During opening statements in the trial of Volodymyr Zhukovskyy, the jury heard that he had ingested drugs and the president of the Jarheads Motorcycle Club had been drinking beer before the June 2019 crash in which he and six other members were killed.
But by the time jurors began deliberations on Tuesday, the judge had dismissed charges that Zhukovskyy, 26, was intoxicated at the time of the crash and instructed them not to consider evidence about his drug consumption or possible impairment.
A few hours later, the jury acquitted the commercial truck driver in the head-on collision, stirring outrage and placing scrutiny on Superior Court Judge Peter H. Bornstein’s ruling that there was “simply insufficient evidence” for a jury to find Zhukovskyy was impaired by drugs he consumed roughly 10½ hours before the crash. On Wednesday, legal specialists backed Bornstein’s finding.
“That’s a rational decision,” said Buzz Scherr, a professor at the University of New Hampshire’s Franklin Pierce School of Law, “Think about if you got drunk and went to bed at midnight, what was your intoxication level at 10:30 [a.m.] the next day? If you think about it that way, it makes a lot of sense that he would exclude it.”
On the morning of the June 21, 2019 crash, Zhukovskyy consumed heroin, fentanyl, and cocaine at his home in West Springfield, Mass., and then went to work driving a truck to New York and New Hampshire for Westfield Transport, prosecutors said. Zhukovskyy’s lawyers acknowledged his drug consumption but maintained there was no evidence that he was impaired when the crash occurred at about 6:30 p.m.
His defense centered on evidence that the motorcyclist leading the pack, Albert Mazza Jr., 59, had been drinking beer before getting on the road and lost control of his motorcycle, causing the collision. Mazza’s blood alcohol level was .135, well over the legal driving limit of .08, according to court testimony.
Manny Ribeiro, a Pembroke resident who was riding alongside Mazza before the crash, said Wednesday he can’t make sense of why the jury could consider his friend’s alcohol consumption but not Zhukovskyy’s drug use.
“There’s no accountability here. Nothing. Zero. Seven people died and no one is going to be accountable except for [Mazza] ... It’s his fault Well, it’s not,” said Ribeiro, who became president of the motorcycle club after Mazza died. He is no longer a member of the group, made up of Marine veterans.
Ribeiro said he was subpoenaed as a witness but was not called to testify. He was in Coös County Superior Court in Lancaster, N.H., Tuesday afternoon when Zhukovskyy was acquitted.
“I’m still in shock,” he said.
During closing arguments, Zhukovskyy’s lawyers said prosecutors were ignoring the findings of a New Hampshire State Police accident reconstruction unit that contradicted the government’s theory that Zhukovskyy crossed into the oncoming lane. A defense expert testified that the crash happened on the center line and would have occurred even if the truck had been in the middle of its lane because Mazza’s motorcycle was heading in that direction.
Testimony from two members of that reconstruction team was key to the verdict, legal experts said.
Patricia M. LaFrance, a former New Hampshire prosecutor, said by e-mail that members of an accident reconstruction team are typically called to testify by prosecutors. In this case, they were called by the defense.
“The fact that the State did not call them is significant because it means they did not have testimony that would help the State prove its case,” said LaFrance, a partner at the Black Law Group in Nashua, N.H.
Zhukovskyy’s public defenders declined to comment on Wednesday.
Michael J. Iacopino, a Manchester, N.H. criminal lawyer and president of the board of directors for the state’s nonprofit public defender program, said the verdict demonstrates the importance of effective representation for indigent defendants.
“In a lot of places that don’t have well-trained public defenders, Mr. Zhukovskyy would be serving a life sentence right now,” he said.
The verdict was at odds with findings from the National Transportation Safety Board, which in 2020 concluded that Zhukovskyy’s drug use was the “probable cause” of him crossing the centerline of the highway and causing the collision.
The board concluded that while some of the motorcyclists were impaired by alcohol, their intoxication didn’t cause the crash.
But LaFrance said quashing the evidence of Zhukovskyy’s drug use and dropping the impaired driving charges wasn’t surprising. LaFrance cited the state’s lack of scientific evidence suggesting Zhukovskyy was impaired at the time of the crash, as well as the “admissions that he had consumed drugs a lot earlier in the day.”
“In this situation, it was the judge’s conclusion that the State did not present enough evidence to prove that Zhukovskyy was impaired at the time of the crash,” she said.
Mark J. Geragos, a Los Angeles criminal defense lawyer, said the judge’s decision appeared correct based on the “time that elapsed between ingestion and time of crash and the observations of the law enforcement officers who met the accused immediately after the crash and didn’t detect impairment.”
Scherr said the verdict doesn’t necessarily mean jurors fully believed the testimony about Mazza, he said.
“If it’s ‘Hey, we’re conflicted whether to believe this person on where the lead [motorcyclist] was or to believe this person about it,’ ... they’ve got to acquit him,” Scherr said.
After his acquittal, Zhukovskyy was taken into the custody of US Immigration and Customs Enforcement, an agency spokesman said. A native of Ukraine, Zhukovskyy has permanent resident status in the United States, although federal officials filed a detainer for his deportation in 2019, citing his previous convictions in unrelated criminal cases.
In March, the federal government made Ukrainian nationals eligible for temporary protected status to shield them from deportation in light of Russia’s invasion of Ukraine.