February 28, 2013
Austin Finds Its Great White DefendantBy David Paulin
Gabrielle Nestande, a former legislative aide in the Texas House of Representatives, faced a public-relations nightmare when standing trial for drunken driving and a fatal hit-and-run in Austin, Texas. The 25-year-old was privileged, wealthy, and a Republican. Blonde and preppy looking, the Baylor University graduate thus became red meat for the trial-watching mob and prosecutors in Austin -- a politically liberal mecca in a conservative red state. She became, in Tom Wolfe's words from Bonfire of the Vanities, Austin's own Great White Defendant.
Many wanted the native Californian's head because of who she was -- not because of what she was alleged to have done. This included prosecutors who portrayed her as a "heartless rich bitch," as defense lawyer Perry Minton complained last week to a packed court room. The six-day trial riveted many in Austin, and it turned on its head the popular notion that the rich and powerful automatically get favored treatment in the criminal-justice system.
Minton, during the trial's penalty phase last Friday, implored the jury to give Nestande probation -- not a prison sentence of up to ten years. A day earlier, the jury found Nestande guilty of criminally negligent homicide for the death of 30-year-old Courtney Griffin, following an evening of drinking with friends at a downtown bar. A fifth-generation Austinite with many friends, Griffin was a nanny, animal lover, and veterinarian's assistant. She was killed almost instantly in the early morning of Friday, May 27, 2011, when Nestande hit her with her BMW as she walked along a bike lane abutting a dark road. A resident found Griffin's body on his driveway early the next morning.
The jury of nine men and three women deliberated 21 hours over three days before finding Nestande not guilty of the most serious charges against her -- failure to stop and render aid and intoxication manslaughter. On the witness stand, a sobbing Nestande described reaching for her cell phone to see if its alarm was set for the next day. Suddenly her windshield "exploded," she testified; and initially she thought she'd hit a deer or that somebody had thrown something at her windshield. She felt scared and checked her rear-view mirror, she said, but didn't see anything. Then she drove back to her boyfriend's house instead of returning home. She denied she was drunk, although admitted being tired and, in response to a prosecutor's question about feeling "buzzed," said she felt some effects of alcohol.
Prosecutors, for their part, argued that Nestande knew she hit a person or should have quickly figured it out. She thus evaded responsibility for what she'd done -- perhaps to avoid a drunk driving charge -- and left Griffin dead on the road. On the day before her arrest, the Texas House had honored Nestande for her work as a legislative aide. She got her start in government as an intern in Gov. Rick Perry's gubernatorial campaign.
Lady Justice wears a blindfold in order to impartially weigh competing evidence. But in arguing for a prison sentence -- up to 10 years -- Assistant District Attorney Allison Wetzel repeatedly brought up Nestande's wealth and upper-class family background -- thereby arousing a certain blood lust among liberal trial watchers that was last seen in Austin when former House Republican Speaker Tom DeLay was tried on money laundering charges. He's appealing that conviction.
Nestande's father, as news outlets and social media reported, was Bruce Nestande, a lawyer and Republican heavyweight in his prime. Among other positions, he was special assistant to Gov. Ronald Reagan and executive director of the California Republican Party. And as some trial watchers gleefully pointed out, he had his own legal problems. In 2006, he pleaded guilty to misdemeanor driving under the influence; hit-and-run; and filing a fraudulent insurance claim, a felony. He was sentenced to six months in jail and three years probation.
In urging jurors to give Nestande a prison sentence, as opposed to letting her pay a fine, Wetzel said: "The defendant is not going to pay that fine anyway. You know her father's going to pay it." And when referring to an option to allow her to give $50 to a local CrimeStoppers, Wetzel said: "She spends that much on dry cleaning. Does that matter?"
Bruce Nestande, who attended the trial with his wife, took the witness stand and denied that his daughter had a drinking problem. He noted that she'd done volunteer work in junior high, and that before the trial started she'd worked as a volunteer at a Christian school in California. Wetzel, however, belittled this testimony, saying the Nestande family had "a long history and pattern of denial" and of "making excuses."
