A few days ago, TruTV’s Jean Casarez provided general profiles of the jurors in the NJ vehicular homicide trial of Trooper Robert Higbee. Apparently, one voir dire question was whether any of the jurors had ever been in an auto accident. Several had.

This former juror would also have asked a follow-up voir dire question: Were you the cause of the crash?

Why? Because a crash victim feels very different from the way the person given the ticket feels. A victim typically is angry (as were the two “third-party” witnesses in the Higbee trial). The person given the ticket—if he or she is decent—feels very sorry for what happened, even if it really wasn’t her fault.

I know, because I’ve been in both positions. I also know that memory is a psychological construct: what you remember after an accident is not only colored by your emotions, it is pieced together like a broken glass.

My Traffic Court Experience

Several years ago I was commuting home on a toll road after dark—but in a white car (very visible). As I approached the toll booth (pre-iPass days), I checked my rearview mirrors and turned on my blinkers to indicate I was going to change from the center lane to the far left lane (coins). Even today I distinctly remember looking in the rearview mirrors cautiously and seeing no approaching headlights. I’m also sure I signaled the lane change in advance.

• How can I be so sure? Because I’m a very cautious driver; I’m afraid of cars; my father died in a car wreck.
• Was I speeding? Well, I’m pretty sure I was traveling close to the speed limit, as usual, but I may have speeded up slightly during the lane change—as I was taught to do for safety.

As I changed lanes, two headlights suddenly appeared in my left rearview mirror. Apparently, I reflexively swerved back into the center lane. Thankfully, there was no one tailgating me. But the car in the left lane hit my left rear bumper, sending my car into a tailspin.

That’s where my memory gets weird.

I saw a sixteen-wheeler bearing down on me in the right-hand lane. My car was spinning out of control.

I suddenly was overwhelmed by the feeling I was about to die. I had a hallucination. (I’m not going to say what it was, because you’ll think I’m really crazy.) All will dropped away from me. I went limp. My foot came off the brake, my hands fell from the wheel.

The next thing I remember, I was sitting in my car, facing the wrong direction—and there was no on-coming traffic at all. The road was empty.

I must have looked over my shoulder at the toll booth—I don’t really remember. But when I realized the other car was on the shoulder of the highway and that I was a hazard, somehow I managed to drive my car off the road onto the shoulder, too.

The State Trooper

Eventually, an IL State Trooper arrived. He sat in my car in the passenger seat (obviously to check my breath). He asked me what happened. The first words out of my mouth were,  “I’m so sorry. I didn’t see his headlights until he was right up next to me.”

Lawyers among you will groan, I know. You’re never supposed to admit guilt. But that’s my point: I was truly in a state of shock. I wasn’t using my common sense. I honestly felt devastated: I had virtually shut down a busy tollway and had called a state trooper away from whatever else he was supposed to be doing, all because I wanted to use the fast lane through the tollbooth. And I couldn’t figure out how the accident had happened. I just knew I was trying to obey the law, as I always do.

I also remember the trooper telling me that he was sorry, but he was going to have to give me the ticket, not the other driver. He also advised me to show up at traffic court and plead not guilty. He said the other driver wasn’t likely to show up, and he (the trooper) wouldn’t be there either, so I should show the judge my safe-driver certificate (no priors) and he would likely dismiss the ticket. Eventually the judge did that.

Aftermath

Of course, the other driver made a claim against my insurance for his necessary repairs. That was when I learned he lived in Iowa. Suddenly, everything about the accident made sense—and I knew it hadn’t really been my fault. It became clear that he was speeding and either failed to heed my signal light or tried to race me toward the tollbooth.

How did I know this? Well, I looked at a map to find the point on the toll road where the accident occurred. Just before that point, the toll road crosses an east-west expressway between Iowa and Chicago. A lane of expressway traffic enters the toll road from the right. That lane must yield to traffic on the toll road. Anyone entering the toll road at that point, who wants to access the coin deposit bin in the far-left lane, must cross two lanes of fast-moving traffic. The car that hit me had been entering the toll road from the far right when I checked my rearview mirrors: that’s why he wasn’t there—just as I told the trooper.

The other driver had to have been speeding across three lanes of traffic. He had to have seen my car and had to have been trying to beat me to the tollbooth. It was all his fault.

Memory is Strange

Legal commentators have been highly critical of Trooper Higbee for swearing under oath two weeks after the accident that he thought he remembered applying the brakes. They claim the police vehicle’s black box (currently being entered into evidence) proves he was lying.

But was I lying to the IL trooper when I apologized and said I didn’t see the approaching vehicle’s headlights? He may have interpreted my words to mean I hadn’t looked carefully—even though I’m now convinced I was telling the precise truth. There had been no headlights.

Thinking back, I have a vivid recollection of the events. It was a near-death experience. That’s hard to forget.

But is my memory accurate? I doubt it. For one thing, I realize I had a hallucination as my car was spinning. I may also remember being more cautious than I really was—simply because I believe myself to be a careful driver. I may misremember signaling. I may misremember my speed. Was there really a sixteen-wheeler? Where did it go? What happened to all the other traffic?

So, as a driver once accused of causing a crash, I doubt it was possible for Trooper Higbee to accurately remember a collision in which he suffered a concussion. Surely, when asked whether he had applied the brakes at the intersection, he would assume that as a safe, well-trained driver, he had done so. His memory of the incident can’t possibly have much to do with what really happened. He has pieced the memory together from what he knows about himself. He wasn’t lying. I imagine he was shocked to hear about the black box data.

Cudos to defense attorney Subin for challenging the black box. (Ironically, too, Mr. Subin has cast doubts on the black-box expert’s own memory. This is classic Perry Mason.)