The defense attorneys called it a win, but the prosecution survived to try its case another day after a jury told Judge Peter Wadel for a second time that it could not come to a decision in Trooper Sammy Seymour’s operating while intoxicated trial Tuesday evening.
Mason County Prosecutor Paul Spaniola said this morning that his office plans to retry the case.
Jurors deliberated for about two and a half hours before telling Wadel that they couldn’t agree on a verdict for the original charge of operating while intoxicated or the lesser charge of operating while impaired.
“I sent you back and I’m not going to send you back again,” Wadel told jurors around 8 p.m. Tuesday.
“We leave the courthouse still not guilty,” Nichols said.
Co-counsel Gary Springstead said prosecutors gave it their best shot and jurors still came back without a conviction.
Prosecutors didn’t comment immediately Tuesday but had to feel better than they did at mid-afternoon when Judge Peter Wadel told them that he would not admit the Datamaster DMT breath test that Seymour took on the morning of his arrest, Jan. 17. Wadel said that Ludington Police Sgt. Steve Wietrzkowski did not observe Seymour for enough time in the 15-minute observation period in the Mason County Jail booking area. Officers have an administrative rule that requires they watch suspects for 15 minutes prior to administering a breath test to make sure they don’t put anything into their mouths that could cause inaccurate results and to make sure they don’t regurgitate. Wadel said he was aware of case law that said officers could do paperwork during the observation period but said the few number of times Wietrzkowski looked up during the period was not sufficient.
After reviewing surveillance video of the observation period for about 35 minutes, Wadel questioned Sgt. Perry Curtis of the Michigan State Police about what the instructions were for the observation period.
Curtis, who runs the alcohol testing unit for the MSP, said officers are to look for suspects putting anything into their mouths or regurgitating.
Wadel questioned him about a subject whose cheeks inflate and deflate as Seymour’s were seen to do in the video. Curtis said if someone has an upset stomach and belches they would typically have a facial expression consistent with a bad taste in their mouth.
Wadel noted that Seymour’s hands were near his face and mouth for long periods during the observation period, which is designed to make sure suspects don’t place anything in their mouths. Wadel said Wietrzkowski observed Seymour for one minute or, at maximum, two minutes, during the period and he did not find that to be adequate for observation. He said he also gave Wietrzkowski credit for two minutes in which he was off camera taking Seymour from the booking area to the Datamaster test room, however, it was not enough.
“Presence is not observation,” Wadel said.
Uphill battle
The jurors didn’t have much information on which to base a decision after earlier rulings by Wadel that said they could not know that Seymour was a state trooper and they could not hear him ask for professional courtesy, ask to have his car towed so he could get a ride home and ask to walk home during the traffic stop. Wadel also threw out the horizontal gaze nystagmus test that measures eye muscle spasms because he said Wietrzkowski did not follow a procedure in a precise manner.
But with his case seemingly on the ropes, Mason County Assistant Prosecutor John Middlebrook used his rebuttal statement — his last chance to address the jurors — and appealed to their common sense. What he said resonated with enough of them to give him a chance to fight again another day.
He decided to tell jurors everything they had heard. With a chart constructed by Springstead with seven check marks in the “evidence of sobriety” column still sitting in full fiew of the jurors, Middlebrook told them to ignore what they heard about those tests and think about what they had heard from Wietrzkowski. He emphasized that Wietrzkowski had observed four traffic violations by Seymour in four and a half blocks of driving and that waitresses had testified to giving him at least three, possibly four rum and Cokes during the night of Jan. 16 and morning of Jan. 17.
“Just listen to the evidence,” Middlebrook said in his rebuttal. “Slurred speech, staggering, four and a half blocks and four infractions — driving with a not properly illuminated vehicle, stopping in the roadway, rolling a stop sign, blocking a driveway.”
He conceded that blocking a driveway may not be a violation, but it does show evidence of impaired judgment.
Middlebrook also conceded that Wietrzkowski said he made a mistake in filling out his report, saying he didn’t see headlights on Seymour’s car when in fact the car has automatic running lights. He reminded jurors that Wietrzkowski pointed it out himself that the car’s taillights were not on and he had erred in writing “headlights.”
Middlebrook walked them through the ABC test that Seymour failed. Asked to recited the alphabet from “D” through “X,” Seymour said “QRX.” He disputed the defense assertion that Seymour had a lisp and that his speech impediment had caused the mispronunciation.
He reminded them that they had heard from Mason County Sheriff’s Office corrections deputies Randy Cogle and Brandon Coughlan, who both said Seymour smelled of intoxicants and had red, glassy eyes.
“I ask you to consider all these factors I have pointed out to you when making your decision,” Middlebrook said.
Defense closing
Nichols’ closing touched on topics ranging from his past career to the quotations of former President John Adams.
“Don’t judge a book by its cover,” Nichols said. “Don’t judge a book by its cover.”
He walked jurors through the dashboard camera video by Wietrzkowski and told them that Wietrzkowski was thinking drunken driving all the way when he said he saw Seymour’s vehicle driving without lights.
“The headline had already been written,” Nichols said, sharing stories from his past as a television reporter. He told them of the day he decided to quit being a reporter and take the bar exam because he was tired of trying to find stories that backed up the headlines that the news director or TV anchor had come up with back at the station.
He then delivered sensational “headlines” tailor made for each of the jurors’ occupations, pointing to each of them in turn as he delivered them. The headlines contained their job and something they might have done wrong. At least one juror was nodding as Nichols recited them.
Nichols reminded the jurors of the gravity of the situation. He said they were being asked to do one of the most difficult things a government could do, which was convict one of its citizens of a crime. He asked the jurors to close their eyes for three seconds and remind themselves that they were in an American courtroom. All of them closed their eyes.
Nichols, a Lansing-based attorney who specializes in defending drunken driving cases, then told jurors about staying at Springstead’s home the night before and watching the AMC network show “TURN,” about the spies of the Revolutionary War period. He said John Adams was one of his favorite figures from the period. He shared a couple of famous quotations from Adams.
“Facts are stubborn things,” he said. “Fortunately, the six of you in this American courtroom decide the facts.”
Welcome to the discussion.