Watching the defense cross-examination of an expert witness yesterday in the trial of NJ State Trooper Robert Higbee I glimpsed a bit of the build-up to the perfect storm surrounding the car wreck that killed two bright, beautiful young women and led to Higbee’s indictment for vehicular homicide.
- Sidebar: Defense attorney Subin is very smart. He’s an excellent cross-examiner. Early in the trial one TruTV commentator suggested he wasn’t really competent because of a question he asked about the difference between a muskrat and a possum. But Mr. Subin has more than proved to me that he’s “clever like a fox”.”
Yesterday Attorney Subin called into question the expert’s motives for testifying as he did for the prosecution. (I know that’s what all defense cross-examinations are intended to do, but Mr. Subin did it particularly well.) Subin elicited an admission from the witness that he had actually solicited the gig. This struck me as very telling, not so much of the witness (although I imagine the jury saw it that way) as of the way a traffic accident evolves into a nationally broadcast criminal trial.
It seems to me that most nationally covered murder trials (at least the ones that don’t involve celebrities—just ordinary folks) become centers of perfect storms exactly in the way a nor’easter turned into Sebastian Junger’s Perfect Storm.
The Scenario (as I understand it—and I could be very wrong)
One beautiful autumn night in September 2006 two young women went out to buy milk for their grandparents’ breakfast. One was 19, a licensed driver. The other was a 17-year-old student driver who was only permitted to drive under the supervision of someone at least 21 years old. (Caveat: I am not in any way suggesting the victims should be blamed. Absolutely not. I’m only pointing out how trivial circumstances often lead to a perfect storm.)
Apparently while returning from the store via Stagecoach Road, the passenger failed to secure her seatbelt.
Simultaneously, a high-school student realized he was out after his family’s curfew. He sped home on Tuckahoe Road toward the intersection with Stagecoach Road. Unfortunately, he passed a state patrol car heading in the opposite direction on Tuckahoe Road. Go figure. What are the odds? (It was dark. The patrol car did not have its warning lights on. It was just another coincidence: it’s why the teenager didn’t recognize the patrol car until it was too late to slow down.)
The patrol car was driven by an experienced, trusted officer named Robert Higbee, who promptly followed police procedures to verify that the teenager’s car was exceeding the speed limit. He made a “K-turn” on Tuckahoe and put the pedal to the metal to “close the gap” with the speeding vehicle.
Knowing he was being clocked, the teenager foolishly (as almost all teenagers behave) sped up to try to outrun the patrol car: a simple lapse in judgment that would change his life and leave him forever burdened with a huge sense of guilt.
At the intersection of Tuckahoe and Stagecoach, the teenager tapped his brakes. The trooper saw his brake lights flicker. The teenager must not have encountered heavy traffic on the cross-street, however, because he apparently gunned it and moved quickly through the intersection.
Simultaneously, a father and son in a white van were traveling toward the same intersection and toward the speeder. But a possum just happened to cross Tuckahoe Road at the instant the speeder (using only his fog lights, not his headlights) encountered them. They must have seen the possum’s glowing yellow eyes and caught its pale, hairy body in their headlights. The father and son looked at the ugly critter and completely missed the vehicle speeding past them in the opposite direction. They thought it was a muskrat, but muskrats aren’t native to New Jersey, I don’t think. It was an odd sight, in any case, and caused them to comment about it.
The trooper had clocked the speeder on his radar at somewhere around 65 mph. To close the gap, he had to exceed 65 mph and appears to have reached almost 80 mph when he saw he was approaching an intersection. He stopped accelerating and began tapping his brakes—as any experienced driver would do to avoid skidding and losing control.
By another odd coincidence, Tuckahoe Road was wider and more heavily traveled where the trooper was than it was past the intersection, which the father and son were then approaching. And the trooper had just moments before turned off Stagecoach Road onto it, without having to stop at a stop sign, because there are no stop signs on Stagecoach at that intersection. So, not having stopped at the intersection, the trooper appears to have mistaken its nature as a two-way stop. Or it may have been that during the K-turn he missed seeing the warning sign on Tuckahoe about an impending stop. Or it may have been that the warning sign had been obscured by the speeder’s car as they passed each other. In any case, by the time the trooper saw the stop sign it was too late to stop.
And just at that exact instant, the van in which the two young women were driving entered the intersection.
The father and son were at that instant stopped at the stop sign, facing the intersection and the approaching patrol car. They didn’t see the girls’ white van until after it was hit by the patrol car.
The trooper, though, must have seen the girls’ white van just a split second before he entered the intersection, because black-box data shows a brief attempt to accelerate past the intersection to avoid the collision.
Were the girls speeding a bit? Who knows. It might explain why the father and son didn’t see their headlights approaching the intersection. Or maybe the men were simply still distracted by the possum and by the rapidly approaching headlights of the patrol car, which they could tell wasn’t prepared to stop at the stop sign.
