Prosecutors suggest charges for other driver in the Bryant Wilkerson case

Guess who's still facing 21 years in prison?

Yep, it's Bryant Wilkerson, the black driver who had the misfortune of colliding with a drunk driver last Cinco de Mayo — and was charged with nine felonies for it.

The case drew a firestorm after I wrote about it in January ("The Wrong Driver," January 24). Wilkerson, after all, is facing charges of manslaughter and aggravated assault. Meanwhile, the other driver in the collision, who was legally intoxicated, has yet to be charged with anything.

But that could change soon.

A bit of background: After a day of tubing down the Salt River, Wilkerson, then 28, was attempting a U-turn to pick up a friend on the other side of the Bush Highway. U-turns are legal there, but the 17-year-old girl driving behind Wilkerson didn't notice him going into the turn until it was too late.

Some witnesses suggest that the girl, Laura Varker, was trying to pass Wilkerson and sped into the center lane, across double yellow lines, to do it. Others say Varker was simply following too closely to stop when Wilkerson slowed for the turn.

What we know for sure is this: As Wilkerson's Hyundai was completing the turn, its bumper grazed Varker's SUV, and that set in motion a chain of events that ended with the SUV flipping and rolling. Varker's passenger, 15-year-old Felicia Edwards, was thrown from the vehicle and pronounced dead at the scene.

The controversy came in the aftermath. That's because Wilkerson, who is black, was charged with nine felonies.

Varker, who is white, was charged with nothing at all.

Despite questions from the president of the local chapter of the NAACP, the Reverend Oscar Tillman, and public outcry following our story, Maricopa County Attorney Andrew Thomas refused to drop the charges against Wilkerson. Two weeks after our story, though, Thomas sent the case to Yavapai County to see whether Varker should also be charged. (Since prosecutors here spent nine months working with Varker as a "victim" in the case, they had a serious conflict of interest, which they acknowledged by handing off Varker's part of the case.)

Yavapai County is now recommending that Varker be charged with as many as five misdemeanors.

In an undated letter, Yavapai Deputy County Attorney Glenn Hammond said his office was declining felony prosecution against Varker because it saw "no reasonable likelihood of conviction." However, Yavapai County prosecutors believe that a number of misdemeanors are appropriate, including charges for purchasing or receiving liquor, underage driving while under the influence, and false reporting to law enforcement — Varker told sheriff's deputies she'd had nothing to drink that day.

Those recommendations are now with Phoenix city prosecutors. Even though they just got the case, they'll have to decide quickly whether to file charges; the statute of limitations for misdemeanors is just one year, so it expires May 5. (Varker's lawyer declined comment.)

The Yavapai prosecutors' letter cites a "lack of evidence to show bad driving by Ms. Varker." That's good news for her defense team, but it also makes a point that's sure to help Wilkerson as his case continues.

"The vast discrepancies among the known witnesses to the collision alone create reasonable doubt as to her fault," Hammond wrote.

Exactly. And they also create reasonable doubt as to whether the accident was Wilkerson's fault.

I'm betting that if it had been Yavapai prosecutors looking at the case against Wilkerson, he wouldn't have ended up facing a roster of felony charges. And, knowing what we now know, I have a hard time imagining any jury in this world that would convict this guy of manslaughter or aggravated assault with a vehicle or, indeed, most of the other counts he's charged with.

That's not only because of the "vast discrepancies among the known witnesses," although that certainly helps.

It's also because the judge will surely have to allow into evidence the fact that the other driver, Varker, was intoxicated. Even if prosecutors don't manage to file misdemeanor charges this week, the fact that the Yavapai County Attorney recommended the charges should be admissible.

That said, if I were a juror in Wilkerson's trial, I'd instantly be on high alert. Kind of hard to convict a guy for manslaughter when the other driver was drunker than he was!

And, how many 17-year-olds do you know are good drivers — especially after they've been drinking all day on the Salt River?

