By Tracey Kaplan
Justice is rarely as speedy as on TV. But the range of reasons a Saratoga businessman’s hit-and-run case languished were unusual even in the real world: First the defendant claimed he was senile and unfit to stand trial. Then he changed course and got a new lawyer. At one point, he spent weeks drying out at the Betty Ford Center. He even produced key evidence two years after the incident, then insisted his attorney be given extra time to examine it.
Time finally ran out for Robert Schiro on Tuesday in a hit-and-run case that galvanized the Bay Area’s cycling community. Nearly three years after the 2009 incident, it took a Santa Clara County jury fewer than two days to pronounce Schiro guilty of plowing his BMW into competitive cyclist Ashley Jackson Nelson on Highway 9 and Fruitvale Avenue in Saratoga, then driving off as she lay bleeding from a severe head injury.
As the clerk slowly read the verdict, Nelson and her husband, David Nelson, burst into tears and fell into each other’s arms.
“The weight is off my shoulders,” said Ashley Jackson Nelson, who testified that the accident left her with double vision, a weak left side, memory lapses and cognition problems. “I get to breathe again.”
A split decision
The jury convicted Schiro of one felony count of hit-and-run driving causing serious and permanent injury, rather than a lesser charge of felony hit-and-run driving. He now faces a maximum of four years in county jail for the April 19, 2009, accident.
But the panel also found Schiro not guilty of one misdemeanor count of hit-and-run driving stemming from charges Schiro’s BMW brushed into David Nelson, bruising his arm, after hitting his then-fiancee, Ashley.
The jury of seven women and five men wouldn’t comment on their reasoning behind the split decision, although the evidence presented at trial was less conclusive that David Nelson had been actually hit or injured by the car.
Schiro’s lawyer, Dan Jensen, had argued during the trial that if the jury felt compelled to convict Schiro of anything, it should be the misdemeanor, not the felony, because Ashley Jackson Nelson cannot remember what happened to her and David Nelson didn’t witness the BMW striking or swerving toward her.
“I’m disappointed,” Jensen said, “and a little confused.”
But the panel’s decision on the misdemeanor count will have no effect on Schiro’s sentence. If Schiro had been convicted of the misdemeanor, the maximum sentence would have been one year in county jail, which would have run concurrently with whatever felony sentence Judge Sharon Chatman imposes.
Chatman is set to decide April 20 whether to sentence Schiro, 72, to two, three or four years in county jail.
At the start of trial, Schiro rejected a plea deal that would have resulted in a two-year sentence.
The split verdict baffled David Nelson, but he thanked the jury.
“Justice was done,” he said. “It’s been a hard fight, though. Ashley has to live with this for the rest of her life.”
Tuesday’s verdict came after a short but fierce battle between two skilled lawyers, prosecutor Katrina Ohde and defense attorney Jensen. But it followed a series of delays.
At one point, Schiro withdrew his no contest plea after a judge changed his mind and rescinded an offer of one year in jail, in response to public outrage and a probation report that recommended a two-year sentence.
Last year, Schiro produced key evidence in a brown paper bag — a broken passenger-side mirror — which he said came off his BMW as a result of backing out of his garage, not the accident. Schiro never explained why he took so long to produce the mirror. David Nelson testified during the trial he saw the mirror dangling from the BMW as Schiro sped away.
During the trial, Schiro’s lawyer argued that the Nelsons conspired to blame Schiro for the fall Ashley Jackson Nelson took in hopes of milking him for money from a lawsuit. Schiro said outside the courtroom that he was once the nation’s biggest Corvette dealer and also earned his fortune through real estate. He said the couple are suing him in civil court for $5 million, the same amount as his car insurance policy.
Schiro’s accusations, voiced in court by Jensen, infuriated the Nelsons.
“Shame on Jensen for attacking me and my wife,” David Nelson said.
The case should serve as a warning to motorists, prosecutor Ohde said. If Schiro had only stopped, chances are he would never have been charged with a felony, even though he was on probation at the time for drunken driving and his license had been suspended.
Unless there was evidence he’d been driving recklessly, the accident might have counted as a probation violation in Schiro’s drunken driving case and he may have faced a misdemeanor charge of driving with a suspended license; instead, it dragged on through the courts.
Schiro also turned what could have been a tragic accident into a full-blown criminal case, Ohde said, by trying to cover it up through various strategies including asking his mechanic to order a replacement mirror from out of town.
“This didn’t have to be a criminal case if Mr. Schiro had only been accountable,” Ohde said.