Homicide case tossed on flawed evidence

SUTTON — While on his way home from work May 12, 2009, the black 2003 Victory motorcycle Tom Schill was riding was hit from behind.

Schill lived off the Glenn Highway and was turning into his driveway. He wasn’t wearing a helmet. The Ford pickup that hit him threw him off the bike. He died at the scene of multiple blunt-force traumas.

The driver of the pickup, Michael Carney, of Sutton, flagged down a motorist to call for help and went back to the scene.

In January 2011, Carney was charged with criminally negligent homicide, a class B felony carrying a penalty of one to three years in prison for first-time offenders. Almost a year later, though, on Nov. 8, 2011, prosecutors decided to drop the case before it reached a jury.

Everyone involved agrees on the evidence and its flaws, but diverge on the question of what should have happened after Schill’s death.

When Carney was indicted, Alaska State Troopers investigators testified that the length of the skid marks measured on scene, weighed against other factors like road and weather conditions, showed he was traveling 84.78 mph.

But Josh Fannon, the lawyer representing Carney, had an outside expert look at photos of those skid marks. Problems were apparent from the outset.

“He looks at these skid marks and says, ‘These aren’t skid marks,’” Fannon said.

They were acceleration marks. Fannon said that was clear in the photo for two reasons. First is that from south to north, the direction of the lane of travel, the marks went from dark to light. Which is right for acceleration marks but the opposite of skid marks.

The second was that there were “J-hooks” at the darker end of the marks. J-hooks are made when a car is peeling out. The tires kick the car to the side before traction kicks in and the car surges forward.

Fannon took his expert out in Carney’s truck to that stretch of road and found they couldn’t make even an inch of skid marks no matter how fast they drove or how hard they stomped on the brakes. The truck just wasn’t built to leave skid marks.

Troopers took the truck out and repeated the tests and reached the same conclusion. Fannon said Trooper Mitch Lewis almost pulled a calf muscle mashing the brake pedal.

Assistant District Attorney Mike Walsh wrote in a letter to Schill’s widow that this evidence eviscerated his case.

“This development also eliminated our ability to rebut a claim by the defendant that the collision resulted from a sudden stop by your husband,” Walsh wrote. “Alaskan juries are unfortunately very forgiving of those charged with vehicular homicide even if there is evidence of bad driving but no proof of impairment.”

Loss of a provider

Still Schill said she thinks Carney should have gone to jail for his role in her husband’s death.

“Because the police department was incompetent, my husband is dead and nothing is going to happen to the guy who killed him,” she said. “Being the Christian that I am, I have to forgive him for what he’s done. But an apology or some sort of acknowledgment that he killed my husband would be appreciated.”

She said the crash took away her best friend and her provider.

“Tom was a big ol’ marshmallow. He stood 6-foot 6-inches and weighed about 285,” Schill said. “He had a very strong sense of justice — what was right, what was wrong.”

She said he worked in construction most of his life, but had embarked on a career as a draftsman after graduating in 2008 with a degree in Architectural and Engineering Technology.

“He was a very smart individual. He had a wicked sense of humor,” Schill said. “He mostly worked his tail off trying to better himself.”

She said she misses him every day. She cannot accept the district attorney’s assertion that his death was an accident.

“An accident is when your puppy pees on your floor. An accident is I ran over a fire hydrant or something. That’s an accident,” she said. “But when somebody dies because of negligence on someone else’s part, that is not an accident.”

Losses on both sides

Fannon said that, by state law, when someone is hit from behind the person who hit him is civilly liable. Insurance companies sort that out. Carney’s company paid Schill.

But criminal liability in the form of a homicide charge is different. In his view, the case should never have been charged. Not only did he prove the pickup could never have made those marks, his tests showed that while driving the speed limit it takes 95 feet to get that pickup stopped. That far exceeds the three car-lengths a person is legally obliged to maintain.

At highway speeds, if someone stops in front of you, “You’re going to hit them and you haven’t done something wrong,” Fannon said.

He said he agrees with Schill that the police work in this case was sub-par, but he doesn’t think troopers measured the wrong skid marks on purpose. This wasn’t a malicious prosecution.

“Who could be malicious to Mike Carney? He’s the nicest person in the world,” Fannon said.

At the time, Carney was an operating room nurse for Mat-Su Regional Medical Center. He’d been married 40 years and was known in Sutton for his community involvement. The crash, Fannon said, also changed Carney’s life.

“The hospital couldn’t keep someone charged with homicide on staff,” Fannon said.

So Carney lost his job. Then he lost his savings. Legal costs fighting the case ran well into the thousands. Fannon said his client nearly lost his sanity trying to prove his innocence and probably won’t ever be the same emotionally. Carney went with Fannon to run those tests in his pickup. Finally, Carney had proof that he wasn’t lying.

“He was standing on the side of the road absolutely uncontrollably sobbing,” Fannon said.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.