Northern California - Attorney for driver in Saratoga hit-and-run case blames cyclist

http://www.mercurynews.com/ci_19941056

Attorney for driver in Saratoga hit-and-run case blames cyclist

By Tracey Kaplan
Posted: 02/10/2012 07:58:12 PM PST
Updated: 02/10/2012 10:27:55 PM PST

Delivering a forceful but risky closing argument, the lawyer for a Saratoga man accused of plowing into two cyclists and then driving away turned the tables Friday -- placing the blame for the first time on the lead rider for yelling so loudly that his startled companion toppled off her bike and smashed into the asphalt.

Both cyclists then conspired to blame affluent businessman Robert Schiro for hit-and-run driving in hopes of milking him for money via a lawsuit, Schiro's lawyer Dan Jensen contended.

"Why has everybody lied?" Jensen asked. "There's an awful lot of money at stake."

I know it's the attorney's job to do anything he can to keep his client off the hook.. but I hope the businessman and his attorney burn in heck.

Makes one wonder how easy reality can be manipulated?

Take a picture of a table from four different vantage points. Write a description of what each picture shows. Four separate and varying descriptions will be the result yet each description still qualifies as being true and real.

However, no one stands to risk personally from four different realities of a table. At stake in the Saratoga case is money, reputation and driving privileges. "Reality" then becomes vulnerable to the influences of fear which in this case would result in a person justifying acts of intentional deceit (lying).

To think, the lifespan of an item on one's conscience is potentially the length of that person's lifetime, yet the loss of a few bucks and a shameful moment can be temporary...even if it feels like the pain will never subside, it does, more thoroughly so if the person has come clean from the start.

I know it's the attorney's job to do anything he can to keep his client off the hook.. but I hope the businessman and his attorney burn in heck.

So, you'd prefer the legal system in Germany, Japan , Italy circa 1943?

Another way to look at it is your personal freedoms in this country still include hiring an attorney that will fight for you, even if you are a dirtbag or you appear to everyone else to be a dirtbag. This should allow you sleep better at night. :thumb:

I've served on a jury. Usually there are enough people on
one of sense and intelligence to see through legal maneuvering
like this. Desperation ploy by an attorney with little other defense
strategy......and he is legally required to defend his client.

It can come back to bite you in the ass in the penalty phase.

I've served on a jury. Usually there are enough people on
one of sense and intelligence to see through legal maneuvering
like this. Desperation ploy by an attorney with little other defense
strategy......and he is legally required to defend his client.

It can come back to bite you in the ass in the penalty phase.

Yeah, but on a flip side there are ones that don't see through it either. There are 12 jurors that need to reach a decision.

My Dad used to joke: We'll give 'em a fair trial, then we'll hang 'em.

Seriously though, there are some lines. "he is legally required to defend his client" doesn't necessarily include making **** up.

GUILTY: http://www.mercurynews.com/ci_19964941
Judge will decide on a sentence between 2 and 4 years in prison

My Evidence professor used to say "When you don't have the facts, pound the law. When you don't have the law, pound the facts. When you don't have either, pound the table."

So, you'd prefer the legal system in Germany, Japan , Italy circa 1943?

Another way to look at it is your personal freedoms in this country still include hiring an attorney that will fight for you, even if you are a dirtbag or you appear to everyone else to be a dirtbag. This should allow you sleep better at night. :thumb:

My beef is with the choice of defense by the attorney, not the fact he's defending him. I don't recall saying defacto trials for all anywhere.

I know this may be a case of confirmation bias, but here we have yet another motorist who was on probation for drunk driving and didn't possess a valid driver's license who decided it was just fine and dandy to drive anyway. I think we really need to start making the penalties for drunk driving and driving without a license more severe. Some people seem to be too narcissistic to be trusted with motor vehicles.

GUILTY: http://www.mercurynews.com/ci_19964941
Judge will decide on a sentence between 2 and 4 years in prison

------------ snip ------------
The case should serve as a warning to motorists, prosecutor Ohde said. If Schiro had only stopped, chances are he would never have been charged with a felony, even though he was on probation at the time for drunken driving and his license had been suspended.

