By Tracey Kaplan
Posted: 02/09/2012 06:03:48 AM PST
Updated: 02/09/2012 10:19:35 AM PST
No one spotted Saratoga businessman Robert Schiro at the wheel of the BMW that collided with two cyclists in 2009, leaving one of them with persistent double vision and other disabilities from a severe head injury.
Exactly how and when Schiro’s passenger-side mirror broke off also remains in dispute.
And even two top-notch FBI experts couldn’t find any direct evidence proving that his car and the bicycles collided.
But in the first two days of Schiro’s trial this week, prosecutor Katrina Ohde presented a raft of circumstantial evidence that taken in its entirety may lead the jury to convict him in a case that has galvanized the Bay Area cycling community.
Schiro is accused of speeding away while Ashley Jackson Nelson, then 25, lay seriously injured in Saratoga on Highway 9. The car also bruised her husband, David Nelson.
“My left eye is unable to look upward; it doesn’t open all the way,” she told the jury in a shaky voice Tuesday, adding that she still cannot remember anything about the incident. “I have extreme double vision, so I try not to look in some directions. My memory and multitasking skills, the way I process information, I have a lot of frustration I didn’t have before.”
Schiro, now 72, has pleaded not guilty to three counts of hit-and-run driving. Outside the presence of the jury Wednesday, he entered a plea of no contest to driving with a suspended license, which had been taken away because of a drunken driving conviction. But Schiro concedes only that he was driving at some point on or about April 19, 2009, when the crash occurred, not that he plowed into the couple and fled. If he is convicted, he faces a maximum sentence of four years in county jail.
Some of the prosecution’s strongest evidence came when mechanic James Russell testified that about two weeks after the crash, Schiro told him his girlfriend had been in a car accident in his silver BMW. They hadn’t reported the accident to police, Russell said he was told, so Schiro wanted him to order a replacement mirror from out of the area. The mechanic reported the conversation to police about two weeks later, after he heard about the Nelsons’ injuries.
Investigators from the Santa Clara County Sheriff’s Office then obtained a search warrant and found the BMW in Schiro’s garage — with the passenger-side mirror missing.
Three other prosecution witnesses testified that they either overheard Schiro saying he’d been in a car crash or that he admitted it directly to them.
Jeanette Paulsen, a former live-in caretaker for Schiro, told the jury that he admitted to her on the evening of the accident that he’d run into a cyclist. She said she didn’t report his admission to police until after news accounts of the case were published because she thought it was Schiro’s responsibility to do so.
But defense attorney Dan Jensen raised questions about how likely it was Schiro would confide in her, considering that he’d fired her a month earlier for unspecified reasons. Paulsen said they remained friendly and the conversation took place when she happened to run into him at a local bar.
David Walker, Schiro’s office manager, testified he overheard Schiro talking on the phone to someone about the incident about two or three months after it occurred. Walker recalled Schiro saying to whoever was on the phone with him that two cyclists were riding side by side when the woman began wobbling and ran into his car. Walker said Schiro said he pulled over, looked back, and both cyclists appeared to be fine.
During cross-examination, Jensen suggested Walker had been pressured into testifying by sheriff’s deputies, who threatened he would be charged with being an accessory after the fact if he refused.
Jensen tried to poke holes in the prosecution’s case by calling three expert witnesses Wednesday — two from the FBI and a criminalist from a private Bay Area lab. The two women from the FBI, who specialize in analyzing trace evidence — including fiber, paint and plastics — flew in from Washington, D.C., at taxpayer expense and testified there was no physical evidence that Schiro’s car and Ashley Jackson Nelson’s bicycle ever collided.
But on cross-examination by Ohde, they agreed that the crash could have occurred without leaving any lasting physical evidence, partly because the car was not impounded until about a month after the incident.
The most bizarre moment of the trial involved testimony about the BMW mirror, which Schiro apparently delivered, with the glass removed, in a brown paper bag to Jensen in July — more than two years after the crash.
Testifying for the defense, criminalist Peter Barnett said he was certain the mirror came from the impounded BMW because they fit together like a “jigsaw puzzle.” He took great notice of a slash of white paint on the side of the mirror, suggesting that the mirror was torn off as it scraped against the side of Schiro’s garage, not when it hit the Nelsons.
But Ohde wasn’t buying it. “Plenty of times, people nick their side mirrors without breaking them off,” she said. “Did you ever consider that the paint transfer didn’t cause the mirror to break off, but just made it weak, more fragile, more likely to fall off?”
Barnett agreed it could have happened that way.