File 09-CF-3718, Tuesday: After spending all afternoon yesterday and an hour today, we selected our 12 jurors and 2 alternate jurors. The jury will be four men and eight women. Both alternates are women.
The first thing Judge Foreman did with the jury is something he had done several times before. These were the final 14 however, so he was more specific and stern this time, probably because the “Nail Polish Crash” was such big news a year ago.
He cautioned the jurors to avoid discussion of the case when they are away from the courtroom. He was specific about media, and especially Internet sources, such as this pade, I imagine. He said, “There are Tweets, and there is Spacebook…”
From the reaction, he knew he got it wrong. So he continued, “Or Facepage or something.”
So that was a nice moment in an otherwise very heavy day.
Both lawyers elected to make Opening Statements. Their presentations, perhaps because of the nature of the case, were very different. ASA Mermel laid out the simple facts that produced the horror a year ago. He was dispassionate but dramatic.
He said Anita Zaffke was wearing a bright, florescent-green jacket, a white helmet and was astride a chromed motorcycle. He said that when she was struck she was stationary at a stoplight.
He paused for four seconds at this point. I know because I counted them. The courtroom was hushed. He continued, “She was run-over by the defendant who was in the act of polishing her fingernails.”
I sat five feet behind defense attorney Tomczak. To his right sat his associate, Ms. Freitag. To her right sat defendant Lora Hunt. They knew this moment was coming. All three of them sat still, head down, looking at their respective pads of paper on the table, writing with their right hands.
Maybe it’s just because I expected that rehearsed nonchalance, but I thought they looked silly.
Mermel quoted the written statement Hunt prepared shortly after the crash, saying she “saw the light change to yellow.”
He said her victim went “over and under” her car.
And then he dropped the bombshell of the day: The g-force decapitation that would be described in exquisite detail by a pathologist later.
Tomczak was disdainful of that “short story”. It is the “long story” that will reveal the utter innocence of his client, he told us. The jurors “must decide if she had a criminal mind”.
Not hardly. As I wrote last September:
It should be noted that there is no legal difference between unintentional recklessness and intentional recklessness to establish the charge of Reckless Homicide, which is a type of involuntary manslaughter. The recklessness stems from her behavior, not her intention. No one is saying that Lora Hunt intended to kill Anita Zaffke, nor that she intended to kill anyone, nor even that she intended to be reckless.
But no one can deny that Lora Hunt was recklessly oblivious of another human being.
Tomczak went on to explain that Hunt is a grandmother “of 7, or maybe 8. One daughter may be in labor right now.”
That was way over the line. A quick Mermel objection was immediately sustained and Tomczak thanked the judge. (That was the beginning of a pattern. Most of Mermel’s objections were sustained and always educed Tomczak gratitude. (He also thanked the judge for his own objections that were overruled.)) Tomczak continued, “Is Lora Hunt a ruthless, willful, wanton criminal?”
He made a point of saying that she is not accused of any violation of the Illinois Vehicle Code. That was disingenuous. Hunt was given a traffic citation at the time. However, our Constitution guarantees both a speedy trial and freedom from double-jeopardy. The traffic ticket had to be dismissed so that the State’s Attorney could proceed in a methodical way on the homicide charge.
Tomczak was sloppy about the “criminal mind” business but now he parses his words: She was charged, but she is not charged now. It depends on what the meaning if “is” is, see?
The deputy sheriff who performed the accident investigation was the first witness. He established that the nail polish bottle was found uncapped between the driver’s seat and the center console. The cap-and-brush was found on the passenger seat near the door. Zaffke’s full-face helmet was found in a ditch at the side of the road. The bike scraped the ground some 32 feet beyond the “stop line”.
The stop line is the broad white stripe that crosses the lanes of the road just before a signaled intersection. The investigator never said where the two vehicles were located when contact was made between them, presumable because the investigator had no hard evidence of that exact location. (That location would be determined by eye-witnesses and confirmed by calculation later.) We were told and shown that the right side and left side of the bike were hardly scratched, but that the rear wheel was severely deformed and the frame, rear of the seat, was bent forward. Mermel did not allow any opinions to be offered.
Crime Scene Photo in evidence
In spite of that, Tomczak made a lot of fuss about how the deputy is not an “accident reconstructionist” and is not certified in accident reconstruction and does not practice reconstruction of accidents. The deputy did take photographs which spoke for themselves, however.
Tomczak spent some time reviewing where the nail polish splattered. (Driver’s door and dashboard/windshield in front of the driver.) He made a point of establishing that the investigator did not determine what gear the bike was in. The deputy held his own, noting that if the clutch is disengaged, the transmission could be in any position but the bike could still be stationary.
We broke for lunch at 12:20 and began again at 1:45.
The deputy continued. When he spoke of recovering the jacket at the hospital, I looked at it in a pile on the floor. It was too large for the exhibit shelf and was lying in a heap. It is a brilliant color, but it had streaks of dirt on it. I was struck by that. I never met her but I was certain that Anita Zaffke would never go out with that dirt on her bright jacket. And she would never leave it in a heap on the floor.
deputy testified that when he received the call he was near
First, it was a beautiful day. Mostly sunny – there were a few clouds – but sharp shadows were cast. As Hunt traveled south, the sun was on the right. The shadows were 1.5 times the height of the object shadowed. The road was dry, traffic was light, visibility was perfect.
Second, this was not a limited-access highway; it was not like an Interstate. Other drivers were entering and leaving this road every mile. Mermel stopped the video seven times at intersections during the last seven miles before the death site.
graphic prepared by author
The deputy reported his findings from examination of the black box in Hunt’s car. That device recorded the moment of deployment of the driver’s air bag and various telemetry in half-second intervals prior to that moment. Hunt’s car was traveling 49 mph 2.5 seconds before deployment. It was still 49 mph 2 seconds before. It was 50 mph 1.5 seconds before and still 50 mph 1 second before.
