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Homicide Case Hung Jury

Prosecution Considers Retrial

The Assistant District Attorney said today he has not decided whether to retry a traffic homicide case that ended Wednesday night with a hung jury after 12 hours of deliberation.

“I don’t know,” he said this morning when asked whether he will bring the case against a McFarland man back for a new trial. “We have to look at how the evidence came in in this trial and reflect on the likelihood there would be a significant positive change for the prosecution if we tried it again.”

The man was driving down Hope Road near his hometown of Cottage Grove on June 30, 2005, when his car struck and killed a woman riding a bicycle. The driver told jurors he was suffering from strep throat and felt he had something lodged in his throat. He testified that he took his eyes off the road, opened his mouth and looked into the rear-view mirror to see what the problem was.

Before he looked back to the road, he struck the rear of the woman’s bicycle. Although she was wearing a helmet, she suffered a severe head injury and died July 3.

In closing arguments to jurors on Wednesday and in an interview today, defense attorney Stephen Eisenberg said: “This was just an accident.” Neither the Assistant District Attorney nor Eisenberg was surprised at the outcome and Eisenberg said, “I just hope they don’t try it again.”

An issue for jurors was whether the driver’s taking his eyes off the road for a few seconds – estimated ranged from 4 to 12 – constituted the type of substantial negligence that would justify a conviction.

There were early hints that the case was going to be a difficult one. Around 3 p.m. Wednesday, after about four hours of deliberations, the jurors sent a note to the judge saying the jury was split 6-6.

The judge responded by bringing jurors into court and reading what is called the “Allen Instruction,” in which the judge exhorts jurors to reach a decision in the case.

Jurors went back to deliberate and later sent out several notes, asking to see the damaged bicycle, for a clarification of some definitions and for 12 copies of the jury instruction defining homicide by negligent operation so each juror would have one during deliberations.

At about 10:30 p.m., the judge brought jurors back into court and told them they had three options: breaking for the night; continuing deliberations; or declaring an impasse. He sent them back to the jury room to decide how to proceed, and 10 minutes later they said they were hopelessly deadlocked. One source said the breakdown at that time was 10 votes for acquittal and two for conviction.

There was little dispute at trial over the facts of the case and it was left to jurors to decide whether the driver’s actions “created a risk of death or great bodily harm,” which was “unreasonable and substantial,” and that he should have been aware that his actions were creating such a risk.

The Assistant District Attorney said the woman’s family was disappointed over the outcome, while Eisenberg said the driver “just wanted it over.”

“He has to live with the fact that he killed this woman,” Eisenberg said of his client. “He wanted it over, but he understands that this is better than a conviction. I still don’t think you’ll find 12 people in Dane County who will convict on this one.”



Eisenberg Law has successfully represented our clients in thousands of Personal Injury, Criminal Defense and Family Law Cases during our 30-plus years in business.