Tuesday, July 29, 2008

Avary's Attorney Denies Charges

County plans to charge screenwriter with vehicular manslaughter

By Daryl Kelley
Ventura County prosecutors have tentatively decided to charge Oscar-winning screen-writer Roger Avary with gross vehicular manslaughter while intoxicated resulting from a late-night car crash near Ojai in January in which a man was killed and Avary’s wife was injured.
But defense attorney Mark Werksman said Tuesday that the 42-year-old Avary, who won an Academy Award for ‘Pulp Fiction’ in 1994, denies being intoxicated and thinks the crash was caused by a tire blowout.
“He denies being under the influence,” Werksman said. “He did lose control (of the car). We know that a tire blew, then he lost control. It was a dark night on an unlit curve.” Nor was Avary speeding, the lawyer said.
Werksman’s comments were the first indication of the Avary defense.
Key evidence, the lawyer said, will be the results of blood samples taken to determine the screenwriter’s alcohol level after the crash, and the type of damage to Avary’s 2000 Mercedes coupe.
“There are things we can’t learn without court orders once the case is filed,’’ he said.
On Jan. 13, Avary was arrested on suspicion of vehicular manslaughter and felony drunken driving after the car he was driving skidded and crashed into a telephone pole on Ojai Avenue in front of Ojai Lumber about 12:30 a.m.
The district attorney’s office submitted the manslaughter charge to the Superior Court this month, and prosecutors expect the court to officially file it shortly before Avary’s scheduled arraignment Sept. 19.
If convicted on the charge, Avary could receive up to 11 years in prison, authorities said.
“It’s the most serious charge we are considering. It really is the most likely charge that’s being considered,” said Chief Assistant District Attorney Jim Ellison this week.
But, he added, that there’s still “a lot of investigation going on into this.” An elaborate accident re-construction has been part of the investigation, he said.
“All sorts of factors” could have contributed to the accident in addition to Avary’s alleged intoxication, Ellison said.
Although the charge has not been officially entered by the court, case documents show that Deputy District Attorney Kathy LaSalle reviewed and accepted the gross vehicular manslaughter complaint July 15, then submitted it to the court clerk for filing.
Often, charges are not officially filed by the court clerk until a few days before arraignment, officials said.
“The court may not take any action until close to the (September) appearance date,” Ellison said. Avary’s arraignment has already been delayed three times, most recently on July 17, at the request of prosecutors.
In addition to the vehicular manslaughter charge, prosecutors have considered charging Avary with driving under the influence of alcohol and causing injury or death, a less serious charge that carries a maximum of seven years in prison considering the injuries in this case, Ellison said.
Werksman said he could not discuss the case in detail because a charge has not yet been filed. But he said he knows prosecutors intend to file the charge of vehicular manslaughter while intoxicated.
“I’m aware of what they’re planning, and we’re waiting for them to actually file the case,” Werksman said. “Once that happens we can begin to work toward resolution of this case ... We can’t determine the true cause of this accident until a judge is appointed and we have an opportunity to inspect the vehicle and examine the district attorney’s evidence.”
Andreas Zini, 34, who was visiting Avary from Italy, died in the single-car crash, apparently from internal injuries, authorities said.
Avary’s wife, Gretchen, also suffered serious injuries after being thrown from the car when it crashed on East Ojai Avenue near Boardman Road. According to Ojai Police Chief Bruce Norris, Avary failed to negotiate a turn in the highway and crashed into a power pole.
Avary was uninjured, but his 40-year-old wife was found lying in the road next to the couple’s sedan. She was transported to Ojai Valley Community Hospital with serious, but non-life-threatening injuries. She was released about a week later as she recovered from a ruptured bladder.
In a statement the day after the accident, Avary’s publicist Julie Polkes, said: “Roger wishes to publicly convey his heartfelt condolences to the family of the deceased. Words cannot express how sorry he is, and this tragic accident will always haunt him.”
Avary, a screenwriter, director and producer, remains free on a $50,000 bail bond.
At the time, Werksman said Avary was “grief stricken.” And on Tuesday the lawyer added:
“This was a horrible accident, a tragedy, and he (Avary) feels awful about what occurred.”
The attorney said no civil lawsuit had been filed in the case.
Former Dist. Atty. Michael Bradbury, who owns an East End ranch, was a witness to the crash’s immediate aftermath, arriving as the dust settled and calling for emergency vehicles.
Bradbury said Tuesday in an interview that Avary was distraught and slurring his speech after the crash.
When Bradbury arrived, Gretchen Avary was on the roadway and her husband was holding her head in both hands, Bradbury said. Roger Avary said: “Gretchen, Gretchen, don’t die, don’t die. Gretchen talk to me,” according to Bradbury.
Bradbury said he asked Avary to move away from the woman, so she wouldn’t be harmed by the movement. But Avary said the woman was his wife and told Bradbury his name. “Due to a slight slur I didn’t hear his last name accurately,” Bradbury said. The former prosecutor said he asked if the man’s name was Avis, and he said, no, it was Avary.
Prosecutor Ellison would not comment this week on Bradbury’s account except to say that the case would be filed regardless. “It doesn’t have any bearing on it,” he said.
Werksman said he’d talked with Bradbury about what he saw at the scene.
“I spoke with Mr. Bradbury, and it is accurate that Roger was very distraught,” the lawyer said. “I don’t think he would describe Roger as slurring his words.”
But Bradbury said Tuesday that he stands by his account that Avary was slurring words.