There was some discussion about Miranda, about what Hunt said to the deputy. Then the deputy read the self-damning statement Hunt wrote.
Tomczak emphasized the “Accelerator Pedal Position” recorded by the black box. At 2.5, 2.0, 1.5, 1.0 and 0.5 seconds before airbag deployment, the gas pedal was depressed, expressed as a percentage, 17, 15, 15, 13, and 0.
He also spoke of the “impact area” which is where the bike hit the ground after being launched by Hunt’s car. Even though Mermel had not elicited anything from the deputy about the “point of impact” where the car hit the bike, Tomczak confused the two repeatedly. Finally when Tomczak spoke of the “impact point” and there was no way of knowing if he was talking about the place where the bike was launched or where it came back down, Mermel objected saying he was conflating the two. As usual, the Judge sustained and Tomczak thanked him.
Tomczak noted the deputy prepared an “Unusual Incident Report” and implied that the nail polish is what made it unusual. The deputy explained that Zaffke’s death is what made it unusual.
Tomczak asked if the deputy said to Hunt: “You had better be ready for a media circus.”
The deputy he did not remember saying anything like that.
Tomczak asked about the deputy’s assessment of the primary and secondary causes of the crash that he reported on the “Illinois Traffic Crash Report”.
The deputy said the primary was code 41 and the secondary was 50. The table on the form defines 41 as “distraction from inside the vehicle” and 50 as “operating in a reckless, careless or negligent manner”.
Mermel asked if there were a code for finger nail polish. The deputy said there was not.
After a break, Robert Wasilewski would testify. He was in the left lane just behind Hunt who was in the right lane, as was Zaffke ahead. Before the jury was returned, Mermel wished to warn Wasilewski against mind-reading. Mermel wanted to prevent Wasilewski from saying “The driver of the car had less than a second to react.” or “It was one of those personal (choices). The bike could have gone through (the light).” Tomczak objected. He was overruled. He then thanked the judge.
The jury returned and Wasilewski was cowed. Mermel asked what he saw. “I saw a vehicle hit a motorcycle.”
Eventually he said that the light had turned yellow and he started braking. He saw the car push the motorcycle through the intersection and the rider flying through the air.
On cross-examination, he said that “from the time he saw the yellow until the moment of impact was “a second or two.”
He said that the motorcycle was stopped at the time of collision.
He said that he was at the very beginning of the left turn lane when the light turned yellow and that it was 200 feet. The deputy had earlier said that it was 270 feet.
Manuel Montez, a forensic pathologist, testified that Anita Zaffke died from numerous traumatic injuries. That is the short story, but as Tomczak says, the long story is telling.
In a physical, the term “well-developed” refers to a general state of wellness. He said Anita was a “well-developed woman, 165 pounds, 64 inches, with congenital abnormalities absent.”
Externally, she suffered many abrasions and contusions. He emphasized “stretch abrasions” (stretched skin at her groin) that indicated “hyper-extension backward”.
Crime Scene Photo in evidence
Internally, she suffered a neck fracture at the base of her skull. Her head was still attached to her body, but only by skin and muscle – there was no connecting bone structure. There was a complete transection of the mid-brain at the top vertebra.
Mermel asked if this were similar to that action of a guillotine. Montez said it was more like a judicial hanging where the rope breaks the neck. He said he could manipulate the head freely from the torso. The lower spine was also transected.
(Lovely. But actually that was good news because it means she did not suffer.)
Among many other blunt-force injuries, he mentioned laceration of the aorta. (It is the biggest artery in the body, located near the heart.) Mermel asked if it were cut, as with a knife. Montez explained “acceleration/deceleration injuries”. He said that the aorta is held in place by a ligature but the g-force pulled the aorta away from the ligature, tearing it open.
Lora Hunt is a nurse. All this talk of transecting the brain and tearing the aorta open had her trembling. She had taken her glasses off and her head was bobbing. She was quietly sobbing. Good. For a year she has been claiming (through her lawyers) that she did nothing wrong and that many people do things like polishing their fingernails while they drive.
You can set up your pistol target in farm country where shooting wide by ten feet means your bullet will hit a barren hill a half-mile beyond, or you can place your target in a suburban back yard where shooting wide by six inches sends the bullet into a neighbors living room. The former is not reckless; the latter is. Perhaps Hunt could happily and uneventfully do her nails on an Interstate running through farm country. But US 12 runs through suburban back yards.
She broke bones and tore organs. Most drivers will never do to anyone what she did to Anita Zaffke. But she did it. I was glad to see that she wasn’t doodling on her note pad.
Then Heidi Bennett took the stand. She was struggling to hold back tears right from the start. She explained that she and her fiancée live in Wauconda, near US 12 two mile north of the death site. Her future mother-in-law visited for an hour to plan a get-together for Mothers’ Day, which was the next weekend. Then, Heidi explained, Anita got on her motorcycle and left.
We adjourned at 4:25 today.
We reconvene at 9:00 tomorrow.
Media updates for Day Two:
Wednesday, day three: We began at 9:20 with Tomczak making noise about the admissibility of opinions from lay witnesses. The jury was brought in at 9:30. Mermel: “I would call to the witness stand Gregory Zaffke, Senior.”
Anita’s husband said that they had been married for 35.5 years and had one son. Her riding experience and her motorcycle were described. Her photo was introduced:
Tomczak suggested that a rider might use a bike three months of the year. Mr. Zaffke said his wife rode from March to November. Tomczak wondered if she rode once or twice per week. Mr. Zaffke said she rode much more than that; every chance she had.
