The defense attorney for the Holbrook man accused of killing a Wading River boy in an alleged drunken driving crash in Manorville last year argued at a two-day hearing in Riverside this week that Suffolk police lacked probable cause to make an arrest.
Throughout the hearing, attorney Steven Politi attempted to establish inconsistencies with the testimony of Suffolk County police officer Daniel Brecht and the reports he filed at the time of the crash that killed 12-year-old Boy Scout Andrew McMorris.
Mr. Politi, the attorney for Thomas Murphy, 60, suggested his client’s health may have played a role in the lack of balance he allegedly displayed on the afternoon of the crash and said police did not have enough evidence that his client was driving drunk at the time they placed him under arrest.
“I believe they made an arrest founded on less than probable cause,” Mr. Politi told Acting Supreme Court Justice Fernando Camacho. “[They said] ‘Arrest him and we’ll sort it out later.’ ”
Mr. Brecht had testified Tuesday that Mr. Murphy had trouble keeping his balance during roadside sobriety tests and “it became clear he might fall over and hurt his head.”
On Wednesday, the second day of the probable cause hearing, Mr. Brecht, upon cross-examination by Mr. Politi, admitted that he did not write in his reports that he was concerned Mr. Murphy would fall and hurt himself. Instead, he wrote simply that Mr. Murphy was “unable to keep his balance” and “unsteady on his feet.” He also testified that he described Mr. Murphy’s footwear as sneakers in his reports, but recently learned he was wearing rubber golf cleats.
Mr. Politi also questioned some of the times listed on Mr. Brecht’s report, saying a radio transmission calling in the arrest suggested he waited nearly six minutes to report the arrest after Mr. Murphy refused a breath test. While prosecutors have said Mr. Murphy’s blood alcohol content was .13%, that is based on a blood sample taken several hours later.
Mr. Politi attempted to establish that Mr. Brecht may have consulted with a detective who was on the scene before making the arrest, but Mr. Brecht testified that he did not speak with Det. Sgt. Steven Guyer until afterward. That’s important, the attorney told the judge, because he believes there are contradictions in the reports of the two officers that establish a lack of probable cause.
But Judge Camacho denied the request of Mr. Politi to call Det. Sgt. Guyer as a witness at the probable cause hearing. Assistant District Attorney Brendan Ahern had objected, arguing that Mr. Politi was using the hearing to expand discovery.
The judge ultimately determined that Mr. Politi’s theory of an “alleged conspiracy at the scene, may be a trial issue but it is not an issue at [the probable cause] hearing.”
Testimony in the case against Mr. Murphy, who is facing a top charge of aggravated vehicular homicide, which carries a maximum sentence of 8 1/3 to 25 years in prison, is expected to start in early November. Judge Camacho has indicated he expects the trial to last three to five weeks.
Request for recusal
Before jury selection began Thursday, Judge Camacho addressed Mr. Politi’s request for the judge to recuse himself from the case by asking the attorney if he still wished to have him removed. On Monday, Mr. Politi filed a motion with the Appellate Court in Brooklyn asking for Judge Camacho to be removed from the trial, but that matter has been adjourned until Oct. 30.
Mr. Politi responded Thursday by saying he believes the judge is “treating him differently” in this particular case than he has in the past.
Judge Camacho responded by saying Mr. Politi has “never acted the way you’ve been acting in this case.”
The judge said it’s the first time in his career that he’s been asked to recuse himself and he takes the accusations against him seriously, but has no intention of stepping aside.
“I really want to proceed in this case,” he said.
The discussion came after several tense moments between the judge, the defense and, at times, prosecutors during the probable cause hearing.
On Wednesday, after Mr. Politi denied shaking his head at one of Judge Camacho’s statements, the judge said he was considering holding him in contempt.
“In 23 years I have never held anyone in contempt, especially a lawyer,” Judge Camacho said. “I would like to end my career that way. Please don’t push me.”
Mr. Politi and Mr. Ahern also frequently expressed displeasure with each other, with each accusing the other of misrepresenting facts.
“We’re not going to be calling each other liars,” Mr. Ahern said at one point during the hearing. “That’s not what lawyers do.”
Judge Camacho warned both sides that he — and the eventual jury — has to be able to listen to facts without any distractions and name calling.”
A long line of prospective jurors snaked outside the court complex Thursday, as more than 200 eligible residents were called for the first day of jury selection.
The first group called consisted of 120 people who were brought into the courtroom and introduced to both prosecutors and the defense. The judge then asked a series of questions of each juror, but told them he didn’t want a show of hands to avoid them influencing each other.
Instead they were asked to step outside the room to be called back individually. In total, 82 people were questioned Thursday with 16 of them ordered to come back for the next stage of jury selection beginning Oct. 21. The remaining prospective jurors were asked to return Friday when the potential juror pool will be expanded again.
“It’s going to take us some time to select a jury in this case,” Judge Camacho said to the jurors.
• About three-quarters of the potential jurors questioned Thursday said they were aware of the case. When asked by Judge Camacho to recount details of what they’d heard, several cited news reports that Andrew and fellow Scouts were struck while walking on the “side of the road.”
Mr. Politi took issue with that, saying it’s the defense’s position that the children were hiking in the roadway when the crash occurred. Judge Camacho then asked potential jurors if they would be open minded about that defense position.
• At one point before the jurors were brought in Thursday, Mr. Murphy was rushed out of the courtroom to use the restroom and said he wasn’t feeling well. Judge Camacho asked if he needed medical assistance, but he declined.