Unless there was evidence he'd been driving recklessly, the accident might have counted as a probation violation in Schiro's drunken driving case and he may have faced a misdemeanor charge of driving with a suspended license; instead, it dragged on through the courts.
------------ /snip ------------

The part above bothers me. Why is it ok to hit a bicyclist or pedestrian as long as you stop? Sometimes it seems like no one cares if a pedestrian or cyclist is hit as long as the driver stops and cooperates with any investigation. We need a change in the law to address this IMO (as well as major toughening of penalties for driving with suspended license when it was suspended due to driving/drinking violation)

...The part above bothers me. Why is it ok to hit a bicyclist or pedestrian as long as you stop? Sometimes it seems like no one cares if a pedestrian or cyclist is hit as long as the driver stops and cooperates with any investigation. We need a change in the law to address this IMO (as well as major toughening of penalties for driving with suspended license when it was suspended due to driving/drinking violation)
If someone commits a serious crime, we don't allow them to posses guns anymore because they have shown they can't be trusted to obey the social contract. More Americans are killed by cars than by guns. We should not allow people who have been convicted of serious moving violations to own or operate cars under any circumstances because they have shown that they can't be trusted to obey the social contract either. It's just my opinion, but I suspect the odds of being injured by a motor vehicle in one's lifetime, currently standing at about 50%, would dramatically drop if we could get the worst 10% of drivers off the road.

. . . Why is it ok to hit a bicyclist or pedestrian as long as you stop? . . . .

Nobody, including the DA, says it is okay to hit a cyclist or a pedestrian as long as you stop. Hitting the bike or pedestrian and then driving away are two distinct, separate wrongs. The point is not that the guy would have skated had he stopped (as he was legally required to do), it's that he would have faced less serious charges (a probation violation and a misdemeanor charege vs. a felony charge) had he not committed the second wrong, i.e.driving away. One can argue whether the penalties are stiff enough in either case, and I'm not going to get into that here. But it is vital that there be proportionality in charging and sentencing. If the punishment for hitting a cyclist is exactly the same as for hitting the cyclist and then fleeing the scene, what on earth is the incentive for not fleeing the scene?

As for the defense lawyer's closing argument, my gut tells me that he thought his client's case was circling the bowl and went for a Hail Mary. I suspect that the analysis was something like this: "There is no way I can get 12 jurors to acquit this loser. The best I can do is get one or two to hang tough and get a hung jury, and maybe then I can negotiate a plea bargain that is better for the guy than what he'll get if he's convicted." That's the kind of judgment call the lawyer is paid to make.

As for there being no evidence to support the defense lawyer's argument, you have to remember that a lawyer is not limited to the four corners of witness testimony and other evidence - you can also make and argue "reasonable inferences" from that testimony and other evidence. Example - No one saw the kid eat the cake. But the cake is missing, there is a trail of cake crumbs to where the kid was found, and there is frosting smeared around the kid's mouth. There is no direct evidence the kid did it, but it is certainly a reasonable inference from the direct evidence that he did.

All of this is a long-winded way of saying the lawyer was almost certainly within the bounds of his ethical duties (and believe or not, "leagal ethics" is not an oxymoron) in making his argument.

GUILTY: http://www.mercurynews.com/ci_19964941
Judge will decide on a sentence between 2 and 4 years in prison

Can it please be federal-pound-you-in-the-arse prison? Please?

(also, please tell me someone else here has seen Office Space)

Can it please be federal-pound-you-in-the-arse prison? Please?

(also, please tell me someone else here has seen Office Space)

Not only have I seen it, I live it.

Anyway, yeah - I really expected to see them rule in favor of the yuppie scumbag driver, so seeing that article was a pleasant surprise. One can only hope that Robert Schiro gets to share his cell with a 300 pound wrestler named Bubba. I'll bet he looks good in lipstick, too...

Not only have I seen it, I live it.

Anyway, yeah - I really expected to see them rule in favor of the yuppie scumbag driver, so seeing that article was a pleasant surprise. One can only hope that Robert Schiro gets to share his cell with a 300 pound wrestler named Bubba. I'll bet he looks good in lipstick, too...

