Donna Rotuno (3:44)

So I want to talk about it kind of in some steps here, because I think, first, let's talk about it in the context of trying to get the indictment dismissed. We know that that's a difficult thing to do. You have to meet a, you know, variety of threshold standards in order for that to happen. And I think that really what the defense would have to prove here, or at least allege, is that they, in bad faith, put this information in front of a grand jury, and a grand jury with different information may have come to a different result. And I think with regard to this blood alcohol level, you know, we know that blood taken at a hospital and your blood draw that you get from the hospital is what they normally use when they're going to determine whether or not to charge someone. Right. So the fact that this information may. They may be able to challenge, I don't know if it rises to the level of actually having an indictment thrown out. What's your thought on that in terms of the indictment and that information? I don't think the prosecutors were acting in bad faith by going forth with that information to the grand jury.

Imran Ansari (4:52)

No, absolutely, Donna, you're correct. And it is a high bar to actually have an indictment taken and essentially dismissed. And now the prosecution's at step one all over again. I don't think that this really rises to that level. I agree with you, Donna, because I don't think it really colors the presentation that the prosecution put before this jury. And they are arguing in their own papers that there were other grounds, even apart from this blood reading, that would support the indictment and the charges. Which is aggravated manslaughter, two counts, and then second degree reckless vehicular homicide and then some other charges on there. They're saying they had independent evidence before that grand jury that would substantiate those charges. But again, it is a high bar for you to go in as a defense attorney, take those grand jury minutes, right. The presentation, and then get that before a judge and argue successfully that the prosecution did not put forward a presentation that ultimately would lead to that indictment if there were certain information that they put forward, put before that grand jury, this expert report that the defense is relying on, that wasn't in hand. So that's one point. Right. So I think they got it maybe like 12 months or quite a, quite a few months after grand jury presentation.

Donna Rotuno (6:14)

Yeah, they got that recently.

Imran Ansari (6:16)

Right. So, you know, that wasn't at hand. But not notwithstanding that, this is more information that would be better suited for the defense to cross examine the, the prosecution's witnesses on. Right. Attack the methodology of the testing and drum up some reasonable doubt as to that. And then of course, proffer their own expert witness who would come in and say, well, if they tested the whole blood, it would have been below the legal limit. Right. So I don't think they're going to be successful on this because it's a high bar to get a grant, a full indictment tossed. And I think it's going to be better suited in terms of the defense for a cross examine examination material. But what's really key here also, Donna, is that there's evidence apart from the blood alcohol content, that would tend to support the elements of the charges that the prosecution has brought against Higgins. Right. To support that recklessness, to support that extreme indifference to human life that would be supporting the aggravated manslaughter charges. And they have witnessed this, who are going to come into court, we expect them to come into court who are going to testify about what they observed and how Higgins was driving, how he was trying to make an illegal right hand, how he was on the grass and ultimately tragically hit the Goudreau brothers. So I think there's going to be material that's going to be out there that the judge ultimately find that this indictment will stand and that a grand jury could very well have come to that same conclusion in the indictment of Higgins, even without that blood alcohol content evidence.

Donna Rotuno (7:53)

Yeah, I think you're right. And I think too, when we look at, like you said, this is really fodder for cross examination. And when the, the prosecution has a job, and that job is to Convict someone beyond a reasonable doubt. This is obviously information that is wide open to them to attack, and they should attack. And when you're looking at this plasma versus whole blood conversation, they can each call their own experts, their own experts can hash that out, and then everybody can make a determination about what they think is more credible and what they think is. Right. The bottom line is he still had alcohol in his system. Right. And that's for a jury or a judge to determine whether or not that was impaired his judgment and the reason that this. This accident happened. And like you said, there are other factors that lend to this potential conviction in terms of the driving, in terms of the way he was acting. There was another car that slowed down and moved to the side because they saw two bikers, and he just decided to go around that car, and then this is how they died. So I think that there's obviously a lot to work with, and I don't know if people understand this, but in most jurisdictions, there are two different charges for dui. And you can have a DUI charge without the blood alcohol information. Right. And you can have one with. So the prosecution could actually make a decision and say, we're just going to move forward, you know, without it. Now, does that mean that the defense can't call their witnesses to testify as to all of this? Yes, they can, But I think without the ability to test that blood again in the way that maybe the defense would want to want to test it, I think that leaves this wide open sort of field for everybody to argue one way or another. And there's all of this different science out there with regard to what percentage of blood numbers you get, depending on whether it's whole blood or whether it's plasma. You know, I've read anywhere between 11 and 20%. That's a big range when you're talking about these small numbers. So I'm just not so sure it's compelling enough. Now, obviously, we'd be making the same argument if our client was in this position, but I'm not so sure it's compelling enough to. To say that it's sort of the, you know, piece de resistance that changes the course of this entire case.