The original OVN report and reader comments


town keeper said...

one who has the most money will get off. That is how the system works. Good for him if he can pay for it. Best thing to do is keep getting this delayed as long as possible.

Farmer Joe said...

Slow news day, huh?


Cannonball said...

Outstanding article, Daryl. I'm thrilled that the Ojai Valley News, in "a rare confluence of talent and opportunity," hired someone with "peerless skills and great insight into this community," as you were so lauded on January 29, 2007, on the Ojai Valley News Blog.

So, let me ask you, Daryl, what "skills" does it take to gloss over details?

What "insight" does it take to regurgitate conjecture?

What "talent" does it take to stir up a 7 month-old accident, reigniting blame, hatred, and pain for all of those who were affected by the accident?

You're the pro. I'm sure you have answers to these simple questions.

What you fail to realize is that by reporting conjecture and by not reporting in detail, you do your craft a disservice.

And why report this today? The accident happened in January. There was no court date. Was it just a "slow news day"? Did you already use up the blog about the "Killer Bees" from Africa?

I can tell you this -- today you've stirred up many feelings in the community. Not all of them good. Perhaps you feel your "mission" is to stir the pot. If so, you are a sad, sad man.

But let's say it was none of the above; let's say it was simply because it was an "easy assignment", "high-profile" for Ojai, and provocative! Well, then congratulations to you, sir. You have just joined the ranks of Fox News.

Regarding details, let me present to you a few questions that my little sister would have asked after taking Journalism 101:

- What time specifically did Bradbury arrive on scene?

- "A witness to the crash's immediate aftermath, arriving as the dust settled" it's a colorful turn of phrase, I will give you that. But do you mean this literally? What's the timeline? Were there any other witnesses?

- Did you ask Bradbury how he could have understood Avary so clearly saying: "Gretchen, Gretchen, don't die. Don't die. Gretchen, talk to me" while at the same time saying Avary was sluring his words?

- Did you consider that after being in a car crash and believing your wife was dying in your arms that you may be in a bit of a panic? Perhaps Bradbury couldn't tell between slurring and panic? Or perhaps he could and has an axe to grind?

The devil is in the details. But you know that, you've won awards.

You could have taken a different, more interesting tact on this tragedy:

- Why not examine how random this accident was, and how any of us, all of us, could have been driving that car that night?

- Why not examine the road that was driven that night? Does it have streetlights? Does it have signs? Are there any obstructions?

- Why not give a community and a family a break and try to help us all heal so that this accidental death was not in vain?

Oh, that's right -- because this is just a blog. Blog's don't count. It's your opinion. And your opinion matters because you've won prizes.

