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Weller's Absence Plays Uncertain Role in Trial

The man accused of killing 10 in crash is said to be too ill for court. Experts are split over how his nonattendance will affect jurors.

October 09, 2006|John Spano | Times Staff Writer

For more than three weeks, a jury has heard testimony about George Weller, the old man who plowed his car through the Santa Monica Farmers' Market in 2003. They saw gruesome photos and heard about the 10 people he killed with his maroon 1992 Buick. They saw a two-hour tape of Weller's interview afterward with police.

What they have seen very little of is Weller himself, now 89, in a wheelchair and said to be in deteriorating health and under increasing stress. He will not be there to hear the verdict. Over the prosecutor's objections, the defense won permission to keep Weller out of court -- because he's too ill -- and beyond the view of the 12 people who began Friday to deliberate his fate on 10 counts of manslaughter.

Weller missed witnesses who wept openly in court when asked about the carnage at the farmers market, others who interpreted his reaction as unconcern, and one who still seemed as ready to call for the senior's lynching as he did on the day of the tragedy, when more than 60 people also were hurt.

Weller missed huge blowups of photos of the dead and injured, except for one, which was shown the one day he attended the trial. It showed a corpse on the windshield and a body under the wheels of his car after it came to rest along Arizona Avenue on July 16, 2003. Weller's lawyers say he committed a horrible accident; he meant to step on the brake but instead hit the accelerator and was too panicked to correct himself -- something known as "pedal error."

Experts say Weller's absence in court was either an error, or a stroke of tactical genius. Criminal defendants often avoid testifying, but nonattendance is rare.

"In most cases, lack of a defendant is a huge disadvantage to the defense. Without a face, it's a lot harder for jurors to feel sympathetic, and a lot easier for them to give a harsh penalty," said Ken Broda-Bahm, president of the American Society of Trial Consultants and an expert with the firm Persuasion Strategies.

Since most criminal defendants do not testify, their demeanor can be a key to jury perception. For instance, defendants fight to be allowed to wear street clothes, rather than jail garb, in the courtroom. In one recent trial, prosecutors showed blowup pictures of four defendants that revealed gang tattoos covering their torsos, otherwise invisible in court.

Broda-Bahm said Weller's absence depersonalizes the case -- which may be what the defense is calculating. The Weller case has prompted the state Legislature and Department of Motor Vehicles to work harder to identify drivers who pose a danger to others, and it has sparked a continuing debate on how best to license aged drivers.

"This subtly sends the message that this isn't about George," Broda-Bahm said. "It's less of a personal issue."

Joellen Dimitrius, a prominent consultant who worked for the defense in the O.J. Simpson trial, said a jury is denied certain information without a defendant present.

"What jurors look at is body language, not only on the stand, but when they're sitting in the courtroom," Dimitrius said. "That may be one of the reasons why he's not sitting at the counsel table."

Jurors consider how a defendant relates and reacts not only to the defense counsel but to everything in the courtroom.

"The courtroom becomes the home for the jury," Dimitrius said. "They look and watch everyone who walks into their home -- the defendant, the judge, or someone in the audience. They make assumptions based on their interaction with people in the courtroom."

But jurors have listened to Weller. Deputy Dist. Atty. Ann Ambrose showed a secretly made two-hour videotape of his interrogation by Santa Monica police within hours of the deaths. That focuses attention even more directly on the tape, experts agreed.

"In essence, the defense has made a strategic judgment that the tape presents their client as rational, coherent, in contact with reality and not under the obvious influence of any intoxicant," said UCLA law professor Peter L. Arenella. "He shows apparent remorse while also insisting he did everything possible to avoid this tragedy. That's the defense's underlying theme."

"Because that is the only exposure, it's going to be really tightly scrutinized," Broda-Bahm said. "A jury is an amazing thing. Individual jurors might miss things, but collectively, the jury misses nothing. I would expect them to really examine that tape for any indication of attitude."

Jurors could conclude that because Weller made the statement before he had been groomed by attorneys, it might be the best evidence of his demeanor. Broda-Bahm said they will look "for signs, not of the facts, for signs of his attitude toward the event."

"Is this the way a person talks about an accident? Or is it the way he talks about a crime? How much remorse is there, and how genuine is it?" Broda-Bahm said.

How do jurors distinguish between gross negligence and misdemeanor negligence, and noncriminal negligence?

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