Can wrong-way crash cop win at trial? Expert attorneys weigh in

STATEN ISLAND -- Can the former Linden police officer on trial for an alleged drunken fatal wrong-way crash win in court?

NJ Advance Media asked several lawyers with expertise in DUI cases to weigh in on whether Pedro Abad, 29, can beat the charges of aggravated vehicular manslaughter in his trial, which began this past Monday.

Abad faces a 27-count indictment after the March 20, 2015 crash, where he allegedly crashed head-on into a tractor-trailer while driving home drunk from a Staten Island strip club. Abad, according to testimony, had been drinking with three other men from Linden.

Two passengers in the car -- fellow Linden officer Frank Viggiano and Linden resident Joseph Rodriguez, both 28 -- were killed in the crash. A third Linden officer, Patrik Kudlac, then 23, was also in the car. Kudlac and Abad were both critically injured.

A BATTLE OVER EVIDENCE

Abad's blood alcohol level after the crash was reportedly .24 percent, or three times the legal limit, but Abad's lawyer, Mario Gallucci, has suggested the blood testing may have been done improperly. He has also said the prosecution must prove Abad was driving at the time of the crash.

"The defendant needs to attack the handling of the evidence, and, specifically, the validity of the blood-alcohol content reading," says criminal defense attorney Ernesto Cerimele of Krovatin Klingeman in Newark. "If the State can prove that he was driving and intoxicated, he will be convicted."

But invalidating the BAC may be difficult, says Joshua McMahon, a criminal trial lawyer of Schiller-McMahon in Westfield and a former assistant prosecutor in Union County.

"Arguments related to the methodology of testing Abad's blood are made before trial and determined by a judge," McMahon says. "Once the judge rules the evidence is admissible, these arguments lose much of their impact. If the blood was collected or tested improperly, the judge would not allow it to be put before the jury. The fact that it is out implicitly indicates the collection and testing were not improper."

Even if doubt is cast on the accuracy of Abad's BAC results, significant circumstantial evidence can convict him, says attorney Robert Bianchi, who served as the Morris County prosecutor from 2007 to 2013.

"Even if you throw out the blood, the jury can still infer he was impaired from the fact that he was driving the wrong-way on a highway and had just left a bar," Bianchi says.

Proving Abad was not driving at the time of the crash is another defense, though difficult given the evidence, he adds.

"But if you can cast some reasonable doubt to who the operator of the vehicle is, then the alcohol means nothing, as he has to be the driver to be convicted," Bianchi says. "And if you can get just one juror to believe he's not the driver, that's huge. That's a hung jury. That's a mistrial."

Several first-responders testified Abad was behind the wheel after the crash, and a fellow Linden officer testified that he received a Snapchat video 30 minutes before the crash that showed Abad driving.

The prosecution also has claimed that only Abad's blood was found on the driver's side airbag.

TAKE THE PLEA OR HEAD TO TRIAL?

Abad was offered a plea deal of seven to 21 years, but elected to go to trial, where he faces a maximum of 25 years in prison.

Should he have taken the deal?

"Only the defendant knows the answer," Cerimele says. "The plea offer, if accepted, would have resulted in substantial prison time, but a conviction after trial will be worse. Generally, you weigh the evidence against the likely prison time. Sometimes, there is no right answer."

And McMahon says no matter how strong a case the defense thinks can be made, a jury can be unpredictable.

"Dwight D. Eisenhower said, 'In preparing for battle I have always found that plans are useless, but planning is indispensable.' So, too, with trial work," McMahon says. "One can have a theory of the case, but that theory will often have to adapt because trials are human endeavors and, as we know, humans can be surprising."

Still, he says, the evidence in Abad's case may be insurmountable.

