After nearly nine hours of jury deliberations, a South Carolina man who admitted to a day of drinking before causing a fatal wreck on Lake Marray was found guilty of reckless homicide, but he was acquitted of two charges of felony boating under the influence.
Tracy Gordon, 57, admitted that he drank eight beers over the course of the day while he and his wife drove their speed boat around the lake, watched football and danced at popular lakeside restaurants on Sept. 21, 2019.
Shortly after 9 o’clock on a moonless night, as the couple were driving home in the Baja speedboat with a noisy motor, Gordon made a left turn across a channel and collided with a pontoon boat containing three members of the Kiser family. The father, Stan Kiser, was killed after sustaining catastrophic injuries from the speedboat’s propeller. His wife, Shawn, had a leg amputated and his daughter, Morgan, suffered head injuries.
“It’s so dark he can’t see. It’s so loud he can’t hear. It’s like he’s an unguided missile at this point,” Deputy Solicitor Dan Goldberg said during his closing argument.
The unanimous verdict was delivered by a Richland County jury shortly before 11 p.m. Wednesday. The jury was sent to the jury room for deliberations around 1:45 that afternoon.
The verdict came one day before the four-year anniversary of the fatal crash.
Gordon will be sentenced at 10:45 a.m. Thursday. In South Carolina, reckless homicide carries a sentence of up to 10 years in prison and a fine of up to $5,000.
During deliberations that stretched through the afternoon and into night, the jury, comprised of eight women and five men, received a lunch and dinner of Jimmy Johns sandwiches and sent the judge 11 notes. These included requests to review expert testimony about running lights on the pontoon boat, to hear clarifications about the reckless homicide charge and how to proceed if they could not reach a verdict.
As the charge of felony BUI leading to death and felony BUI leading to injury were returned not guilty, there were sobs from the Kiser family and their supporters who had sat in court throughout the trial. But as the jury returned a verdict of guilty for reckless homicide, their sobs were joined by those from the Gordon family on nearby benches.
The case was prosecuted by Goldberg and Assistant Solicitor Carter Potts from the 5th Circuit Solicitor’s Office.
Gordon, a former manager at the Mars dog food factory in Richland County, was represented by Jack Swerling, Joe McCulloch, Alissa Wilson and Will DuBose.
While defense attorneys conceded that Gordon had drunk as many as eight beers over the course of the day, they maintained he was not “materially or appreciably impaired” — the legal standard for the charge of boating under the influence.
TracyGordon_DanGoldberg_Closing.jpgDuring closing arguments in the Richland County Courthouse, Deputy Solicitor Dan Goldberg displayed cans of beer to demonstrate how much Tracy Gordon drank before a fatal boat crash on Sept. 19, 2019.
Gordon, an experienced boater, testified that he was not drunk and he did not see the Kisers’ boat until it was too late to turn away. The crash was simply a tragic accident caused by a dark night and dim running light on the pontoon boat that could have blended in with lights from the shore, the defense argued.
But throughout the trial, solicitors argued that Gordon acted recklessly when he drove his 24-foot Baja Outlaw speedboat into the Kisers’ pontoon boat.
“This was not an accident,” Goldberg said in his closing arguments to the jury. “If he was not reckless this wouldn’t have happened. If he was not materially and appreciably impaired this wouldn’t have happened.”
The jurors’ deliberations didn’t include a key piece of the prosecutions evidence: Gordon’s blood alcohol level.
In a significant early victory for the defense, this key piece of evidence was kept from the jury after Judge Heath Taylor ruled that it was inadmissible because it had been obtained through an improper court order.
State Department of Natural Resources officer Marion Baker, who performed the field sobriety tests on Gordon the night of the crash, did not sign an affidavit that was submitted to a judge as part of the application for a search warrant to test Gordon’s blood.
Taylor, formerly a prominent DUI attorney, said that he had no choice but to keep the evidence of Gordon’s blood alcohol content out of the trial.
The absence of this evidence did not go unnoticed by the jury. Shortly before the judge read them charging instructions, the jury sent a note requesting clarification on whether a blood draw had been performed.
While declining to answer them, Taylor instructed the jury that they could give Gordon’s answers “whatever weight you deem necessary during deliberations.”
Without hard, scientific evidence, jurors were left to judge whether Gordon was impaired from field sobriety tests, eyewitness accounts from restaurant employees and Gordon’s own testimony about the eight beers he drank.
Gordon was arrested following the crash when he failed a series of seated field sobriety tests. Among them was a horizontal gaze nystagmus test, which looks for involuntary eye movement, and a test requiring that he touch the tip of his nose with his index fingers.
Three law enforcement officers, including Baker who testified that he had a damaged sinus, described what Goldberg called an “overpowering” smell of alcohol on Gordon.
On the stand, Gordon denied that he was impaired at the time of the crash. He also passed both the “heel toe” test, where he had to walk in a straight line, and the one leg test, which required him to maintain his balance.
Employees at the two restaurants that Gordon and his wife, Angie, patronized the night of the crashed also testified that Gordon did not appear to be impaired.
However, proving intoxication was not a requirement of finding Gordon guilty of reckless homicide.
Tracy Gordon arrest.jpgTracy Gordon, 57, is led from the courtroom following his conviction for reckless homicide on Sept. 20, 2023.
“Recklessness is carelessness in the face of a known risk,” Taylor twice instructed the jury.
It was a theme that prosecutors returned to repeatedly throughout their case, as they argued that Gordon’s decision to drink eight beers and drive the boat at night was reckless, even if he was not drunk.
“Every choice that we make has an end result. Every choice that we make has a consequence. Am I going on the boat today? When do I crack open my first beer? Should I have another? Or another? Or another?”
During his closing arguments, Goldberg began to pull cans of beer from a cooler. He placed eight in front of the jury, representing the number Gordon was known to have drunk.
“Are we really supposed to believe that he was fine?” Goldberg asked. “That a reasonable, prudent person would drive their boat at night, in his condition, when it’s pitch black outside, in a busy part of the lake? Would a reasonable, prudent person drink all that and do that?”
September 20, 2023 | State, The: Web Edition Articles (Columbia, SC)
Author/Byline: Ted Clifford, The State | Section: crime