Judge says new jury to be selected in Ben Brewer trial

Judge says new jury to be selected in Ben Brewer trial

June 19th, 2017 by Zack Peterson in Breaking News

Ben Brewer appears before Judge T. Bruce Bell on charges of trafficking methamphetamine and criminal mischief during a preliminary hearing at Fayetteville County District Court in Lexington, Ky., on Aug. 19, 2015. Brewer, the semi-truck driver involved in the I-75 accident in June that killed six people, was arrested in Lexington, Ky., on Aug. 7, 2015, and faces charges in Tennessee.

Photo by Dan Henry /Times Free Press.

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Prosecutors did not "willfully" withhold a piece of evidence that postponed the trial of a truck driver charged with killing six, a judge ruled today.

"I do think either side could have inquired further," Criminal Court Judge Don Poole said of a second drug test the National Transportation Safety Board requested for Benjamin Brewer in 2015. "But I think it would have been difficult for either side." 

Poole has not yet selected a new trial date for Brewer, 41, who is charged with six counts of vehicular homicide, four counts of reckless aggravated assault, and one count of speeding, driving under the influence, and violation of motor carrier regulations. The judge asked attorneys to return to court Wednesday with some possible trial dates and said they would need to pick a new out-of-town jury.

Brewer, who remains in Hamilton County Jail, was supposed to go to trial today.

Last week, however, his public defenders found a second drug test conducted by a facility in Oklahoma that tests blood for the federal government. The results contained different levels of methamphetamine and amphetamine than a test Brewer gave on scene in 2015, prompting them to call foul on prosecutors for not handing over the results. 

After defenders filed an emergency motion Friday, Poole agreed to postpone Brewer's trial and abandon the 16-person jury that attorneys picked earlier in the week in Nashville.

Various factors account for the discrepancies between the two tests, "such as the two-month difference in when the tests were conducted, or differences in equipment and testing," prosecutors said today.   

Plus, Hamilton County District Attorney General Neal Pinkston argued, the second drug test didn't help Brewer.

The state has to prove intoxication lead to June 25, 2015, when Brewer crashed into slowed traffic on Interstate 75 near Ooltewah, killing six and injuring several others. And the second test still showed that, Pinkston said.

"I think it should be noted, too," the prosecutor said. "We weren't provided the second test. The police department wasn't provided the second test. This particular document document would not be discoverable by state law. The National Transportation Safety Board (NTSB) is separate, and just because they're here investigating at the same time does not fuse them with the Chattanooga Police Department or Highway Patrol."

The NTSB is a federal agency that often comes in and investigates serious vehicle accidents. For example, NTSB agents responded to Chattanooga when 24-year-old Johnthony Walker crashed a bus with 37 children on board in November.

But Deputy Defender Mike Little said prosecutors have an ethical obligation to turn over potentially helpful evidence. Pinkston should have known about the second test, Little said, because an assistant prosecutor in his office signed off on a request from the TBI to send it onward.

Court records show the TBI tested Brewer's blood on July 16, 2015. Two months later, at the request of the NTSB, the TBI sent Brewer's remaining sample to the Oklahoma facility.

"On Friday we first found out Pinkston's office authorized his blood sample be sent (then)," Little said. "In my office, if anything happens in the case and I'm the lead attorney, we make a note about that and communicate it."

Pinkston denied any kind of prosecutorial misconduct or unethical behavior during the hearing. Afterwards, his spokeswoman, Melydia Clewell, said the TBI contacted a felony DUI prosecutor, Kate Lavery, asking in 2015 if they had any qualms sending the remaining blood to the NTSB for additional testing. 

"Kate was told the NTSB tests for additional drugs that the TBI doesn't test for," Clewell said. "She verbally communicated the request to DA General Pinkston, who had no objection ... Several months passed. During an unrelated conversation with the TBI, Kate asked about the NTSB test and was told the TBI was not given a copy of the results but they were told, 'the results were consistent with the TBI test.'" 

All evidence must be kept secure in the custody of local law enforcement to be admitted at trial. And because the NTSB and the Oklahoma lab are not law enforcement agencies, prosecutors had to authorize giving the blood to the NTSB. 

This is a developing story. Please check back later for more information.