Tomczak: “Mr. Zaffke, you have taken some steps to make sure this wouldn’t happen to anybody else.”
Mr. Zaffke mentioned the Black Nails Brigade (Facebook). Asked about “distracted driving” he said it is a broad term. Asked about media attention, he said it was from the original crash more than any subsequent efforts.
Mermel next called Mr. Barrette, an accident reconstructionist, engineer and cop. He has four earned college degrees including a Master of Science in Engineering. He has taken 2400 hours of specialized training at Northwestern, U of Florida, Texas A & M, and the U of Michigan.
He has instructed related subjects at CLC since ’91 and teaches accident reconstruction at Northwestern.
95 percent of the work his engineering firm does is civil (not criminal) for insurance companies and trucking companies. The 5 percent of criminal work is half hired by defendants and half by prosecutors.
In this case he was hired by the State’s Attorney to do a “general reconstruction”. He was not asked to investigate any specific question. He produced a “Supplemental Crash Reconstruction Report”.
He said that the yellow is 5 seconds long, consistent with the 55 mph speed limit and noted that that speed is equivalent to 80 feet per second. He further noted that the 5 seconds of yellow therefore translates into 400 feet of advance warning.
He discussed Peoples Exhibit Number 33, Lora Hunt’s written statement. He said there was no brake activation at the time of impact when Hunt was traveling at 50 mph.
On cross-examination, Tomczak questioned Barrette on brake lights and what happens when they are broken while they are burning. He grilled him on perception and reaction times. He asked about Anita’s jacket.
Barrette said he wears the same color when his work has him standing on the highways because of its conspicuity.
He said that, based on the behavior of the vehicles post-impact, he calculated that Hunt was trailing Zaffke by 96 to 130 feet. He said, “I believe the cause to be driver inattention.”
At 10:35 we took a break. Cross-examination continued at 11:00.
Barrette said he was first contacted on June 19th, 7 weeks after the crash. He said that he knew that Hunt did not swerve because of the post-impact trajectory of the bike.
Tomczak: “So you’re saying that the motorcycle could not stop in two to three carlengths?”
Barrette: “Yes, but it’s not only me. Sir Isaac Newton would say so too.”
We established that a carlength is 15 feet and that a motorcycle traveling at 55 mph can reach a full stop in 170 feet with aggressive braking, or 96 feet with perfect braking. He did not check to see what gear the bike was in.
He explained the Law of Conservation of Momentum. Before the crash, the 3800 pound car was moving at 50 mph and the 700 pound bike was stationary. At the moment of contact, all 4500 pounds were initially moving at 42.5 mph.
The jury was dismissed for lunch at noon. Tomczak persisted with ’89 Shiavo and ’92 Ivan (I am sure I got those citations wrong) and the judge said, “I have considered this twice before and now I have reconsidered it and this remains my ruling…”
Then the rest of us left for lunch. For the third consecutive day, I had a slice of pizza, a salad and a 20 ounce lemonade for $6. Lora Hunt and her family sat at the next table. When I finished I returned to the hall outside the courtroom. Zaffke the Elder was waiting there and I waited with him.
I had seen him at his wife’s funeral, I had met him without introductions four days ago at the Memorial Ride (that followed Lora Hunt’s route from Delavan to the crash site) and we had introductions and a brief conversation yesterday. This was our first substantial conversation.
He told me that Anita discovered six motherless kittens near their home a year before she died. She adopted them and they took over their garage. I’m not going to repeat our conversation further except to say that he is a wonderful guy. I like him a lot.
At 1:40 Mermel called Gregory Zaffke II. A photo of his mom was introduced:
We all knew that Lora Hunt would eventually take the stand and appeal to the sympathy of the jury. Anita Zaffke would not have that opportunity. Young Mr. Zaffke gave evidence of both her riding experience and her humanity.
spoke of his mother’s 5,000 mile trip to Yellowstone and to
Tomczak did not cross. Mermel rested and Tomczak moved for a directed verdict. After hearing, the judge denied.
At 2:00 the driver of the pickup truck was called. I had talked to him in the hallway during lunch. He said he was not feeling well and was disgruntled about having to come to court since he is self-employed.
On the stand he said he had been following the biker (Zaffke) for several miles in the right lane. He changed to the left lane “one-half to one mile before the (crash site)”.
He said he was near the biker but still trailing in a different lane when the light changed to yellow. He elected to go through but noticed the biker doing a “hard stop”.
He said the biker was 10 or 15 feet from the stop line when the light changed but that the biker managed to stop before the line. I don’t know if it was because he was sick or just disgruntled, but that did not happen. Sir Isaac Newton told me.
He was shown a diagram of the intersection and informed that the distance from the start of the left turn lane line to the stop line was 270 feet. I saw him raise his eyebrows in incredulity. Maybe the problem was that he mixed feet and fathoms.
Still, as he was asked to identify the location where the bike came to a stop prior to being struck, he consistently indicated a point on the road before the stop line. (So she must have started braking long before she was 15 feet from the stop line.) He might not be a good judge of distance measurements, but he was confident about that point.
He said it was one half or one second from the time the light changed to yellow until the bike was fully stopped at which time the car hit the bike.
Tomczak next called Deanna Barron, a stay-at-home mom of five and attorney in active status. She was traveling at 50 or 55, even with the biker (ahead of the truck) and went through the light.
I heard it first hand, but it is shocking so I will first just repeat it – she said, “I was irritated that the biker stopped.”
This is one stay-at-home mom who should stay at home more. She ran the light even though another vehicle near her in another lane decided to stop. So, as Zaffke slowed, Barron accelerated and passed her. She was “irritated” that Zaffke made her look bad.
