Manslaughter trial beginning again

Overturned by the First District Court of Appeals in 2012 and restored by the state Supreme Court in 2014, Tom’s conviction was overturned for a second time by the same appeals court in 2015, releasing him from his four-year prison sentence. Tom was released from custody after his conviction was overturned in 2012 and was allowed to remain out of custody on bail until subsequent appeals were adjudicated.

But it’s not settled yet — in reviving his case some two years ago, prosecutors are bringing Tom back to San Mateo County Superior Court yet again in the hopes of convicting him of the charge he has so far eluded — felony vehicular manslaughter. Set to begin on Monday, Tom’s trial is likely to be continued because of a family medical emergency on behalf of Geoff Carr, his attorney.

In their attempt to answer the question of whether Tom’s conduct caused the death of another individual, prosecutors will not be seeking to prove Tom was driving under the influence — a charge he was acquitted of by the jury — as they did in 2008. They have said Tom, who had been drinking with a friend at home before leaving for his son’s house, broadsided the Ng family’s Nissan Maxima with his Mercedes Benz as it made its way across Woodside Road at Santa Clara Avenue. District Attorney Steve Wagstaffe said prosecutors will follow the law and proceed without the piece of evidence previously questioned by the appeals court, and are convinced they can prove he should be held accountable without it.

“It’s been over a decade since this crime occurred and we’re looking forward to taking it to trial and bringing this case to a close,” he said.

Wagstaffe said the question of Tom’s status as a convicted felon has hinged on whether those reviewing it believe he was under arrest when he spoke with a police officer after the accident. Decisions from the appeals courts have alleged he was not free to leave when speaking with the officer, was therefore in the officer’s custody and that he should have been read his Miranda rights, said Wagstaffe. But prosecutors maintained at the time that when Tom failed to inquire about the other car’s occupants, he wasn’t in the officer’s custody and that could be used as evidence in his trial, which Judge James Ellis accepted at the 2008 trial.

During closing arguments in the 2008 trial, prosecutor Shin-Mee Chang told the jury Tom never inquired about the other car’s occupants.

“I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession but simply as an expression of his regret,” Chang told jurors.

But for Carr, the question of why prosecutors are reopening a case against his client without a chance of committing him to any more jail time looms large. Because Tom already served the entirety of the sentence he would receive if convicted of the charge filed against him today, he cannot be sentenced to any more jail time, noted Carr and Wagstaffe.

“Why we’re even bothering, I don’t know,” said Carr. “We’ll be asking the court to possibly consider that.”

Carr said he started representing Tom more than a year ago and didn’t represent him in his trial or appellate cases, noting his client is broke after a civil case finding him liable in the child’s death required him to pay the family millions of dollars. On Aug. 16, 2012, a civil jury found Tom liable for the death of Sydney Ng and isevere injuries to her mother and then-10-year-old sister and he was ordered to pay $7,355,760.63 in compensatory damages.

He added his client was wrongfully convicted of and sentenced for causing great bodily injury to Ng’s sister as an enhancement to the vehicular manslaughter conviction, which brought his four-year prison term to seven years. Because the enhancement was not levied on a conviction related to Ng’s sister’s injuries, the appeals court ruled the enhancement shouldn’t have been imposed, said Carr. Wagstaffe said the appeals court ruled on a separate case following Tom’s 2008 conviction that enhancements could not be applied to vehicular manslaughter, which is why the appeals court determined the enhancement could not be applied when it reviewed it later.

Having served the entirety of the seven-year sentence, Tom is actually owed time back from the state, argued Carr. He said he is focusing on the case in front of him rather than its past history, and said he sees it as coming down to two issues — what caused the accident and what speed Tom was driving at the time.

“We have investigated those issues a little bit more thoroughly with the benefit of hindsight and have more light to shed on those issues,” he said.

anna@smdailyjournal.com

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