WEST VIRGINIA RECORD

CHARLESTON – Marjorie Green, 72, served jail time for a crime she did not commit, the West Virginia Supreme Court of Appeals has ruled.

The Justices on Feb. 21 unanimously reversed Green's conviction on two counts of negligent homicide.

They found that while she caused a traffic accident that killed two persons, she did not drive with reckless disregard for the safety of others.

Hampshire County jurors convicted Green in 2005. She remained in jail at the time the Justices issued their opinion.

Despite the reversal of her conviction, Green cannot return to her home. She lost it in a civil suit over the accident.

On a Sunday in 2004, Green drove a Dodge Maxivan on eastbound U.S. 50 near Augusta. The vehicle weighed almost three tons.

In an Oldsmobile Alero ahead of her, Rhonda Dante prepared to turn left into a church parking lot.

Dante had to wait for a westbound procession of motorcyclists on a memory ride in honor of a motorcyclist who had lost his life.

While Dante waited, Green's Maxivan struck the rear of her car with so much force that metal and glass flew 30 feet in the air.

The collision thrust Dante's car into the westbound lane, where it struck motorcyclist Janeann Stehle.

Dante's daughter, Kaitlyn, died. So did Stehle.

According to a police report, Green said, "I knew I couldn't get past her on the left and I knew I couldn't get by her on the right so I hit her in the butt."

Grand jurors indicted Green under West Virginia law that provides for a charge of negligent homicide when death results from driving in reckless disregard of the safety of others.

At Green's trial, State Trooper Geoffrey Pasko testified that after Dante braked, Green drove about 227 feet before she saw Dante's brake lights.

He testified that when Green saw the brake lights she was only 100 feet away from Dante's car.

He testified that he found no skid marks to indicate that Green braked.

He estimated her speed at 59 miles an hour, above the limit of 55.

Witness Sara Watts testified that she saw Green looking out her left window at the motorcycles.

Green did not testify.

After jurors convicted Green, Circuit Judge Donald Cookman sentenced her to a year for each death.

Last September her attorneys, Larry Garrett and Karen Garrett of Moorefield, petitioned the Supreme Court of Appeals to review her case.

They asked the Justices for post trial bail pending appeal.

In October, the Justices agreed to review the case. They ordered Cookman to set bail on conditions that would include home confinement and an absolute ban on driving.

Cookman set bail at $10,000. He said Green could leave jail as soon as she submitted a plan for electronic monitoring.

Cookman, however, could not find a home for electronic monitoring where Green's medical needs could be properly served.

She gained her freedom when the Justices reversed her conviction.

Justice Joseph Albright wrote that while a standard of reckless disregard requires a violation of law, it requires more than a traffic violation.

"A mere technical violation of a traffic safety statute will not suffice," he wrote. "Rather, solid evidence indicating gross, wanton, and culpable negligence showing a reckless disregard for human life must be introduced.

"... the individual's conduct must be such a departure from that of an ordinarily prudent person as to be incompatible with an appropriate regard for human life ..."

He wrote that Green failed to keep a proper watch on the highway.

"We are also mindful that the result of the collision was disastrous, capable of giving rise to fully understandable outrage in a community properly grieving the resulting deaths," Albright wrote.

"However, our inquiry here must focus on the character of the Appellant's acts and omissions which produced these horrible results."

The Justices foreclosed the state from retrying Green.