The criminal trial of the truck driver who killed Sylvia over 26 months ago in Cleveland has finally concluded. Herschel Roberts was convicted Monday 11/21 of “aggravated vehicular homicide” due to recklessness. He was sentenced to 3 years in prison and had his driver’s license revoked for life.
Various articles and TV news clips can be found by googling “herschel roberts cleveland.” We were wonderfully supported by Sylvia’s friends and the Cleveland biking community throughout the trial. We were unhappy that evidence of the use of drugs by the driver (16 times the legal limit) was ‘suppressed’ (not admitted) by the judge in the bench trial (no jury, at the defendant’s request) but he nonetheless concluded that Roberts had to have seen Sylvia in his side mirrors had he looked before turning sharply right. His failure to exercise care was deemed recklessness.
Several legal issues which are important for the biking community in Ohio arose during the two-year legal proceedings which Steve will be addressing as part of his work on the Sylvia Bingham Fund (SBF) when he reduces his work time at Bay Area Legal Aid to 20% in January. Expect to hear from us as we strive to raise more funds to underwrite the Fund’s donations to grass-roots organizations whose work corresponds to the SBF mission. If you would like to claim a 2011 tax deduction, we encourage donations at this time to the Peace Development Fund. Click here for details on how to make donations. In January, the items regarding legal proceedings will be moved to an inside page as the website evolves into the SBF’s central communications medium.
Trial Update: Criminal Trial will start on Monday, November 14
It was confirmed this week that the criminal trial of Herschel Roberts who killed Sylvia over two years ago will finally begin at 9 a.m. on November 14 at the Cuyahoga Count Justice Center at 1200 Ontario St. in downtown Cleveland in room 19D, Judge Gaul presiding. The criminal charges are Aggravated Vehicular Homicide and Failure to Stop After an Accident. The trial is expected to last up to one week. The trial is of course open to the public and anyone interested is encouraged to attend.
Trial Update: Civil trial settled on July 18, criminal trial to begin on November 14
We avoided having to go to trial for the civil case and got a settlement that is decent. It will allow us to dedicate more time for advocacy work to honor Sylvia’s life through the Sylvia Bingham Fund. We are extremely grateful to our lawyers Peter J. Brodhead and Dennis Lansdowne, paralegals Sheila Schebek and Leanne Melnick as well as all the support staff of Spangenberg, Shibley & Liber LLC and jury consultants Lois Heaney and Susan Macpherson of the National Jury Project.
The criminal trial is now set to begin on Monday, November 14th, the 7th time this trial has been postponed! The judge has indicated that he will do everything possible to keep the date firm.
Trial Update: the judge granted the defense motion to suppress the drug tests, meaning the jury won’t hear about the level or marijuana.
The defendant’s urine tests revealed he had a level of 246 ng/ml. of marijuana metabolite, sixteen times the legal amount. However, on June 15, Judge Gaul granted the defense motion to suppress this evidence. The judge based his decision on a 2005 Ohio Supreme Court case that upheld the suppression of a drug test conducted by a company that was not licensed by the Ohio Department of Health and didn’t follow all the required testing procedures.
While it is true that the companies that analyzed Robert’s urine sample were also not licensed by Ohio, they were licensed by the federal Department of Transportation. The drug test was required under federal law as Roberts was a commercial truck driver involved in a fatal accident. While there were very minor deviations from the Ohio testing procedures, the prosecutor argued that the test “substantially complies” with Ohio Law, the standard required. He also argued that the defendant waited too long – an entire year – to file the motion to suppress, conveniently making it impossible for the prosecution to conduct new tests of the urine samples, which were destroyed after one year, typical practice. There is no doubt that the urine test was accurate and substantially complied with Ohio law.
Nevertheless, Judge Gaul threw the drug evidence out, based on the Mayl decision. He mysteriously ignored a post-Mayl Ohio appellate decision cited by the prosecutor, State v. Hurst (2009), holding that: The state need not prove strict or perfect compliance with Department of Health regulations…. Only ‘substantial’ compliance is necessary for the tests results to be admissible. […] Once the state shows substantial compliance with the regulations, the burden shifts to the defendant to show prejudice resulting from the failure to strictly comply.
We are also very frustrated that neither the initial prosecutor nor the Cleveland police detective in charge of the investigation were aware of the need to use a laboratory licensed by the State of Ohio. We are also mystified as to why the Ohio Prosecuting Attorneys Association, http://www.ohiopa.org, has never in six years asked the State legislature to change the statute on which the absurd Ohio Supreme Court ruling, State v. Mayl (2005), was based.