Imran Ansari (10:19)

Right. And, Donna, you have to also think that there are the defendant's own words. Right. And the statements that he made where he admitted to drinking. Right. And I believe he admitted to actually drinking while behind the wheel, that. While he was driving. Right. So those statements alone.

Donna Rotuno (10:36)

Right.

Imran Ansari (10:36)

And I believe they're going to be admitted. I'm sure if it hasn't been challenged yet. It will be challenged, the admissibility of that, because as you, you pointed out, Donna, as defense attorneys, we do our job for our client. We attack every piece of evidence if we have a good faith reason to attack it. Right. So, but if those statements come in, those admissions, right. Those are also other pieces of evidence that would go to tend to show an extreme indifference to human life. Right. Because if you are drinking behind the wheel, if you are not drunk yet, you have most likely the goal to be drunk at some point. Right. And to go behind the wheel, crack open a drink is something that I think we could all acknowledge is, is grossly reckless, which is an element of some, some of those crimes that he's charged with. Right. So those are also independent factors, aside from the blood alcohol content that they're seeking to attack. But it really lends itself. You're already seeing all the makings of a battle of the experts. And I think that's what it's going to come down to. And ultimately the prosecution will likely be arguing to this jury. Right. Even if you find that those results were somehow flawed or they were incorrect, you can still convict based on this, this, this and that.

Donna Rotuno (11:52)

And do you think once those experts testify, they're going to talk about. Because, you know, obviously two people died here, so that crime scene was chaotic. Right. Anytime you have those types of injuries and by the time they defendant to a station, to a hospital, you know, obviously he was taken to a hospital, there was a, there was a crash. By the time they take his blood, you know, all these things that they do. There's also an argument to be made that at the time of the crash, his blood alcohol level was higher than it was as time passed. So I think as these experts get up there, you're going to hear the state's experts say, you know, X amount of time passed, and they'll have all that information in terms of what time it happened versus what time he got to the hospital versus what time that blood was drawn. You know, all of those things will play into, into that number, I think. And I think that that's what the experts will tell you. And again, there's no doubt about the fact that there was blood, there was alcohol in his blood. Right. We know that at least some amount. Number one, we know because he admitted it. We also know that there was a strong odor of alcoholic beverage on his breath when the police arrived. And the other witness, I believe that pulled over, also claim that. So I think that there is a mounting evidence here and, you know, of course, like we said, you're going to attack it where you can, but I definitely think the experts are going to talk about that period of time that he maybe wasn't tested when. When this took place.

Imran Ansari (13:20)

Right. And those are two points that, yes, the prosecution most likely will hone in on.

Donna Rotuno (13:25)

Right.

Imran Ansari (13:25)

That's the concept of retrograde extrapolation. Right. And I remember when I was a prosecutor in Brooklyn, I think I tried two or three DWI cases as a misdemeanor young misdemeanor assistant, where I had refusals or blood taken because of an accident. And then we had the highway patrol, who was deemed an expert, testify about retrograde extrapolation, which is the sort of look back as to what the blood alcohol content may have been at the time of the incident, whether it be a crash or at the time of arrest. And I think that's going to be probably a highlight of the prosecution's arguments or evidence that they seek to. To be admitted before that jury. And then, of course, yeah, you talked about the common law indicia of intoxication. Right. And that's, you know, put aside the actual chemical testing. Right. Of the blood or the breath, like a breathalyzer. It's just what the observations of that officer was of or others at the scene of the defendant, and whether they had the alcohol odor on their breath, if they had slurred speech, if they couldn't do field tests, if those were administered field tests accurately, the bloodshot eyes and all that. And that's perfectly admissible evidence that could come before the court that a jury could receive and ultimately come to the determination that this individual is intoxicated when this happens?

Donna Rotuno (14:54)

What kind of an uphill battle do you think the defense has once this case does get in front of a jury? And if you're the defense attorney, are you contemplating a bench given the fact that the amount of sympathy in a case like this is just immense? I mean, you have the wedding happening the next day that ended up getting moved. You have the wife who's pregnant with his child, you have the other brother whose wife is also having a baby, and you have all of these things happening. What do you think you're looking at in terms of making the decision as to whether or not this is a bench or a jury? Because I'm telling you, a jury here, I think is a tough call, right?

