Two years after Volodymyr Zhukovskyy was charged and jailed in the deaths of seven motorcyclists in Randolph, the state Supreme Court on Tuesday considered whether he should have a chance to be released on bail before a pending trial.
His lawyer, an appellate public defender, told justices that Zhukovskyy deserves a hearing at which a judge could consider evidence that casts doubt on his responsibility for the crash, including whether the car-carrier trailer towed by his truck crossed the center line.
But an assistant attorney general focused on what makes Zhukovskyy a danger and why he should stay in jail — a penchant for drug use and reckless driving.
“Out from under the thumb of the Department of Corrections, he will make choices that are dangerous to himself or others,” warned Scott Chase, who handles appeals for the Department of Justice. “The first thing he does (after the crash) when he gets home is use the rest of his heroin.”
Chase also warned that Zhukovskyy, a native of Ukraine, is subject to a detainer from Immigration and Customs Enforcement, meaning he faces possible deportation before trial if he is released.
Zhukovskyy, now 25, faces charges of manslaughter and negligent homicide in the June 21, 2019, deaths of seven motorcyclists associated with the Jarheads Motorcycle Club on Route 2 in the town of Randolph.
His trial is scheduled for November.
He was not present during the hearing in the Supreme Court; defendants rarely are.
He has been in custody since Massachusetts police arrested him at his West Springfield family home in the days following the crash and has spent nearly all that time in the Coos County jail.
His lawyers have filed several motions to have him released on bail. All have been rejected without a hearing.
That was the point stressed by appellate defender Christopher M. Johnson. The state’s own experts have cast doubts on initial assumptions in the case, including whether the trailer crossed the yellow line.
Experts believe the collision with the trailer and one motorcycle occurred over the yellow line.
Johnson wants the Supreme Court to order a hearing where a judge would have to decide disputed facts. Other facts include the degree of Zhukovskyy’s impairment, his reaction time and whether he braked, Johnson said.
If Zhukovskyy was not driving negligently or recklessly, he is not dangerous, Johnson said.
Johnson said every bail involves some element of risk.
“This is not a place where the court should say ‘better safe than sorry, we’re going to hold him,'” Johnson said.
Several of the justices were skeptical.
Justice Patrick Donovan noted Zhukovskyy admitted taking a mixture of fentanyl and cocaine before driving and had been driving after a recent DUI.
“Isn’t that enough?” Donovan said.
“The double yellow line is hardly a neutral zone,” said Justice Gary Hicks.
Another justice challenged Chase’s insistence that Zhukovskyy remains dangerous after two years behind bars, where he has had not access to illegal drugs.
“People don’t change during 24 months pretrial (confinement)?” Justice Barbara Hantz Marconi said.
If the justices rule in Zhukovskyy’s favor, he won’t be automatically released.
They would order Coos County Superior Court Judge Peter Bornstein to hold a full-blown evidentiary hearing, where Zhukovskyy’s lawyers could challenge the state’s evidence on why he poses a danger to the public.
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