It remains uncertain when the criminal trial will take place. The civil trial is now set for July 25 but the defendants have filed a motion to stay the civil proceedings pending the outcome of the criminal case! So the saga goes on as we approach the second anniversary of Sylvia’s brutal killing.
Trial Update after May 2nd hearing
The hearing on the defendant’s motion to suppress his drug test was heard on May 2. After hearing testimony from those involved in the testing of defendant’s urine for the presence of marijuana, the judge asked for further written legal argument from both sides, after which he will issue his decision. The judge gave each side two weeks to prepare additional argument and then an additional two weeks for each side to respond to the other’s argument. No criminal trial date was set but the date of the civil trial remains July 25. We are hopeful the criminal trial will occur sometime in June.
Trial Update: HEARING RESCHEDULED AGAIN!
The April 12th hearing has been rescheduled to MONDAY May 2nd and will start at 1:30 PM in Room 19 D (Justice Center).
Trial Update: Suppression motion to be heard on Tuesday April 12 at 9 AM and trial scheduled to start on Wednesday April 13
The lawyer for the defendant truck driver has filed a motion to suppress the results of drug tests showing that the defendant had 246 nanograms of marijuana metabolite per ml of urine about two hours after he killed Sylvia. This is over 16 times the legal limit in Ohio (15 ng) and seven times the limit set out in the statute’s subsection under which he was charged (35 ng). No showing of actual impairment is required under this latter subsection.
The defendant’s lawyer argued in his papers that the urine testing procedures did not follow all of the drug-testing rules of Ohio. The drug test was conducted pursuant to federal Department of Transportation regulations requiring such testing when a commercial driver kills someone. The Cleveland prosecutor is of course preparing to contest this motion. Under Ohio law, the drug test must be in ‘substantial compliance’ with the Ohio drug-testing rules.
We are hopeful that the Cleveland community will be present in the courtroom when this motion is heard.
The trial date (April 13th) may be postponed, depending on what happens in court on the 12th. People interested in attending the trial should check this website on the afternoon of April 12 for confirmation that the trial is beginning the next day as scheduled.
Trial Update: The criminal trial has been postponed again! We are very disappointed. No new trial date has been set yet.
Trial Update: Trial date rescheduled for February 28, 2011
We are encouraging people to attend the trial both in memory of Sylvia and in solidarity with the bicycle movement. Please check this website a day prior to coming to court to make sure the trial date has not been changed.
Trial Update: Truck driver withdraws guilty plea
The truck driver who killed Sylvia last year and pleaded guilty last month to aggravated vehicular homicide while under the influence of drugs was allowed on October 8 to withdraw his plea of guilty. He claimed he was pressured into agreeing to plead guilty and submitted a letter to the court critical of his own lawyer. As he had not yet been formally sentenced (that was to happen October 25), the Ohio standards for withdrawing a guilty plea are very lax. For Francoise and me, this is of course a very bitter pill and a great disappointment, not just because we now once again have to face the prospect of sitting through a criminal trial but also because we had had some measure of comfort, believing that Herschel Roberts was truly remorseful. We expect that a new trial date might be set for December and hope that the defendant’s new lawyer will not seek any further continuance. Fifteen months after Sylvia was killed is far to long to wait for an outcome. We have also filed a civil lawsuit against Mr. Roberts and Leff Electric Company. That trial is scheduled for next spring.
Cleveland man indicted for killing bicyclist Sylvia Bingham
By Stan Donaldson
October 22, 2009
Originally posted on Cleveland.com
CLEVELAND, Ohio — A 61-year-old Cleveland man was indicted Thursday for vehicular homicide and driving while under the influence in a Sept. 15 accident that killed a 22-year-old bicyclist, the Cuyahoga County prosecutor’s office said.
Herschel Roberts was also indicted for failure to stop after an accident. Prosecutors said that Roberts drove a 2005 Peterbilt Straight truck near Prospect Avenue and East 21st Street when he struck Sylvia Bingham and left the scene.
Roberts’ truck was found an hour later in the 1100 block of East 40th Street. Police said he tested positive for marijuana.
He is scheduled to be arraigned on Nov. 2.
Bringham, a Yale University graduate, was killed as she rode from Ohio City to work at the Hard Hatted Women office, where she helped tradeswomen become mentors.