Would a more-experienced van driver than a student driver have slowed slightly at a dangerous intersection near her home? Would a more-experienced driver have known how to swerve or brake effectively? I don’t know. But it’s possible that a more-experienced driver would have been injured rather than killed in the crash.
The impact was great. The girls’ van was spun around. By the odd circumstance that the passenger wasn’t wearing her seatbelt, she became a projectile of sorts, forcing the driver’s upper body, as well as her own, through the open driver-side window—open no doubt because it was a beautiful, early autumn night. They had no chance to survive the impact.
An Accident Becomes A Crime
Why was it that Trooper Higbee was charged with reckless homicide in this case? That’s the real question. What made this tragic accident into a nationally broadcast murder trial?
Yesterday, the cross-examination of the expert witness gave me a clue to the way some perfect legal storms form.
As I understand the testimony, the trooper was driving a 2005 model Ford Crown Victoria, which just coincidentally happened to be the first model patrol car equipped with a drive-train black box to track speed and braking during collisions. If the Wall Police Blotter (which claims to oppose police corruption) is correct, it appears that this fact was discovered only after the trooper’s attorney sought an injunction for the data from the “restraint module” that records whether or not seat belts were being used. Yet another odd circumstance.
Apparently, Ford’s attorneys put Mr. Subin in touch with Ford engineers, including two engineers involved in testing and evaluating the new black-box technology. I believe one of the engineers was the expert-witness who testified for the prosecution yesterday. In any case, somehow (through discovery perhaps) the black box became state’s evidence, not defense evidence.
In addition, at some point the two engineers also conducted tests on the Ford Crown Victoria’s braking distance. I’m just speculating, but I wonder if their braking study wasn’t what attracted defense-attorney Subin to them in the first place. (Perhaps we’ll hear more about this braking study in the defense case, although Mr. Subin said yesterday that the engineers did not study the exact model of Ford Crown Victoria the trooper was driving that fatal night.)
Subsequently the expert witness resigned from Ford to go into business as a consultant on black-box data—just one of those odd things that happen all the time. Then, in early 2007 when Trooper Higbee was arraigned, apparently one Ford engineer was disqualified for some reason from serving as an expert witness in the trial. So, the expert witness contacted the prosecutor and offered his services, as a newly available independent consultant.
In other words, another domino in the chain fell—because this new consultant was hungry for work he became an expert witness in the trooper’s trial. And because he was new in the field, his expert credentials were a bit shaky and his experience testifying before a criminal jury was scanty. And he made the mistake of seemingly supporting the prosecution’s view of the black-box data, rather than supporting his own findings.
This sequence of events is probably typical of the perfect-storm series of events that led to the trial. The first domino in the chain, I imagine, was the family’s anguish and anger over their daughters’ deaths, which eventually swirled into yet-another victims’ rights campaign. When the public identifies innocent victims like these, the public wants a guilty party—in this case the trooper who was performing his duty, not the speeder who initiated the trooper’s high-speed “closing of the gap,” because the speeder was nothing but a typical teenage boy, but the trooper was a trooper.
Then, too, the accident came after years of complaints about the risks of high-speed chases throughout the nation—not to mention incidents of racial profiling by NJ state police.
But the gasoline on the embers in this case is clearly the media. If TruTV hadn’t decided to televise the trial gavel-to-gavel and CNN hadn’t decided to provide a daily live feed via the Internet from the courtroom, I would never have heard of this case. So, how did CNN’s TruTV senior vice-president and producer, Tim Sullivan, happen to hear about this case? Was he simply surfing the net on the prowl for a good story? Or did someone in Cape May, NJ, contact him? And if so, who? And why?
Wrong Place, Wrong Time
Trooper Higbee is a classic case of “wrong place at the wrong time.” And I honestly hope he’s acquitted.
But Trooper Higbee isn’t the first person to be caught up in a perfect storm. Remember Dr. Sam Sheppard—the original fugitive? He was convicted and only released from prison years after his conviction because of a Supreme Court ruling concerning adverse publicity surrounding the trial.
How can you explain the publicity over a non-entity like Casey Anthony except with a perfect-storm scenario? The media are holding the spotlight to her. I can only guess that some reporter in Orlando first caught wind of the story and brought it to national attention as a career move. Ms. Anthony is young, white, and attractive—a perfect “eye of a storm.”
The only reason Stacy Peterson’s disappearance became national news was that it occurred only shortly after a jogger named Alma Mendez went missing and then was found dead in a forest preserve in the Chicago suburbs near the Petersons’ home. And all this came after Lisa Stebic disappeared from her home not far from the Petersons earlier that year. Media “journalists” were already swarming around the Chicago suburbs and stumbled across the missing woman case.
It was the perfect set-up for another perfect storm: an arrogant suburban husband who just happened to be a cop with a beautiful, young, missing wife.