and Alexander were there, but she didn't notice any detectives. Her son was standing on Washington west of Lockwood. He owns a navy blue Crown Victoria. She was shown a photo of the scene by Mr. Adam and recognized the car in it. She said that she spent a lot of time with Corky when he was young, but that she hasn't seen him much lately since her son doesn't live with her anymore. She said that Demetrius called Corky on his own phone. She reiterated that she had asked Corky why he left the scene, and that he said he was scared. He wanted to turn himself in, but did not want to return to the scene, and he wanted her to be there. On redirect, she said that at the time of the incident she didn't know what car her son owned and did not recognize any cars at the scene.
The eleventh state's witness was Chicago Police Officer Victor Rivera, a Hispanic man who appeared to be about 45 years old. He was called to the scene with his partner Dan Principato. When they got there at 10:18, the entire block had been blocked off with yellow crime scene tape. Several other officers were there, including Jacobs. He photographed the scene from various angles and recovered evidence, including two blood swabs from the street, a bicycle tire, a piece of inner tube that was tied in a knot, and a license plate. He used cotton swabs to collect the blood and inventoried the evidence. The inner tube and wheel were found in the street near the blood. He then went to the secondary scene in the alley off of the 5200 block of Lake Street and saw more officers and crime scene tape there. He retrieved the bicycle missing its front wheel, and took more photographs. He spent 30 minutes to an hour there and returned to the 15th District station. There he finds the SUV, which is photographed and dusted for prints. The undercarriage was not examined there; instead it was towed to the auto pound and put on a lift, at which point it was photographed from underneath. Blood and silver metal scrapings were found on various parts of the undercarriage on the driver's side, along with red fibers, like strands of thread, and the impression of an emblem that appeared to be some kind of designer logo. Hair and more blood were found under the passenger side. The evidence was sent to a state crime lab. At this point, the photos that Officer Rivera had taken were shown on a TV to the jury. These included general pictures of both scenes and the SUV, pictures of the marks on the road, various shots of the bike, and close-ups of the evidence on the underside of the SUV. On cross-examination, Officer Rivera said that he saw only a single police car parked on the south side of Washington, and no other cars parked there, and that no tow trucks had been called. He was shown a photo of the scene again and could not identify the stop sign on Lorel at Washington going north. He was shown a wider view photo and still could not see it. He said that he could not recall any pictures of the stop sign or the sign itself. At 4:05, he was excused and court was recessed for the day.
Well, that's about it. I would write some brilliant analysis, but I am too tired after typing all of this, and at this point I'm not really sure what is going to happen. It seems that everything still hinges on whether the jury accepts Jerry Carter/Howard's original statement and grand jury testimony. It's too bad that the jury can't be told that Carnell Fitzpatrick is a drug dealer with gangster buddies and that Carter supposedly told Mike Rogers that he had been intimidated.
Right now, the only theory they have heard about his recantations is Carter's own story that he made everything up because he was mad at the driver for leaving the scene and then had a change of heart months later after talking to his pastor. Sounds more like the good old days in Chicago when witnesses suddenly developed amnesia after a run-in with some of Capone's boys to me, but that's just my opinion. Anyway, the plan is to resume testimony at around 11:00 tomorrow. I hope to see some of you there.
-- Dan Korn
McBride Trial -- Day 4, 11/29/01
Today was a short session. There were a lot of other cases in the morning. When they finally got around to the case, only one witness, the medical examiner, was heard from, some stipulations were read, and some motions were dealt with. (Some of the testimony was graphic, as were the photographs shown.)
The state is now basically finished with its case, and tomorrow the defense is expected to call two or three witnesses. The judge told the jury that closing statements would probably occur on Monday morning. This is the first time he has said that the trial will definitely go into next week.
After dealing with various other cases in the morning, the judge recessed to chambers with the lawyers in the Fitzpatrick case at noon. After a few minutes, they came back into the courtroom, without the jury, and there were arguments about the photos that the state planned to introduce during the next witness' (the medical examiner's) testimony. The defense objected specifically to four of the photos, saying that they were redundant and basically all showed the same thing. They also objected to another photo, saying that it was prejudicial since it was taken during the autopsy and reflected the state of the subject after being examined. This picture is apparently of a head injury, which shows a laceration to the right temple and some injuries underlying the scalp. Mr. Adams argued that since there is no dispute about the injuries themselves, there is no point in showing three or four pictures of basically the same thing, especially photos that show the things that the medical examiner did and not the state of the victim after the incident. Judge Wadas responded that out of all the autopsy and crime scene photos he has seen in his years on the bench, these were not so bad, and the pictures all show different injuries. He denies the motion to suppress the photographs, and allows them all to be introduced. Mr. Adams presses the issue on some other pictures, but the judge does not change his mind.
At 12:15 the jury was brought out and the state's twelfth (and as we learned later, likely final) witness, Dr. Mitra Kalelkar, a woman who appeared to be of middle eastern or Indian descent and about 35 to 40 years old, was called by ASA Patrick Kelly. She is the Assistant Chief Medical Examiner of Cook County. She stated that her duties are to perform autopsies to determine the cause and manner of death, and also teaches other doctors and examiners. She is currently licensed as a medical doctor and pathologist. During an autopsy, she performs both an internal and an external examination, looking for signs of injury, disease, and previous medical treatments. She stated that forensic pathology applies pathological knowledge to make determinations. Dr. Kalelkar said that she had performed over 5000 autopsies and had testified in over 500 trials.
She examined Thomas McBride's body, performed internal and external examinations, and compiled a post-mortem report. Mr. Kelly gave her a copy of the report to refer to during her testimony. Dr. Kalelkar stated that the body arrived unclothed, along with windbreakers, thermal underwear, and some other items. Mr. McBride appeared to be well developed and nourished, 150 pounds, and 5 feet 10 inches in length. The body displayed "a lot of injuries" including a "large sickle shaped laceration" on the right temple and abrasions on the right side of the face, neck, and collarbone, the right hip and thigh, and both knees and lower legs. She explained that an abrasion is a scraping of the hair from the skin due to some kind of friction. She said that she could tell that the right upper arm was broken by feel, and this was confirmed by an X-ray. She testified that there was evidence of medical intervention, presumably post-trauma, including a procostomy incision in the chest and needle marks on the elbows and groin, consistent with lifesaving medical efforts.
After the external exam, she performed an internal examination. She found latent blood in the chest cavity, lacerations on both lungs and the liver, and multiple broken ribs. She explained that a laceration is a tearing of tissue due to trauma. The ribs had both anterior and posterior (front and back) fractures, consistent with a "crushing type of injury" to the chest. She repeated that the scalp had a "sickle shaped laceration" with hemorrhaging underneath. The brain was intact. She stated that the injuries were consistent with being struck, dragged, and run over by a large motor vehicle. The scalp injury was consistent with falling to the street. Blood samples and other evidence were sent to the state lab and toxicologist, to be tested for alcohol, opiates, and cocaine. The tests were negative.
Mr. Kelly then showed a series of nine photographs to the witness and to the jury on the television. Dr. Kalelkar testified that she had taken the photos and that they were an accurate depiction of the subject. The TV was visible from the audience as well. The photos were very graphic and several of the spectators were visibly disturbed. The jury seemed to be viewing the picture intently. I could not see Carnell Fitzpatrick's reaction. The first photo was a view of the head of the victim, from the front. Many abrasions were visible on the right side of the face. The second picture was a view of the head from the right side. Dr. Kalelkar pointed out vertical abrasions consistent with friction from movement up and down rather than sideways. The third picture was a view of the right side of the torso. The witness pointed out several abrasions and a broken right upper arm and clavicle, as well as numerous broken ribs. The fourth photo showed a frontal view of the torso and abdomen, and the witness pointed out bruises and punctures on the left chest and elbow. She said that the punctures were caused by medical intervention. The fifth photo showed the legs from the front, with several abrasions to the knees and legs. The sixth photo showed abrasions on the back of the knees and lower legs. The seventh showed abrasions to the back of the left hand. The eighth photograph was a view of the head from the right rear side. The head was shaved to show further scalp abrasions. The last picture showed the scalp rolled back to display injuries and hemorrhages beneath the scalp.
