Berry continued on C3
By Tiffany Y. Latta
Staff Writer
SPRINGFIELD — Prosecutors had video of James A. Berry’s vehicle hitting and killing a man, photos of his heavily damaged vehicle and photos of the victim’s body.
Yet, Berry, 81, was acquitted last week of failing to stop after an accident. The former Clark County prosecutor said he thought he hit a pothole when he struck and killed James E. Pierce, 37, along Springfield-Xenia Road on May 4.
Legal experts who analyzed visiting retired Montgomery County Common Pleas Judge John W. Kessler’s written ruling said the defense’s decision to have the case tried without a jury helped.
Joshua Dressler, an Ohio State University professor who specializes in criminal law, said hit-skip cases are tough to prosecute. Prosecutors faced a higher burden of proof in this case because a judge ruled and it involved a former prosecutor.
“Law-trained people take proof beyond a reasonable doubt much more seriously than lay people,” Dressler said. “It’s not insignificant the defendant in this case is a former prosecutor. This is a person who has prosecuted these kinds of cases before, he is a member of the bar. The judge has to consider whether he would lie under oath. He could say I believe him because he was a prosecutor, but if it were you or me, maybe not.”
Kessler wrote that Franklin County Assistant Prosecutor Keith McGrath failed to prove beyond a reasonable doubt Berry knew he hit a person.
“The court finds that the evidence of the defendant’s delay in the inspection of his vehicle, his method chosen to notify law enforcement, and his other activity prior to police confiscation of his vehicle on May 5, 2011, do not establish that the defendant knew on May 4, 2011, that he collided with a person. Defendant’s vehicle was never hidden, cleansed or altered,” Kessler wrote.
By Wednesday evening, nearly 200 people commented on stories about the outcome of trial on the News-Sun’s Facebook page. Some defended Berry; others were outraged and said Berry received preferential treatment.
University of Dayton law professors Tom Hagel and Dennis Turner, who followed the case, said they understand those angry about the outcome but stressed the legal system works.
“All the defense has to do is raise reasonable doubt whether he knew and that’s enough,” Hagel said.
“Most people say he hit a guy and killed him. He should go to jail. But all the defense has to do is convince Kessler that there’s reasonable doubt and they did.”
A surveillance camera outside Wayside Tavern, 2288 S. Yellow Springs St., recorded the crash. Hagel said evidence that Berry never applied his brakes after the crash supports the defense’s case.
“Let’s say he slowed down or stopped or waited a few seconds. That’s evidence he knows, he’s aware. But because he kept going, based on those facts that helps the defense,” Hagel said.
The crash occurred on a poorly lit road at about 10 p.m. as Berry drove home.
Pierce, who had a blood alcohol level of 0.31, was seen on video stumbling out of the bar and into the road, and was possibly on all fours, trying to get up when he was killed.
Berry’s Honda Accord hit Pierce with such force the bumper was heavily damaged and the wheel well liner over the right front tire was ripped from the car. The crash scene stretched 65 feet, according to testimony.
Berry testified he didn’t realize he struck someone until 6 a.m. May 5 when he saw human tissue on his damaged vehicle and read in the News-Sun a man was killed in a hit-skip crash.
“You have to show knowledge and showing knowledge is very difficult unless you have an individual who admits guilt,” Turner said.
“What he’s saying is (what he hit) could have easily been a pothole. It would be harder to make that case if he hit a vehicle or something stationary. Because (the victim) was not upright it’s more believable. It’s his story and the prosecution has the burden of proving he had knowledge he struck a person.”
Dressler said a jury may reached a different conclusion.
“Given the amount of damage (to the vehicle) it wouldn’t surprise me if a judge or jury found the defendant guilty. But the prosecution has to meet a high bar, a high burden of proof. People need to think about it in terms of if they were on trial. Would they want proof beyond a reasonable doubt?,” he said.
“Even if it means there will be some acquittals that will make you scratch your head, we’re better off with our legal system than without it.”