Imran Ansari (15:34)

No, absolutely right. This has all the makings of a sympathetic deceased decedent. Right. Decedents. Right. You have these two brothers priming their life hockey Star and then all those other factors that you put in that. When I remember when I first read this news story, I was like, oh, my God, it's a. It's a tragedy. So what do you do as a defense attorney when you have that sort of mountain of sympathetic. And, you know, the juries are instructed, put sympathy aside. But, you know, we are not. Jurors are not robots. We are human beings, whether you're a jury or even the attorneys in there. And it's hard to divorce yourself from the ultimate tragedy here, you know, no matter how you look at the evidence here. So it's an uphill battle for the defense. Certainly, if you are counseling your client that a bench trial, right, where the judge will be the ultimate trier of fact in terms of guilt or innocence, it may be the better route, because you're coming into that courtroom and you are not only trying to weed out the jurors who may have read those newspaper articles or seen it on tv like I had, and had that. This whole reaction about the defendant, you know, and saying, oh, my God, this, you know, whoever did this is horrible. Right? And, you know, that's the sort of thing we have to get over as defense attorneys, and we have to drill down that this person is coming into that courtroom with the presumption of innocence. But, you know, Donna, it's really hard to do that in cases like this where, you know, you have to weed out the jurors who may have read those newspaper articles or seen or, you know, seen it on TV and that they're not going to be fair and impartial or be able to receive that evidence without that bias or sympathy, you got to weed that out. But then when you come into that courtroom, even if you have those jurors now seated who have given the assurance that they could be fair and impartial, the evidence and the narrative that is going to be before that jury is so heartbreaking that it's going to be very difficult to get over that as you're attacking that evidence as a defense attorney and simply doing, you know, a job as a defense attorney that you were mandated to do in your role there. But still, you know, to get over that sort of sympathy aspect of things. Despite the judge's instructions. I think it's going to be really difficult, especially when you. You can imagine the witnesses who are going to be coming into that courtroom and testifying about what led up to that. Right? Two brothers on a bike ride, sisters wedding the next day. And then, you know, you as a defense attorney you're putting forward these arguments. Well, they were, they were intoxicated too. Right. You know, that's not, that's a really hard argument to put forward without, you know, really almost doing more damage. Right. And you're going to say, you're going

Donna Rotuno (18:19)

to say, yeah, well, they may have been, but they were on bikes. They weren't behind the wheel of a car and, you know, put themselves in a position to hurt somebody else.

Imran Ansari (18:25)

Exactly. Right. So it's, you know, if a bench is an option and your client is, is willing to do it, right, you know, and you've, you've counseled them and they're agreeing, then, you know, that's maybe the safer way to go here.

Donna Rotuno (18:37)

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Donna Rotuno (19:32)

and visit eglis.lilly.com or call 1-800-LilyRx or 1-800-545-59. Yeah, and I think you're right, you know, coming up, because I have seen that now in the news where they're talking about, well, they were more intoxicated than he was based on their blood. Now, mind you, that also was taken at a hospital. So if we want to make the same argument, that was also most likely plasma because it was taken the same way for purposes of treatment. And so that level may be inflated a bit as well. However, like you said, I mean, you really run A risk by going down that road. Because when you're basically now trying to victimize the victim, you open up yourself to, I think, a lot of dislike from the jury, and you just. I think that that's. And yes, okay, they had alcohol in their system. I don't know many people in their late 20s, early 30s that were in the position that they were for a family party and gathering that wouldn't have probably had some alcohol in their system. So. But again, they chose to get on bicycles, not. Not behind the wheel of a vehicle, which is a whole motor vehicle, which is a whole different. Different set of circumstances in terms of the. You know, the world watched the United States win gold in hockey, right? And the world. I think probably the one thing that unified the United States more than anything in the last probably decade was the fact that USA beat Canada, Right? That was a big thing for America. And everyone, whether you're a sports fan or not, you. You knew about these brothers because they were putting up banners for them and at every game. And then when they actually won the gold medal, they bring the children out on the ice and they hold up the Goudreau brother jersey with the name on the back. I mean, that. That is just really difficult to overcome, I think, for anybody that. Even people who don't pay attention to sports. Right. Or who. People who may not even have known who they were. Once you. You've watched that, being an American, everyone saw that. It was on every news feed. It was on every Instagram post. And so I think getting over those things, I think I'd really have a hard time telling a client a jury was a. Was a good decision.