Dr. Kalelkar stated that she had determined that the cause of death was multiple injuries due to being struck by an automobile. She explained that there were five manners of death: homicide, suicide, accident, natural, and undetermined. She said that she determined the manner of Mr. McBride's death to be homicide. Mr. Adams cross-examined. Dr. Kalelkar said that homicide means that a person was killed by the actions or hands of another, but makes no determination of purpose or intent. She stated that she can determine whether a death was caused by an accident or not by the nature of the injuries. Mr. Adams made an analogy to cases involving gunshot wounds, and the witness said that it was routine to test the weapon in such cases, but it could not be determined if a person had been shot intentionally or if "the gun just went off," in Mr. Adam's words. She said that her job is to certify the manner of death reported by the investigator. She admitted that this is hearsay "in a way," but that medical examiners have to rely on such reports because they are not witnesses. She admitted that she had no direct knowledge of the events leading up to Mr. McBride's death since she was not there at the time, and relied on police reports that said that he had been "deliberately run down by a vehicle." Mr. Adams then showed her the picture with the scalp peeled back and she stated that the skull injuries in the picture were caused by the autopsy, and did not reflect the initial state of the body when she received it. On redirect by Mr. Kelly, she stated that she had no idea about the underlying scalp injuries initially until she pulled back the scalp to investigate. Mr. Kelly asked her if the hemorrhage was existing when the body was received, and she said yes. The witness was excused.
ASA Lynda Peters then read a series of five stipulations to the jury. She explained that a stipulation is an agreement between both sets of lawyers that a witness would offer certain testimony if called. (The stipulations were read quickly and I did not catch the proper spellings of all the names read.)
The first stipulation said that if Dr. Andrew Perostnais, a Chicago police detective, were called, he would say that at 8:25 a.m. he was flagged down by Tyrone Hibbler and told about a bike being hit by a vehicle. At the scene, he saw Mr. McBride lying unconscious and interviewed Mr. Hibbler, Lionel Dixon, and Jerry Howard. He was not approached by Demetrius Terry at any time.
The second stipulation said that if called, a forensic scientist (whose name I didn't catch but I think was Bepciley) would testify that on April 28, 1999, he received two swab boxes, each containing two reddish stains. The first box contained samples from the wheel well of an automobile, and the second contained samples from the passenger side rear leaf spring shackle. He performed tests on the samples and determined that they were human blood.
The third stipulation said that forensic scientist Rhonda Carter would testify that in July 1999 she received a swab box with two blood samples from the passenger side rear leaf spring shackle, and she also received samples of the blood of Thomas McBride from the medical examiner. She performed DNA tests and determined that the blood from the vehicle matched that of Mr. McBride.
The fourth stipulation said that forensic scientist Debra Eldred would testify that she examined a silver Peugeot bicycle and processed two latent impressions from the friction rich skin of the fingers and hands that she found on the bicycle. She also examined cards containing finger and hand prints taken from Carnell Fitzpatrick and found that the impressions on the bike matched those of Mr. Fitzpatrick's left index and middle fingers.
The sixth stipulation said that forensic scientist and chemist Pat Brocherwice (I'm not sure of that spelling either) would testify that he examined a Peugeot bicycle and took fiber samples of red handlebar tape and samples of silver paint from it. He received from the medical examiner a hair sample taken from Thomas McBride. On July 1, 1999, he received several items taken from a Chevy Tahoe, including a red substance from various locations on the passenger and driver's side, hair from the passenger side, and a silver substance from under the driver's side floorboard. He compared the samples to those from the bicycle and determined that the red substance was cotton fibers similar to the handlebar tape, the hair was similar microscopically to Mr. McBride's, and the silver substance was consistent with the bicycle's paint. Mr. Kelly then read two additional stipulations saying that the medical examiner had submitted the samples in a sealed envelope and that a certified copy of a registration to Lenore Galsper (Carnell Fitzpatrick's grandmother) of a Chevy SUV was received. The defense agreed to the stipulations.
At this point it was 1:00, and the judge and lawyers recessed to chambers for ten minutes, after which the judge announced that the state had basically finished with its case but was not formally resting. He said that the defense witnesses would not be ready to testify until late that afternoon, so rather than making everyone wait around all afternoon he would recess for the day and the defense would begin their case at 9:30 tomorrow (Friday) morning. He added that final arguments were expected Monday. The jury was excused.
After the jury left, defense attorney Sam Adam Jr. brought a motion before the court. He said that there were only three eyewitnesses to the events in question. Mr. Hibbler had said that he did not see or know why the bike was hit and that it could have been an accident, Mr. Dixon only saw the bike under the truck, and not the events leading up to it, and Mr. Howard said that he thought it was an accident, and he was impeached by the state. Judge Wadas noted that Mr. Howard was a hostile witness. Mr. Adam Jr. pointed out that Mr. Howard's police statement and grand jury testimony were the only evidence of intent, and that those "were not enough" for the state to meet its burden of proof. He cited the case of People v. Parker where three witnesses recanted their police statements at trial, and the appellate court said that under 115-10.1 (I don't know what that means, but I think it's some law that deals with evidence) this was not enough to convict. He added that the only evidence heard was obtained when Carnell Fitzpatrick and his lawyers were not present and that they had no opportunity to cross-examine the witness about it. He said that Mr. Howard said that the collision was not intentional and that he had said that he never gave the answers to the police and the grand jury. He said that they were barred from another (unnamed) eyewitness who had alleged that it was intentional. For these reasons, he asked the judge to deliver a directed verdict of Not Guilty.
Mr. Kelly responded that Mr. Hibbler testified that he saw McBride cut to the curb, the SUV go behind it, accelerate, and run over the bike. He added that the defense cannot say that there is no proof, and that the jurors might be convinced of intent by Mr. Hibbler's testimony alone, even without Mr. Howard's. Judge Wadas said that the defense was not denied confrontation of cross-examination of Mr. Howard, and that the defendant has no right to be represented during police testimony. He also noted that Mr. Hibbler corroborated Mr. Howard's version of events, and that the fingerprints of the defendant were found on the bike and that he had been witnessed discarding the bike and fleeing. He ruled that this is prima facie evidence of intent and denied the motion. (Prima facie means "on its face.")
The state then asked to remove identifying marks from some of the evidence, namely the photographs from the medical examiner. The defense objected to two of the photos, based on their previous arguments. The judge ruled that the probative value of the photographs outweighed their prejudicial effect. This was the end of the day's proceedings, at about 1:30.
So, today we saw the state wrap up its case, plus what seemed to be a sneak preview of the defense's closing arguments. The defense is expected to call two or three witnesses, including Demetrius Terry, his childhood friend and the son of Officer Secdonia Terry. In the defense's opening statement, Sam Adam asserted that Demetrius had been driving right behind Fitzpatrick the whole time, which does not mesh with the other witnesses' testimony, but I expect him to offer a different version of the events. The defendant is not expected to testify.
I still think at this point that it's too close to call. Jerry Carter/Howard still seems to be the key, although I think that Tyrone Hibbler's testimony alone could be enough to prove intent. Apparently the jury will not be allowed to consider a lesser charge, so it's either all or nothing on the first-degree murder. The next two days (Friday and Monday) are going to be key. I encourage you to make an appearance in court if you can.
-- Dan Korn
McBride Trial -- Day 5, 11/30/01
The defense called four witnesses, including the defendant, Carnell Fitzpatrick. I didn't expect him to testify, but his cross-examination by the prosecution was very dramatic and was in my opinion the climactic point of the trial.
Closing arguments are scheduled for Monday at 9:15, after which the jury will begin their deliberations. We need to get as many bicyclists there on Monday as we can. If you do decide to come to the court, please keep in mind the security restrictions, which I won't repeat again except for the warning about wearing clothing with slogans on it, to avoid causing a mistrial. I am cautiously optimistic about getting a conviction, but juries have been known to do strange things.
Despite Judge Wadas' intention to start at 9:30, the trial did not get going until 10:30. The state made a motion to admit its evidence that had been presented previously, and then officially rested. The jury was then brought in and the defense began its case by calling Irving Miller, a white man who appeared to be about 50 years of age. He stated that he has been a private defense attorney for 17 years, prior to which he had been an assistant state's attorney for ten years. He was Mr. Fitzpatrick's defense attorney until he withdrew form the case on April 10, 2000. He testified that he received discovery documents related to the case from the prosecution. He explained that discovery is when all documents, photographs, and notes in the possession of the police and prosecutors are turned over to the defense, as required by law.