This is the witness that Tomczak brought forth to critique the prudent Zaffke – a self-involved, self-important scofflaw.
Asked where the biker stopped, she said, “I imagine at the stop line.”
Of course she did. So Barron thereby acknowledged that she too could have stopped before the stop line. That’s why she is irritated. Zaffke, conforming to the Rules of the Road, contrasted Barron’s impatient, indulgent driving style.
Asked where the biker was relative to the stop line when the light changed to yellow, she said, “two to three car lengths” which she said was 20 to 30 feet. And so she too is another case for Sir Isaac.
Robert Allen was the next witness, though not an eye-witness. After some difficulty, Tomczak
managed to get him qualified as an expert.
He performed accident reconstruction as an Illinois State Trooper for 14
years. Before he was a trooper he was a
trucker. Before he was a trucker, he
studied agriculture at
He has been retired for nine years. His manner was brusque. As he testified, he made me feel like an uncooperative drunk driver he was arresting.
Tomczak’s accomplice questioned Allen. Ragan Freitag is a head-turner but nothing more. She had questioned Heidi Bennett, but not on anything substantial and only because Tomczak did not want to appear brutal. That was a mistake; this was worse. Freitag questioning Allen was truly the blind leading the blind.
She asked him about the “Law of Conservation” to which he responded that he was retired. I’ll spare my readers the rest of the Freitag Fiasco.
His conclusion was that there were two causes: (1) “Distraction” and (2) “An abrupt hazard in the plane of the intersection.”
He explained that Anita Zaffke was the abrupt hazard.
Crime Scene Photo in evidence
Upon cross-examination by Mermel, we learned that he did not prepare a report, he could not recite a formula for the Law of Conservation of Momentum and that he gained his understanding by reading Barrette’s report.
Asked how much he was paid, he said, “Depends on today.”
Asked how much he had already been paid, he said, “Three thousand dollars.”
To his credit, he did say that stopping from 55 mph required 130 feet (though I can’t imagine there is an Illinois State Trooper who wouldn’t know that) and that stopping from that speed in 15 feet was impossible.
At 3:00 we took a break. At 3:20 the last witness took the stand and we heard from Lora Hunt.
We have photos of Anita. We have testimony of Heidi, Greg and Greg. But we will not get a chance to know Anita any better than that. She has been dead for a year. Even if Lora Hunt suffers the worst possible outcome from this trial, it will not compare to the penalty Anita paid.
And Anita did everything right. And Lora did everything wrong.
But now we will hear from Lora and see how upset she is. She will tell us how upset she was. She hasn’t been willing to tell the Zaffkes anything but now she will tell the jury everything. But we won’t hear from Anita because she has been dead for a year.
We learned that she has been married to Mark for 33 years, that she is the mother of five (Jeff, Angela, Diane, Sharon and Scott) and that when she awakened this morning she was the grandmother of seven.
We learned that at 11:30 this morning, she became the grandmother of eight.
She said she married “just before the end of high school” and wanted to attend to her child. That was her way of explaining that she did not graduate with her class. She later continued her education and became a Registered Nurse 15 years ago.
had been visiting her youngest daughter in
She was traveling to her oldest daughter who had no children but was pregnant. Hunt said that the oldest daughter wanted to “take me out to dinner” and that she replied “But I am hot and sweaty. You should see my hands.”
She explained to the jury, “They’ve all ready got this old, stinky, dirty woman coming over and my hands were messed-up from gardening. And I remembered that I’ve got my polish in my purse.”
Crime Scene Photo in evidence
She explained that she considered the safety of putting her hand on the horizontal bar that crosses the steering wheel so that all her nails would be available for touchup. She would hold the bottle between her left thumb and index finger and would alternately look forward through the windshield and down at her nails. And then she made an astounding series of statements:
“It sounds really dumb to find a safe way to do this, but that is what I was thinking.”
“I had done a couple and I noticed the curve coming so I put the brush in the bottle.”
“I saw it green and then I saw it turn to yellow.”
“I was looking at the light. I could hear a loud crash, and then I heard it both over and under my car. I looked up in the mirror and that’s when I saw her.”
“I eventually found the brake pedal.”
“I realized what I had hit after I hit it.”
“It turned from green to yellow and the next second it was BAM and I couldn’t figure out where that truck went.”
To this point, Hunt had been crying throughout but was speaking without hesitation. Now Mermel inquired. He determined that she had started to polish her nails 20 or 30 minutes after she left Delavan. He then asked her to confirm statements that she had made during her direct testimony, to wit:
(1) Can I do it with both hands on the wheel?
(2) Can I do it so I stay on the road?
She became very slow to answer and very careful in her response. She was no longer assisting the court in a search for the truth; now she was fencing with a lawyer, trying to out-smart him. If she had continued on cross as she had during direct to express her feeling through her tears, she would have been more persuasive. But now I saw it all as an act that had been carefully scripted.
Without her script she became defensive and evasive. Eventually she allowed that statement number two above might have been “Can I do it and stay on the road”.
Then she said, “I did notice her. I just didn’t notice when she became in front of me.”
She did much better with the script. She didn’t seem honest anymore. Then she fumbled.
She said, “I know its stupid now. I didn’t know it was stupid then.”
Mermel immediately returned to People’s Exhibit Number 33, the handwritten statement of Lora Hunt, written hours after the crash, in which she said, “I chose to do a very stupid thing.”
And then Mermel asked, “Didn’t you contemplate that it was dangerous?”
For once she answered immediately, loudly and clearly: “No.”
With that single syllable she disregarded her oath, contradicted several previous statements made under oath (both oral and written) and revealed herself to be a squirming, shirking liar.
