www.WHEC.com

Two trials, two juries, one courtroom possible in deadly Penfield crash case

Posted at: 12/18/2012 10:09 AM
Updated at: 12/18/2012 5:18 PM
By: Berkeley Brean

We could see something we rarely see in court. Two trials. Two juries. Same time. Same courtroom. That's what the judge is considering in the cases again Megan Merkel and Mark Scerbo. They're accused of hitting and killing Fairport teacher Heather Boyum.

It has certainly happened before, but not recently. The lawyer for Merkel wants a separate trial for Merkel. The prosecution says she was an "accomplice" in the same "criminal transaction" with Scerbo in Boyum's death. The District Attorney's office wants them tried together.

The allegation is that Merkel and Scerbo were driving drunk (Merkel is charged with DWI, Scerbo with driving under the influence) on Route 250 in Perinton and playing a sort of high risk game of tag between her car and his motorcycle. Police say Scerbo hit Boyum who was riding her bicycle on the shoulder. Police say the impact sent her into Merkel's car. Merkel's attorney made a motion to separate the cases into two trials. He blames the whole crash on the other defendant -- Mark Scerbo.

"He set everything in motion, not Ms. Merkel. She was riding along, driving a car that belonged to a friend of hers within the speed limit, in a normal manner according to all the witnesses," attorney James Hinman said. "As a matter of fact there was another couple who encountered Mr. Scerbo earlier who were in no different situation that she was."

"Most of the evidence if not all of the evidence that we plan on producing for any trial would be the same for both cases so that would be one of the biggest reasons," Assistant District Attorney Ray Benitez said.

Benitrz calls it an economy decision: can the court justify having two separate trials when the evidence and the witnesses are virtually identical? Judge Doug Randall says he's going to wait to rule on the separate trial motion until we get closer to the trial date which is March 11.

Mark Scerbo's attorneys did not talk to News10NBC after the hearing.