06/18/05
DWI lawyers do no favors for rest of us
There’s this lawyer, Peter Gerstenzang.
If you’ve been driving after having too much to drink, caused a collision and maybe killed somebody, Mr. Gerstenzang is the guy you want to call.
Peter Gerstenzang is to drunken drivers what the fictional Perry Mason was to murder defendants, except all of Mason’s clients were really innocent of any wrongdoing.
Gerstenzang literally wrote the book when it comes to getting alcoholics back onto the highway. "Handling the DWI Case in New York," came out in 1987, and is updated every year. It’s a must-read whether you’re a defense attorney or a prosecutor.
He’s the best, and last week in Otsego County Court, he was in mid-season form. He had to be after what happened on May 21.
It’s a Saturday, and the police in Southhold on Long Island get a call about an "erratic driver on Route 48" in the town. The 63-year-old woman is found at a gas station, her car still running.
"When I asked her to roll down her window, she put the car in drive," Police Officer Joseph Gordon Jr. would later testify. When the woman rolls down the window, the cop detects "a high smell of alcoholic beverage."
He asks her to get out of the car and she appears "disheveled" and "disoriented."
She fails two roadside sobriety tests. Her blood alcohol concentration is measured at .11 percent, well above the .08 percent legal limit in New York state, according to an arrest report.
She is charged with driving while intoxicated.
It is 11:40 in the morning!
The woman turns out to be wealthy Sandra K. Bertsch from Middlefield. She got drunk back in 2001 and killed a 37-year-old mother of two young children in a car accident on county Route 33.
It’s called an accident, but there’s nothing accidental when you agree to plead guilty to charges of criminally negligent homicide and driving while ability impaired.
One of the children, a 2-year-old little girl, was seriously injured when Bertsch caused the collision that took the life of Patricia Zaccagnino.
Bertsch got off incredibly easy in a plea bargain, sentenced to 90 days in county jail (of which she only served 60), 500 hours of community service, five years’ probation, a $500 fine and a $210 surcharge and crime victims’ fee.
Then she was allowed to resume her life of privilege.
Her attorney was surprise Peter Gerstenzang.
"When wealthy Sandra Bertsch got the sweetheart deal," The Daily Star wrote at the time in an editorial, "it stunk to high heaven."
And now, here is Sandra Bertsch back in a courtroom, accused of violating her parole. She could get 1 1/3-to-4 years if found guilty.
Gordon, the arresting officer, has only been with the police department for seven months. The wily Gerstenzang must have felt like a lion eyeing a wounded, young wildebeest.
By the time the lawyer got through questioning him, the cop was lucky to be certain of his own name.
Then Gerstenzang brought in a chemist named Mary McMurray, who had been paid $3,000 to testify. She said that unless the testing instrument is properly calibrated, it could be wrong when revealing a high blood alcohol level.
Now, I’m not making this up.
McMurray testified that even if someone has tiny amounts of alcoholic liquid trapped in his or her mouth, it could cause a high reading on the breath test.
So, of course, Gerstenzang trots out Bertsch’s dentist, Dr. Francis Angelino, who testifies that Bertsch has "a moderate periodontal condition" where her gums have receded, leaving "pockets" where alcohol could lurk.
So, the way I understand it, Gerstenzang wanted the court to believe that his client who has already killed an innocent person, maimed a child and been caught apparently driving schnockered on a Saturday morning was the unwitting victim of unfortunate oral hygiene.
However, Judge Brian Burns wasn’t buying it. Without ruling on whether Bertsch was driving drunk on May 21, he did rule that she had been drinking, which was a violation of her parole.
Burns is a good man, a mensch. Moreover, he’s a good judge who truly believed that Bertsch was not a threat to society when he agreed to the original plea deal. He had stuck his neck out, and thanks to Bertsch, he got clipped.
Burns revoked Bertsch’s bail and sent her to jail, where she awaits sentencing next month.
That where she belongs. We have to be protected from the Sandra Bertsches, who somehow believe it’s OK to drink and drive even after killing somebody.
Judge Burns knows that. I wonder if Mr. Gerstenzang does.
I understand that the Sixth Amendment guarantees every defendant in our criminal justice system "the assistance of counsel."
I also understand that lawyers defending guilty people believe they must, if necessary, confuse, mislead, obfuscate and use every maneuver they know.
I understand all that, I truly do.
What I don’t understand is how those lawyers can sleep at night, look at themselves in the mirror after they awaken and feel a sense of accomplishment when telling their spouses over breakfast, "Well, that’s one more drunken driver I’ve helped get back behind the wheel."
Sam Pollak is editor of The Daily Star. He can be reached at spollak@thedailystar.com or at (607) 432-1000, ext. 208.