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Defense experts dispute alcohol level, crash reconstruction in brothers' boating deaths trial

Attorneys to begin their closing arguments today

POSTED: November 13, 2013 12:34 a.m.

Testimony concluded Tuesday in the trial of Paul J. Bennett, a boater accused in the deaths of two Buford boys on Lake Lanier.

Bennett, 45, has been in Hall County Superior Court in Gainesville since Nov. 4 to stand trial on homicide charges in the June 18, 2012, incident, where his fishing boat collided with a pontoon carrying 13 people — four adults and nine children. Jake Prince, 9, and Griffin Prince, 13, were killed on impact.

Bennett faces charges of eight counts of homicide by vessel, failure to render aid, reckless operation of a vessel and boating under the influence.

The prosecution has argued that Bennett was boating impaired, did not have proper lighting on his Sea Fox and evaded law enforcement in the aftermath of the crash.

His defense has said the collision was a tragic accident, but that Bennett was not boating recklessly.

Bennett’s attorney, Barry Zimmerman, questioned Dr. Jimmie Valentine, a retired medical school professor who was admitted as an expert in the fields of pharmacology and toxicology.

Valentine said he thought Bennett’s behavior in the early morning hours after his arrest was not indicative of intoxication.

“He was having a lot of mood swings. That’s probably not unexpected given what he had gone through that evening,” Valentine said.

Department of Natural Resources Ranger Mark Stephens’ actions, as the officer who administered a field sobriety test and arrested Bennett, have been subject to scrutiny throughout the trial, and that was the case during Tuesday’s testimony.

Stephens, in his testimony for the state, said Bennett’s emotions were a “poster child” of an intoxicated person.

A second expert admitted by the defense echoed Valentine’s difference of opinion from Stephens.

Phil Odom, whose experience as a law enforcement officer and expertise in accident reconstruction were touted by the defense, criticized several aspects of Stephens’ initial interview and field sobriety testing.

“One of the first things Ranger Stephens told Mr. Bennett was that there had been a death of a child. To me, that is the wrong thing to do,” Odom said. “I don’t think there is anyone where that isn’t going to upset you.”

Such distress, he said, tainted the accuracy of divided attention and physical ability measures of field sobriety testing.

In contrast to physical exercises, where mental state or physical ability could impair — or assist — the tester’s performance, the horizontal gaze nystagmus test is upheld as a key part of field sobriety testing. Nystagmus is an involuntary jerk of the eye caused by central nervous system depressants, such as alcohol. Stephens said Bennett failed on six out of six nystagmic indicators.

Zimmerman has said the HGN test was poorly administered and possibly disrupted by the flashing blue lights of Stephens’ boat.

Bennett registered 0.14 on a breath test not long afterward, which Odom said didn’t “add up.”

“From what I saw in those field sobriety tests, he wasn’t in that range of alcohol impairment,” Odom said.

A blood test taken the morning of Bennett’s arrest — although the state says it was taken at 9:30 a.m. and the defense closer to 6:30 a.m. — registered .03 blood-alcohol content.

Valentine said he considered the backward estimation of Bennett’s BAC at the time of the collision to be “strictly guesswork.”

A Georgia Bureau of Investigation forensic toxicologist calculated Bennett’s BAC range to be between 0.165 to 0.185 through a process called retrograde extrapolation using the Widmark equation. 

“To take one point in time, one blood sample in time, and try to back it up ... that’s meaningless, because everyone is different,” Valentine said. “We don’t know what Bennett’s absorption and distribution rate was.”

He also said he had doubts about the data used. There was lack of a “chain of custody” of Bennett’s blood sample from the time it was drawn to the time it was tested, and he harbored doubts as to the reliability of the testing device.

“I’m reminded of the saying computer experts use all the time — garbage in, garbage out,” he said. “I feel like this was an inappropriate use of the Widmark equation.”

Special prosecutor Amber Sowers asked both experts what they had been paid to provide expertise for the defense. At one point, lead prosecutor District Attorney Lee Darragh objected to Odom’s PowerPoint, accusing the defense of improperly withholding the information from the state’s inspection.

“The state has whined and complained about me not providing stuff and want me to pay for reports,” Zimmerman said, outside the presence of the jury. “The state has unlimited funds, they have the GBI at their disposal, the DNR at their disposal, and they want to tell me how much money I should pay to prepare for my case.”

Judge Kathlene Gosselin overruled Darragh’s objection, and Odom continued his presentation.

Odom employed maps, calculations, results of collision enactments and original photos of the damage to conclude both boats shared some responsibility for the wreck, as they both should have seen the other at some point, he said.

He said he thought pontoon operator Michael Prince should have seen Bennett’s red light, contrary to what DNR reconstruction expert Cpl. Shawn Elmore testified.

Elmore had said Prince would have seen both green and red navigation lights, highlighting that Bennett’s green light was missing a bulb.

“In my opinion, I don’t think either operator was paying the attention they should have,” Odom said. “I think they flat out did not see each other.”

Prince testified he would have adjusted the pontoon had he seen Bennett’s boat.

Odom said in his experience investigating collisions, such was a common sentiment.

“I’ve worked a lot of nighttime collisions. Some of them ... very bad, some of them not so bad, but at one time, all of those operators said they did not see lights at the time of the collision,” he said. “The path is so fast, so quick, every nighttime collision — ‘I never saw their lights on.’”

Attorneys will make a final appeal to their version of events during closing arguments this morning.


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