The documents he received included the name of witness Jerry Howard, a.k.a. Jerry Carter. Mr. Miller said he believes that defense attorneys should interview all state witnesses, and he in fact did interview Mr. Howard on March 14, 2000. He said that he called Mr. Howard, who came to his office. Mr. Miller's colleague, attorney Jerome Silbert, was present during the interview. Mr. Miller videotaped the interview and provided copies to the assistant state's attorney, as required by law. He stated that discovery is a two-way street. He viewed the videotape later that same day and determined that it was an accurate reflection of the interview. He last viewed the tape around September 2000. Defense attorney Sam Adam announced his intention to show the videotape to the witness and the jury.
The state requested a short recess, after which the judge announced that the tape was valid 115-10.1 material and could be admitted. The tape was then shown on the TV. The rest of this paragraph describes the video, which was about five minutes in length. Jerry Howard is the only person visible in the video, and he is answering questions asked by Mr. Miller, is not seen but whose voice can be heard. Also seen is a diagram of the streets in the area of the crime scene. Mr. Howard is seen with a miniature model car and bicycle, which he uses to demonstrate his answers. Mr. Howard says that he was walking on Washington across Lorel when he saw a truck hit its brakes at the stop sign at the corner and almost hit a bicycle. He says that the bicyclist hit the truck with his hand. He says that the bike was on the passenger side of the truck at the time. The bike was then in front of the truck, and the truck hit the bike. The truck continued on Washington and turned onto Lockwood. Mr. Howard says that the truck was going "normal speed" initially and sped up after it hit the bicycle. After the collision, the truck kept going and Mr. Howard ran across the street to help the victim. He says he was east of the site of the collision when it occurred. He states that the car only hit the bike once, and that there was no earlier bump prior to the collision. Mr. Miller asks him why he testified differently previously, and he says that it was because he was upset about the truck leaving the scene, but that his conscience made him change his mind. He says he called his pastor, who told him to "undo what he did," after which he called Mike Rogers and told him about his change of heart.
After the video was shown, Mr. Miller was cross-examined by Assistant State's Attorney Pat Kelly. He testified that he represented Mr. Fitzpatrick between April 1999 and April 2000. He reiterated that the videotape was made on March 14, 2000, which Mr. Kelly pointed out was 11 months after the incident. Mr. Miller said that he had received all relevant evidence from the state up until the point that he withdrew from the case. He stated that he first attempted to contact Mr. Howard between late September and November of 1999, and first met with him on January 13, 2000. He called Mr. Howard at least three times between November 15 and the end of December of 1999, sometimes leaving a message, and identified himself as a defense attorney. He called Mr. Howard a total of three to four times between their first phone conversation and their first meeting. They last met on April 5, 2000. He made audiotapes of the January 13 and April 5 meetings. On redirect, Mr. Miller said that the audiotapes were made available to the prosecution.
The second defense witness, Michael P. Slevnik, a white man who appeared about 40 years old, was called by Sam Adam Jr. He has been a private detective for ten years and was hired by Sam Adam to investigate the case for the defense. He testified that on January 3, 2001, he went to the area of Lorel and Washington and took pictures and measurements of the widths of the streets and the distance from 5315 West Washington to the corner. He was shown a diagram of the area on the easel, on which he pointed out to the jury where he had been in the middle of Washington Street. He said that he used a wheel and stick device to measure the distances. He started at the center of the intersection of Lorel and Washington and ended at 5315 West Washington, and determined that the distance was approximately 107 feet. He was shown a small photo of the intersection facing east that he said he had taken and he could not see a stop sign in the picture. He was then shown a photo from the state's evidence of the intersection looking south and could not see a stop sign in that picture either. He was shown another state's exhibit, a photo of the building addressed as 5315-5317 West Washington, which he recognized. Mr. Kelly cross-examined the witness. Mr. Slevnik said that his pictures reflect the state of the area in January 2001. He was shown the photo of the building at 5315-5317 and said that he could not say how wide the building was. Mr. Kelly pressed him, and he agreed that it was at least two city lots wide. He identified a red stain near the middle of the building, in the corner of the picture, as the accident scene. He said that his measurements stopped at the west side of the building and admitted that there was some area unaccounted for between the side of the building and its center.
The third defense witness was Demetrius Terry, a black man about 30 years old. He grew up with Carnell Fitzpatrick and described their relationship as "like brothers." His parents are Fitzpatrick's godmother and godfather. He testified that at 8:15 on the morning of April 26, 1999, he was driving into the city from his home in Westmont to have breakfast with Carnell. They had spoken earlier and agreed to meet at Carnell's grandmother's house on Latrobe between Washington and Madison. Mr. Terry stated that at the time, he owned a blue 1992 Crown Victoria. At 8:16, he called Carnell on his car phone and asked him where he was. He continued to Carnell's grandmother's house and as he came to the corner of Latrobe and Washington he turned south onto Latrobe, at which point he saw Carnell's truck pulling away. He followed the truck, trying to catch it, and "got up to Madison and turned right behind him going west." At his point, he said that the truck was 100 feet away. The truck turned right on Madison and he followed, then about 50 feet behind. The truck was a green four door Chevy with silver trim. Mr. Terry said that as Fitzpatrick's truck came to the corner of Loral and Washington he was less than 50 feet behind. He did not know if the truck made a complete stop at the corner. The truck turned east onto Washington and he followed. Mr. Terry stated that he saw no bicycle, and that he did not see a bicyclist hit the truck. He said that he turned right onto Washington, going east, after looking to the left for oncoming traffic. He saw some vehicles "a ways back." He said there were no cars between him and Fitzpatrick's truck. When he turned right, he saw a bike under the truck and saw the bicyclist roll to the side. He said that he saw no bike in front of the car, but that the first thing he saw was the bike under the front part of the truck. He did not see the truck hit the bike. He said that after the accident, the truck continued straight on Washington and turned left onto Lockwood. Mr. Terry stopped on the south side on Washington Street. As he was parking, his cell phone rang and Carnell was on the other end. Sam Adam Jr. asked Mr. Terry if he recalled the conversation, but the state objected to this as hearsay. The judge let the witness say "yes" and then interrupted him and sustained the objection when he continued.
The defense requested a short recess to the judge's chambers. After about five minutes, testimony continued. Mr. Terry said that the time when he turned right onto Washington was about 8:30 or 8:40, and that he received the call from Carnell "not even a minute" after the accident. On the phone, Carnell asked him if he had seen what happened, and Mr. Terry told him that he had "hit a guy on a bike." He said that Carnell then said "Oh shit," and seemed upset. Mr. Terry then tried to call his mother, Chicago Police Officer Secdonia Terry, but got no answer. He received four or five calls in a row from Carnell, one right after another. Carnell asked him if he had talked to his mother and some other questions. The next thing Mr. Terry remembered was a police car arriving on the scene. The officer made him move his car to the north side of the street. He saw another uniformed cop, a black female, who he did not know at the time, but now knows to be Officer Alexander. He asked Officer Alexander to call his mother, Officer Terry, which she did, and she told Officer Terry that a witness wanted to talk to her. Officer Terry arrived at the scene five to ten minutes later. Mr. Terry talked briefly with her and told her what had happened. He then called Carnell and gave the phone to her. Officer Terry talked to Fitzpatrick for about three minutes, then told Demetrius that they were going to get Carnell and left. Mr. Terry remained at the scene because his car was blocked in by the police roadblocks. Mr. Adam Jr. showed Mr. Terry a photo of the scene and he identified his car in it. He stated that he remained at the scene for about an hour, and observed several other police cars. He spoke to another male uniformed officer, who asked if he had spoken to any other officers and he said yes. After leaving the scene, Mr. Terry went home. He reiterated that he saw no bicyclist have an argument with Mr. Fitzpatrick, and did not see the truck swerve to hit the bicycle.
