Lawyer Trevena says he can't talk about charge dropped in fatal crash

By By Chris Tisch

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LARGO — When reached at his law office by a St. Petersburg Times reporter this week, John Trevena uttered two words he has rarely — if ever — said:

"No comment."

The newspaper was calling about Dale Downes, who was charged with vehicular homicide in a 2004 crash.

For at least three years, Trevena has been telling the Times that Clearwater police botched the case against Downes, 28, and that prosecutors should dismiss the case. It dragged on for four years.

On Wednesday morning, prosecutor Holly Grissinger dropped the charge. So a reporter called Trevena.

The most media-friendly lawyer in Pinellas County was mum.

When pressed, Trevena finally said: "The conditions of the dismissal require that I remain silent. I can't further explain without violating the conditions of the dismissal. My client is under the same condition and will not be speaking about this case to anyone."

When the reporter called Grissinger, she said: "I have no comment, and I'm hoping there is not going to be a story about this."

• • •

The crash occurred on a gusty February day.

Marion Kaiser, 59, had taken three co-workers from the Better Business Bureau to lunch. Kaiser's front-seat passenger, Anna Poteet, then 69, scanned the road at the exit of the Cypress Point Shopping Center in Clearwater. She didn't see any cars as Kaiser steered her Toyota Corolla onto Enterprise Road.

"The first thing we knew, here comes this big, black car," Poteet recalled.

A BMW hit them on the driver's side.

Moments after the impact, B.J. Baker, who was in Kaiser's back seat, saw that her friend was still.

"Something's wrong with Marion," Baker, then 65, said. "We need to pray for her."

That's the last thing she remembers.

• • •

The BMW veered left, vaulted a sidewalk, threaded two trees and buried its front in a ditch.

Dale Downes got out of the BMW and lay on the ground. Someone heard him say: "Why did they pull out?"

Kaiser died instantly. Her three passengers were taken to local hospitals, as was Downes.

Baker broke her ribs, clavicle and pelvic bone. She was in the hospital for several weeks.

This was not Downes' first crash. In 1999, he was driving on U.S. 19 when he rear-ended a pickup. The 27-year-old driver was killed. Downes ran away, but deputies found him in the woods. He was charged with fleeing a fatal crash, pleaded guilty and was sentenced to 20 months in prison.

In the crash that killed Kaiser, Clearwater police used a computer to measure the distance between the cars, which helped them determine Downes' speed.

They calculated that he was going 52 mph in a 40-mph zone. They also received a report that he had run a red light at an intersection up the road, a charge Downes disputed.

Downes was charged with vehicular homicide. He posted $20,000 bail and was released from jail. He faced up to 15 years in prison.

• • •

Downes hired Trevena, who is famous for representing people wronged by police and for having the media on speed dial.

Trevena hired his own expert, Wiley Howell, a retired Tampa cop who has investigated crashes for 30 years. He's written five books on the subject, has taught at the Tampa police academy and has testified for both the state and the defense.

Howell saw an error in the Clearwater police investigation. He says officers set up their computer so that the distance between the cars was inflated, making it appear that Downes' speed was greater than it was.

Howell calculated that Downes actually was going between 35 and 40 mph. Another expert hired by Trevena estimated Downes' speed at 38 mph.

Howell says he told prosecutors about the mistake in a deposition, but nobody took action.

"You're supposed to be looking for the truth," he said. "They didn't want to hear the truth when it was right there all along."

Prosecutors hired their own expert, who calculated Downes' speed at 60 mph. But Howell found faults with those findings.

Trevena asked prosecutors to drop the case, saying the crash was a simple accident. But it dragged on. More than 30 hearings were held, and eight trial dates were set.

On Wednesday, Grissinger, the prosecutor, finally admitted the case was doomed and dropped it.

• • •

A Clearwater police spokeswoman declined to comment.

Grissinger initially declined to talk about the case, saying she was concerned about how a story would affect Kaiser's family. She called back to explain why the charge was dropped.

She blamed a computer glitch for the speed error and came to realize that the defense's speed calculation was "probably reality." Grissinger said she didn't tell Trevena not to talk to the media as a "condition of the dismissal."

"I would never ask any defense attorney not to talk to the media," she said. "That would be so bad."

Prosecutors shouldn't tell defense lawyers not to talk to the press, said Charles Rose, a professor at Stetson University College of Law.

"It is not the type of practice you would expect or want public officials to engage in because it creates an inference that there is something to hide," Rose said.

• • •

Kaiser's family could not be reached for comment. She had two children and two grandsons.

Co-workers Poteet and Baker said they were disappointed the case was dropped.

"He hit us," said Baker. "So I would think dismissing this is an injustice for Marion."

Though Downes couldn't speak about his case, his wife, Rose, said she could. They have two children, ages 6 and 3.

Mrs. Downes said legal fees and the hiring of experts cost them at least $75,000. She said prosecutors should have dropped the charge long ago.

"Why it took them four yours to admit they made a mistake is unbeknownst to me," she said. "Just imagine something hanging over you for four years where you don't know if your children are going to know their father.

"We do express our sympathies to the family," she added. "It was an accident."

Chris Tisch can be reached at 727-892-2359 or tisch@sptimes.com.