Family may view Gerald presentence report

Advocate staff photo by BILL FEIG -- Brett Gerald, center, is escorted from the East Feliciana Parish Courthouse in Clinton by Angola officers Sgt. Reagan, right, and Lt. Hardy after being resentenced May 14. Show caption
Advocate staff photo by BILL FEIG -- Brett Gerald, center, is escorted from the East Feliciana Parish Courthouse in Clinton by Angola officers Sgt. Reagan, right, and Lt. Hardy after being resentenced May 14.

Crash victims’ families question sentence

In an unusual court proceeding, family members of seven people killed in a head-on collision last year in East Feliciana Parish will be allowed to read a pre-sentence report on the drunken driver who killed them.

Twentieth Judicial District Judge William G. Carmichael ordered a pre-sentence investigation by state probation and parole agents before he sentenced Brett G. Gerald, 31, formerly of Greensburg, to prison terms on seven counts of vehicular homicide.

Gerald’s attorney, Tommy Damico, also has served notice he plans to appeal Carmichael’s sentence of Gerald to five-year consecutive prison terms on each count.

Seven Baton Rouge residents riding in a car were fatally injured May 30, 2012, in a head-on collision with Gerald’s pickup truck on Plank Road south of Clinton.

Brenda Gaines, 64; Denise Gaines, 33; Diamond Johnson, 12; Jyran Johnson, 6; and Angela Matthews Mosely, 36, died in the wreckage of the car. Two other passengers, Willie Gaines Jr., 15, and Rogerick Johnson Jr., 13, also of Baton Rouge, died at hospitals several days later.

Carmichael ordered the presentence report filed under seal, but the judge recently granted District Attorney Sam D’Aquilla’s motion to allow the victims’ relatives to view the report during open court Tuesday.

The survivors who signed up with the District Attorney’s Office to be notified of pending court proceedings will be allowed to read the document, the judge’s order says.

D’Aquilla and Damico said the granting of the request is unprecedented in their experience, but the district attorney said the Louisiana constitution allows victims to view presentence reports.

“They’ll be able to look at it, but they can’t copy it,” D’Aquilla said, adding that in other cases he’s prosecuted, none of the crime victims has asked to view presentence reports, which are used by judges in considering sentences.

Damico said he does not plan to get involved in Tuesday’s proceedings.

“There’s nothing in the presentence report that’s going to be new,” Damico said.

All of the people killed in the collision were members of the same extended family except Mosely.

Her brother, Alvin Matthews, said Wednesday his father, Joseph Matthews, will represent the family at the hearing.

Alvin Matthews said his family members also want D’Aquilla to appeal the sentence because they regard it as too lenient for seven deaths.

John Gaines Jr., a son of Brenda Gaines, said his relatives knew they had the right to review the report, but the judge denied it when he sealed it.

He said they want to know what aggravating and mitigating factors the investigating agent researched in preparing the report, because Gerald had the potential to kill other people in earlier drunken driving incidents.

State Police said an analysis of a sample of Gerald’s blood after the collision showed his blood-alcohol content was 0.15 percent. In Louisiana, a blood-alcohol content of 0.08 percent is considered presumptive evidence of drunken driving.

Before being booked in the fatal wreck, Gerald was arrested at least three times for drunken driving in Assumption, East Feliciana and Livingston parishes.

He completed a pretrial diversion program in Assumption Parish, pleaded no contest to reckless operation in East Feliciana after refusing a Breathalyzer test and was convicted of first-offense DWI in Livingston Parish.

“The system is as guilty as he is,” John Gaines Jr. said, adding that he plans to push for changes in the criminal justice system on several fronts.

Gerald pleaded guilty in December, and Carmichael sentenced him in March to serve seven consecutive 10-year prison terms, specifying that five years of each 10-year sentence, or a total of 35 years, would be served without the possibility of probation or parole.

Gerald would be eligible for time off from his sentence for good behavior, however, and corrections officials calculated that his “good-time” release date with parole supervision would have been June 2040, or 28 years after he was jailed.

The state Supreme Court ruled seven days later, however, that vehicular homicide is a “crime of violence” requiring a defendant serve at least 85 percent of a sentence. In Gerald’s case, that would have been about 59 years of a 70-year sentence.

Carmichael resentenced Gerald on May 14 to seven consecutive five-year terms, plus a $2,000 fine on each count, saying the new sentence would result in Gerald having approximately the same parole eligibility and good-time release dates as he intended in the original sentence.

Although the judge’s action upset the victims’ family members, Damico said he believes the new sentence will result in more prison time for his client.

Corrections spokeswoman Pam Laborde said Wednesday that release eligibility dates have not been recalculated for Gerald since his May 14 resentencing.

Damico’s motion for appeal says the sentence is excessive because the five-year terms are to be served consecutively and the sentence is contrary to the law and evidence.

“We’re asking them (appellate judges) to look at it as concurrent, as opposed to consecutive. I would say I am guardedly optimistic, but other than that, it’s something pretty standard that anyone would file. It’s something expected, I would think, by the court, as well as the district attorney,” Damico said.

The judge set Aug. 25 as a deadline for the case record, including transcripts, to be ready for the appeal.

“We’ll respond to it when it’s filed,” D’Aquilla said.

“We’ve done some research already, and it seems the appellate court would uphold the judge’s sentence,” the district attorney said.