Having accomplished his main purpose, Mermel cleaned-up three small points: The brush was dry and the area around it was dry. The implication is that it was not in the bottle when she crashed. It was in her hand. She said it was in the bottle, but now we know she is a liar.
Asked why she didn’t cover the brake pedal, she first said she didn’t understand the question. Then she answered with a question of her own: So are you saying I should brake at every intersection? More evasion.
Pearl or metallic nail polish touchup must be carefully applied to the same depth as surrounding polish to produce the same color. Opaque polish is simpler to match. She never responded to that one.
Defense rested and we quit at 4:40. Closing arguments tomorrow morning.
Lora hunt is not a monster. Still, she is guilty of willful, wanton, reckless homicide.
When I got home from court, my grandson Kevin asked me to play with him. I said I couldn’t because I wanted to write this promptly. That led to a discussion about the trial.
8 year-old Kevin loves my wife Robin who was born the same year as Anita. I said, “Imagine that (Robin) is riding a motorcycle. As she approaches a stoplight it turns yellow. She could go through, but she decides to stop. The car behind her does not stop. The driver doesn’t even see (Robin) until after she hits her. That is why the driver has to answer in court.”
Kevin didn’t like the idea that his grandmother could be hit from behind while trying to follow all the rules. I don’t either.
It is that simple. The evidence is all in and this is what I believe:
1 Zaffke was followed by a 2009 GMC Sierra Pickup truck, which was followed by Hunt, all in the right lane.
2 Long before they reached the intersection, the truck moved over to the left lane.
3 Hunt was not polishing her nails at the exact moment of collision, but she had been and was still holding the open bottle.
4 The light changed from green to yellow. Both Zaffke and Hunt saw the light change.
5 Hunt was vaguely aware that there was a motorcycle ahead of her but she did not see Zaffke after the pickup changed lanes until after the collision.
6 Even though it was a T intersection and she was in the lane farthest from the perpendicular traffic, and even though the light had just turned yellow, Zaffke decided not to go through and managed to stop before the stop line.
7 Hunt was looking up at the yellow light as she went through the intersection.
8 Hunt intended to go through the intersection. She eventually stopped only because she realized she had hit a biker.
9 The nail polish figured into the crash – it is evidence that Hunt was in a hurry, that she was not focused on her driving, that she willfully chose to divide her attention, that she embraced a wanton disregard for the other vehicles around her.
Here is the primary rule about yellow lights: You do not enter an intersection unless you believe you will go all the way through it before it turns red.
And here is the corollary to that rule: If the vehicle ahead of you decides to stop, you are bound by his decision.
And here is the corollary to the corollary: If you don’t notice that the vehicle ahead of you has decided to stop, you are guilty of the very same error as hitting a pedestrian in a crosswalk.
Anita was not rear-ended by Lora. She was run over by her.
In a perfect world, Hunt would be the subject of a judicial hanging and a Zaffke would release the trap. But I will settle for Involuntary Manslaughter.
Media updates for Day Three:
Thursday, day four: The judge entered the courtroom at 9:22. He called the lawyers forward for an informal conference – no court reporter. The subject was jury instructions.
There was some discussion about how Lora Hunt’s testimony was in conflict with her written statement, which had legal ramifications.
was discussion about “negligence”. (In
At one point, the judge noted that the lawyers had had the proposed instructions since Monday. Then he said, “I want to finish the instruction conference right now.”
There was a discussion of “comparative negligence” during which Tomczak said, “…not to besmirch Mrs. Zaffke.”
In civil matters (This trial is a criminal matter.) the difference between negligence and recklessness is the difference between “substantial” and “gross”. Mermel prevented the “negligence explanation instruction” but the judge said he would provide it if the jury asks for it. At 10:15 we recessed.
At 10:48 the judge confirmed with Lora Hunt matters related to “lesser-included instructions”. At 10:55 we recessed.
Mermel is always busy; always in motion. I watched him flip through papers, reorganize the exhibits and turn off the projector. Then I watched as he rearranged the furniture in a very particular way.
He had one chair at his table, but there were several chairs just behind his place and just in front of the gallery where I sat. Those chairs were of two types. There were “secretarial chairs” (swivel, without arms) and “waiting room chairs” (fixed, with arms). He put a second chair at his table, but not the secretarial type that would have been easiest to reach. Instead, he moved chairs around until he could get one of the waiting-room type and placed that at his table. His reason would later be clear.
The jury was led into the courtroom and Mermel began his closing. He started with the definition of Reckless Homicide.
Then he quoted from People’s 33 again – the statement written by Hunt. He repeated the two statements that Hunt made in her direct testimony that she was reluctant to confirm during the cross-examination that immediately followed.
He showed us the photograph of the motorcycle post-crash again and emphasized how both sides of the bike were unscratched while the rear-end was crushed forward. “She was carried down the road like a hood ornament.”
Crime Scene Photo in evidence
He showed us the photograph of Hunt’s windshield that looked like it had been struck by a single hard blow of a sledge hammer and then reminded us that Zaffke’s full-face helmet was found in the ditch at the side of the road. My mind turned to the stretch abrasions of her groin and her hyper-extension backward.
Contending that she was in the act of polish application at the moment of collision, he showed us photos of the dry brush and the copious nail polish on the steering column. Hunt said she was holding the bottle but had decided not to use the brush while traveling through the intersection. “The defendant did not testify truthfully.”
he walks around his table and pulls out his carefully selected chair. He walks to the evidence shelf and opens the
brightly-colored and dirt-streaked jacket.
He drapes the jacket over the chair which is right in front of the
jury. Then he speaks of Hunt barreling
Mermel then quotes a jury instruction, that “neither sympathy nor prejudice for either Hunt or Zaffke…”
He reminded us that a Hunt daughter gave birth yesterday to make Hunt eight times a grandmother, that Hunt is a nurse who cares for the most sick, and that Hunt rode small-displacement motorcycles as a child. Then he asked how any of that related to the events on US 12 that is the subject of this trial.
