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I previously wrote that it was surprising that the Prosecutor did not impeach the testimony of Jim Leyritz’s passenger, Paul Barger, who stated that Leyritz did not drive through a red light, since Barger had previously told police that Leyritz did run a red light.

Apparently realizing her mistake, the Prosecutor recalled Barger yesterday to confront him with his statement -- given on January 23, 2008 -- in which he never mentioned a yellow light. Although I have not read a transcript of Barger’s testimony, news reporters attending the trial have stated that Barger somewhat recanted on his trial testimony and now claims that the light was yellow when Leyritz entered the intersection and turned red while Leyritz was driving through the intersection. Barger’s modification of his prior testimony would seem to weaken his credibility. The Prosecutor should have immediately reminded Barger of his previous statement and asked him if his memory was better in January of 2008 when he first testified.

Judge Gold also precluded the Prosecutor from introducing evidence concerning a second blood test which was taken an hour after the first. Florida law permits one blood test of a suspect in a fatal motor vehicle accident even if the suspect (Leyritz) does not consent. The second test, however, was illegal, and the jury will not know about it. Nevertheless, the first blood test showed Leyritz’s blood alcohol content to be .14, well over the State’s limit of .08. This is not a setback for the prosecution as is being reported by many in the media.

The defense appears to be doing a decent job of casting doubt on the Prosecutor’s opening statement in which she claims that the State would prove that Leyritz ran a red light. However, the jury may determine that Leyritz could have avoided the accident. Barger’s testimony that Leyritz was looking down, and not at the road when the light turned yellow, is evidence that Leyritz was not making reasonable observations of his surroundings as the operator of a motor vehicle, which would be enough for a conviction.