If you try to hide behind this illusion, Daryl, you've simply become a hack.

There's still time for restitution. Become a great journalist again. That, or go back into retirement like Brett Favre should. Polish your awards. Remember how much better you were than the competition in the '90s.

If you don't step up your game, 1992 will be calling and it will want it's Pulitzer Prize back.

Anonymous said...

Is that pixel art, or is that actually supposed to be a photograph?

town keeper said...

Cannonball are you a friend of avary? I am sure if you had been reading the blogs this past month you would have read where people from the valley had asked for an update on this case. Personally I could care less that he is a writer from hollywood. I care that someone had to die due to lack of judgement on that evening. Trying to say the tire blew out before the accident is a good defense. I hope it works for him. Bottom line the blood test will tell if he was over the limit or not.

Freedom of the Press said...

Daryl, we appreciate your resolve. Keep digging. Can't believe someone is trying to silence this. That must mean there is more to it.

Anonymous said...

Don't shoot the messenger.

Anonymous said...

Why has his BAC still not been released? That should have come out right after the accident in January.

Lenny Roberts said...

This type of evidentiary information, although significant, may or may not be released until a pre-trial hearing. As has been reported, Mr. Avary, at this point, is free on bail and has not yet been arraigned on the charges the district attorney's office has stated it intends to file.

Anonymous said...

implicit in the charge the d.a. has submitted to the court -- vehicular manslaughter while intoxicated -- is the assertion that avary's blood alcohol level was at least .08, which would make him legally intoxicated. Prosecutors declined to reveal any more than that. Once charges have been filed formally, defense lawyers, however, have a right to use a sample of the same blood for tests by an independent lab. There have been cases in which such results were different than those at the sheriff's lab. That is why defense attorneys often seek their own tests. And that would be why attorney Werksman can still maintain that Avary's blood alcohol level is an open question and that Avary denies that he was intoxicated.
Daryl Kelley

Anonymous said...

That's not actually correct Mr. Kelly. Anti-DUI fanatics long ago changed the law to make it a crime all by itself to drive with a BAC that is over .08, regardless of whether one is intoxicated, impaired or not. It is a different and separate charge to be accused of "driving under the influence." That charge does not necessary imply any BAC, and indeed, if it is all by itself, the implication would be that the BAC was under the limit, not over, as prosecutors would charge Avery with being over the limit if that was their evidence.

Anyway, I suppose you will share what they do. Regardless, it is sad and tragic all around.

I have to agree it is deplorable for the OVN to fan the flames of saying Avery was drunk. He's innocent until proven guilty. Your source is the former District Attorney - someone who by the way should be expected to have a personal interest in blaming a tragic accident on alcohol, given how many people who were driving just fine and posed no threat to anyone who have been convicted and suffered harsh penalties during Mr. Bradbury's tenure because of his office's very strict enforcement of DUI laws. Mr. Bradbury can speak for himself on this, but it is at least fair to say he would be biased on the issue, and more likely than others to look for and blame alcohol than someone else happening on the scene.

Let me suggest just one thing you might have asked Mr. Bradbury (who really ought to do better than to be poisoning the jury pool with his statements to the press): How often has he spoken with Mr. Avery?

If he doesn't know Avery, then he doesn't even know how Avery speaks. How can he say he was "slurring" his speech? Has he heard him speak before this incident?

The only news here is, shame on Bradbury. Avery is already going to have a hard enough time getting fair treatment without the former DA making public statements implying he was drunk, on the basis of - what? "Slurred" speech? A loaded word, that prejudices without actually informing.


Freedom of the Press said...

Whatever. Lenny, Daryl, keep doing what you do. Journalists should never be silenced.

Anonymous said...

July 30, 2008 2:50 PM = chronic drunk driver?

Anti-DUI fanatics, indeed. Man, those f***ers are even worse than those anti-murder fanatics.