And then he said, “Just because she testifies on the witness stand doesn’t give her an extra slice of credibility.” Tomczak loudly objects and is quickly sustained.
Mermel debunked the “everyone does it” defense and then announced that “This is NOT (mere) distracted driving.” He reminded us of her written statement acknowledging “distraction” and said that in fact she was in a fog. He said, “She saw the yellow light and even THAT does not wake her up.”
He reminded us that she could not find the brake pedal. And then he yielded to Tomczak.
As Tomczak walked toward the jury and Mermel walked back to his table, Ragan Freitag said in a whisper, “Mr. Mermel!” and then in a loud whisper, “Mr. Mermel! The jacket, could you…”
the four-inch heels she wears in court made it too difficult for her to conceal
the embarrassing evidence herself, so she was prevailing on the
This would be Tomczak’s last chance to address the jury. It is a free-form, open-ended opportunity for him to characterize the evidence for the finders-of-fact. A whole year of preparation had been leading up to this moment. Every trial lawyer must have an athlete’s mentality. In his mind, he heard “Get ready…get set…”
Then he heard Mermel, as he returned to stage-center, loudly say, “Sorry. I’ve been asked by counsel (gesturing toward Freitag) to remove the jacket.” He returned the sullied jacket to the evidence shelf and then quickly returned himself to his chair where he sat uncharacteristically still.
His back to the jury, I could see Tomczak glower at Freitag.
Tomczak began with another run at jury nullification. “You are not here to enforce the law” he informed the jury. “You are here to judge your fellow citizen.
Of course. Now that we have removed the death-jacket, let’s forget about Hunt’s hood ornament and focus on her grandmothership.
And do you think a prosecutor has ever said to a jury, “You are not here to enforce the law.”? Ever? In the history of our republic? What Tomczak is really saying is, “Please don’t enforce the law against my client, because if you do, she is cooked.”
“My mom says her youngest is a bull in a china shop. So if I have done anything to offend anyone, please don’t hold it against my client.”
I was wrong. Its not about Hunts grandmotherlyness. Its about Mother Tomczak’s youngest child who has that endearing, self-effacing manner.
“Even in his closing, Mr. Mermel called it an ‘accident’.”
Ah. There is the hard evidence.
“Reckless Homicide is a very, very, very serious…”
triple-very was too much. Mermel objects.
“All this ‘riding on the hood’ and guillotine and noose and all that…instead you must think about Lora Hunt’s state of mind.”
Reckless Homicide is a type of Involuntary Manslaughter. Because it is “involuntary” her intention is irrelevant. The recklessness stems from her behavior, not her evil. No one has said she was evil.
“Common sense and life experience will be your most important guides.”
He is saying that if she is not evil, she is not guilty. I’m not evil. Does that give me a license to kill?
“Not a lady standing in an intersection and Zsa Zsa Gabor coming…”
Divorced eight times, Zsa Zsa slapped Beverly Hills Police Officer Paul Kramer in 1989. She spent three days in the El Segundo jail and paid court costs of $13 thousand. But like most of us, she has never killed anyone. Never.
“When a person is confronted with a situation where he cannot avoid…”
But she put herself in that situation. The driver’s primary job is to avoid crashing. I’ve heard about no-fault auto liability insurance, but Tomczak is talking about no-fault driving.
“This is not the time to put a fine lady down...”
Apparently, the jacket debacle had derailed him. Here he goes completely off the tracks. Mermel is so surprised that he objects just in case Tomczak is talking about Zaffke. Tomczak says he was talking about Hunt but declines to continue with that line and apologizes for starting it.
Tomczak comes back down to Earth. He asks why the prosecution called one eyewitness and not three. He suggests that Hunt did not have time to polish her nails after she saw the yellow. He says, “The cause of Anita Zaffke’s death cannot be proved to be unrelated to that hard stop.”
I say the cause of Anita Zaffke’s death cannot be proved to be unrelated to the election of Barack Obama.
The beginning of scrape marks found on the pavement were 36 feet beyond the stop line. Tomczak says that is where Zaffke was located at the time she was struck. Mermel says she was struck behind the stop line and was lifted off the ground those 36 feet. Tomczak complains that Mermel’s expert Barrette “did not find the 36 feet to contribute” to the collision and then draws conclusions about Barrette’s competence.
For arguing a non sequitur, I draw conclusions about Tomczak’s competence.
observes that the
“A person should not be held responsible for something over which they had no control.”
Tomczak revisits no-fault driving. This driver had three controls: Greater following distance, slower speed, higher attentiveness.
“…drove the motorcycle in a reckless way.”
Turn Lora free! Dig up Anita and arraign her instead!
“You cannot find recklessness if there was no violation of the Vehicle Code.”
Mermel’s objection is sustained but that is all. I thought Tomczak was contemptuous given previous admonishment, but the judge let it slide. Hunt’s lawyer is as reckless as she was.
“Lora Hunt got no citation for running the light.”
Which proves that lawyers and puppies who are never disciplined just get worse and worse. Mermel objects, judge reminds Tomczak….
“…the circus comment may have something to do with why we are here.”
Mermel objects, judge reminds Tomczak….
Tomczak disparaged Barrette but he likes Barrette’s conclusion because it has the word “distracted” in it, and Tomczak doesn’t think that even voluntary distraction is ever reckless. So now he claims that the Police Officer’s report, that was prepared for the State’s Attorney’s office, is “government reporting to government” – implying a cover-up.
I bet all Tomczak closings include conspiracy theories.