"Unlike war, trials have less surprises because the evidence is known to both sides before the case begins and a neutral judge is, essentially, refereeing the contest," he says. "Because the jury can convict for aggravated vehicular manslaughter with either a BAC over .18 or with the death of more than one person -- both of which have occurred -- the State has multiple routes to victory. The choice to go to trial, which rests solely with the client, may prove to have been a very unwise decision on Mr. Abad's part."

Bianchi says the possibility of a plea where Abad could have gotten seven years must be weighed against the probability of winning.

"I might say to my client, 'You're a young man, and in a few years you may be out, but if you go to trial and get convicted, you can face up to 25,'" Bianchi says. "'Do you want to risk that? Based upon all of this evidence, this seems like a pretty strong case for the State. If you took a plea and got the lower end of that range, you can see daylight not too long from now.'"

Where Abad's sentence would have landed in between the seven to 21 year range is difficult to determine in New York, says another defense attorney, Jonathan Bruno of Bruno & Ferraro in Rutherford.

"We don't have as much of an open ended range (in New Jersey), as opposed to New York," Bruno says. "You'd have a much better idea of how much time you would actually get. That could make a big difference in deciding whether to take a plea."

Still, Bruno says, Abad does have a chance to win.

"If there is a legitimate issue to how the blood samples were collected and you're able to make some good inroads as far as that defense is concerned, yeah, he has a shot at winning," Bruno says.

SYMPATHETIC WITNESSES & A CONSERVATIVE JURY

Jurors in the Abad trial already have heard testimony from first-responders to the crash, NYPD officers who investigated after the crash, drivers who said they had to swerve around Abad on the highway and employees from the strip club the men visited before the crash.

This week, the jury is expected to hear from the driver of the tractor-trailer in the crash and from Patrik Kudlac, the former officer who was critically injured but survived.

"Challenging a witness' credibility is an essential part of any trial," says Cerimele. "Here, the witnesses are sympathetic and are either victims or first-responders. It will be difficult to challenge their credibility. The defendant will be better off establishing that the evidence was mishandled in some way."

Another factor in the likelihood of conviction is the makeup of the jury, says Tom Mirigliano, also of Schiller-McMahon, who grew up in Staten Island and practices in both New Jersey and New York.

Mirigliano says lawyers trying cases in New York know that Staten Island juries have a higher conviction rate than juries in other boroughs.

"Juries in Staten Island tend to be much more conservative than the rest of New York City and that means they are more likely to convict in a criminal case," Mirigliano says. "The wrinkle in this case is that Staten Islanders are very supportive of law enforcement, and the defendant in this case is a law enforcement officer. However, at the same time, the victim, who I anticipate will testify against Mr. Abad, is also law enforcement."

Bruno agrees.

"People I know that do work in New York are always complaining that Staten Island is a tougher place to practice from a defense attorney standpoint," he says. "I could see a Staten Island jury being sympathetic on both sides - there are victims here, but I don't believe anybody thinks Abad set out to do this. It is tragic incident."

A SHOW FOR THE PRESS

Abad has been reciting Bible verses to awaiting press as he enters the courthouse each morning of the trial. He also told NJ Advance Media that he was pronounced dead after the crash and that God spoke to him.

Abad says he is reciting the verses to help people and spread God's word, and that he is "very religious" and attends church and Bible study groups.

Is it wise to let a client make such statements?

"A jury is directed not to read the paper or research the case so it will likely not have an impact on the trial," says Cerimele. "If the client is set on reading a biblical verse on his way into the courthouse, there isn't much an attorney can do about it."

Bianchi says he understands why a defendant would turn to religion.

"I happen to be a very faith-based person, and tragedy has an extraordinary capability to bring you to a place of spirituality or faith," says Bianchi. "I can see how someone believes the things of the world are gone and all that's left are things of the spirit world."

"But, as a lawyer," he says, "I'm telling the guy to shut up."

Jessica Remo may be reached at jremo@njadvancemedia.com. Follow her on Twitter @JessicaRemoNJ. Find NJ.com on Facebook.

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