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In Fischer Hit-and-Run Case, Prosecution Ties 11-Hour Silence to Criminal Behavior

| February 11, 2013

Jamesine Fischer's attorneys--Daniel Hilbert, right, and and Stephen Alexander, leaving court today--oppose a motion by the prosecution that would essentially criminalize Fischer's 11-hour silence after the November 2011 hit-and-run. (© FlaglerLive)

Jamesine Fischer’s attorneys–Daniel Hilbert, right, and and Stephen Alexander, leaving court today–oppose a motion by the prosecution that would essentially criminalize Fischer’s 11-hour silence after the November 2011 hit-and-run. (© FlaglerLive)

It doesn’t necessarily matter whether Jamesine Fischer stayed at the scene after she fatally struck 76-year-old Françoise Pécqueur in an alleged hit-and-run, as her defense says she did. What particularly matters, prosecutors told  a Flagler County Circuit judge Monday, in preparation for Fischer’s late-March trial, is that Fischer didn’t tell authorities that she was responsible for the accident until 11 hours after it took place on Columbia Lane in Palm Coast that dark November evening in 2011.

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The distinction is key to the prosecution’s case, and to the sort of instructions the jury will hear from the judge, when Fischer’s trial begins on March 25. It’s not in dispute that Fischer never called authorities until the next morning, after her husband—Flagler County School Board member John Fischer—had talked with then-Sheriff Don Fleming.

Fischer’s defense lawyers—Daniel Hilbert and Stephen Alexander—say Jamesine was at the scene of the accident for 25 or 26 minutes after it happened, and until Pécqueur was taken away in an ambulance, with what paramedics, still then, thought were injuries resulting from a fall: that’s what Fischer herself had told authorities at the scene. That points to a fundamental premise on which Fischer’s lawyers will base her defense: that she never left the scene, and therefore could not be convicted of leaving the scene.

Fischer is charged with leaving the scene of an accident with a death, a first-degree felony that could land her in prison for up to 30 years. Fischer is 56. She was booked at the Flagler County jail last February, and is out on $30,000 bond. Pécqueur was walking her dog the evening of Nov. 10, 2011, on Columbia Lane when Fischer struck her with her PT Cruiser, on her way to see a friend. Fischer stopped, but told authorities she thought she hit a dog, though Pécqueur ‘s dog (a tiny poodle) was unharmed, and Fischer conceded that she soon noticed that the right side of her windshield had been broken. Pécqueur died 42 hours later at Halifax Hospital’s trauma unit, and two days short of her 77th birthday.

Assistant State Attorney Russ Bausch of the 18th Judicial District in Brevard County, who is prosecuting the case with Laura Moody (after State Attorney R.J. Larizza asked that his office be relieved of the duty), made a motion before Judge J. David Walsh this afternoon that instructions to the jury about the case be amended to reflect an important distinction that the hit-and-run law makes, but that the jury instructions do not. Two sections of law are relevant here: 316.027, which deals with a crash involving death or personal injury, and 316.062, on the duty to give information to police and render aid at the scene of a crash.

“There are actually two ways that a person can violate this particular statute,” Bausch told the judge. “The first way is the one that we’re most familiar with, and that is that somebody gets involved in a crash and they leave the scene. They don’t stick around, they don’t try to render medical assistance, they don’t wait for anybody, they just take off and they leave. That’s one we most frequently see, I would suggest. But there is a second part of this statute, … the second way that a person can violate this law is, even if they remain at the scene of the crash, in the event that law enforcement does not respond to the scene of the crash, the statute imposes a duty on the person who caused the crash to forthwith, and that’s the exact language in the statute—and obviously as soon as practicable—contact law enforcement, and let them know about a crash they were involved in that caused injury or death to an individual.”

Bausch continued: the “primary prosecution presentation in this case is not going to be that Ms. Fischer didn’t remain at the scene. The primary prosecution is going to be that Ms. Fischer did not contact law enforcement until approximately 11 hours after this crash, in a situation in which law enforcement did not respond to the crash. The standard jury instruction, judge, completely omits that second violation of the law, that second way that the law can be violated under the statute. There’s no mention in the standard jury instruction with regards to the obligation to report to law enforcement, if they don’t respond, and you don’t avail yourself of the ability to contact law enforcement forthwith, as soon as practicable. So it’s our position that this jury instruction is incomplete, and it’s very important in this case.”

Hilbert, the defense lawyer, opposes the motion and disagrees with Bausch’s interpretation of what the jury instructions should read.