Tomczak implicitly acknowledges that distraction can be reckless so he can complain that “full attention, hands glued to the wheel” is the only alternative. “There is nothing between the two.”
complaint should have been sent to
Thank you. And is your client ready to plead guilty to that law that doesn’t exist?
“Rear-ends happen because of distracted driving. Recklessness has to be way out there….”
A rear-end collision is bumper damage. Maybe some body work. This was not a rear-end whoopsy. This was Involuntary Manslaughter.
I expressed concern to my wife that the eight women on the jury might have empathy for a nail-polisher. She told me they wouldn’t. But Tomczak gave that angle a try: “I hope this is not limited to make-up and affect women only. Why is it just nail polish and not dialing a phone or reaching for a sandwich? Lora is no different from a man reaching for a sandwich.”
Jeff Tomczak, feminist. The simple fact is that in our society, women fard far more than men. (And I’ll bet the bikers who paint their nails black do it before they leave home.) Why didn’t Freitag advise him against that asinine appeal?
He returns to negligence. “You have to figure out which applies here.”
Is it the law she was indicted for breaking? Or is it the law she wasn’t indicted for and doesn’t exist? You’ll have to figure it out.
“If she was negligent, she is not guilty. She was not reckless. She cannot be both.”
So says the defense attorney. The prosecutor, the judge and the Illinois Compiled Statutes say otherwise.
Still drawing on his imaginary “Negligent Homicide” law, Tomczak further imagines the related standard to be substantially poor driving. From that he goes on to infer that the standard for the law that does exist to be grossly poor driving. Then he explains what “gross” means.
“It has to be all over the road. Name the reckless action of that car.”
He is saying that since Hunt drove her car in a straight line, it doesn’t matter if she runs someone over.
Then he acknowledges the reckless action of the car: “Her only failure was to react in that one second.”
It is not clear to me how stipulating that she was reckless in that one second proves that she was not reckless.
Tomczak refers to Mermel’s cross of Hunt: “He was trying to get her to say that she wanted to hurt someone.”
Really? Why? It wouldn’t help his Reckless Homicide case.
“She does help sick people. Sorry if that hurts your case.”
This is not only sarcasm, it is illogical sarcasm. If my eight year-old grandson talked to me that way, I would tell him to grow up.
Regarding drivers eating sandwiches: “It’s stupid. But those people don’t want to hurt anybody either.”
Lora Hunt would enjoy living in Tomczak’s world where you are allowed to act stupidly and hurt other people as long as you don’t want to hurt anybody. The rest of us live in the real world.
“There is a reason why people on motorcycles wear this kind of coat. It is hard to see motorcycles. And we should start seeing motorcycles.”
Thanks for the empathy. This is comparative negligence on steroids. Tomczak is saying that bikers are negligent just for riding bikes. It’s open season on motorcycles! Hunt is excused from hitting a biker precisely because the biker was hard to see.
For his big finish he returned to the “Unusual Incident Report” but he didn’t say why. Apparently he just likes the provocative name because it dovetails with both his conspiracy theory and his media circus theme.
He ambiguously warned the jury, “The government knew the facts but it had a juicy fact.”
And then he helpfully counseled the jury, “Don’t put yourself in the middle of a 3-ring circus.”
So now that the defense has had their chance to explain, we know they really had no excuse for all this. Mark and Lora could have saved a lot of money by pleading guilty. They have delayed resolution of this matter for a year, imposing further stress needlessly on the Zaffke family. Then they compelled a vulgar, public trial in which they revealed no defense. The whole exercise was pointless and cruel.
In other words, just what one would expect from the oblivious nail-polisher.
Mermel cleared the air: “You will not be required to judge ‘distracted driving’, nor negligence.”
He explained that this was not a civil case where some apportionment is suitable. Anita Zaffke is not 65 percent dead. Lora Hunt is either guilty or not.
“Yes, ‘start seeing motorcycles’ but to see motorcycles, you must be looking out the front of your car.”
Mermel enacts painting his nails as he comments on the “level of detail” required.
I enjoyed his disciplined but friendly manner of expression: “Science beats eyewitness rock-paper-scissors every time.”
Mermel explained why the trucker was the only eye-witness called: “He had the best vantage point. And he, like Anita, stopped.”
The two defense witnesses who ran through the yellow had to rationalize their own behavior. They didn’t want to say Hunt was wrong for going through and they didn’t want to say Zaffke was right for stopping.
On direct, referring to her initial hesitation to paint her nails while driving, Hunt had said something like, “…there was a little part of my brain….”
Mermel: “There was a little voice in Lora Hunt’s head that told her this was dangerous.”
Regarding conscious disregard: “Nothing requires swerving, jumping railroad tracks, hooting and hollering.”
On being in control: “Lora Hunt was not looking out her window. Her foot was not near the brake.”
On Hunt’s opportunity to stop: “Reaction time is measured from when the light changes, not from when she looks.”
On Tomczak’s calculations: “No reaction time is calculable from what you do not see.”
“If this is not ‘reckless’, then the statute has no meaning. ‘Recklessness’ has no meaning.”
“Anita Zaffke had rights too. She had the right to expect others to observe the rules by which our society operates. And she wore that jacket anyway. Her right to live beats Lora Hunt’s color of the day.”
The judge then read the jury instructions.
12:47 jury retired
3:00 I heard Mr. Tomczak receive a call and learned the lawyers were needed “for a question”. The jury had sent a question to the judge and he wanted to confer with the lawyers before answering it.
The question that was asked: “If someone thinks something is dangerous and then decides to go ahead anyway, is that ‘consciously disregarding’?”
The answer that was returned: “You have all the instructions. Please continue to deliberate.”
4:30 I was in the hall and heard Mr. Tomczak receive another call. Ten minutes later, we were assembled in the courtroom again.
