Bishop's Lawyer Asks Jury for Leniency
The Phoenix Cleric Is Portrayed As Distracted, Exhausted When He Hit and Killed a Pedestrian
By David Kelly
Los Angeles Times [Phoenix AZ]
Downloaded February 13, 2004
PHOENIX — Jurors in the trial of Bishop Thomas J. O'Brien began deliberating Thursday after the defense made a final attempt to show he was not a cold-hearted cleric who killed a pedestrian and sped off without a second thought.
Instead, lawyer Tom Henze said in his closing arguments, O'Brien was a frail man who, exhausted after a long day's work, drove into something heavy the night of June 14, 2003 — not knowing it was 43-year-old Jim Reed.
"You might feel better about Bishop Thomas O'Brien if he had pulled over and looked at his car," Henze said. "You might like him more, but that's not what this case is about. This is not a popularity contest."
If convicted on charges of leaving the scene of a fatal accident, O'Brien, 68, could get up to 3 3/4 years in prison.
O'Brien, the former head of the Roman Catholic Diocese of Phoenix, was driving his Buick Park Avenue down Glendale Avenue about 8:30 p.m. when he hit Reed, who was walking in the middle of the road.
O'Brien testified that he heard a loud crash, saw the windshield crushed but never stopped because he thought he had hit a dog or been struck with a rock. Toxicology tests showed the 6-foot-2, 238 pound Reed was drunk. He died shortly after arriving at a hospital.
The state said O'Brien could not have missed seeing such a big man and that his subsequent avoidance of the police — parking his damaged car where it couldn't be seen and his lack of interest in knowing what he hit — indicated he had something to hide.
But Henze said prosecutors had conducted a "damned if you do, damned if you don't" strategy. Anything O'Brien did after the accident, his lawyer said, would have been seen by the state as evidence of guilt.
"If you went in public, they would have said you were trying to look normal; if you stayed in your house, you were showing your guilt by hiding," Henze said. "If you didn't make phone calls, you were trying not to be discovered."
During the trial, which included more than a month of testimony, prosecutor Anthony Novitsky focused on O'Brien's police interrogation. The bishop, he said, expressed little remorse over the death of Reed, a Native American and father of two; at one point during the interview, O'Brien asked, "This is going to be all day?"
But the legal question is whether O'Brien knew he had hit someone. If not, he was not required to stop.
"This is a case about one thing only: what did he know and when did he know it," Henze said. "If he gained knowledge after this incident happened, you can't convict him on this."
O'Brien said he found out he hit Reed almost two days afterward. During that time, he did not take phone calls and would not come to the door when the police came looking for him.
The accident occurred two weeks after O'Brien had signed an immunity deal to avoid an obstruction of justice charge for shielding priests accused of child molestation. He had been in charge of the 480,000-member Phoenix diocese for 21 years, but resigned after the accident. As part of the immunity agreement, he admitted protecting pedophiles and vowed to support additional measures against such abuse.
Throughout the trial, O'Brien appeared in court wearing his black cleric's garb and a large cross around his neck — for the most part sitting impassively beside his lawyers; his family filled the seats behind him.
Henze made his final argument to the jury Thursday in a low, almost pleading voice.
"He's a 68-year-old guy who has had a busy day. He sees nothing more than a broken windshield," Henze said.
"The thought never occurs to him that it was a person. Are you going to punish him for how he thinks?"
But, Novitsky said Thursday, "the law asks people to be reasonable and do the right thing. A reasonable person would have concluded that there was a need to stop. Hold Thomas O'Brien accountable for what he did."
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