PULASKI COUNTY, Mo. (Sept. 16, 2010) — While the criminal trial of the man accused of killing Waynesville High School head baseball coach Don Nelson in a June 4, 2009 drunk driving crash has already been moved to Maries County due to pretrial publicity, a different judge decided Thursday afternoon that the civil trial for wrongful death filed by Nelson’s family against George Harry Widener, 65, of Jerome, can proceed in Pulaski County.
Most motions have been heard by judges outside Pulaski County and both trials will be conducted by outside judges since both the Nelson and Widener families are well-known in the Waynesville area. In addition to being a sports coach, Nelson was also a radio sports announcer for KJPW/KFBD radio; Widener’s wife is a local real estate agent.
The criminal trial is currently scheduled for Dec. 17 in Maries County, where Pulaski County Prosecutor Deborah Hooper and defense attorneys from the Birdsong law office from Rolla both agreed in April of this year to move the case. Hooper’s term of office expires at the end of the year and she’ll be working with an assistant prosecutor from the Missouri Attorney General’s office.
The date for the civil trial hasn’t yet been set. It’s common practice for civil lawsuits to be heard after the conclusion of a related criminal trial, and since the standards of proof are lower for a civil case, decisions are sometimes different in a civil case than a criminal case.
Meeting Thursday in chambers with Associate Circuit Judge Ron White from Phelps County, Widener’s attorney, Steven Kaufman from the Brinker and Doyan law firm in the St. Louis suburb of Clayton, presented four exhibits, all of which were articles from the Pulaski County Daily News written from June 9 to 17 of last year. Tyce Smith, the Nelson family’s attorney from the Smith and Turley law firm in St. Robert, objected to their consideration and they were excluded; White then heard arguments by the attorneys and denied the motion for change of venue for the civil trial out of Pulaski County.
Separate civil and criminal trials are rare but not unprecedented, particularly when the person accused of a crime has significant financial assets. It’s not clear what resources Widener, a retired railroad employee, may have available to pay if Nelson’s family members win their civil lawsuit. According to court documents filed in a bond reduction hearing last year, Widener “is on a fixed income, he is not a man of substantial means” and sought reduction of the original $250,000 cash-only bond because “there is no way he can come up with that amount of money.”
The December criminal trial is scheduled before Judge Robert C. Schollmeyer, who was assigned to the case on March 29 of this year by the Missouri Supreme Court after Widener’s attorney objected to Presiding Judge Mary Sheffield hearing the case, followed by Circuit Judge Tracie Storie’s decision on Sept. 8 of last year that he should not hear the case.
While Hooper didn’t object to the request by Widener’s lawyers to move the criminal trial out of Pulaski County, the attorneys for Nelson’s adult children who are bringing the wrongful death civil lawsuit, Kenneth Todd Nelson and Stacey Marie Cruz, have consistently argued the civil case should be heard in Pulaski County.
According to court documents filed by Widener’s attorney on Dec. 24 of last year, Widener “believes there is good cause for the change of venue since (Pulaski County residents) are prejudiced against (Widener) and as a result he cannot have a fair and impartial trial” in Pulaski County. Grounds cited for the requested change of venue include that Nelson “was the Waynesville High School baseball coach and occupied a very visible position within Pulaski County,” that “the citizens of Pulaski County have already engaged in lobbying effort to influence rulings in (Widener’s) criminal action associated with this matter” and that “this lawsuit and the associated criminal action have generated excessive news coverage which has tainted the potential pool of jurors in Pulaski County.”
The “lobbying effort” refers to an aggressive campaign last summer by people who deluged the clerk of Maries County Associate Circuit Judge John Clayton with phone calls asking that Clayton not reduce Widener’s bond. Clayton noted last year in June that he has only one person to answer phone calls in his office, said the calls tied up his phone lines, said that calls to a judge to influence his decision are inappropriate and unethical, and warned that he’d call in the state attorney general’s office to conduct a harassment investigation if the problem continued.
According to St. Robert police, the wreck that killed Nelson happened when Widener was driving the wrong way in a Chevrolet Avalanche SUV on Old Route 66 and ran head-on into Nelson, who was riding a motorcycle. Nelson was pronounced dead at the scene and Widener now faces a Class B felony charge of negligent homicide charge, which carries a penalty of five to 15 years in state prison. While Widener was driving legally with a restored license, the police report says he had three previous drunk driving convictions in 1983, 1993 and 1999, and had a blood alcohol content of 0.214 when he struck Nelson, nearly three times Missouri’s legal limit of 0.08 percent.
The lawsuit filed by Nelson’s family doesn’t ask for a specific dollar amount but does seek “recovery of money from (Widener) for such damages as are fair and reasonable and for (the children’s) costs incurred in this civil action.” In addition, the civil lawsuit seeks recovery of the cost for funeral expenses and “the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training and support” they would have received if their father had not been killed in the crash.
In addition to claiming that Nelson “suffered great physical pain and mental anguish” in the crash and noting that he could have sued himself if he had not been killed in the crash, the lawsuit also argued that Widener’s actions warrant punitive damages because he “showed complete indifference to or conscious disregard for the safety of others.”
In response to the civil lawsuit, Widener’s attorney said in court documents filed Dec. 24 that he admitted being involved in the June 4, 2009 automobile accident but “denies each and every other averment and allegation” made by Nelson’s family, and said that the “injuries and damages (to Nelson and his family) if any, were solely caused by (Nelson’s) own negligence and fault.” The court documents also say that if Nelson’s family “are entitled to damages, which (Widener) denies, said damage should be reduced in proportion to (Nelson’s) own negligence and comparative fault.”
Widener’s attorney also argues that the punitive damages sought by Nelson’s family are unconstitutional for a variety of reasons, including that they impose an excessive fine or punishment in a civil proceeding and because “the imposition of punitive damages discriminates against the defendant on the basis of wealth in that greater amounts of punitive damages for the identical conduct may be awarded against some defendants who have more economic wealth than other defendants.”
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