Delay Sought In Avary Case

Investigation continues in fatal car crash

By Daryl Kelley
Prosecutors will ask Friday that the arraignment of Oscar-winning screenwriter Roger Avary on possible charges related to a fatal car crash near Ojai be delayed at least until next month, because government investigators have not completed an inquiry into the January accident.
Deputy District Attorney Michael Lief said this week that witnesses of the late-night crash that killed an Avary house guest and injured Avary’s wife are being re-interviewed, and that criminal charges, if any, would then be filed against Avary, who was driving his sedan when it crashed into a telephone pole.
“We just want to make sure all the T’s are crossed and the I’s dotted before we proceed,” Lief said. “We don’t want to file it and not have everything ready to go. So far, there’s been no change in circumstance about what we know.”
If follow-up interviews confirm what prosecutors think are the facts, “… there is no doubt that certain charges will be litigated by this office,” he said. “Additional investigation will indicate whether any other charges might be justified and whether special circumstances might be justified.”
In July, prosecutors tentatively decided to charge Avary, who won an Academy Award for “Pulp Fiction” in 1994, with gross vehicular manslaughter while being intoxicated, according to case documents. The district attorney’s office forwarded that charge to the court clerk. But court officials delayed an official filing until closer to arraignment and until prosecutors completed their investigation and decided on the final charge, if any.
This week, Lief would not comment on what the possible charge might be. But in July prosecutors, while acknowledging that an investigation was ongoing, said the gross vehicular manslaughter charge was the most likely. It carries a maximum penalty of 11 years in prison, considering the injuries in this case.
Instead of the vehicular manslaughter charge, prosecutors have said they 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 in this case.
Defense attorney Mark Werksman said Tuesday that he was pleased with the delay, if it means the district attorney is giving the case the full review it deserves.
“If they need more time, we’re happy to give them more,” he said, “because we want to make sure whatever happens here is the right thing and the fair thing.”
Werksman said Lief told him Monday that prosecutors hadn’t decided what charge to file.
“The DA told me yesterday they don’t know what they’re going to charge, if anything,” he said. “Right now, there are no charges.”
Previously, Werksman said that the 42-year-old Avary 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.
For prosecutors to file either of the intoxication charges they have acknowledged considering, they would have to show that Avary had a blood-alcohol level of at least .08.
But defense lawyers have sometimes successfully challenged laboratory tests that led to a blood-level determination once they gained access to blood samples, or other tests, on which prosecutors decided the defendant was intoxicated.
In addition to Avary’s blood-alcohol level, Werksman has said key evidence will be an analysis 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 in a July interview.
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 near Boardman Road about 12:30 a.m. The Avarys live nearby in the East End of the valley.
The district attorney’s office submitted the manslaughter charge to the Superior Court in July, and prosecutors said they expected the court to officially file it shortly before Avary’s scheduled arraignment on Friday. But now an arraignment will not occur until next month, at earliest, Lief said.
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. According to Ojai police, 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 taken to Ojai Valley Community Hospital. She was released about a week later as she recovered from a ruptured bladder. She also sustained a leg injury.
Werksman has said Avary is “grief stricken” about the accident.