Mr. Terry was cross-examined by Assistant State's Attorney Lynda Peters. He repeated that he had been going to meet Carnell at Carnell's grandmother's house. He said that he could see the back end of Carnell's truck as he turned the corner onto Madison, and after the turn he was at least 100 feet away. When Mr. Terry got to Lorel Street, the truck was already about to turn onto Washington. He testified, "I was just getting to the corner as he was turning," and that he was still 100 feet back. He could not say whether Corky (Carnell) stopped before he turned onto Washington. Mr. Terry stated that when he got to Washington himself, he slowed down to look left for oncoming traffic before turning, so he did not see what was happening to his right. He reiterated that the first thing he saw after turning was the bike under the truck, and that he did not see what happened until the bike was already on the ground. He did not recall seeing sparks underneath the truck, and said that he didn't know if it was going fast enough to cause sparks. He said that he stopped after the accident, but Corky didn't and turned north on Lockwood with the bike still under his truck. Mr. Terry admitted that he slowed down at the corner of Lorel and Washington but did not stop. He said that he stopped his car about ten to fifteen feet from the victim, turned off the engine and was getting out when he got the call from Mr. Fitzpatrick. The body was still moving. He explained that he had been on the phone while the accident happened, so he had his phone in has hand when Carnell called. He had been involved in a conversation since he got off of the Eisenhower Expressway, talking to another friend, when Carnell called on the other line, or call waiting, to discuss meeting for breakfast. Mr. Terry said he did not remember if he was on the phone in front of Carnell's grandmother's house. He remembered that he wasn't on the phone on Madison, but he was on the phone while on Lorel, and was driving with the one hand. He was still on the phone when he turned onto Washington. He stated that he ended the conversation when he saw the bike under the truck, hanging up on the other party, and put the phone in his lap, then carried it in his hand when he left the car. He said that he asked Officer Alexander to contact his mother and told him that he was her son and that he was a witness. He told the third officer that he had already spoken to his mother. Ms. Peters asked him if he remembered a large building at the corner of Lorel and Washington with trees in front of it, and he said that he remembered the building but not the trees. She showed him a photo of the building, and he was able to see several trees in it. She showed him another photo and he was able to see a tree in the middle of the building. He reiterated that Corky was already around the corner when he turned. He said that there had been another car between him and Corky when they were on Madison and turned onto Latrobe, but that there were no cars in between them when they turned onto Washington. He said that when he looked to the left before turning, the closest car was at least one block away. He said that Mr. Fitzpatrick's truck had a full front and back seat and a storage area, and that he thought its brakes were in working condition. The truck was not stopped when he saw the bike under it. He could not recall if there were any other cars behind the truck when it turned onto Lockwood. He said that the victim was on lying on the pavement, and that he saw blood. The victim was "just moving a little bit," and had a backpack on. He said that he did not hear the bike scraping on the pavement as the truck drove away. On redirect, Mr. Terry said that when he turned onto Madison from Latrobe, Corky was passing Lockwood, 100 feet ahead of him. He saw the brake lights on the truck flash, and that he thought Corky had seen him. When the truck slowed, he gained ground on it. He could not remember if there was a stop sign at the corner of Lorel and Washington. He recalled his own cell phone number at the time. Sam Adam Jr. showed him a document, which he identified as his cellular telephone bill for April 1999. He said that he had not seen it previously, but found it accurate. He was shown a call marked on the phone bill as beginning at 8:19 a.m. on April 26 and lasting five minutes. He identified the phone number as belonging to his friend Elgin Humphrey. He said that he was on the phone with Elgin while he was driving on Madison. After Mr. Terry's testimony, it was 12:00 and the court was recessed for lunch. After lunch at about, at about 1:30, the defense read a stipulation that Donald Jones, an employee of PrimeCo, would testify that the telephone records of Kia Davis were accurate. The state agreed to the stipulation.
The fourth and final defense witness was the defendant, Carnell Fitzpatrick, a 31-year old black man. He was directed by Sam Adam Sr. His nickname is Corky and he currently lives with his girlfriend and three children. In April 1999, he lived in the suburb of Bellwood with his girlfriend and two children. He testified that on April 26, 1999, at 8:15 a.m., he was in his truck parked in front of his grandmother's house, on Latrobe between Madison and Washington in Chicago. He had a cell phone with him that was registered to Kia Davis. He stated that he has known Demetrius Terry for his whole life and characterized their relationship as "godbrothers and best friends." He also has known Demetrius' mother Secdonia Terry, who is his godmother, and her husband Sterling Terry, who is his godfather and a also Chicago police officer, for his entire life. That morning, he had spoken with Demetrius by phone and they had agreed to meet at his grandmother's house and drive together in one car to breakfast. He stated that he has been employed by Reflex Records, a music and video store, for a little over three years. He said that he waited for Terry at his grandmother's house for five to ten minutes and then left to go to a gas station at the corner of Menard and Madison. He was driving a 1997 Chevy Tahoe that was registered in his grandmother's name. He said that it was registered to his grandmother because his credit had been poor and she had helped him with the down payment. Mr. Adam showed him a photo of the truck and he identified it. He said that he still owns it. He said that after leaving his grandmother's house, he drove down Latrobe to Madison. Latrobe is a one-way street going south. He then turned right onto Madison, going west. He passed Lockwood and reached Lorel. He had not seen Demetrius before he passed Lockwood, but as he passed, he saw Demetrius' car in his rear view mirror. He slowed down so that Demetrius could see him and then turned right onto Lorel. When he got to the corner of Washington and Lorel, Demetrius was on Lorel about 10 to 15 feet before the alley. Mr. Adam set up a diagram of the area on the easel in front of the jury, and Mr. Fitzpatrick stepped down from the witness stand and identified the location of his grandmother's house, and the streets Madison, Latrobe, Lockwood, Lorel and Washington on the diagram. He drew a mark on the diagram at the location of his grandmother's house, and then drew a line demonstrating the path he had traveled down Latrobe, then down Madison. He marked where was when he had first seen Demetrius Terry's car at Madison and Lorel. He then drew a line along Lorel from Madison to Washington. The diagram was put away and Mr. Fitzpatrick returned to the witness stand.
Mr. Adam continued questioning the defendant. Mr. Fitzpatrick testified that he had lived at his grandmother's house for long time before moving away and was familiar with the area, but he did not remember whether there was a stop sign at the corner of Washington and Lorel. He said that it had been a sunny day, about thirty to forty degrees out. He said, "As I was approaching Washington off Lorel, I slowed down, never stopped, and made a right turn onto Washington Street." He said that he saw no cars, pedestrians, or bicycles on Washington Street. He said that after he turned the corner, "I saw a bike in front of my truck." He added that he did not see the bike before it was in front of him. He heard no one hit his truck or say a curse word. He said that his radio had been on, "maybe a little bit louder than normal." He testified that he was 10 or 20 feet east of Lorel when he first saw the bike, and said, "I immediately slammed my brakes, but it didn't stop completely. My anti-lock brakes locked up."
He struck and ran over the bicycle. He said that he "felt a bump" as he ran over the bike, that his front and rear wheels went over the bike, and that he knew he had hit it. He said that after hitting the bike, he "panicked, kept going, and left the scene." He seemed to get briefly choked up while describing this. The diagram was set up on the easel again and Mr. Fitzpatrick marked where he hit the bicycle, on Washington between Lockwood and Lorel. Mr. Adam described the mark as being made in the third lot along Washington. Mr. Fitzpatrick testified that after hitting the bike, he proceeded east on Washington and then down Lockwood, to an alley off of Lake Street. He marked this route on the diagram and returned to the stand. Mr. Adam asked Mr. Fitzpatrick why we didn't stop after hitting the bicyclist. He responded, "I had never been through any type of accident, and I just panicked." He again seemed to get briefly choked up. He said that he turned off the radio and heard a scraping sound under the truck, then stopped in the alley, got out of the truck, and saw the bike underneath. The bike was tangled to a piece of wire attached to the back of the truck. He untangled the bike and left it in the alley. He was shown three of the state's photographs of the bicycle in the alley and identified it in each. He said that he had seen the bike when it had been presented earlier in the trial and recognized it. Once again he seemed to get momentarily emotional. He stated that after leaving the alley, he went up Latrobe to Lambrey and called Demetrius. He said that he knew the time of the call after seeing the telephone records earlier in the day. Mr. Adam showed the witness a copy of his cellular telephone bill for April 1999, and he testified that it was accurate for both incoming and outgoing calls. He was then shown a chart that displayed the calls between 8:13 and 8:58 a.m. on April 26, copied from the same records. A larger copy of the chart was displayed on the easel before the jury. Mr. Adam pointed out a call at 8:23. Mr. Fitzpatrick recognized the phone number as Demetrius Terry's and said that Demetrius answered the call. Mr. Adams asked him what he said to Demetrius, but the state objected on the basis of hearsay and the objection was sustained.
