Judge denies New Franken man's claim of selective prosecution Driver in fatal crash will stand trial By Jessica La Plante News-Chronicle A New Franken man accused of causing a high schooler's death through negligent driving failed to convince a Brown County judge Wednesday that passion, and not reason, guided prosecutors' decision to file criminal charges. Arguing a motion to dismiss based on selective prosecution, defense attorney Brian Maloney said his client, Timothy Ferral, was singled out for prosecution among a long list of drivers who were involved in fatal accidents in recent years. Maloney said prosecutors allowed their sympathies for the victim's family to influence their decision to charge Ferral. Eight months after Ferral allegedly ran a stop sign and killed a teenage driver in the town of Scott on July 20, 2002, prosecutors decided to charge the 52-year-old man with homicide by negligent operation of a vehicle. Maloney said a record of fatal crashes in Brown County in recent years showed prosecutors normally did not file negligence charges against drivers for accidents in which no drugs or alcohol were involved. He said between 1997 and 2002, only one other sober driver was charged with homicide by negligent use of a vehicle. "I feel like these things are just (decided) randomly and arbitrarily as to who gets charged and who doesn't," Maloney said. "Any one of us on any given day could be spacing out and go through a stop sign or a red light and a tragic accident like this could happen ... but they're accidents." Not only was Ferral sober at the time of the crash, Maloney said his client wasn't speeding either. "There was no drinking or recklessness involved," Maloney said. "(Ferral) was going to pick up his kid at a sleepover." The only controversy surrounding the crash is whether Ferral drove through a stop sign at the intersection of County T and K, a question Maloney felt shouldn't be answered with penalties of up to five years in prison and $10,000 in fines. At the motion hearing, Zakowski was called to the witness stand to explain the criteria he used in charging Ferral. Zakowski said he's dealt with many situations where victims' families have "cried about their loved ones who were killed and we've had to explain (the conduct) didn't rise to that level of criminal negligence where it would justify charging." Zakowski said the July 2002 crash was unique from the other cases cited in the defendant's motion. Zakowski said the district attorney's office rarely sees such black and white examples of criminal negligence, where there were no visual obstructions or road conditions that might have explained the driver's conduct. He said the accident took place at an intersection lined with rumble strips and warning signs that give drivers ample notice of a stop sign ahead. "This is distinguishable from the other cases (the defense) is referring to because the level of negligence is greater and that warranted the criminal charges," Zakowski said. In addition, Zakowski said he believed Ferral lied to police to dodge blame for the teenager's death. Crash reconstruction reports showed Ferral made no attempt to stop, he said. When questioned by police, Ferral "stated he had stopped, looked both ways and proceeded through the intersection," Zakowski said. "Mr. Ferral basically transferred the fault of this crash to the dead girl when in fact he went through the stop sign." Before charging the case, Zakowski said he consulted with other attorneys in his office and looked to previously charged cases for guidance. He said the district attorney's office filed a similar charge in 2000 against a woman who ran a stop sign and killed a driver. Before ruling on the motion, Brown County Circuit Court Judge Sue Bischel compared the burden of proof for criminal versus civil negligence by reviewing Wisconsin's jury instructions. She said the third element of criminal negligence, whether the driver should have known that his actions would cause a substantial risk of bodily harm or death, was the most important element in this case. "The rumble strips combined with the warning signs meet that component of the jury instructions," Bischel said. Bischel ruled Zakowski did not discriminate against Ferral in filing the homicide charge, and denied the defendant's motion. Ferral's case is scheduled to go to trial Oct. 14.