Imran Ansari (21:54)

Yeah, absolutely agree. You know, and it just sort of highlights the tragedy here. And, you know, you're. You're. And we could relate to this. Right. You know, you're put in a really difficult situation as a defense attorney in these cases because you're tasked with doing your job for your client and defending your client zealously. And, you know, your client is coming into that courtroom, and those are just allegations at that point, and they're going in with the presumption of innocence. But when you have sort of this other just sort of the totality of the circumstances, if you will, you know, it's really difficult. It makes the defense job all the more difficult because you are sort of walking that fine line, you know, where you are doing your job for your client, but you also don't want to come in so aggressive in the sense that you are now almost doing a disservice to your client, because public eyes. The public eyes are on the case. They're reading, potentially your filings. Look, there's news articles about the filings in court here, and it may just sort of make the situation all the more, you know, unpleasant for the defendant. If you are making these arguments, you have to do them. But then again, how do you also walk that fine line of showing some sympathy for the tragedy that. That really occurred here?

Donna Rotuno (23:10)

Yeah, I think you're right. And I think, you know, I keep going back to. Do you think that in terms of admissibility, do you think that the blood alcohol content of the brothers is going to be admissible? Because obviously it's information in the case. Is it going to be admissible?

Imran Ansari (23:28)

Well, I think it's.

Donna Rotuno (23:30)

What.

Imran Ansari (23:30)

What is the theory there? Right. You know, is the theory that if they didn't have alcohol in them, this would not have happened. It's like a sort of causation aspect, I don't think, like, when you actually look at the charges here. Right. Like, it's not a civil negligence case where you could have comparative or contributory negligence as some sort of factor that's not really a factor in this criminal context with these charges. Right. Because it doesn't. It doesn't excuse or mitigate, in my opinion, the actions or allegations against the defendant.

Donna Rotuno (24:03)

Right.

Imran Ansari (24:04)

So it's really not something that I think would move the ball forward for the defense in that sense. Maybe the argument that they didn't have reflective gear and things like that, you know, could be something that would go to somehow mitigate the exposure for the defendant here from a culpability aspect. But even that. Right.

Donna Rotuno (24:27)

Like, if he probably be more for civil court. Right. I mean.

Imran Ansari (24:30)

Exactly. Right. Because, like, if he is actually driving recklessly and he is drinking and, you know, notwithstanding whatever, you know, whatever blood alcohol content ultimately the jury grasp onto, if any. But he has all the. All the other evidence and his own admissions and the witnesses talking about the way he was driving in a reckless manner, basically, then I don't think that evidence about the two brothers gets you anywhere. If anything, you bring that in and that's what you're hanging your hat on. It's not going to be something even good for the defendant.

Donna Rotuno (25:02)

Right.

Imran Ansari (25:02)

Could totally, you know, put off the jury even more so. So you got to be careful with that sort of stuff. Yeah.

Donna Rotuno (25:10)

I think, too. And like you said, I mean, maybe in civil court, and there very well may be civil lawsuits here, one would expect that there would be in cases like this Now, I don't know if this person, you know, Mr. Higgins, has any money, but regardless, they could get a huge judgment against him for wrongful death. And maybe that's where that plays in. But, you know, we know that burden of proof is less, and it's a lot easier to prove your case there than it is in criminal court. So if he's convicted in criminal court, you would expect that there would be some type of a civil lawsuit. And maybe the only time the alcohol level of the brothers comes in is to determine what the level of damages is. But I think beyond, you know, beyond that, I'm not so sure it's that relevant. And like you said, if you go down that road, kind of open that door, and I'm not sure that's one that you want to open given the circumstances here. So I don't know. It's a very sad case. This is a. Just seems to be a very close family. I know the sister did end up getting married, and so, you know, God bless them, and hopefully this family can heal. And you have lots of little children left here without two dads, which is always a very, very sad thing. That being said, Mr. Higgins deserves a fair day in court, and he deserves due process, and he deserves the state to prove him guilty beyond a reasonable doubt. And if that's what happens, then that's. That's what happens. But. And he should defend himself as vigorously as he can. But at the end of the day, I do think that the prosecution will be able to show that they can prove this case beyond a reasonable doubt. And I think the judge or the jury will agree.

