Overkill: Avenging the Death of Deputy Grant Whitaker

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The Trial

Updated August 5, 2020

John Kelsey is charged on two counts: 1) fleeing and eluding in the first degree and 2) driving with a revoked or suspended license causing death. On the second charge, the jury is given a choice of finding him guilty of driving with a revoked or suspended license causing death or the lesser offence of driving with a revoked or suspended license. They choose the latter, refusing to blame him for the death of Deputy Grant Whitaker.

It makes no difference. As Matt Mencarini of the Lansing State Journal reports (6/9/2015):

That lesser charge isn't likely to affect Kelsey's sentence, [former Ingham County Prosecutor Stuart Dunnings III] said, as the fleeing police charge carries the same maximum — 15 years — as the one the jury didn't convict him of. "We had actually toyed with the idea of just dropping that charge all together," he said.

Fleeing and eluding in the first degree means resulting in death - not causing death, but resulting in death. It is section 750.479a(5) of the Michigan Penal Code:

If the violation results in the death of another individual, an individual who violates subsection (1) is guilty of first-degree fleeing and eluding, a felony punishable by imprisonment for not more than 15 years or a fine of not more than $15,000.00, or both.

So it matters not at all that Whitaker's death was a single-car accident, the result of traveling between 110 and 120 mph on an uneven country road. If it happened when he was pursuing John Kelsey, Kelsey is guilty according to Michigan law. This interpretation was affirmed by a 9/18/2007 decision of the Michigan Court of Appeals.

All the prosecution had to do was prove that Kelsey was guilty on count 1. At least one juror understood this:

The case should never have gone to trial. The prosecution had plenty of circumstantial evidence that pointed to Kelsey, and for fleeing and eluding in the first degree, all they had to establish was that Kelsey was the one being pursued. Defense attorney Brian Morley sought a plea deal, but the sentencing offer from (former) prosecutor Stuart Dunnings III and Assistant Prosecutor Jonathan Roth was at the high end of the guidelines, over 20 years, more than the 15 year maximum for fleeing and eluding in the first degree and more than the actual sentence of 20-45 years, which included extra time for being a habitual offender. The prosecution could have avoided a costly 10-day trial by making a more reasonable offer.

Still, Morley leads Kelsey to believe that since they never found the SUV and there is no direct evidence that he was the driver, no jury would convict him. Kelsey is clearly shocked at the verdict.

The trial not only ends in conviction, but gives the prosecution a platform to demonize Kelsey.

As far as the sentence is concerned, the prosecution has nothing to gain by convincing the jury that Kelsey caused the crash. But they go for it anyway with the second charge: driving while license suspended causing death. It accomplishes nothing but to drag out the trial and shift responsibility for Whitaker's death onto Kelsey rather than Whitaker's own reckless driving.

The trial begins on Thursday, May 28 of 2015 and ends on Tuesday, June 9 after six days of testimony and one day of closing arguments. Thirty-six witnesses are called by Assistant Ingham County Prosecutor Jonathan Roth. Kelsey's attorney, Brian Morley, calls three of those same witnesses plus one new one, Charles Funk, an accident reconstructionist. Although there is no direct evidence that Kelsey was driving the SUV being pursued, circumstantial evidence leaves little doubt:

• Neighbors testify that before the crash they'd often seen Kelsey driving a big white SUV, but hadn't seen it since.

• John's family claims not to know the whereabouts of the 2003 Yukon Denali XL registered to Kelsey's father.

• A surveillance camera at the Dam Site Inn shows him leaving at 1:53 a.m., heading west toward Stockbridge. The pursuit starts at 2:02 at the Marathon station in Stockbridge, 11.3 miles from the Dam Site Inn.

• Sandie Hale testifies that she answered a phone call from John on Tony Hildabridle's phone soon after 2:00 a.m. the night of the crash. John asked for Tony, saying he'd just ran from the police.

• Brian Hildabridle testifies that John called him the night of the crash sounding scared, saying he might have been in a police chase on the back roads of Stockbridge, and didn't know what to do.

Early on, it is established that this was a single-car accident. MSP Sergeant Allan Avery, an accident investigator, testifies that the only tire tracks at the crash scene are Whitaker's. By measuring the tracks, he estimates that he was travelling between 109 and 115 mph. The patrol car has an Event Data Recorder, or "black box," and it says the speed was 117 mph. The speedometer shows 84 mph when the car hit the tree. Sergeant Avery says that it is one of the most horrific crashes he's dealt with in 10 years; that the way the debris was strewn along the path of travel, it reminded him of a plane crash. (V3-31)

The reason Whitaker lost control seems to be a series of dips in the road. The loading and unloading of the car's suspension going over those dips likely affected the steering.  (V3-39) There is no evidence of another vehicle being involved.

Video obtained from a camera attached to the Samulak residence, a home on the pursuit route, shows that Whitaker was 13 seconds behind the vehicle being pursued. (V6-81) At 100 mph, that is 635 yards, about a third of a mile.

Despite Avery's testimony and the concurring testimony of the defense's accident reconstructionist, Roth tries his best to blame the deputy's death on Kelsey in his closing argument:

The two most important factors that caused Deputy Whitaker to lose control of his vehicle and drive off the road and die that night, the speed and the terrain, both of which were dictated by the Defendant. He chose where they were going and how fast they were going.  (V8-35)

Apparently the deputy had no free will:

A police officer in that circumstance cannot let somebody go. The person who was driving more than 100 miles per hour in what begins as a residential community. Officer told you that often these stops a little after 2 in the morning can turn into drunk driving investigations. So let's look at the totality of what we know about this vehicle. Suspended driver. Drunk driver. High driver. Turns his headlights off at some point. Speeds in excess of 100 miles per hour crossing double lines tailgating the Steins. (V8-58)

According to Ingham County Sheriff's Office policy, a police officer can terminate a pursuit when it endangers public safety and apprehension of the fleeing violator cannot be made quickly and at a reasonable speed. That is what it says in General Order No. 240, an exhibit in the trial.

Whitaker had no idea who he was chasing. He had no reason to risk his own life. His death was the result of his own bad judgment. But it was an embarrassment to the law enforcement community that a pursuit-trained law enforcement officer was outrun by a guy driving a 2003 GMC Yukon Denali XL who was quite possibly drunk and stoned. That guy had to pay.

Secretary of State records showed that Kelsey's license was suspended, but proving that he was drunk, high and driving with headlights off was not so easy.