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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 in a panic, had soiled himself, and wanted to get home and get to Secdonia (Officer Terry, his godmother). He had changed clothes. He admitted that Officer Terry was Mr. Fitzpatrick's grandmother, but that she was also a police officer and therefore wouldn't lie. He noted that Carnell had surrendered himself. He added that while Demetrius had stopped to help, Mr. Hibbler did not. "None of us know what we would do under extreme stress," he said. "That doesn't make it murder."

He said that if Carnell had known that the police had his license plate, he would have gone back down Lockwood to the scene. He said that the state could make up stories and theories, and noted that they were just doing their job, but that didn't make it true. He said that this was the same with the anger story. He explained, "We've all been angry, but that doesn't mean we run people down." He said that there had never been any problems between Mr. Fitzpatrick and Mr. McBride, and that they did not know each other. He said that if the alleged altercation had happened, Carnell would have blown his horn, not run him over. "That's ridiculous," he said. He reminded the jury that the state has to show intent, and that they had not "an iota, a scintilla" of evidence. He added that reckless homicide is a different crime, and that the jury would only have to find that the defendant's actions were likely to cause death but were not intentional. He said that anything could cause death, and cited as an example ice falling from a window. Mr. Adam said that this was a tragedy, and recalled Mrs. McBride on the stand showing pictures of Tom at Christmas and Easter. "I have so much sympathy," he said.

He noted that Carnell is working and has his own family. He said that he had had problems when he was 20 or 21, and 23 or 24, that he had some drug convictions, but that he has "straightened himself out." He said that the evidence simply doesn't show intent, or that he did something that was likely to cause death. He said that question was whether the state could prove the charges beyond a reasonable doubt, and asked the jury for a not guilty verdict.

After a ten minute recess, Ms. Peters began the state's rebuttal arguments, shortly after noon. She said that Mr. Fitzpatrick must have had "the most amazing series of bad luck." She said that he left his grandmother's house and saw Mr. Terry but, even though he had his phone, didn't call him. She said that he slowed, "sign or no," at the corner and looked to the left but not to the right. He then went right, and Mr. McBride was "suddenly right in front." She said that he wants you to believe that he used his brakes but didn't stop. She said it was bad luck that three people saw the incident and all made statements to the police. "But his back luck doesn't end there," she continued. She said that Jerry Howard must be "evil incarnate," that after seeing this he went to school and only later that night talked to Detective Jacobs, and later to Mr. Collins. "His evilness doesn't end there," she said, noting that he testified under oath about what he saw. She said that he then talked to his pastor, and the "baton of evilness passes to Rogers." She said it was bad luck that Mr. Rogers was "perpetuating that lie."

Ms. Peters explained to the jury why they could believe Mr. Howard's original statements, because he had said things that didn't change: that there was an encounter, that the vehicle almost struck the bike, that that the bicyclist hit the truck with his hand. She noted that he also said consistently that the bike continued on Washington and that the truck followed behind, that the bike came from the curbside and that the truck hit it. She said that he only differed on a few things, that he now said there was no bump, no words were exchanged, and that the bike was on the passenger side of the truck, and she noted that this was eight months later on the video. "Why the change?" she asked. She explained that the law recognizes this situation, that people stop cooperating, and said that this is reality. She noted that Carnell knows the neighborhood, and is still driving the same truck, and that Jerry Howard is the only witness who lives in the neighborhood. She said that Mr. Howard's story then changed again when he started getting calls from the defense attorney, who sat him down with a tape recorder. He then met with him again and took videotape and then interviewed him with an audiotape again. She said that is was more than Mr. Howard bargained for. She said that Mr. Howard then said to Mr. Rogers that what he had said was true, but that he would lie about it if called to testify. She said that the jury could tell by his demeanor that he didn't want to be here, but that doesn't mean that he didn't see what happened. She also said that he was the only one on foot and had a different perspective than the other witnesses, so he saw the confrontation.

Ms. Peters said that Mr. Hibbler wouldn't have noticed every car on the road, but that the truck swerving got his attention. She said that he told us where he was when he slowed down, and where he was when the bike was hit, and that he had made a motion with his hand to demonstrate the front and rear tires of the truck rolling over the bicyclist. She said that Mr. Adam wants us to believe that he is not telling the truth, but he has no motive to lie. She said that Mr. Dixon also saw the bike under the truck and the sparks flying. She noted that three people's stories matched up and corroborate each other. She said that Mr. Howard talked to the police and that a diagram was made, and that in the statement he described what he saw in detail. She noted that he said he "ran over" to help the victim, and that by this he meant that he was running across the street. She pointed this out on the diagram for the jury. She said that the defense's private detective had laid out all the locations, and that the jury could figure out where everyone was by looking at the diagram.