Prosecutors have pointed out that Wilkerson had a few drinks that day, too. But his blood test put him at a 0.01, well below the legal limit of 0.08 and well below the alcohol content in Varker's blood. Prosecutors also play up the fact that Wilkerson admitted to sheriff's deputies that he'd smoked pot earlier in the day — but the amount of THC in his blood was just two nanograms. Cops compare that to pouring a packet of Equal into a swimming pool. Introducing the demon marijuana into a legal brief may sound good, but it simply wasn't a factor in Wilkerson's driving.

Now, Wilkerson did do one thing really, really wrong. As he admits, he panicked and fled the scene. Sheriff's deputies managed to catch up with him just 10 minutes later, but his flight was still undeniably a mistake — and a violation of the law. The county attorney was right to charge him with a felony for that.

It's the rest of the case that's nonsense. And, after watching a court hearing two weeks ago, I think Maricopa County Superior Court Judge Teresa Sanders gets that.

Wilkerson spent three months in the Maricopa County Jail after the accident, desperately trying to raise money for bail. And even after his release, he's been saddled with onerous release terms: both an ankle bracelet and house arrest, which kept him in his apartment for all but a few hours every day, outside of work. Wilkerson has two adopted daughters in middle school; just to attend their band concerts, he says, he was forced to get the court's permission.

House arrest became even more of an issue when Wilkerson was promoted at work. After he was arrested, Wilkerson was fired from his job at the U.S. Postal Service. (They said he'd failed to get his absence excused — which is kind of hard to do when you're stuck in jail.) But he was hired at a Fountain Hills gas station, and they liked his work enough to make him assistant manager. That meant every time Wilkerson had to come in to cover for another employee, or handle a crisis, he had to get the court's permission.

In the latest court hearing April 18, Wilkerson's attorney, Michelle Carson, argued that it was high time to lift the house arrest and take the ankle bracelet off, too. She argued that there's a very good chance that Wilkerson will never be convicted of the most serious charges.

"To continue to hold him on extremely restrictive release conditions, in light of so much evidence that he's not the guilty party in this case, is extremely unnecessary," Carson told the judge.

As Carson noted, Wilkerson has passed 23 urine tests. He's complied with every restriction outlined by the court.

The prosecutor argued that there was no new evidence in the case. But Judge Sanders, citing Wilkerson's record of compliance, disagreed.

"He's had no violations since he was released in 2007," she noted. "He's been consistently [drug] testing and has tested negatively every time in the past year. He has no prior criminal history — that's why I'm modifying his terms to this extent."

It was a really big victory for the defense. It's also, I think, a good indication that Wilkerson's attorney may be right.

The case is complicated. But, as Carson says, there's not a lot of evidence that Wilkerson is, in fact, the guilty party.

Surely the underage drinking played a role in the other driver's actions. And I think it's also clear from Yavapai County's decision that this one is messy. Accidents happen!

The county attorney shouldn't waste another dime on this case. (Because Wilkerson's lawyer is a public defender, every dime wasted by the prosecutors is multiplied by two. The taxpayers are on the hook for both prosecution and defense.)

Instead, the prosecutors should let Wilkerson plead guilty to one charge of leaving the scene and drop the rest of the charges immediately.

He's done three months in jail. He spent nine months after that on house arrest. No one can say he hasn't suffered. When I talked to him about the case recently, he made a point of talking about just how devastated he was by Felicia Edwards' death — and mentioned that he got his current job because it's across the street from his apartment complex and he can walk there. "You can be doing everything legal and driving perfectly and still be involved in an accident," he said. "I'm still very timid about driving."

You can bet this guy is not going to attempt another U-turn any time soon, much less smoke a joint. Lesson learned.

Beyond that, prosecutors have a duty not to press charges unless they think they have a "reasonable likelihood of conviction." That's simply no longer the case here.

The taxpayers of Arizona shouldn't have to finance a trial just to prove it.

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Sarah Fenske
Contact: Sarah Fenske