Acquittal Order Rejected; Wrap-up Likely Next Week

By Joseph A. Reaves
The Arizona Republic [Phoenix AZ]
February 4, 2004

Defense attorneys are still deciding whether Bishop Thomas J. O'Brien will take the witness stand in his hit-and-run trial, but either way, testimony is expected to end Monday with final arguments next Tuesday.

Tom Henze, lead defense counsel, announced his indecision about O'Brien's testimony and his schedule for the remaining witnesses Tuesday during a hearing at which he failed to persuade the judge to order a directed verdict of acquittal.

Henze claimed prosecutors, who rested their case Monday, fell short of providing "substantial evidence" that O'Brien knew or should have known he hit a man.

O'Brien, 68, is charged with "leaving the scene of a serious injury or fatal accident" in which pedestrian Jim L. Reed died on June 14. The bishop insists he is innocent because he didn't know until at least 24 hours after the accident that he had hit a person.

Henze argued the 24 witnesses that prosecutors presented proved only two things: that O'Brien's windshield was broken and that the accident probably caused a loud noise.

Prosecutor Anthony Novitsky, in a brief rebuttal, argued the state had presented "substantial evidence" to show O'Brien knew he was involved in a serious accident and "overwhelming evidence" that the bishop "should have known."

Judge Stephen A. Gerst of Maricopa County Superior Court heard 16 minutes of arguments in a courtroom empty of jurors before rejecting Henze's request for a directed verdict. Gerst ruled prosecutors presented enough credible evidence for the jury to decide O'Brien's guilt or innocence.

In another ruling, Gerst lifted restrictions he had imposed on the testimony of a witness the defense plans to call today.That witness, Stacey Arey, told police that Reed, clearly intoxicated, walked into her apartment uninvited just minutes before the accident and asked for bus fare.

During pretrial hearings, Gerst ruled the defense could call Arey and have her testify about seeing Reed shortly before the accident. But the judge ordered attorneys for both sides to avoid questions that may insinuate Reed was trespassing, had broken into Arey's home or was involved in any kind of criminal behavior.

Gerst lifted those restrictions Tuesday after hearing arguments from Henze, who sought to introduce a carefully edited transcript of a 911 call Arey made about Reed.

Novitsky said the prosecution would prefer the entire 911 call be heard because the edited version omitted some important information, including Reed being referred to in a "racially derogatory way."

Arey is scheduled to be the second witness on the stand for the defense Wednesday. Up first is the Rev. Daniel Syverstad, who saw O'Brien at Most Holy Trinity parish in Phoenix the day after the accident.

After Arey, Henze said he planned to call six expert witnesses in accident reconstruction and biomechanics. He said he hoped to finish with them by the end of the day Thursday, then call one other expert witness Monday morning before deciding whether O'Brien will take the stand.

O'Brien is taking blood pressure medicine and has appeared flushed at times during the trail, particularly when testimony has gone against him. His attorneys likely would call him to the stand only if they are convinced his testimony is crucial to winning the case.

Based on the schedule Henze laid out, Gerst told the attorneys to be ready for final arguments next Tuesday. He scheduled a hearing this Friday on jury instructions.

The prosecution and defense disagree about how to interpret the legal definition of what a defendant should have known in a case like this.

Reach the reporter at or (602) 444-8125.


Any original material on these pages is copyright © 2004. Reproduce freely with attribution.