“It’s our position that when the jury instruction was developed, that it was intentionally omitted, that language of [316.062] about the forthwith reporting that’s supposed to occur after a crash when no officer be present. The reason being is just the plain language of the statute. I know I scoured Westlaw and other resources and I’m sure the state has as well, but there’s been no cases talked about the addition of this language into a jury instruction, because quite frankly, the problem with this fact pattern is so novel that you may have a person remains on scene until the body is taken away so to speak, how many times has this come about, quite frankly? So when I looked at both of these two statutes in conjunction, I think it’s readily apparent on the plain language of the statute that they have taken this forthwith reporting and put it outside, after the criminal penalty.”

The defense is looking to paint Fischer as a woman who earnestly believed that she had struck a dog, who dutifully stopped her car, who happened to notice a woman in the ditch, inert, and who believed that the woman had fallen accidentally. Fischer did not offer aid, according to the police report eventually filed, and based on witnesses and paramedics’ testimonies, nor did she call authorities at the scene or afterward, until 11 hours later. But that failure to call authorities, her defense appears to be arguing, followed the fact that someone else had called paramedics (to report what the caller believed was a fall).

In sum, and remarkably, Fischer’s defense will strive to make her seem like a by-stander to the event she had triggered, by portraying her to the jury as an interested, concerned person, who stayed at the scene until Pécqueur was removed, and who then, gradually, pieced together the possibility that she may have been the cause of the accident. Fischer, in other words, was not “willful” in her neglect to call authorities, in her lawyer’s presentation of the evening’s events. But that approach relies on jury instructions that do not criminalize Fischer’s failure to report the accident for 11 hours.

The prosecution is not portraying Fischer in any of those benevolent terms, and is making clear that much of the evidence will be drawn from the initial investigation that showed Fischer at the scene trying to “mislead medical personnel and bystanders,”  according to the police report, while she never even suggested that she may have been at fault. That makes the 11-hour delay in her call to authorities the central node of her guilt, as the prosecution would see it—and the key to the amendment Bausch was seeking, in the jury instructions the judge will be reading.

Walsh did not make a decision Monday. He asked both sides to prepare for a hearing on the matter, because he acknowledged that there may be important “nuances.” But he warned both sides not to make their own interpretations of the law, in so far as the jury instructions are concerned, to the jury, once it’s seated. The matter, Walsh said, will be settled beforehand, and not rehashed during trial.

Trial is scheduled for March 25. The two sides agree that it may take a full week, assuming that the jury can be seated on the first day. The defense expects to call 45 to 50 witnesses.

18 Responses for “In Fischer Hit-and-Run Case, Prosecution Ties 11-Hour Silence to Criminal Behavior”

  1. Taylor says:

    This is so sad, & she will prolly get little punishment considering she is the wife of some at large here in flagler county, && then the EX sheriff Fleming was innvolved on this because he was there friend.. DIRTY COP!!!! and he says he wasnt hiding anything and refused to give up his phone records for the victims family… some of the sheriffs are nice in this town but the other half play dirty as hell and give the worse punishment to the people that dont deserve and the part that gets me you never have evidence, and all this evidence sits here and this broad is still free out on a 30,000 bond she shouldnt even HAVE A BOND. Ive lived here for 9 years you people are pathetic

  2. there are three sides to every story says:

    it’s beginning to look like the women is going to walk…and get off because of the way her lawyers are twisting the law….

  3. Stu Pedaso says:

    You hit something and stop and see a body in the ditch. It would take a moron to not figure it out instantly.

    • PC Mom says:

      Or drinking…. A person mixing alcohol with pills.

      Or…. She knew all along and thought, if she would just survive this could all go away.

      If this woman walks, I will lose all faith in the justice system and this county.

  4. Reality Check says:

    This is such BS, she had a broken windshield, that means the poor woman was thrown (most likely her head) against the car. How do you not notice this? Come on you think you hit a dog but when you stop you see a woman in the swell but you thought she fell. She deserves prison time and nothing less, this is a out of control lie by Mrs. Fischer and there is no other reasonable explanation.

    • FL informed voter says:

      I’m sure she noticed, but was probably drinking and didn’t want to be caught. Just a shame someone lost their life over a careless act and many poor decisions after that act. Why call 11 hours after the fact? Here’s a reason…no longer drunk or evidence of drinking.

  5. Ken Dodge says:

    “It would take a moron to not figure it out instantly.” Or at least, someone who was sober.

  6. Deep South says:

    This is such a tragedy, to wait 11 hours before reporting this. Mr. Fischer as well as Mrs. Fischer both are involved in this, and both should be prosecuted.

  7. FMF DOC says:

    I keep getting the feeling that this case is all about money talks and the rest walk. The more it drags on the more likely she’ll get away with it.