"In the real world, we know that people who have money and power do get treated better. It should not happen in this courtroom," she said.
The defense team, for its part, fought back hard against Wetzel's attacks on Nestande's social status. "I am offended, if I might be, by the state's constant berating of this young woman's pedigree and her background and her family," Minton said. "I don't think the state would do that if she was less fortunate and didn't have as much. I don't think they would come in here and say: "Hold that against her'; and I can't imagine that you would come in and say this doesn't matter, probation doesn't matter, she spends that much on her credit card bill or her dry cleaning. What difference does that make?"
Nestande sobbed and lowered her head as defense lawyer Sam Bassett walked up to her and pointed. "Is there goodness here? Is there hope?" Throughout much of the trial, Nestande sobbed during emotional testimony and the display of graphic exhibits, as did members of Griffin's family.
"If you're thinking about punishment for Gabby, don't punish her for things she can't control -- the family she was born into, the fact that she has privileges that many other don't have," Bassett added.
Acknowledging the heartbreak suffered by Griffin's family, Minton said, "There is no bringing Courtney back, but that that's not the point. It is a tragic accident."
"You're not a PR firm -- and not the state's PR firm," he said, when countering Wetzel's argument that Nestande should be sent to prison to send a "message" about drinking and driving -- even though Nestande, to be sure, was not convicted of drunken driving a day earlier.
The jury deliberated four hours before delivering its sentence -- 10 years probation and a $10,000 fine. Nestande later broke into tears. So did members of Griffin's family.
Police Chief Art Acevedo quickly issued a statement calling the sentence too light. "My heart goes out to the Griffin family who have been sentenced to a lifetime without their loving daughter, with woefully minor consequences for the individual responsible for this senseless and completely avoidable tragedy."
Curiously, though, Acevedo was silent after an Austin jury convicted Erick Nuncio-Moreno, 21 years old, of manslaughter and sentenced him to 10 years probation for killing two women at a bus stop in 2010. Nuncio-Moreno was racing his souped-up Toyota Celica at speeds of up to 90 miles per hour when he lost control on a street with a posted limit of 35 miles per hour. This case underscored, as Minton had pointed out during penalty-phase remarks, that juries regularly grant probation for deaths related to reckless or careless driving.
Interestingly, most drunken driving cases in Austin don't involve preppy young women whom prosecutors want to make an example of with prison terms. Most of the culprits are Hispanic men -- or as the Austin American-Statesman reported: "Of 3,007 drunken driving arrests in 2002, 43 percent involved Hispanic men, even though they make up only about 11 percent of Austin's driving population."
And regarding Austin's veritable epidemic of hit-and-runs, it's widely presumed that many of those drivers are from Mexico or Central American -- illegal immigrants attracted to Austin because it's a sanctuary city. But solving hit-and-runs involving unassimilated Latinos is problematic for police because of the lack of a civic culture in this ethnic group. Their allegiance is to family, friends, and tribe -- to the frustration of vehicular homicide investigators attempting to put together a case. They was no such obstacles in building a case against Nestande, however.
Investigators, for example, took the unusual step of using security videos from a bar and statements (some conflicting) solicited from friends and acquaintances who'd been drinking with Nestande -- all to prove she was drunk. And police got their big break in the Nestande case from an anonymous phone caller who, as it later emerged, was a roommate of Nestande's boyfriend. He noticed the smashed windshield of Nestande's BMW when heading to work and then, after hearing radio reports of a nearby hit-and-run, suspected the worst. At work, he consulted with his boss who advised him to phone the police. Soon after that, a vehicular homicide detective was at the Texas House conducting a tape-recorded interview with Nestande.
Whether justice translates into fairness is often elusive. But given how this case was tried and the media hoopla surrounding it, Nestande was lucky to have had the best defense lawyers money could buy. Judge Karen Sage, who heard the case, ordered the usual pre-sentencing investigation. She has the option to change the jury's recommendations during a March 25th hearing.
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