Mr. Adam protested, asking, "He can't tell us what he said?" but the judge still upheld the objection. He pointed out two more calls, one at 8:25 and another at 8:28, which the witness said were also placed to Demetrius, and asked him what was said, but another objection by the state was sustained before he could answer. Two more calls, both at 8:33, were identified by the defendant as being made to his girlfriend Tinada's pager. He testified that he had paged her "911" to tell her that he had had an accident. Mr. Fitzpatrick identified a call at 8:34 as being to Demetrius again, but he could not remember if he talked to him. Another call, also at 8:34, was made to a number that Mr. Fitzpatrick did not recognize. Two calls at 8:35 to Demetrius were identified, but the defendant said that there was no answer. An incoming call was listed at 8:36, but he could not identify the number. Also at 8:36, he again called Demetrius but still did not reach him. Two incoming calls at 8:42 were not identified. Finally at 8:43, he reached Demetrius and talked to him. Mr. Adam did not ask what was said. The defendant did not recognize the number of an outgoing call at 8:47. A call to Demetrius at 8:48 was made, but Mr. Fitzpatrick said he did not remember if he talked to him. He stated that he also talked to Secdonia Terry, probably during the 8:43 call. He said that she asked him if he knew what he had done and that he said yes. The state objected to this answer, and the objection was sustained Mr. Fitzpatrick said that he called Officer Terry from his home. Mr. Adam asked why he had gone home. "I had soiled my pants," the defendant explained. "I was nervous and scared and had panicked." He added, "I was in shock and just panicked." He testified that he then went to meet Officer Terry at Addison and Lombard. She got there in 20 minutes. He had changed clothes.
Officer Terry arrived with two other officers. He said that before hitting the bike, he did not know Thomas McBride, and to his knowledge had never seen or talked to him. He stated that he was not trying to hit or chase McBride, and had no reason to dislike him. Mr. Adams asked Mr. Fitzpatrick, "Did you have any intention at all of hitting that bicycle?" The defendant replied, "No." Mr. Adams asked him if he only hit the bike once, not a second time, and he said yes. He said that at the time of impact, Demetrius was still on Lorel and had not yet turned onto Washington. Carnell Fitzpatrick was cross-examined by Ms. Peters. She placed the chart of the phone calls back on the easel in front of the jury. She noted that there were 18 outgoing calls, and asked Mr. Fitzpatrick if any of them were to 911. He answered no. She asked if he had ever called the police, and he again said no. She asked him why he didn't stop when he hit the man on the bike. He testified that he hit his brakes, but the anti-lock brakes "pumped back," and that he pumped the brakes but the truck didn't stop. He stated that he kept going on Washington after the collision. Ms. Peters asked him if he had his foot on the gas to go down Washington. He replied that he had pulled his foot off of the brake after hitting the bike. He admitted that he didn't go back to check on the victim. Ms. Peters noted that the 15th District police station was nearby, and asked him if he went there. He said no. She asked him if he heard the "mangled mass" of the bike underneath the truck and he said that he did, and that he went to the alley to remove it. He said he never noticed that his front plate was missing. Ms. Peters pressed him on this, asking him if he didn't see it when he discarded the bike, or when he went home, or when he went to meet Officer Terry, and he said no. Mr. Fitzpatrick said that he had waited a few minutes for Demetrius at his grandmother's house before he left. He didn't stop at Madison when he saw Demetrius. He said that Demetrius was still behind him on Lorel when he turned onto Washington. Ms. Peters asked him if he looked to the left to check for cars, pedestrians, or bikes before turning the corner, noting that "in Chicago, bikes share the road with cars." He said yes. She asked him if he also looked to the right. He said no, adding, "What could I hit on the right?" He said that it was "two or three seconds" from the time he turned the corner until he saw the bike. "I slammed on the brakes," he stated. He said that the bike was directly in front of him, not at the curb, and that he didn't see the bike come from the curb. He said that he tried to avoid the bike but didn't swerve. "I wouldn't call it a swerve," he said. He said that he moved closer to the curb, then back toward the center of the road. "I tried to go around him," he explained. Ms. Peters asked him why he didn't go to the left side of the road to avoid the bike. He said that he "couldn't cut across the street." He said that after turning the corner he was going the speed limit. Ms. Peters challenged this, asking how he could be going full speed after making a 90-degree turn. He said he didn't know. He stated that Washington has a traffic lane and a parking lane. He said that he turned into the moving traffic lane from Lorel, and that the bike was also in that lane.
He said that he moved out of his grandmother's house when he was 19 or 20, and that he met his friends for breakfast on a daily basis. He explained that his cell phone bill was in his neighbor's name, and that the bill came to the neighbor's house across the street but that the neighbor gave him the bills and he paid them himself. Ms. Peters asked him if there were any cars parked in the parking lane on Washington going east, and he said that he couldn't remember any. Mr. Adam Sr. briefly redirected the defendant, who testified that his mother currently lives with his grandmother.
There was a three-minute recess to the judge's chambers, and then Sam Adam Jr. read several stipulations to the jury. The stipulations said that Beverly Montgomery of Cellular One would testify that the records from April 1999 of Mr. Fitzpatrick's cellular telephone were accurate, and that Larry Lawson, the Superintendent of Maps for the City of Chicago, kept records of flat map photographs and would testify that the maps admitted by the defense had been inspected and were accurate. The state agreed to the stipulations. The jury was excused, there was a brief discussion about which evidence the defense was submitting, and then a ten minute recess.
After the recess, at about 2:50, there were arguments about admitting the defendant's previous drug convictions as evidence. Mr. Kelly said that the defendant had had one conviction for possession for which he received probation, and another guilty plea for possession with intent to deliver for which he again received probation. He did not specify the substance or amounts. The defense argued that the first conviction occurred over ten years ago therefore and should not be admitted under Montgomery. (I assume this refers to a precedent case.) Judge Wadas replied that since the defendant was still on probation within the ten-year time frame, the conviction is admissible under Montgomery. He added that since the defendant decided to testify, his credibility could be probed. He ruled that the probative value to credibility of the convictions outweighs their prejudicial aspects, and therefore the convictions were allowed to be introduced as evidence. At 3:00, the jury was brought back in and the defense rested. The state then presented a rebuttal case consisting of Mr. Kelly reading documents to the jury showing the records of Mr. Fitzpatrick's previous convictions, a felony possession conviction on November 17, 1994 and a felony possession with intent to deliver conviction on March 5, 1991. He did not elaborate on the details of the convictions.
The jury was excused and the trial was recessed until Monday at 9:15.
Here is my analysis. The cross-examination wasn't quite like in the movies, where the lawyer asks something direct like, "You meant to kill him, didn't you?" but I thought Ms. Peters was effective. I would have liked it if she had specifically asked Fitzpatrick why he didn't see the bike for two to three seconds after turning the corner, since he had said that it was a sunny day and there were no other moving or parked cars ahead of him on the block, but overall I thought she did an excellent job. I think that Fitzpatrick hurt himself more than he helped himself by taking the stand, especially since he opened up the way for the jury to hear about his previous convictions. He was well spoken and seemed to get a little choked up a few times very briefly, but I wasn't convinced that he had any kind of remorse, even for what he says was an accident. Fitzpatrick didn't exactly crack on the stand, but there were definitely some holes in his story that he didn't see Tom McBride until it was too late to avoid hitting him so hard that his front license plate was torn off by the impact. I figure that a guy like McBride, who was a messenger, riding on a street bike on a cool, clear day, who was already running late after having car trouble, was easily doing at least 15 mph, and probably around 20. If you believe Fitzpatrick's story that there was no near-collision or altercation, then McBride wouldn't have slowed down. And if you believe Fitzpatrick that the bike wasn't approaching him from the east, then McBride must have already been past the intersection when Fitzpatrick got there, so he was ahead of the SUV the whole time. A full-size SUV, even whipping around the corner without stopping, sign or no, couldn't realistically get around the corner at much more than 10 mph. So he had to accelerate after turning just to catch up to McBride, let alone to run him down. He said that it was two or three seconds from when he turned the corner until he saw the bike. Either he was accelerating for those two or three seconds or he wasn't. If he wasn't, he shouldn't have been able to even catch McBride, let alone be going fast enough to not be able to stop. If he was accelerating for that long, on a clear day with no other moving or parked traffic on the road and struck the bike directly in front of him head-on, well, that sounds like intent to me. Of course, if you believe Jerry Howard/Carter's original sworn testimony, there was an altercation and Fitzpatrick deliberately chased McBride, struck him once, and then struck him again and ran him over when he tried to pull to the curb and pedal away.