She said that Mr. Dixon had just gotten past Lockwood and pulled over when he saw the bike under the car. She said that Mr. Howard had stated that he was on the north side of the street, walking toward Leamington. She added that the grand jury had asked him if he was in front of the incident, and he had said yes, that he was "from here to the window" when the truck hit, and then ran across the street. She said that the questions about his location were asked, and that people are not robots with recall of exact locations. She told the jury to use their common sense. To believe that Mr. Howard was lying, Ms. Peters said that you must believe that everyone was a dupe. She said that Mike Rogers had no reason to lie, and that Mr. Howard didn't stop cooperating with the investigation until eight months after the fact. She said that the police must have been dupes to blindly follow the witnesses. She noted that a statement by Hibbler was taken by the police, that he testified that he had reviewed it, and that they did indeed record what he said. She said that Mr. Hibbler, unlike Mr. Howard, didn't live in the area.

Ms. Peters talked about Demetrius Terry, asking, "Who did Terry choose to talk to?" She answered her own question, "His mom." She noted that Mr. Terry only told the officer at the scene that he was a witness, and not what he saw. She said that Officer Terry testified that she did not make any reports, and that Demetrius chose to talk to her and not anyone else. She said that Detective Harris asked for witnesses at the scene, but that nobody identified himself or herself as such, so he didn't take any notes. She said that if Detective Harris had spoken to Terry he wouldn't have just let him go without questioning him. She told the jury that Mr. Terry saw not being entirely honest with them. She said that he was trying to help his friend, and that this had started that day. She noted that the defendant made 17 calls in 35 minutes, calling everybody but the police. She said that he was actually calling Mr. Terry. She asked how long it would take him to say "Oh shit" and that he wanted to turn himself in. "What else was said in those other 15 minutes of calls?" she asked. "They were getting their stories straight." She noted that Mr. Fitzpatrick turned himself in 50 minutes later. Ms. Peters said that Mr. Terry's testimony didn't add that much to the case anyway, since both he and the defendant admitted that at the time of the collision Demetrius was still on Lorel, back past the alley, and that he wouldn't have seen around the corner.

She asks the jury who they believe, Terry or Hibbler. She said that Mr. Terry testified that he saw the bike when it was under the front end of the truck, that he could somehow see under the truck, while Mr. Hibbler said that he first saw the truck go up and down and then saw the body and the sparks flying. She asked who was telling the truth from behind the truck. She said that everyone except Terry saw the sparks, and she pointed out the metal ground down on the bicycle to they jury. She said that Mr. Terry was trying to help his friend, and was not telling the truth. She noted that he had said that he was directly behind the truck, not Mr. Hibbler. "Why would Hibbler lie?" she asked. She said that he has no connection the defendant, unlike Mr. Terry.

Ms. Peters talked about Mr. Fitzpatrick's testimony. She said that he had testified that he rounded the corner when he first saw the bike. She noted that Washington is a wide street, telling the jury to look at the photos. She said that if he had rounded the corner with the bike in front of him, he would have had all kinds of options. She said that the brakes failing made no sense, that there were no skid marks and that nobody said they saw brake lights. She noted that Mr. Fitzpatrick testified in cross-examination that he had swerved. She said that he tried to portray it as an accident. "Why did he turn himself in?" she asked. She said it was simple: the license plate. There was no other damage to the front of the truck. She said that he knew he was caught and wanted to turn himself in to his godmother. Ms. Peters said that this was murder, not a reckless act.

She said that the state had to prove two things besides intent. She noted that the defense had agreed to the first, that Mr. Fitzpatrick had caused the actions leading to Mr. McBride's death. The second was that he intended to cause death or great bodily harm or knew that his actions would cause death or great bodily harm. She said that the fist hit might have been reckless, but that later, "he made decisions." She said that the state doesn't need to show premeditation. "He matched him move for move," she said. When Mr. McBride went to the curb, he accelerated. She said that Mr. McBride did try to get away, that he went from the middle of the road to the curb. She said that Tom McBride had a right to be riding on the street, and that Carnell Fitzpatrick had a "fit of anger" and ran him down. "In a split instant, he decided to let his anger take over," she said. "When his rage subsided and he saw the missing plate, he knew he had to turn himself in."

After the closing arguments were completed, at about 12:35, Judge Wadas delivered the instructions to the jury. He told them that they must follow all of the instructions, and that it was their duty to determine the facts in the case and to apply the law to them. He told them not to concern themselves with punishment, to not let sympathy influence their decision, and that race and ethnicity should not be a concern. He instructed them to disregard all questions that have been withdrawn or stricken by sustained objections. He said that they could only consider the evidence presented, and that they must consider all of it. He told them that they should infer no opinion by him on the facts, and that they were the sole judges of the believability of the witnesses, their memory, bias, and credibility. He said that the opening and closing statements were not to be considered as evidence. He told the jurors that their notes could be used during deliberations, but that each juror should rely on his or her own recollection of the evidence, and the just because a juror has taken notes that does not mean that that juror's recollection is any better than another's. He said that the notes would be destroyed at the end of the trial.

