Cleary found guilty of drunken driving death
By Ruth Ann Krause Post-Tribune correspondent September 11, 2012 3:44PM
Jeffrey Cleary | Provided photo~Sun-Times Media
Updated: October 14, 2012 1:39PM
Lake Superior Court jurors convicted a Valparaiso man of causing death while operating while intoxicated and all other charges in the death of a Hebron man who was fixing a flat tire on a tractor-trailer on Interstate 65 in Hobart.
After about two hours of deliberations Tuesday, jurors convicted Jeffery Allen Cleary, 66, of two counts of causing death while operating while intoxicated, as well as three misdemeanor drunken driving charges filed in the death of Philip Amsden, 63, of Hebron. The jury also found Cleary liable for two infractions — failure to yield to a recovery vehicle and unsafe lane movement.
Judge Thomas Stefaniak Jr. ordered Cleary held in the Lake County Jail until his Nov. 9 sentencing hearing. Cleary faces a sentence of six to 20 years on the most serious of the charges.
Evidence presented by deputy prosecutors Michael Toth and Monica Rogina showed Cleary’s blood alcohol level was 0.17 percent to 0.21 percent, with an average of 0.19 percent. Cleary also failed field sobriety tests.
Under the law, jurors had to find that Cleary’s driving — not his intoxication — was a substantial cause of the crash that killed Amsden, and that Cleary’s alcohol level was at least 0.15 percent at the time of the crash.
Evidence at the trial showed that Amsden had parked on the highway shoulder 10 to 12 feet behind the disabled tractor-trailer with his Ford F-350 service truck and was working between his truck and the rig. At 11:43 p.m. Nov. 4, 2010, Cleary crossed the fog line on the shoulder and struck the rear of Amsden’s truck, crushing Amsden between the two vehicles.
During closing arguments, Toth and Rogina pointed to evidence of Cleary’s intoxication — noting he had been served 15 to 18 shots of vodka at a Munster restaurant during a six-hour business lunch and a glass of wine at a Hobart restaurant minutes before the fatal crash. Toth, using his iPad with the calculator displayed on a flat-screen TV, argued that Cleary was served nearly three-fourths of a 750 ml bottle of vodka the day of the crash and “drunkenly threaded the needle and overcorrected” when he plowed his SUV into Amsden’s truck.
Defense attorney Tom Mullins showed jurors the animation created by retired Schererville police Sgt. Stephan Neese, an accident reconstruction specialist. The video depicts three semis traveling in quick succession just before impact. Mullins argued that his client was cut off by a semi in the adjacent lane as Cleary was merging onto the highway. “Truck number three on I-65 southbound on Nov. 4, 2010, intervened and superceded (as the cause of the crash),” Mullins said.
Mullins also criticized the use of an alcohol wipe before Cleary’s blood was drawn. State’s witnesses testified the alcohol wipe had no effect on Cleary’s blood test.
In her closing argument, Rogina referred to Neese’s animation as a cartoon. “Everything he said is based on misinformation or false information.” She also noted the defense paid $11,000 to its pharmacology expert who testified on blood alcohol results. Neese, who charges $245 per hour to testify, has been paid at least $6,000. On Monday, Neese spent more than eight hours on the witness stand.
“The bottom line is he’s the cause of this crash and needs to be held responsible,” Rogina said, pointing to Cleary.
Cleary’s first trial ended in mistrial in December when the jury deadlocked on the most serious of the charges.
In March 2009, Cleary was charged with felony operating while intoxicated with a prior OWI within five years. He pleaded guilty two months later to public intoxication, a misdemeanor.