Wednesday, April 16, 2008

Family angered by home release of driver

Esai Lopez’s family says they were misled in plea deal for driver whose car struck and killed the teen

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Laurie DeWitt⁄The Gazette
Vernon Buckner speaks at a memorial service for his friend, Esai Lopez, 17, who was killed in a hit-and-run collision last summer.
After less than a week in jail and six weeks in a work-release program, the Columbia man who killed 17-year-old Esai Lopez of Gaithersburg in a hit-and-run collision last year has been transferred to home confinement to serve the rest of his one-year sentence.

The March 28 transfer of Brian Schwartz, 43, from a county work-release program to home confinement has left the Lopez family irate with the Montgomery County State’s Attorney’s Office for steering them toward a plea deal that could allow such an outcome.

Schwartz, who struck Lopez as he crossed Redland Road near Muncaster Mill Road with friends July 31, had been at a happy hour before the collision. He and three colleagues consumed 27 alcoholic drinks, according to police records. Schwartz did not admit to drinking, but his colleagues said the entire group was drinking, according to police records. After hitting Lopez with his BMW, Schwartz fled the scene and replaced the car’s windshield before turning himself in to police three days later, according to police records.

The plea deal was struck in November. At sentencing Jan. 7 for ‘‘leaving the scene of an accident resulting in death” — which carries a five-year maximum — Judge DeLawrence Beard rejected immediate home confinement but allowed Schwartz to be eligible for the pre-release program.

He began serving his time on Jan. 7, and on Jan. 13, was accepted into the pre-release center. He began working — and earning a salary — on Jan. 22.

The Lopez family says prosecutors did not tell them that pre-release would be an option during discussions that led to the acceptance of the plea deal.

‘‘That would have raised all kinds of red flags,” said Roy Epps, Esai’s grandfather, who guided the family’s decisions throughout the ordeal. ‘‘We would have definitely gone to trial... We couldn’t have gotten a worse outcome than we have now.”

In interviews with The Gazette, the State’s Attorney’s Office said they were clear in explaining what to expect.

‘‘What I had told the whole family was that it was my expectation that he would serve six months [in jail] minus good behavior, then [pre-release] for six months,” Assistant State’s Attorney Paul Zmuda, who handled the case, said in an April 9 interview. ‘‘My expectation was not that he would be getting into [pre-release] in two weeks, and absolutely not that he would be back home so soon.”

The State’s Attorney’s Office said they were not aware of a change in policy by the Department of Corrections to allow prisoners with sentences of up to a year in county jail to be eligible for pre-release. Previously, only prisoners with six months or less left in their sentences were eligible.

‘‘We join with the family in being upset about this. Neither one of us have a voice in this,” said Assistant State’s Attorney John Maloney.

The change, which was discussed for two years, went into effect on Jan. 17, 2007, after open deliberations, said Art Wallenstein, director of the county’s Department of Correction and Rehabilitation.

Wallenstein said the change, ‘‘[S]imply reflects a focus on more intensive reentry assistance on a case-by-case basis.”

‘‘If in any way any of their staff were not aware of the January 2007 policy guidelines, then I personally apologize to them. But it is nothing that was hidden, unknown, not publicly discussed or in any way private,” he said.

Schwartz’s procession through the system has prompted the state’s attorney’s office to meet with Wallenstein on Monday to discuss the policy.

Schwartz is married and has two children. Because of good behavior, he is set for full release in September.

On Jan. 22, Schwartz asked that his sentence be reduced. His lawyer said in the motion that Schwartz and his family ‘‘have suffered greatly.”

‘‘The defendant has been punished in a manner suggestive of the fact that he was the cause of [Lopez’s] demise, which was not the case,” wrote Bruce Marcus, Schwartz’s lawyer. Schwartz did not return calls for comment.

‘‘That is sickening,” Leslie Lopez, Esai Lopez’s mother, said when told of the effort to reduce the sentence. ‘‘I’m not even trying to hear that. That is a joke.... That’s disgusting.”

The court has not yet ruled on reconsidering the sentence.

‘A blessing to know Esai’

Lopez would have been a senior at Magruder High School in Derwood this school year.

When more than 70 friends and family gathered last week at to commemorate a plaque placed into the school’s memorial garden, they made little mention of Schwartz’s early release. They celebrated Lopez’s life, sharing glimpses of how Lopez touched their lives and of how much they miss him.

‘‘It was a blessing to know Esai,” 17-year-old Emanuel Eger told the crowd. ‘‘I’m telling you, he is the coolest guy I ever met in my life.”