He said that the defendant could be found one, not guilty, two, guilty of first degree murder, or three, guilty of reckless homicide. He told them that the indictment was not to be considered as evidence, that the defendant was presumed innocent, and that the burden of proof is on the state. He instructed them that circumstantial evidence gives rise to other facts and should be considered. He said that lawyers are permitted to interview witnesses. He instructed the jury that a witness' changing of a statement may be considered and that if a statement is signed or given under oath or recorded, they must determine the weight to give to it. He said that evidence of a defendant's previous convictions can only be used to consider his believability as a witness. He defined recklessness as the willful disregard of risk that makes a gross deviation from the care that a reasonable person would take. He said that first degree murder can be proven only if the state proves intent to kill or do great bodily harm, of knowledge that an action will kill or do great bodily harm, or knowledge of a probability that an action will kill or do great bodily harm. He added that the state must prove that the defendant killed Thomas McBride as well as intent. He instructed that jury that if they find that the state has proven its case beyond a reasonable doubt, they should find the defendant guilty, otherwise they should find him not guilty.

He defined reckless homicide similarly to recklessness, saying that it means that the homicide was not caused intentionally. He said that to prove reckless homicide the state had to show that the defendant caused death with a vehicle, that the act was reckless, and that the defendant knew that the act could cause death. Judge Wadas told the jury that the first thing they were to do is elect a foreperson. He said that the verdict must be unanimous and signed.

He reviewed the three options, showed the jury a form for each one, and told them to select one and sign it. He said that if they believe the defendant to be guilty of both first degree murder and reckless homicide, they should sign the murder form. He then read all three forms, and told them to only sign one.

The deputy was sworn in to sequester the jury and the alternate jurors were excused but not released from service. The jury was sent to the jury room to begin their deliberations at 12:50. The state expressed a concern that if the jury were to watch the videotape of Mr. Howard's testimony, they would view parts other than what had been admitted into evidence. The judge said that if the jury asked to view the video, the deputy would show them only the in-evidence parts. The state and the defense talked briefly about which evidence they were sending aback to the jury room, and excluded some extra copies of some of the evidence.

The judge retired to his chambers. Mr. Kelly came out to talk to the McBride family. He was asked why Carnell Fitzpatrick's police statement wasn't introduced into evidence, and he said they had determined that it had too many falsehoods in it and had made a strategic decision not to introduce it. Then we went to lunch. Five of us rode up 26th to a little Mexican restaurant called La Justicia, or "Justice," which we thought was a good omen.

After lunch, we went back to the courtroom and waited. And waited. And waited. We saw some people go in and out of the courtroom, the judge, the lawyers, and some other people at various points. The jury asked some questions at least a couple of times. I expected them to make some kind of announcement at about 5:00 or 6:00, but it never came and we waited some more. More people started to filter out as time went on. Finally, at about 8:50, the McBride family, who had been waiting at a nearby restaurant, and some of Fitzpatrick's family came back into the courtroom, followed by the defendant and his lawyers shortly thereafter. Several sheriff's deputies arrived, causing some nervous whispers. At 9:07, Ms. Peters came out and announced to the audience that the jury had been sent to a hotel for the night and would resume deliberations at 10:00 the next morning.

I don't really have any new analysis about the case besides what I said last time, other than that I thought the prosecution did a great job. I honestly don't know what the jury was arguing about for all that time. The third choice for reckless homicide may have complicated things. By the time I have managed to get this typed up, it is late Tuesday night and I am sure that you have heard the verdict: guilty of first degree murder. So I guess the jury eventually reached conclusions similar to my own. The verdict came in sometime late Tuesday afternoon. [see sidebar on main McBride Trial page -- webmaster]

Unfortunately, I had to go back to work on Tuesday so I didn't get to hear it and can't report on any post-verdict happenings, sentencing, audience reaction, and whatnot. I'm sure someone who was there will give a report.

Thanks again to everyone who came out to the trial, as well as to the pre-trial hearings. And thanks to everyone who has been following the case. It's been great getting feedback from all of you. I learned a lot, and I have a better appreciation for how our justice system works. As long as I'm in thanking mode, thanks to Travis Culley for making me care about this case in the first place in his superb book. Thanks to Bob Matter for the computer monitor so I could do all this typing at home instead of at work and for finding the great little Mexican restaurants. Thanks to Ms. Greco, my high school debate coach, who taught me how to take a good "flow." Thanks to Jim Redd for posting these reports to the CCM web site. Thanks to my boss for the time off. Thanks to my wife for putting up with me doing this. And thanks to everyone in Critical Mass for giving me something fun and worthwhile to do on the last Friday of the month, and every other day too.

If you will bear with me for one more soapbox moment, I want to say again that I hope there is not too much celebration of this verdict. I feel it is appropriate to feel satisfied that justice has been done, but as much as Carnell Fitzpatrick deserves his punishment, he has a family too, including three small children who will basically grow up without a father. I hope that this verdict will give some kind of closure to the McBride family and bring bicyclists more safety and respect on the roads. I hope that Carnell Fitzpatrick will be able to reflect, find some meaning to his life, and if and when he is released, become a positive, productive, and happy person.

Finally, here's to Tom McBride. I never knew him personally, but I feel like he has become a part of my life.

See you on the streets,

Dan Korn

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