  8. Anonymous says:

    This women stood at the scene saying ” Oh maybe she fell” And the little dog that she said she hit was a very small dog, and was running around at the scene. She is guilty. I know one of the witnesses that was there and took the dog home until the dying ladies family was notified.. If it was me, I’m sure I would still be in jail & ALREADY convicted of leaving the scene of a accident with death.. Hope she gets whats coming to her, like any other citizen. May Francoise RIP.

  9. downinthelab says:

    Pretty big smash on the windshield from what I have seen. Maybe the deceased was tossing the poodle prior to impact.

    If the glove does not fit, then you must acquit…

  10. seriously says:

    Heartbroken over this. RIP Frenchy, you were an amazing woman, who most certainly did not deserve to lay in a ditch for hours only to die in a hosptial. I will never forget your free spirit and your stories of dancing. My heart goes out to your family.

    I am begging for justice here.

  11. MHB says:

    she never left the scene; that will mitigate everything else, no matter the semi-obscure statues

    • Reality Check says:

      @ MHB, an arsonist does not leave the scene of a fire they started, someone dies, are they not guilty? This is the problem with the justice system, its lets people off to easy because it is too expensive to house them. Well maybe if prisons were run like prisons and not hotels they would not want to go! Take away cable TV, give them oatmeal a piece of fruit and milk for breakfast, soup and a sandwich for lunch with water, then a hot meal at dinner and that’s it. Save the state and county government money, make the convicts actually work, oh what a concept work, now I know some right wing liberal will jump in here and say what about their rights, they have none they gave those up upon being convicted of the crime THEY choose to commit. This woman may have accidently hit and killed someone but she deserves to spend time in prison since SHE CHOOSE to just stand there and say nothing. The FDLE needs to pull her prescription records and see if she was on any drugs that may have hindered her ability to drive, because that is the vibe I am getting, she stayed quiet because she knew if they did a DUI (for alcohol or drugs) she may have failed. This is a simple case of vehicular manslaughter and there needs to be a price paid for her actions weather she left the scene or not.

      • Nancy N. says:

        “This is the problem with the justice system, its lets people off to easy because it is too expensive to house them. Well maybe if prisons were run like prisons and not hotels they would not want to go! Take away cable TV, give them oatmeal a piece of fruit and milk for breakfast, soup and a sandwich for lunch with water, then a hot meal at dinner and that’s it. Save the state and county government money, make the convicts actually work, oh what a concept work”

        This may be the most uninformed thing that I’ve ever read in a comment on this website. You obviously have never had any contact with the criminal justice or prison systems other than the tough on crime crap soundbites shoveled by conservative politicians.

        Let’s see…where shall I start?

        * Florida has among the toughest sentencing laws in the nation – and we USE them. We incarcerate a higher percentage of our citizens than almost any other state in the country, and for longer periods. While other states are trending towards shorter sentences and creating diversion programs for minor offenses, we are lengthening sentences and stiffening penalties.
        * Florida prisons do not have cable TV. They barely even have TV’s at all – small old standard definition screens in common areas that are only allowed to be watched a few hours per day.
        * Meals? That menu you suggest sounds like nirvana compared to what the inmates are actually served. Fruit? HAHAHAHAHA. Never. It’s expensive and a security threat (used to make alcohol). You wouldn’t feed your dog what they feed inmates in this state. Most inmates lose substantial amounts of weight in custody.
        * Every FLDOC inmate who is physically able (and they have a broad definition of able) is REQUIRED to work as a condition of their incarceration. Inmates run all essential operating functions of their own facilities – food service, janitorial, laundry, grounds maintenance, all those tasks. Inmates also work at jobs such as on contract work crews that DOC gets paid for providing to other entities, such as the ones regularly seen working here in Palm Coast for the city who come from the DOC facility in Daytona. Inmates are NOT paid for their labor and refusal to work will get them locked up in disciplinary detention.
        * Mrs Fisher’s prescription records have no legal relevance to her hit and run case. Just because a doctor might have prescribed her a medication does not prove that she actually took a medication. The only way to prove she was impaired is thru a blood test taken at the time of the accident proving what she had in her system at that exact time. Just like you can’t convict someone of drunk driving just because a bartender says they served them a drink earlier in the evening. No, you have to have a breathalyzer or BAC test result taken at the time they were driving.

  12. Samuel Smith says:

    Guys, guys, I’m sure the guilt she’s feeling is enough of a punishment here.

  13. kathy summerlot says:

    For all of you who have commented on this, until something likes this happens to you or a loved one, you have no idea how you would react. I’m sure you think you know, but until it happens, it is only speculation. We have a judicial system in place. Until you are proven guilty, you are innocent. Let this play out in court and go about your business. We are all judged in the end no matter what the outcome in court is.

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