LANCASTER — The truck driver in the Fallen Seven crash has appealed to the state Supreme Court after his motion for a bail hearing was denied for a third time in Coos County Superior Court.
Volodymyr Zhukovskyy, 25, is seeking to be released on bail pending his trial on seven counts of negligent homicide, seven counts of negligent homicide-DUI, seven counts of manslaughter, and one count of reckless conduct. He has pleaded not guilty to all charges in the crash that killed seven members of the JarHeads Motorcycle Club on Route 2 in Randolph back in June 2019. Since his arrest on June 24, 2019, the Zhukovskyy has been held without bail at the Coos County Jail in West Stewartstown.
The third motion for a bail hearing was denied by Coos Superior Court Justice Peter Bornstein on April 22. Previous motions on March 27, 2020 and Sept. 16, 2020 were also denied by Bornstein.
In their latest motion to get their client released on bail, Public Defenders Steve Mirkin and Jay Duguay noted the case was originally set for trial in November 2020. That summer because of COVID protocols put in place, the trial was rescheduled to March 2021 At the beginning of 2021, the trial was pushed back to May 2021.
The defense said this January it was told that the state had uncovered a substantial amount of additional discovery and needed time to review it before planned depositions of the state’s expert witnesses could be scheduled. After some discussion, the trial is now set to begin jury selection on Nov 29. The defense has filed a motion to move the date up to Nov. 18, but said the state has indicted it will object.
“In any event, by the time the trial begins, the accused will have been in custody without some much as a hearing on bail, for two and one half years,” the defense wrote, calling it “unconscionable.”
Furthermore, the public defenders argue the extensive delay is attributable to the state and said Zhukovskyy is asserting his right to a speedy trial.
While noting the fact that Zhukovskyy has a history of substance is no secret, the defense said he has been clean and sober for 21 months.
The defense took issue with the state’s conclusion that the fatal collision was Zhukovskyy's fault. It pointed out the state’s own reconstruction experts found the driver of the lead motorcycle was legally under the influence of alcohol and his motorcycle was outside its travel lane. The defense said Zhukovskyy reacted by braking and the tire failure from the impact caused the truck and flatbed trailer to veer into the oncoming lane. Furthermore, the defense pointed out that the state recently substituted the indictments against Zhukovskyy to remove language that his vehicle crossed into the opposite lane of traffic.
If the court released Zhukovskyy on bail, the defense said it could require him to live with his parents in West Springfield, Mass under electronic monitoring and submit to regular drug and alcohol screening. He could be precluded from operating a motor vehicle or leaving the house without permission.
In rebuttal, Coos County Attorney John McCormick and Assistant State Attorney Generals Scott Chase and Shane Goudas argued Zhukovskyy “was and remains a danger to himself and the public”. The state noted the defendant admitted he had used heroin and cocaine on the day of the accident, despite being on bail for a driving under the influence charge from the previous month. The state charged Zhukovskyy caused the fatal collision in Randolph by driving distracted, failing to maintain control of his vehicle, and having ingested the two drugs.
The state also said both parties agreed to the delays in the trial, mostly due to COVID protocols. While the defense claims the state’s new discovery is delaying the trial, the state said the defense has not conducted a single deposition of any of the state’s witnesses. Furthermore, the state said the defense continues to provide reports from its experts to the state.
A Ukrainian national with permanent residence in the United States, the state said an active detainer for deportation has been filed against Zhukovskyy. With family members in Ukraine, the state said he presents a significant flight risk.
The defense is asking the Supreme Court for an expedited review of its appeal.