In the end, it came down to reasonable doubt

·7 min read

Aug. 14—While the public might have been shocked at last week's verdict in the "Fallen Seven" case, New Hampshire attorneys say the defense team did a good job of establishing reasonable doubt.

And that's what's required to find a defendant innocent in even the most tragic of cases.

After a 12-day trial, it took less than three hours for the jury to decide Volodymyr Zhukovskyy was not guilty of negligent homicide, manslaughter and reckless conduct in the deaths of seven motorcyclists in a horrific crash in Randolph on June 21, 2019.

Patricia LaFrance, a former Hillsborough County Attorney now in private practice in Nashua, said she wasn't surprised by the verdict.

"In fairness to the state, they had seven people who were killed," LaFrance said. "They had this individual who had admitted using drugs. You also had somebody who had a very questionable history of driving."

But the judge dismissed the eight charges related to impairment — and instructed the jury not to consider any evidence or testimony about the truck driver's impairment. And the state did not call as witnesses the state troopers who had done the accident reconstruction report, which turned out to be flawed, LaFrance said. "They were called by the defense," she said.

In their closing arguments, LaFrance said, defense attorneys Steve Mirkin and Jay Duguay "did a good job of hammering that home — and putting the blame on the lead motorcyclist."

The defense presented evidence that it was Al "Woody" Mazza, riding at the head of 15 motorcycles in a staggered formation, who was impaired by alcohol and who caused the crash by riding on the yellow line.

"And that is absolutely reasonable doubt," LaFrance said.

'The right outcome'

Robin Melone, president of the New Hampshire Association of Criminal Defense Lawyers, said last Tuesday's verdict "is a welcome reminder that hard work pays off for defense attorneys."

"The attorneys in this case were diligent and they were meticulous in their work," she said.

Despite the public shock and anger that followed the verdict, Melone said, "It's the right outcome."

"Any time there's a death, it's preferred that somebody other than the victim is to blame," Melone said.

But she said, "At the end of the day, I think that the state was less than careful in their charging decisions."

The most helpful evidence for Zhukovskyy's defense — and the most damaging for the prosecution — came from state police troopers, she said.

"The troopers indicated that they did not observe signs of impairment at the scene of the accident," she said. "I think that was very good for the defense."

It also likely led to Judge Peter Bornstein granting a defense motion to dismiss eight impairment-related charges against Zhukovskyy after the state rested its case.

"If they had been cognizant of the evidence that their own witnesses had about impairment, they may have made different decisions here," she said. "But at the end of the day, I think this really was good nuts-and-bolts lawyering by Jay Duguay and Steve Mirkin."

'Respect the verdict'

Zhukovskyy's public defenders "did an excellent job," said Michael Iacopino, a veteran criminal defense attorney in Manchester who chairs the board of directors for New Hampshire Public Defender.

"They demonstrated that the state could not prove the case beyond a reasonable doubt, and that is the standard."

The public may look down on public defenders because of what they've seen on TV or in other states, Iacopino said. But he said, "In New Hampshire, the best criminal defense lawyers are either in the public defender program or former members of the public defender program."

Unlike in many states, the Legislature here set up the public defender program as an independent, nonprofit organization, Iacopino said.

"New Hampshire has been blessed with a public defender program that is renowned throughout the country in criminal defense circles with having an excellent training program," he said, "and with providing the resources that are necessary for the program to zealously and effectively do its job, and do it independently, without oversight from the state itself."

The Zhukovskyy case points out how important that is when it comes to indigent defendants, Iacopino said. The case not only involved complicated forensic evidence, he said, "it involved a very tragic and horrific accident with a lot of emotional testimony that required sensitive but skilled cross-examination."

"And in New Hampshire, we are lucky because we can provide justice every single day, and we do, through our public defender program, which makes sure that those folks that don't have the money to hire a lawyer are represented just as well as the people who do," he said.

Iacopino also credited Judge Bornstein "for dismissing those cases that the state could not present sufficient evidence on."

"And all of us should respect the verdict of the jury," he said. "The jury was there; they heard all of the evidence.

"Their role in our society is very important, and the role of the jury should be respected."

Not 'a gross deviation'

When she was a prosecutor, LaFrance said, she always met with jurors to find out why they made their decision. "Especially when I got a not-guilty, I'd want to know what is going on," she said.

She noted lawyers have to wait 30 days after the jurors finish their service before they can meet with them.

Many trial-watchers were surprised that the jury did not convict Zhukovskyy of felony reckless conduct. By his own admission, he had used drugs earlier that day, and he was reaching for a drink and took his eyes off the road just before the fatal collision, according to court testimony.

But attorneys said taking your eyes off the road is not necessarily criminal conduct.

"Every day, all of us when we drive, from time to time, we will reach for a drink — in the old days, light a cigarette — or do something that takes your eyes momentarily off the road," Iacopino said. "If an accident occurs because of that, it's typically put in the category of civil negligence. To make it a criminal act, it has to be much more egregious, it has to be something that is a gross deviation from what a normal person would do."

LaFrance said that in an "eerily similar" case from 2009, State of New Hampshire v. Shepard, the court found that just such an action was not criminal negligence.

On the first day of Laconia's Motorcycle Week in 2006, three people died when a driver crossed the double yellow line and struck a motorcycle, which then collided with a second motorcycle. The driver was convicted of negligent homicide but appealed.

The state Supreme Court overturned the conviction, writing that "the defendant's two-second failure to keep his car in its lane may constitute civil negligence, but, without more, it does not constitute criminal negligence as a matter of law."

'God bless them'

Last week's verdict does not alter the reality that what happened on June 21, 2019, was a terrible tragedy, legal experts said.

Iacopino, who is both the son and father of Marines, said the fact that the victims were members of a motorcycle club for Marines and Navy Corpsmen made the crash even more heartbreaking.

"These are people who served their country and died in an accident that should never have happened," he said.

"But that doesn't take away from the role the courts and the justice system have to play in determining whether or not we're going to lock somebody in a cage as a result of this accident," he said. "The jury heard the evidence, they determined that Mr. Zhukovskyy was not criminally at fault, and they returned the appropriate verdict."

What would he say to the families of those who died, who hoped for a different outcome to bring some measure of closure?

"All I can say is God bless them," Iacopino said. "They've been through a terrible tragedy.

"And I don't know that the criminal justice system is the place that is proper for closure."

swickham@unionleader.com