Imran Ansari (26:48)

Yeah, absolutely. And, Donna, you know, like, they're filing the motions, they're doing their job on the defense side. And let's just say, you know, the. The indictment doesn't get dismissed, and they are still, you know, moving towards trial. There could be a moment where Mr. Mr. Higgins decides to take a plea. I don't know. Right. There's. There's some real estate ahead from where we are now on the motion practice to ultimately when a jury is being selected and the case is going to trial. So, you know, who knows what happens in the interim? You know, again, we've talked about it. The defense will do their job and try to attack the evidence. And, you know, I think there is. If there is a plausible theory for the defense and they have an expert witness who could back it up. And, you know, of course, there may be even challenges to the science there with a dab air motion. And. And whether this is actually admissible testimony from an expert perspective. Right. But if there is, you know, I'm not surprised that a defendant would put forth a motion like this. Right. If there is a good faith basis to do so. But, you know, again, we'll see what happens as we sort of move towards trial and how the landscape, you know, from an evidentiary standpoint, may be dynamic, and it may shift, and there may be considerations as we go into trial for both sides in terms of how they treat the case.

Donna Rotuno (28:14)

Well, while I have you. We have a few minutes left, and I wasn't going to go down this road, so I hate to. Hate to surprise you with the topic, but our former client Harvey, is back in court for trial number three in New York. And I just want to get your take on it, and I'll. I'll give you mine, and then you can tell me what you think. I think this trial gives Harvey the best chance. And the reason I think that is they're not dealing with the plethora of the Molina or proof of other crimes that we were dealing with. And now it's only one complaining witness. And I think that that's always a much more fair way for someone to defend oneself by having one person make a claim and being able to refute that claim, either with questions and. Or evidence or testimony. So I think that really, this, in some ways, is what Harvey has always wanted, to be able to confront one complaining witness at a time. And so, to me, this is his best chance. Because let's remember the first trial, the counts here with Jessica Mann, who's the complaining witness in this case, she was found. He was found not guilty of one count and guilty of the other. In the second trial, it was hung, which was only one count left for Jessica Mann. And now he's left with this one count of Jessica Mann. And I know both you and I have always thought he was not guilty of those counts and others, but what do you think in terms of this case now going to trial with one complaining witness?

Imran Ansari (29:43)

Yeah, no, it's almost like you see something sort of being whittled down. Right. And I think it was always what I would refer to, and I think a lot of us refer to from that first trial to the second trial was, you know, and just the sort of public perception was just like the pylon, right? It was like the pylon on Harvey Weinstein and how anyone, whether you be Harvey Weinstein or anyone else facing that situation. Right. And those evidentiary rulings and, you know, the multiple complainants Coming into court and testifying, you know, how could you get a fair trial in that sense? Right. And right now, I agree. I think this is probably his best shot because he is now facing one person with accusations which. Which I think are completely defensible. Right. And, you know, he has kept on fighting. No matter what you think about him, the guy has kept on fighting, you know, all his legal battles. And, you know, I still represent him on some of the civil actions that are still out there. But, yes, I agree, you know, in terms of confronting one accuser without the pylon, I think this is his best chance at trial. And, you know, we'll see how it goes. But we talked about this in other forums. I think, you know, I had you as a guest when I was a guest, guest lecturer at Florida State University of Law. You were a great, you know, guest lecturer when I was an adjunct there. But we talked about that.

Donna Rotuno (31:14)

Right.

Imran Ansari (31:14)

You know, you have this sort of public Persona. We're talking about the media and all that in this tragic case here. Like, you know, it's so difficult in this day and age to get away from that. So even those jurors. I heard that there was a juror crying as Jessica Mann was testifying. I don't know what ultimately will pan out in that quorum. I don't know who's clicking on what or who's doing the secret research on their phone, notwithstanding the strong, you know, instructions from the judge not to do that. I don't know. But if you take it from a standpoint, just saying, if you're going to listen to the evidence and the evidence alone, that's going forward in that courtroom, and you and I know what testimony is going to be in that courtroom or what is being said in that courtroom, what the defense is. It is his best shot to ultimately get an acquittal. And remember the last trial, the jury was hung right on this. So, you know, if you keep whittling things down the mountain and evidence, the pylon sort of, you know, gets removed, he may have a shot here.

Donna Rotuno (32:12)

Well, Harvey has been through a lot, and I know it's never the popular position, but I've been taking it since day one. Harvey, to me, I'll go to my grave saying that Harvey Weinstein was guilty of sins and not crimes, and there's a big difference between the two. So we know that he has not been in the greatest of health, and I know both of us wish him the best as we do the Goodreau family as well.

Imran Ansari (32:36)

Absolutely. Donna.

Donna Rotuno (32:37)

Imran thank you so much for joining me. I always love to see you.

Imran Ansari (32:41)

Thanks for having me, Don. It was great.

Donna Rotuno (32:42)

Of course. Thanks. Thank you for joining me for another episode of Crime and Justice. Remember, we want to hear from you. Send us your thoughts, questions or theories and we will answer them on air.