Bishop O'Brien Likely to Take Stand in Own Defense

By Joseph A. Reaves
The Arizona Republic [Phoenix AZ]
February 8, 2004

Bishop Thomas J. O'Brien likely will take the witness stand as early as Monday in a dramatic climax to his hit-and-run trial.

Attorneys for the defense refuse to discuss whether O'Brien will testify, and prosecutors insist they still haven't been told.

But the complexities of the charges and the way the case has evolved apparently will compel the bishop to tell his side of the story.

The defense has said it will call two more expert witnesses when the third week of testimony begins Monday.

First up is William Uttal, a lighting expert, who will discuss conditions at the accident scene. The other is Dr. Charles Hatsell, an expert in biomechanics, whose job will be to convince jurors that the bishop had little chance to see the pedestrian he hit.

O'Brien could take the stand after Uttal on Monday or follow Hatsell as the trial's witness Tuesday.

Either way, the bishop's testimony would be a defining moment, the moment jurors would get to judge for themselves what the bishop knew or, at least, what he should have known.

And that is the crux of the case.

O'Brien, 68, is charged with leaving the scene of an accident that claimed the life of Jim L. Reed last June 14.

The bishop was arrested at his home 36 hours after the accident and resigned as head of the Phoenix Diocese the next day.

O'Brien has insisted since even before his arrest that he never left the scene of an accident because he didn't know there'd been an accident.

He said he was "just driving along and out of nowhere came something" that shattered his windshield.

The bishop told officers he drove "a block or so" before noticing the broken windshield and didn't really look at his car until the next morning.

Testimony at the trial revealed O'Brien knew at least 24 hours after the accident that police thought his car was involved in a fatal hit-and-run accident. The bishop never contacted police after that. He failed to answer a half-dozen telephone calls and repeated knocks at his door. And he asked someone who worked for him to try to have his windshield repaired.

Prosecutors contend that behavior calls O'Brien's credibility into question and shows he knew he had something to hide.

That's why O'Brien is likely to take the stand. Only he can swear under oath what he knew and what he didn't know.

If he fails to testify, jurors will be left to sort through the complicated and often contradictory testimony of 33 witnesses. O'Brien is a soft-spoken gentle man, who by all accounts abhors confrontation. He is surprisingly shy for someone who, until his resignation, was the leader of a half-million faithful.

Taking the witness stand would be difficult for him, but he seems to have little choice.

His testimony could make or break the case against him.

Crucial, too, though, will be the instructions that Judge Stephen A. Gerst of Maricopa County Superior Court gives the jury.

Those instructions are fairly straightforward. Jurors will be told that the crime of leaving the scene requires proof the defendant was driving the vehicle and that the driver failed to stop at, or as close to, the scene as possible to render aid and give information to police.

In cases like this, though, where a defendant denies any knowledge of an accident, the instructions get complicated. The judge has to guide the jurors through the legal complexities of whether a defendant reasonably should have known there was an accident.

Attorneys for both sides have submitted versions of the instructions they would like Gerst to read to the jury. The judge has been spending this weekend studying those proposals and will hear oral arguments from the attorneys Monday after testimony ends for the day.

Gerst will read the instructions after final arguments are presented in the case. Those arguments are likely to begin Wednesday.

Eleven jurors, six men and five women, have heard the testimony in the case. After final arguments, three of the 11 will be chosen randomly to step aside as alternates. The remaining eight must be unanimous to convict O'Brien.


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