New trial in death of UNH student?

CONCORD – The same judge who admonished Kevin Whittaker for showing “no remorse” for killing fellow UNH student Richard Hegerich must now decide if he deserves a new trial.

Whittaker, 21, of Nashua, killed Hegerich, a member of the swim team, while driving drunk in Durham on Nov. 21, 2004.

Whittaker’s new attorney, Richard Lehmann, argued to Judge Peter Fauver on Monday that it was Hegerich, and not Whittaker, who could have avoided the accident all together. Hegerich had nearly four seconds to react to the oncoming car after Whittaker had reached “the point of no return,” Lehmann said, referring to information contained in an accident reconstruction report.

The accident reconstruction expert reviewed the crash after Whittaker’s 2006 conviction, and found evidence to suggest the accident was unavoidable, Lehmann said.

The conditions on the night of the accident – dark, rainy and foggy – and the dark clothing worn by Hegerich greatly contributed to the accident, according to the analysis preformed by Carl Lakowicz, at Northpoint Collision Consultants, LLC.

“Stone cold sober or intoxicated, you, me and Dale Earnhardt Junior could have been driving at the same time and the same thing would have happened,” said Lehmann.

Strafford County Attorney Thomas Velardi said Lakowicz may be skilled with analyzing vehicle-on-vehicle collisions, but he has “nothing in his particular background to do with pedestrian/vehicle collisions.”

Velardi disputed the claims that the conditions of Main Street in Durham, where the accident occurred, were a major factor in the case. Velardi argued that they can’t “shut down Main Street in Durham every time it rains.”

Fauver will review both the reconstruction done by Lakowicz and previous court transcripts before making a decision on granting Whittaker another trial.

If granted a retrial, Whittaker would only challenge his conviction for negligent homicide. In 2006, he was sentenced to 7-1/2 to 22 years for that crime and a felony charge of conduct after an accident.

Whittaker received a 3-1/2-year sentence for the lesser charge, and he is due to be released for that crime Oct. 15.

Whittaker was granted a motion for retrial by the New Hampshire Supreme Court, and the case was sent back to Fauver.

The high court found the outcome of the trial could have been different had Whittaker’s original attorney, Stephen Jeffco, hired an accident re-creation specialist.

Velardi, the prosecutor, argued that Jeffco made many of the same claims that Lehmann did.

Lehmann tried to demonstrate that Whittaker was poorly represented by Jeffco, saying “Mr. Jeffco brought a knife to a gun fight and was outgunned when it mattered.”

Before the proceedings got under way, Lehmann had an additional request for Fauver.

On Friday afternoon, Whittaker’s father went in to the hospital for routine hip surgery and later died due to complications. Lehmann asked that Whittaker get a few hours from prison to be able to attend his father’s funeral.

At the conclusion the proceedings, a two-hour prison furlough was discussed, which would allow Whittaker to attend most of his father’s funeral. It wasn’t clear if he would be able to attend.