Published September 20 2012
Moorhead man cleared in fatal 2008 crash that killed friend
A judge acquitted 33-year-old Bryan Paul Ness of criminal vehicular homicide and DWI on Monday in Norman County District Court.
Judge Michael Kraker granted the motion for acquittal after the state rested its case, meaning defense attorney Jesse Lange didn’t have to present his case, “which is a rare thing,” Lange said.
Lange said the state provided no reliable evidence to suggest Ness was driving at the time of the rollover-type accident that killed Daniel Horn.
“They were kind of forced to admit to an awful lot of big mistakes, which I guess will happen when you start out with a conclusion and then you do everything you can to back it up instead of investigating until you come to a conclusion,” Lange said.
The fatal crash occurred in the early hours of Dec. 9, 2008, as Ness and Horn were on their way home from Grand Forks after attending a concert by the rock band Disturbed.
Prosecutors alleged Ness was intoxicated and driving his 2004 Honda Pilot when it went off the road near Borup, landed in a field and rolled.
Both men were ejected from the SUV, and Horn died from a skull fracture, the Ramsey County medical examiner found.
The case traveled a long, bumpy road to trial, with three different county attorneys handling it.
Ness was initially charged in early 2010 with felony criminal vehicular homicide by then-County Attorney Tom Opheim.
Susan Rantala Nelson took over as county attorney in January 2011. That summer, she dismissed the case two days before the trial was to begin because of what she said was a surprise accident-reconstruction expert added to the defense witness list.
Last December, after Horn’s wife and mother protested outside her office, Nelson re-filed charges of criminal vehicular homicide, DWI and driving with a canceled license against Ness. His attorney, Steven Light of Fargo, died of a self-inflicted gunshot wound in February, and Lange took over as defense counsel in March.
Current Norman County Attorney James Brue inherited the case six months ago when he was appointed to the job, and he made bringing it to trial a priority.
Brue said Thursday that he respects the judge’s decision to acquit Ness. He said Lange’s criticisms of the investigation “may be a little overstated,” but he acknowledged mistakes were made that were brought out during cross-examination.
When two unbelted occupants of a vehicle are ejected and only one survives, “they’re always difficult cases, and I think we knew that going in,” Brue said.
“In this case, there were multiple agencies that responded to more than one scene. Basically I would say law enforcement was faced with a difficult task. They were making difficult decisions in a stressful and chaotic kind of scene and response,” he said. “And in the relative calm of a courtroom four years later and with the benefit of hindsight, it’s pretty easy to Monday morning quarterback and find mistakes.”
Lange found plenty.
For example, he said investigators never tried to corroborate Ness’ story that he and Horn had stopped at a bar and gas station in Hillsboro, N.D., on their way back from Grand Forks. Ness told authorities that he drove to Hillsboro but that Horn drove the rest of the way until the crash.
Bank records confirmed that Ness made cash withdrawals at the bar and stopped at the gas station, Lange said. He said authorities could have tried to get video from the gas station to prove who was driving.
Among the other things he cited as mistakes:
E The SUV was crushed before Ness was charged, so the defense had no opportunity to independently study it.
E Blood evidence was contaminated because someone threw a bloody jacket and assorted trash into the vehicle before it was towed away.
E Officers disregarded some evidence, including a text message sent to Ness’ wife by Horn shortly before the crash advising her not to worry because Ness was “in good hands.”
E Allegedly incriminating statements by Ness were obtained illegally or misquoted and taken out of context, Lange said.
A key piece to the prosecution’s theory that Ness was driving was that blood samples from the steering wheel and driver’s seat contained DNA from Ness but not Horn. But Lange said prosecution witnesses were forced to admit on cross-examination that the blood evidence was “absolutely meaningless” because it was contaminated, it was a rollover accident and Ness’ blood was found on both sides of the vehicle.
While he didn’t need to call any witnesses, Lange said he had lined up a crash reconstruction expert who would have testified that Horn’s injuries were consistent with being behind the wheel.
“Obviously, this case is a tragedy that the Horns and Mr. Ness, who lost his best friend, are still coming to terms with, but the way law enforcement botched the investigation made things worse for everyone,” he said.
Ness has faced legal troubles in Clay County since the crash. He was convicted of domestic assault in February 2011, and his subsequent arrest for allegedly violating a domestic abuse no-contact order became the subject of a Minnesota Court of Appeals case on the constitutionality of such orders. The court opined in August that such orders are constitutional and remanded the case back to district court.
Lange said Ness faced a lot of uncertainty over the past 3½ years, and it’s difficult to imagine what he endured, having found his friend dead in the ditch and then being wrongly blamed for his death.
“I think Bryan was still pretty somber,” he said of the acquittal. “He’s very happy that it’s over, but in a lot of ways, it’s not ever going to go away.”
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528