And as much as the defense has tried to downplay it, they admit to the fact that Fitzpatrick didn't stop and didn't call for help, then slinked off to an alley to get rid of the evidence. The good news is that the prosecution has all weekend to crystallize their closing arguments and the jury has all weekend to think about the case and hopefully figure it out. The jurors all seemed to be paying attention and most of them were taking notes. If they had started deliberating on Friday afternoon, there would have been the temptation to not deliberate too long to get out of there for the weekend. So again, I think the carryover to Monday is a good thing. It also gives us one more chance to get a lot of cyclists in the courtroom.
So, please try to make it on Monday if at all possible to the courthouse at California and 26th, room 302. Ms. Peters told us that the judge would skip the usual caseload in the morning and get right to the closing arguments around 9:15. Get there early to get through security, take the stairs (the lines for the elevators are long in the morning), and get a seat, but please leave the front row on the right side for the McBride family. They won't let you in before 9, but you can wait outside before then.
Remember the security restrictions and leave all pumps, horns, and other things that you can't lock up with your bike at home, expect for essentials such as lights. Lock your seat with your bike and don't try to bring in any large bags. And as much as we want to make our presence known, please refrain from wearing Critical Mass T-shirts or anything else that could be construed as overtly political and possibly cause a mistrial. Do wear your bike helmet (you should always wear it anyway) and regular bike riding clothes.
Finally, having said what I think the outcome should be, and calling for a large bike presence, I want to repeat my call for calm following the verdict, whatever it may be.
Thanks for reading and I hope to see you on Monday.
-- Dan Korn
Comments by Bob Matter:
I have a few miscellaneous comments and questions.
I think the medical examiner on day four mentioned that Tommy McBride's blood was tested for the presence of alcohol, opiates, and something else but I can't remember what it was, and the tests were all negative. I don't remember hearing about similar tests for Carnell Fitzpatrick. Did you catch anything about that, Dan? It seems like when Carnell was taken into custody such tests should have been performed on him since it was a hit-and-run.
Carnell's testimony that he turned into the travel lane on Washington and hit Tommy conflicts with the testimony of eye witness Tyrone Hibbler who was traveling in the same direction behind Carnell and said the truck moved to the parking lane (nearer the curb) and hit Tommy. Tommy's body was found in the parking lane as was his blood and a knotted inner tube.
Dan, were there scrape marks there in the parking lane? I remember seeing photos of the scrape marks when Carnell fled and turned left (north) on Lockwood. Tommy's front wheel was found in the parkway on the grass. When Demetrius Terry was on the stand, he said Carnell asked him on the cell phone "How's he [Tommy McBride] doin'?" Demetrius said he answered (paraphrased) "He don't look like he's doin' too well."
Carnell stated he went home because he soiled (shit) his pants. I think he went went home to get rid of a couple of kilos of H (heroin), a gun, and maybe a few thousand dollars after Demetrius informed him that there were witnesses and they were talking to the police and that his license plate was recovered from the scene. I vaguely remember reading something in the papers about Carnell making statements to the police without being Mirandized or not having an attorney present or something like that.
None of his statements made to the police on 4/26/99 were read in court. See everyone at the courthose Monday morning. It would be nice if you could get there before they open the doors at 9:00 a.m. so everyone can see all the bikes out front
Response by Dan Korn:
Thanks for the additional quotes and comments, Bob.
The medical examiner said that McBride's blood was tested for alcohol, opiates, and cocaine. Such tests are routine in autopsies in cases like this. Nothing was said about any such tests being done on Fitzpatrick. However, the police can't just test a suspect's blood whenever they want to without probable cause, and I'm not sure if that standard was met in this case or not. Also, I'm not sure that finding out that Fitzpatrick was under the influence would help the case. It sounded to me like he was sober and knew what he was doing.
My notes say that Tyrone Hibbler saw the bike get close to the curb, followed by the SUV. And the body was found near the curb, although for what it's worth Demetrius Terry said he saw the body roll. I remember seeing the pictures of the scrape marks on the road, but I don't remember if they were near the curb or not. It was hard to make out details on the pictures, even on the TV projection, from the gallery area behind the glass. As much as it's good that the jury was able to hear about Fitzpatrick's previous convictions, neither those facts nor speculation about what he may have been getting rid of at home is directly relevant to whether he intentionally ran McBride down or not. His character is certainly relevant as a witness, as is the character of his friend Demetrius and that of the recanting Jerry Howard/Carter.
I didn't hear anything about Fitzpatrick making statements to the police or about whether he had a lawyer present, although the defense did make a big deal about Jerry Howard not having a lawyer present during his police statement or grand jury testimony, which the judge correctly dismissed as irrelevant. It would have been interesting to hear what Fitzpatrick told the police right after the accident, especially to see how it compared to his testimony after he and Demetrius had had a chance to get their stories straight, but I think that his story had enough holes in it to at least make the jury skeptical.
That is why I was surprised that he testified, because the conventional wisdom is that the defense has more to lose than to gain by the defendant taking the stand. I felt more confident about getting a conviction after his testimony than before it, especially after his cross-examination.
McBride Trial -- Day 6, 12/03/01 -- Final arguments
Monday was effectively the last day of the trial of People v. Carnell Fitzpatrick, although the jury was still deliberating when they were finally sent to a hotel for the night a little after 9:00.
I arrived in the courthouse at 9:00 in the morning and was greeted by several other cyclists out front. When we got into the courtroom it was already nearly full. By the time the arguments began, there was an overflow crowd, including at least ten people I recognized from Critical Mass. Thanks to everyone who came out to show their support.
At 9:40, the lawyers and judge came into the courtroom. Assistant State's Attorney Patrick Kelly brought Tom McBride's mangled bicycle into the room with him, where it stayed for the entire day. For the next half-hour, there were arguments about the instructions that Judge Kenneth Wadas would give to the jury after closing statements.
The first instruction was that the jurors should view the defendant's testimony in the same light as any other witness'. There were some instructions about note taking. There was an instruction that the defendant, Carnell Fitzpatrick, was charged with first-degree murder, and that the jury could find him guilty of that charge, not guilty, or guilty of reckless homicide, a lesser charge. Other instructions were reviewed regarding the indictment not being considered as evidence, presumption of innocence and burden of proof, circumstantial evidence, and the right of attorneys to interview witnesses.
Defense attorney Sam Adam objected to an instruction about the believability of witnesses, including 155-10.1 language, but his objection was overruled. The defense also objected to an instruction regarding the definition of recklessness and wantonness, saying that the jury should be instructed that recklessness must be determined from the entire record of evidence. Mr. Adam noted that witnesses Jerry Howard and Tyrone Hibbler said that Mr. Fitzpatrick's truck sped up, and that the defendant said that he tried to go around Mr. McBride's bicycle, and stated that these facts are not mutually exclusive. He said that trying to go around the bike could be seen as reckless, and that it showed conscious disregard for Mr. McBride's safety. The state has no objection, and the judge allows the instruction.
The judge overruled defense objection to instructions dealing with the definition of first degree murder, which included language about a consistent mental state, and issues in first degree murder. There were instructions about the definition of and issues dealing with reckless homicide, and another dealing with the three options of not guilty, guilty of murder, and guilty of reckless homicide. The defense requested an instruction about other, non-IPI, definitions of homicide, citing the cases of People v. Mahone and People v. Perry. Mr. Adam argued that these other definitions should be allowed because of the medical examiner's testimony in which she had claimed to determine that the death was a homicide. The state argued that homicide was one of the defined manners of death that the medical examiner enumerated, and that she did not testify as to the state of mind of the defendant, and therefore objected to the instruction. The judge disallowed the instructions since they were not sanctioned under IPI.
The defense then requested an instruction about negligent driving and the definition of negligence, citing another case where a car rode up on a curb and struck a pedestrian, in which the appeals court had found negligent homicide. Assistant State's attorney Lynda Peters said that the state had not seen the case, and Judge Wadas recited it from memory as a case in the 2nd District from 1983. The state argues that this was an entirely different situation where the defendant drove into oncoming traffic and was under the influence, as opposed to the current case where the defendant rounded a corner and hit a bike. The judge agreed, saying that the facts are not even close, and denied the instruction.
The judge read an instruction about the definitions of knowledge and willfulness, and said that he only usually gives the instruction at the jury's request. The defense requests that the instruction be given up front, which the judge denied. He also denied defense requests for instructions on the definitions and issues of reckless driving, aggravated reckless driving, and reckless conduct as lesser charges. The defense requested an instruction that if a witness has testified and then recanted his testimony, his testimony should be viewed with caution. The judge said that this instruction has no IPI number. Mr. Adam argued that such a witness should be considered a perjurer, but the judge denied the instruction.