Anonymous said...

again, and let's keep it simple so anonymous may track the thought: the charge being forwarded by the d.a. is vehicular manslaughter while intoxicated, which cannot be filed unless the suspect's blood alcohol level by government lab tests is at least .08, according to prosecutors.
daryl kelley

Anonymous said...

"Avery is already going to have a hard enough time getting fair treatment without the former DA making public statements implying he was drunk, on the basis of - what? "Slurred" speech? A loaded word, that prejudices without actually informing. " I find this hard to believe as the trial will be in ventura not Ojai. Do you really think all the people who reside in Ventura County read the Ojai Vally new? I don't think so. And he is not that big deal of a celebrity that people other than those who live here and heard about the accident as this is a small town. That it will make a squats difference for him at the court house. If you Drink and Drive and this happens time to face the consequences.

Mr. Rockefeller said...

Does anyone know what Mr. Bradbury's B.A.C. was at the time he observed Mr. Avary "slurring" his speech? If I recall correctly, Mr. Bradbury was being driven home from a part somewhere in Ojai's lovely East End. Is it possible that he was a little bit impaired himself? If so, I'm afraid anything he has to say about the situation must be taken with a grain (or two) of salt.

Anonymous said...

Do you really think all the people who reside in Ventura County read the Ojai Vally new? I don't think so.

Actually, the majority of the people who live in Ojai don't read the Ojai Valley News.

Anonymous said...

Does anyone know what Mr. Bradbury's B.A.C. was at the time he observed Mr. Avary "slurring" his speech?

Are you CEJ, Esq. or Jeff Furchtinecht, Esq.? They are the kind of lawyers who try their cases on blogs, I'm just sayin'...

Anyway, Mr. Bradbury didn't kill anybody, so he is not the one on trial.

Cannonball said...

Town keeper -- you seem to be an intelligent, reasonable person. And I, like you, also care deeply that someone died that night due to lack of judgement. The question I ask you is this: who's lack of judgement are we talking about?

Freedom of the Press -- yous musn't reeds very goood. Re-read my post. It's in English which, I understand, is your second-language so I'll slow it down for you...

I... don't... want... to... silence... anyone... especially not Daryl! What I ask in my post is for Daryl to dig further, to ask more questions and NOT to rest on his Pulitzers, but instead to live up to them.

Why am I repeating myself, Freedom?
And would you please stop moving your lips while you're reading this.

Daryl, my man -- great to hear from you, sir. Gettin' all up into "anonymous'" face (or is it "anonym-i"?) And throwin' down like you're on the pretty side of 40. Is, perhaps, the "real" Daryl bubbling to the surface? Are we about to see investigative journalism at its finest here in Ojai?

I'm all tingly inside just thinking about it.

And, Daryl, I believe I speak for all of us in congratulating you on landing the front page of the Ojai Valley News today!

You're a star again!!! (Just like Favre.)

Anonymous said...

Don't get Cheetos grunge on your mom's keyboard.

town keeper said...

Cannonball let it go! Attacking the OVN is not going to help your case.

Anonymous said...

cannonball, you're lashing out because you're alone in your opinion, but it's not serving you or your client well. let the courts decide, and let the journalists report it.

Anonymous said...

This has nothing to do with Avary but it does have to do with people speeding into Ojai from the East side. I can't believe we don't have a flashing speed limit sign as you come into town. People seriously need to get jerked out of their reverie before they cross the bridge by the old bowling alley. Too many deaths and too many close calls I have seen at the crosswalk by the Golden Moon Restaurant at Park rd. and Ojai Ave.

Anonymous said...

There but for the grace of God go any of us. I've seen speeding police cars, construction trucks, and motorcycles nearly wipe out at that same intersection. It's telling that Avery's skid mark is nearly indistinguishable from the scores of other skid marks that mark up the section of road leading to Ojai Lumber. It doesn't help that the road tends to always have loose gravel and nails on it. Clearly this is a neglected problem area, especially with Boardman being a blind intersection. Maybe the county needs to put a flashing yellow light, or a streetlamp, where the road bends. Maybe a guard rail to prevent someone from eventually going into the deep ditch on the North side of the road.