Robert Schiro is a scumbag for sure ... however, not a yuppie at 72 :thumb:

Nobody, including the DA, says it is okay to hit a cyclist or a pedestrian as long as you stop. Hitting the bike or pedestrian and then driving away are two distinct, separate wrongs. The point is not that the guy would have skated had he stopped (as he was legally required to do), it's that he would have faced less serious charges (a probation violation and a misdemeanor charege vs. a felony charge) had he not committed the second wrong, i.e.driving away. One can argue whether the penalties are stiff enough in either case, and I'm not going to get into that here. But it is vital that there be proportionality in charging and sentencing. If the punishment for hitting a cyclist is exactly the same as for hitting the cyclist and then fleeing the scene, what on earth is the incentive for not fleeing the scene?
<snip>

Without the hit and run there would have been no punshiment for hitting them. There would have been a charge/punishment for violating terms of his probation and driving without a license, but nothing for actually hitting the bicyclist themselves. I agree that a hit and run should be punished more severely than just a hit, but the point is that if it is just a hit there should still be a charge and punishment. Regardless of whether it is just a hit or a hit and run, any other crimes that occured such as driving without a license or violating terms of probation should be prosecuted.

And that may well have been entirely appropriate. Not every car-vs-bike collision is a crime - sometimes, people just make a mistake. Not every mistake is a crime. Whether that would be the case here I don't know - I wasn't there and I wasn't on the jury to hear the evidence.

Note that I am not saying that, even in this alternative-universe where Mr. Schiro actually did the right thing and stopped after the accident, he gets to escape with no consequences for hitting the cyclists. He still gets his butt sued. Still in this alternative universe, and assuming he didn't drive into the cyclists on purpose (as opposed to running away afterward, which he clearly did on purpose), the civil wrong is "negligence." Meaning he screwed up and hurt someone without meaning to. In general, that kind of negligence is civil matter to be resolved in a lawsuit, not a criminal matter where someone can go to jail. That's how it works in most traffic collisions, even where someone is badly hurt or even killed.

BTW, with that criminal conviction, Schiro almost certainly loses that suit (I only hesitate to state that with 100% certainty because I haven't seen the verdict, so I am not 100% what issues the jury had to rule on, but odds are that the criminal conviction screws him in terms of defending the civil suit). The only questions are (a) will there be some "comparitive fault" component assigned to one or both cyclists to reduce - not eliminate - his money liability and (b) will his insurance have to foot the bill since he is now a convicted felon - depends on the elements of the crime and the wording of the policy.

And that may well have been entirely appropriate. Not every car-vs-bike collision is a crime - sometimes, people just make a mistake. Not every mistake is a crime. Whether that would be the case here I don't know - I wasn't there and I wasn't on the jury to hear the evidence.


Actually, it was a serious crime ... the driver was on probation at the time for drunken driving and his license had been suspended.

Robert Schiro is a scumbag for sure ... however, not a yuppie at 72 :thumb:

Well there ya go - another case for mandatory *annual* road and written testing of all drivers over 65.

Actually, it was a serious crime ... the driver was on probation at the time for drunken driving and his license had been suspended.

Agreed. And he should have been punished for that reagrdless fo whether he stopped after hitting the cyclists or not.

But that wasn't my point in my last post. My point was, and is, that the fact that he hit the cyclists is not automatically a criminal act. If he was drunk or high, all bets are off. If he was texting, all bets are off. If he deliberately ran into them, all bets are off. Because the jerk was driving on a suspended license and violating the terms of his probation, all bets were properly off.

But for it to be a criminal matter, there has to be something more than just a collision. Having the suspended license and violating probation was enough to get him into some criminal trouble. Doing a hit-and-run and seriously urting someone in the process is what turned it into a felony.

Is that unless someone is proven to be grossly negligent in operating a vehicle that injures or kills a cyclist, there will be no serious criminal penalties. It's the fleeing that is usually the big mistake.

Of course, a civil suit is only going to be worthwhile if there is something to pursue. The articles are making it seem like the defendant is very well to do, but I'm not convinced of this based on his apparent lifestyle--he may have a long list of creditors.

One thing that bothers me about this is that Ms. Jackson was medically uninsured at the time of the accident. I feel that this is a really, really bad idea for anyone who participates in any activity that has a risk of serious injury. Also, I have my auto insurance policies at the maximum levels as the lawyer in Velonews recommended this stating that the additional cost is relatively low and a cyclist can collect on his own auto insurance policy in case an uninsured, underinsured, or fleeing motorist causes injury.

The lack of empathy is overwhelming toward the victim(s)--incredible detachment the driver display from his misdeeds!

A lot of names to describe the driver comes to mind, but they have been already said--although I will add: "sociopathic d****e bag"