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Retrial in traffic death case starts Wimer man still faces 1996 manslaughter charge By ALBERTO ENRIQUEZ The retrial of a Wimer man on manslaughter and drunken driving charges began Tuesday in the court of Jackson County Judge Ray White. Prosecutor Doug McGeary argued that Daniel Joseph Kocsis' actions on the night of Nov. 8, 1996, met the legal definition of second-degree manslaughter: recklessly causing the death of another. "It's a substantial and unjustifiable risk that a person knows about, and disregards," McGeary told jurors. McGeary said testimony would show that Kocsis had at least four drinks in his system when his pickup collided head-on with a Chevy sedan driven by 19-year-old James Martin Paolozzi. The collision killed Paolozzi instantly. McGeary called Robin and Gary Richards, also of Wimer, to testify that Kocsis was doing an estimated 80 mph when he passed their car and three others shortly before the accident. The couple also testified that it was a dark night with patchy fog. But defense attorney Jeni Feinberg said the prosecution could prove only that Kocsis drove under the influence of intoxicants, not that Kocsis' drinking contributed to Paolozzi's death. "Drinking did not cause the accident -- a deer did that," Feinberg told jurors. Feinberg said the testimony would show that Kocsis was traveling much more slowly just before the accident, some 47 to 54 miles per hour, when he slammed on his brakes because of a deer. The wheels locked, and his pickup skidded out of control into the oncoming lane. Feinberg discounted discrepancies in the 45-year-old tile-setter's statements to police at the scene, and later at the hospital and jail, noting that he had suffered a blow to the forehead that left him disoriented at the time. Kocsis' memory did not begin to clear until he reached the jail, she said. McGeary told jurors that Kocsis initially minimized his drinking, telling officers at the scene that he had had only "two beers.'' He made no mention of "two little yellow lights or deer eyes" until he was taken to the hospital. Kocsis, who had no previous drug or alcohol convictions, was tried on the same charges last March. In a nonjury verdict, Judge Rebecca Orf found him guilty of second-degree manslaughter and driving under the influence of intoxicants. Kocsis then faced a sentence of six years and three months imprisonment because manslaughter is one of several crimes for which Oregon voters established mandatory sentences in 1994. But on May 29, Orf invalidated that verdict and granted Kocsis a retrial, writing, "The court finds that evidence in the possession of the State, which was seriously considered by the trier of fact in determining guilt or innocence, was not made available to the defense prior to the trial in the matter." In June, Orf recused herself from the retrial, which later was assigned to White. The evidence in question was not mentioned in Orf's finding, nor was it contained in the court file. Defense attorney Carl Caplan declined to discuss the evidence. District Attorney Mark Huddleston said only that the evidence had to do with the defendant's reaction when shown the driver's license of the victim. Huddleston said retrials ordered by an appeals court are rare, with only four or five such cases a year in Jackson County. Retrials like this one, on a motion to the trial judge rather than an appeal, are even rarer, with only one or two such cases a year. Mail Tribune Copyright � The Mail Tribune 1998, Medford, Oregon USA