Attorney: Police lacked evidence to arrest driver in Scout's death

The defense attorney for the Holbrook man accused of driving drunk and killing a 12-year-old Boy Scout alleged in court Wednesday that Suffolk police officers who responded to the crash decided to arrest his client without enough evidence because the victims were children.

"Arrest him, and we'll figure it out later" was the mindset of the responding officers, defense attorney Steven Politi argued in court.

Politi attempted to draw out inconsistencies between what the arresting officer wrote on reports at the time of the crash and his court testimony Tuesday. The effort came on the second day of a pretrial hearing to determine whether police had probable cause to arrest Thomas Murphy, 60, after the Sept. 30, 2018, crash that killed Andrew McMorris and seriously injured another Scout.

Suffolk Police Officer Daniel Brecht of the Seventh Precinct testified Tuesday that he stopped administering the walk-and-turn field sobriety test because Murphy was unsteady on his feet and Brecht thought he would fall and hit his head if he continued.

Pressed by Politi Wednesday, Brecht acknowledged he had not included that exact language in his written report. But he had noted that Murphy appeared “unsteady on his feet” and in a supplemental document had written Murphy was “unable to keep his balance.”

Politi also pressed Brecht to reconcile his testimony that Murphy was leaning on his white SUV after the crash and was unsteady but that the officer had asked Murphy to walk about 25 feet with him to his police car. 

“If he’s so intoxicated, why would [Brecht] say, ‘come on, let’s walk to my car’ … it doesn’t make sense,” Politi told the judge. 

Murphy, who has pleaded not guilty to charges including aggravated vehicular homicide, is set to go on trial next month. If convicted on the top charge, he faces 8 1/3 to 25 years in prison. 

Brecht testified Tuesday that Murphy refused to take a Breathalyzer test at the crash scene, had a “strong odor” of alcohol on his breath and had admitted to the officer that he had consumed three alcoholic beverages before the crash.

Prosecutors have said Murphy registered a .13 blood alcohol content obtained from a warrant hours later — above the .08 legal limit. Forensic toxicologists have estimated his BAC was .19 at the time of the crash, according to prosecutors.

Judge Fernando Camacho denied Politi’s request to call as a witness the supervising detective sergeant at the scene of the crash. Prosecutor Brendan Ahern had objected to the request, calling it an attempt to “expand discovery.”

Alisa McMorris, the mother of the Scout who died, attended the hearing with her daughter and other supporters. She did not comment.

Politi and Ahern exchanged frequent verbal barbs during the hourslong hearing Wednesday, with Ahern accusing Politi of playing "a game" by presenting "false facts."

Politi, referring to Ahern as his "adversary," called the prosecutor’s accusation "ridiculous" and said Ahern was simply "unhappy with the witness testimony."

Ahern attempted to end the back-and-forth by saying: "We're not going to be calling each other liars. That's not what lawyers do."

Politi and Camacho also had a tense exchange when the judge wouldn't allow Politi to continue with a line of questioning.

"Don't shake your head, Mr. Politi," Camacho said.

Politi responded: "I didn't shake my head. I looked down."

Camacho warned: "I am very proud that in my 23 years on the bench, I've never held anyone in contempt — especially a lawyer. I would like to end my career that way. Please don't push me."

Court then went into a brief recess.

Jury selection is scheduled to begin Thursday.

By Nicole Fuller

nicole.fuller@newsday.com@NicoleFuller

Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.