A ten minute recess was called. At 10:20 the jury was brought out and the judge explained to them that the state would have a closing argument, followed by the defense, and finally the state would get a rebuttal closing argument since they have the burden of proof.
Mr. Kelly then gave the state's initial closing argument, speaking slowly and clearly. He began by saying, "Carnell Fitzpatrick was not in control of the SUV that crushed and ran over Tom McBride. It was his anger and rage that were in control." He said that Mr. Fitzpatrick reacted because "some punk has the nerve, the audacity, to slap his hand" on the hood of his SUV. He added that it was "his rage, his anger, that made him take that turn" to pursue Tom McBride. He said that when the SUV's first bump of the bike didn't have its desired effect, while McBride was "pedaling for his life, and cut to the curb," the defendant followed and "his rage made him push the accelerator." He said that people "may call it road rage, but the law calls it first degree murder."
Mr. Kelly told the jury that they had already seen all the applicable evidence, that the judge would give them the law, but that "you must decide what you believe." He asked rhetorically how they would sort it out, and told the jurors that "each of you brought your common sense and life experience." He noted that the average age of the jury was about 30 and that 30 times twelve equaled about 300 years of experience, and that they had a "group common sense." He told them to look at each witness, and examine "what did they say, how did they say it?" He brought up Mr. Hibbler and told the jury to listen to how he said that he was driving east on Washington when he first saw the radical changing of lanes by the SUV. He said that Mr. Hibbler told them his response, that he slowed down to get a better perspective. He had said that the bike went over to the curb and that the truck went behind it and ran it over. He had asked his wife, "Why is he messing with that kid?" Mr. Kelly said that Mr. Hibbler didn't have a year to think about saying that. He saw him run over McBride. He testified that there were no cars in the parking lane where the impact occurred, and that there were none in the pictures. Mr. Kelly said that Mr. Hibbler did not remember seeing any cars on the left side of the road because "he was watching the defendant kill another human being," and that the weather and other cars were not an issue.
Mr. Kelly noted that Demetrius Terry said that he was directly behind Carnell Fitzpatrick, and that there was no sign of Mr. Hibbler, and that if this was true, then Mr. Hibbler wasn't even there. "Who was mistaken?" he asked the jury. He noted that Tyrone Hibbler displayed more emotion on the stand than anyone in the case, including the defendant, with the exception of Tom McBride's mother. He told the jury that they would have to compare what people said and why. He said that Jerry Howard has testified that he saw the bike, the defendant roll through the stop sign and almost hit the bike, the bicyclist hit the car with his hand and say a curse word, and the car run over the bike and speed away.
Mr. Kelly said that we also knew from Lionel Dixon that sparks were flying from under the SUV, and that everyone saw that except Mr. Terry. He said that Mr. Howard saw the first bump, he bike wobble, and the SUV run over it. He noted that Mr. Howard, Mr. Hibbler, and Mr. Dixon all stopped to tell the police what they saw. Mr. Kelly said that Mr. Howard told his story to the police and the grand jury and then got "cold feet" about testifying against someone who lived in his own neighborhood. ASA Mike Rogers said that Mr. Howard told him that he didn't want to cooperate with the case, and that he told him that his statements had been true but he would deny them if called to testify. Mr. Kelly said that Mr. Howard thought he could get out of testifying this way, but that "he was wrong." He said that people try to get out of testifying, but if they sign a statement and swear it to the grand jury, "you can consider it as having come from this witness stand." He told the jury that they couldn't let Mr. Howard "wiggle out." He asked them if what Mr. Howard said here was true, if he lied after the events happened or here. He told the jurors that they could look at the grand jury testimony. In the video taken by Mike Rogers, he said that he saw the victim slap the hood of the SUV, but in court he said that there was no slap. Mr. Kelly asked, "What's easier to remember, truth or lies?" Mr. Howard had said that the remembered his grand jury testimony but not his answers. Mr. Kelly told the jury that they could consider the grand jury testimony as the truth, and that it was easier to remember the truth than lies.
Mr. Kelly showed the jury a stack of papers containing the applicable laws in the case. He said that the legal issues were straightforward, and that the jury had to decide between three things: is the defendant not guilty of anything, guilty of reckless homicide, or guilty of first degree murder. He said that the defense had agreed that Tom McBride's blood, hair, bike paint, and red threads were consistent with the evidence recovered, and recalled Mr. Adam's opening statement that this was not a "whodunit." Mr. Kelly said that we know we know that Carnell Fitzpatrick ran over the bike and saw what happened in the moments before the collision. He told the jury to look to the defendant's testimony. He had testified that he saw no bike and that 15 to 20 feet after the corner the bike "came out of nowhere," and that his brakes "pumped back." He noted that Mr. Fitzpatrick was sitting as high as the judge (who was seated at a bench raised several feet above the floor), that there were no parked cars, and that it was a clear day. "How do you miss it," he asked the jury. "Where did Tommy go afterward?" He added that the same brakes seemed to work when Mr. Fitzpatrick fled the scene and pulled into an alley to dispose of the bike, "as good criminals do," and that later the defendant put his own children into the car with supposedly defective brakes. "This was not an accident," he told the jury. "This was on purpose."
Mr. Kelly then asked if the defendant's behavior was reckless. He defined reckless as when someone disregards a risk and makes a gross deviation from the care of a reasonable person. He said that Mr. Fitzpatrick had performed this act wantonly. He defined reckless homicide as an act that unintentionally causes death, and said that if it had been winter and snowy out and he had known that the truck was sliding, that would be reckless homicide, but if Mr. McBride had been in a crosswalk and was Mr. Fitzpatrick's sworn enemy, that would not be reckless. He said that the difference is intent. He added that when Carnell Fitzpatrick first made the turn and bumped the bicycle, he was reckless at the very least, in a "three ton vehicle compared to this puny bicycle," and pointed out to the jury the bicycle that was sitting in the courtroom. But, he said, Tommy didn't go down, and pedaled as fast as he could to the curb, when Carnell Fitzpatrick turned behind him and accelerated, and that that crossed the line from recklessness to homicide. He asked the jury, if they believe Mr. Fitzpatrick that he saw the bike 15 to 20 feet from the intersection, "How long does it take a powerful SUV to catch a bike?" He added, "There was no escape," and that if this was not reckless and not an accident, it was murder.
Mr. Kelly told the jury that the judge would say that they must prove, one, that the defendant caused the acts that led to Tom McBride's death, and two, that he intended to kill or cause great bodily harm, or that he knew that his actions would kill or cause great bodily harm. He asked the jury, "Did he intend to kill or cause great bodily harm?" He said to think about the size and weight of the SUV. He told the jurors that they all had seen them, and that compared to an SUV, a regular car is "like a go cart." He asked if he knew that driving over a body would cause death, and that the answer is yes. "You don't walk away from that," he said. He added that Mr. Fitzpatrick had options, but chose to accelerate to the curb, and then just drove away, thinking, "Maybe they wouldn't know I did it." He said that Mr. Fitzpatrick had stated that he never looked at the front of his car, but told the jury that "if a shopping cart hit your car, you would look." He added, "For god's sake, part of Tommy McBride could have been on the front of that car." He said that it was the same as firing a three-ton bullet at a human body, and that the defendant knew it would cause great harm.
"Tommy McBride and his bicycle had every right to be on that stretch of road," he said. "Tommy McBride had every right to be angry about almost being hit, and Tommy McBride had every right to live," Mr. Kelly said slowly. "He set out to teach McBride, that punk, a lesson: don't you dare mess with Carnell Fitzpatrick, and he did." He added, "What a terrible, terrible lesson it was."
Mr. Kelly noted that the jury had been told (by the defense, in Mr. Adam's opening statement) that if things had happened differently, they wouldn't be here. "And that's true," he said. "If [Fitzpatrick] had kept his temper, we wouldn't be here, but Tom McBride would be."
Sam Adam delivered the defense's closing statement. He began by saying that he would discuss the evidence, but that he first wanted to take a couple of minutes to thank the jury for their attention, for being on time, and for taking notes, as most of them were. He noted that the judge had told them that he had tried cases all over the country, but never out of the country, and wouldn't want to. He had said that this country is great because of the rights we have, but mainly because of the jury system. Mr. Adam said that if you took away these other rights, that would be okay, but "without the jury system this country wouldn't be anything." He said, "the government can't take away your freedoms unless your fellow citizens say so," and added that the jury system is the lifeblood of our democracy.