In a Christian wedding, the brides family sits left of the center aisle, the groom’s on the right. In the courtroom, I sat in the place I had occupied through the whole trial, front row center. The Zaffke group sat to my left: 5 in the front row, 5 in the middle row and 2 in the last. The Hunt group sat to my right: 5 in the front row, 4 in the middle row and 3 in the last row.
Lora Hunt and her two lawyers sat at a table on the right, ASA Mermel sat alone at a table on the left. Four deputy sheriffs stood against the wall on the right and four more against the wall on the left. The clerk, the reporter and the judge were in place at the front of the room.
The judge addressed us for the first time. He said we had demonstrated exemplary decorum throughout the trial. He said that he was not aware of any problems. He said he expected that behavior to continue when the verdict was read.
The ambiance shifted from merely hushed to dark-side-of-the-moon quiet. We knew we would stand for the jury’s return. We knew the judge would be the first to hear their footsteps and would be the first to rise. When he did, we all did.
The bailiff (Jim) led the jury back into the courtroom. Every previous time he had announced, “All rise for the jury!”
This time he said nothing. You could hear a pin drop.
At 4:44 the jury re-entered the courtroom. They must have been aware of us but they didn’t look our way. All 12 looked only for their chairs and then only at the judge. It was going to be guilty, I thought. We all sat.
The judge identified the foreman and asked if there were a verdict. Then he asked that the clerk to read it. And then…nothing.
The Hunts did not cry, protest nor complain. The Zaffkes did not cheer, congratulate nor gloat. I should think this was unusual. The respectful silence was testament to the solemnity felt by everyone in the room.
Mr. Tomczak requested the jury be polled. The clerk asked, “Juror 249, was and is this still your verdict?” One by one she asked each juror and gathered, one by one, twelve times “yes”. The jury left our presence at 4:47.
So now Lora Hunt is a felon, a convict, a criminal. She will lose her license to drive, her right to vote and some of her freedom. Of course, Anita Zaffke lost all that and more, because she has been dead for a year.
Mr. Tomczak has said on several occasions how remorseful his client is, how he has never witnessed such woe in a quarter-century of practice and how Lora wishes she could trade places with Anita.
But that is one more lie. If it were true, she would have pled guilty long ago.
Lora will soon be making self-serving apologies. According to my rules, the opportunity for the Hunts to approach the Zaffkes with any genuine expression of regret or sorrow expired at 4:47 today.
She had a year to try to make it right, but instead she claimed that her actions did not make her guilty. Maybe now she understands otherwise, but it took a whole year to move her to this point.
Anita has been dead for a year. Maybe Lora will finally speak. But I’m not willing to listen for her anymore.
The judge ordered a pre-sentencing investigation, which would take five weeks. The lawyers would return to his courtroom in mid-June to review the status of matters. Sentencing will come later.
The Zaffkes collected in the hall; the Hunts lingered in the courtroom. I headed straight for the stairs. Through the lobby windows I could see five television trucks in front of the building. I walked quickly through the lobby past seven still photographers on my way to my car.
Media updates for day four and three days beyond:
22: Lora Hunt could have been sentenced
to spend 24 hours each day for five long years in an
Oh, and that year-and-a-half in prison – she only goes there to sleep. Like a motel. She must also do 240 hours (that is six 40-hours weeks) of “community service” but she is released from prison to do that. And she is released from prison to go to work. I predict she will be doing a lot of overtime.
Plus, she is released from prison for “counseling”, poor baby. The great tragedy of her spilled nail polish was made so much worse by this whole homicide-trial-thing, and is now prolonged by this motel-thing. We all hope the counseling will have her feeling good about herself real soon. Right.
I didn’t attend the sentencing. The Tribune article below says she was sobbing as her husband asked the judge for mercy. My God! What is the matter with these people? The time to ask for mercy is before the trial, after pleading guilty. How mindlessly selfish!
Lora, Sweetheart, get over yourself. This trial was not about you. It was about the unjust killing of Anita Zaffke. When you are ready to accept your responsibility you will stop crying about it.
Woman in nail-polish crash to spend nights in jail
Driver sentenced to year and a half,
but can work during day
July 22, 2010
By Ruth Fuller, Special to the Tribune
Lora Hunt will spend her nights in jail for the next year and half for killing a woman she struck with her car while doing her nails.
The loved ones who asked the court for mercy on
Thursday said the Morris,
"Every day she relives that day. She cries sometimes two, three or four times a day," said her husband of 33 years, Mark, who described for the judge how his once-joyful wife has been depressed and at times suicidal since the May 2, 2009, crash near Lake Zurich that killed Anita Zaffke, 56.
Whatever the toll on Hunt, however, Zaffke's family testified that it pales in comparison to what she took from them.
"I live every day thinking about how Anita had her life taken away from us due to someone's vanity and recklessness," Zaffke's husband Greg told the judge during a 3 1/2-hour sentencing hearing, during which Hunt could be heard sobbing. "I miss Anita with everything in my soul."
In his victim-impact statement, Zaffke's son, Greg Zaffke II, described how a special place of honor was reserved for his mother at his July 16 wedding.
"My mom was not there to help us plan and organize it. She wasn't there to share in the joy and excitement. That day, no tears of happiness would fall on my shoulder as she hugged me and my wife, Heidi," he said. "Lora Hunt took that time away from my mom and our family."
According to the sentence imposed by Judge Fred Foreman, Hunt, 49, will spend her nights in jail but will be allowed to leave during the day for work, counseling and community service. Foreman's sentence includes 240 hours of community service and 30 months of probation.
"If we can get the message out about this tragedy, maybe something positive can come out of this terrible tragedy," Foreman said.
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update September 29, 2011
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