He told the jury that the judge's instructions would tell them not to allow sympathy to influence their verdict, but that they could have it. "There are none of us who have as much sympathy for the McBride family as we do," he said. He recalled that Mrs. McBride had struggled on the witness stand, and that she was living every parent's fear. He said that we prepare for losing our parents, but not our children. He recommended the book "When Bad Things Happen to Good People" to the jury. He said that we should have sympathy and would not be normal if we didn't. He said that he and his son, Sam Adam Jr., had it, and that Carnell had it.
Mr. Adam reminded the jury that the defendant is presumed to be innocent and that the state must prove the charges to them beyond a reasonable doubt. He told them that the judge would say to them that they must determine the believability of the facts, and that only their determination would count. He said that they had Jerry Howard's statement to the police, his grand jury testimony, his statements to Mr. Miller, and his statements in court. He noted that the instruction would say that they might consider a witness's earlier sworn or signed statements as Mr. Kelly had said. He told the jury that they would have it all available to them, and that they could consider all of it a lie, some of it truthful, or whatever. He said that meant that they had seven witnesses: Mr. Howard's statement to the police, Mr. Howard's grand jury testimony, Mr. Howard's videotaped statement to Mr. Rogers, Mr. Howard's testimony on the stand, and Mr. Hibbler, Mr. Terry, and Mr. Fitzpatrick. Mr. Adam told the jury that Mr. Howard's statements didn't match up. In his statement, he had said that he saw a slap and heard the "M.F." remark, but in the videotape he had said that it never happened. He had said in the grand jury testimony that he had been about 15 to 20 feet away based on the distance to the window, but a grand juror had corrected this to 60 feet. He had told the grand jury that the incident had lasted three to four minutes, but later said it was only seconds. In the videotape, he had said that Mr. McBride was on the passenger side of the truck, but on the stand he had said he was on the driver's side, and then after viewing the video he had said it was on the passenger side again.
Mr. Adam asked the jury to remember that the state has the burden of proof. He admitted that yes, nobody wants to be a witness, and said that if Mr. Howard had wanted to get out of testifying, okay, but he did testify. (He did not tell the jury that Mr. Howard had refused to testify until the judge ordered him to do so.) He said that that didn't explain why he changed his story, and that he had committed perjury. He said that it was in Mr. Howard's interest not to contradict himself, so that didn't make sense, and therefore Mr. Kelly's analysis failed.
Mr. Adam questioned the methods of the police in interviewing Jerry Howard. "Don't you find it interesting some of the things the police should have done but didn't?" he asked the jury. "Wouldn't you think that 'Where were you?' would be the first question [that the police would ask him]?" He said that they never asked him that. "But it gets worse," he added. "Wouldn't you think that [Assistant State's Attorney] Dooley would have asked that?" He noted that Ms. Dooley had said that she could have asked Mr. Howard anything. "Wouldn't you say, 'Wait, it couldn't have possibly taken three or four minutes'?" Mr. Adam also questioned the handling of witness Tyrone Hibbler. "Hibbler, minding his own business driving, wouldn't you think they would take statements from him, or have taken him to the grand jury, before he was hazy two and a half years later?" he asked. "Wouldn't they go back to him?"
He questioned the handling of Demetrius Terry as well. He noted that Mr. Terry was the son of one of the first cops on the scene, and asked if someone wouldn't have come to him between April 1999 and May 2000 to take a statement. He said that the police knew how to find him, since both of is parents were police officers. Mr. Adam reminded the jury again that the state has the burden of proof, and said that these were common things that police should do. Mr. Adam said that Mr. Terry didn't see the sparks coming from underneath the truck because he was concerned for the victim. He noted that Jerry Howard told Mr. Rogers that he told a lie because he was angry with the driver for leaving the scene of the accident, but that after thinking about it, he knew he had done the wrong thing and went to his pastor. Mr. Adam said that life is short and that we live by experience. He said that Corky's (Carnell's) experience was to go to his godmother with his problems, and that Jerry's was to go to his pastor. He noted that Jerry told Mr. Rogers this. He said that Mr. Rogers also testified that Mr. Howard told him his initial statements were true. He said that Mr. Howard later subjected himself to perjury and obstruction of justice charges to tell the truth, "and they condemn him for it." He asked the jury, "If he lied to the police and the grand jury and later told the truth, why?" He said that the only reason that had been presented by the state was the "same neighborhood theory," that they had only brought that up earlier in the day, and that that didn't make sense. He said that the state brought in Jacobson, Collins, Dooley, and Rogers just to show that the testimony from their own witness was a lie. He said that the state had spent more time trying to prove that Mr. Howard was a liar than trying to prove that Mr. Fitzpatrick was guilty, and that they had turned the trial into People v. Howard/Carter. Mr. Adam said that Mr. Howard's testimony was not beyond reasonable doubt. He reiterated that no one had asked him exactly where he had been at the time of the collision until the videotaped interview. He added that on the stand Mr. Howard had said that he was 60 feet west of Lorel and that there were cars parked on the south side of Washington. He said that it was known that Demetrius was parked on the south side of the street, but that the pictures did not show the scene at the time of the accident since he had moved his car. He said that in court, Mr. Howard had denied saying that the whole thing had taken three or four minutes and that there had only been one bump.
He said that the one thing that Mr. Howard was consistent about was that Mr. Fitzpatrick had come onto Washington from Lorel. "Why is that important?" he asked the jury. Mr. Adam then showed the jury the diagram of the area on the easel. He pointed out where Mr. Howard/Carter had marked the exhibit and said that Mr. Howard had stated that Mr. Fitzpatrick came up to the corner and turned right. He said that the one thing Mr. Hibbler didn't see was the truck turning, that he had first seen the truck on Washington, but everyone else had seen the turn. He said that therefore Mr. Hibbler was mistaken about where he was. He said that Mr. Hibbler wasn't lying, but that he just didn't remember and that he had been further west than he said thought he was and that he had not been paying attention. He figured that if Mr. Hibbler had been as close as he said he was, he would have almost hit the truck, but he didn't see it until the 5300 block of Washington. Mr. Adam pointed out this location on the diagram between Lorel and Lockwood. He said that Mr. Hibbler said that the truck hit the bike and sped away. But, he asked, "If this is true, how did Dixon back up, turn around, and get ahead of Hibbler?" He noted that Mr. Hibbler had testified that there were no other cars in between him and the truck. He reiterated that this was not because Mr. Hibbler was lying, but because he was farther back than he thought he was. He noted that Mr. Hibbler had recalled that the first thing he had said to his wife was about a "little kid," and said that this proved that he didn't see the events clearly. He noted that Mr. Hibbler had testified that the SUV could have been swerving to avoid the bike. He again said that this was not because Mr. Hibbler was lying, but that two and a half years later, with nothing to refresh his recollection, he didn't remember everything perfectly. He also noted that Mr. Hibbler had said that he was sitting below the SUV, that the whole thing had happened in seconds, that the SUV was going 25 mph, and that there were not other cars.
Mr. Adam asked why Mr. McBride didn't go to the sidewalk if he knew the SUV was chasing him. He said that he would have done this if he thought he was being chased, knowing that the trees that the state had mentioned would have blocked the SUV. He said that the stories didn't make sense. Mr. Adam showed the jury the diagram again. He said that we knew that the distance from the corner to the accident site was about 120 feet, and that the jury could figure out how long it took to cover that distance. He figured that at 25 mph it would take 3.4 seconds. He banged twice on the lectern, about three seconds apart, to demonstrate this time span to the jury. He said that everyone had that much time to see what happened, and that Carnell had that much time to stop. He told the jury that they could figure out the 3.4 seconds for themselves, and that if he had been going faster the time would have been even less. Mr. Adam said that Carnell had just been going to breakfast that day. "These things just happen," he said.
He noted that Mr. Fitzpatrick had said that he had done a bad thing. He told the jury that he did run, and that if he were charged with leaving the scene of the accident they would have to find him guilty. He said that Carnell panicked, and then came to his senses and called Demetrius. He said that he called Carnell "over and over." He read the times of the calls from the chart and noted that the state had stipulated that the phone records were accurate. He said that Carnell had testified that he was