So far, the prosecution has over-promised and under-delivered in the Jim Leyritz DUI manslaughter case.
In her opening statement, prosecutor Stefanie Newman said two witnesses would testify that Leyritz, the former New York Yankee, ran a red light when he plowed into Fredia Veitch's car.
Their testimony was a lot less definitive.
And you wonder why Newman allowed victim Fredia Veitch's alcohol consumption and blood alcohol level to be introduced to jurors after the judge said it could be excluded.
And now there's an issue about the way an expert extrapolated Leyritz's blood alcohol level with blood samples taken hours after the wreck. The second blood sample was not supposed to be used as evidence, and Judge Marc Gold is now trying to sort out what to do.
But that doesn't mean a loss for the state is inevitable.
It just means it's time to shift gears.
Yes, there's plenty of reasonable doubt as to whether Leyritz ran a red light.
And Leyritz's blood alcohol level might not have been 0.18 at the time of the crash.
But with a level of 0.14 when the first (permissible) blood sample was drawn, it was still well above the legal limit (0.08) that is the threshold for Driving Under the Influence.
Here are the only things that matter: 1) What the jury thinks, and 2) What the law says.
Leyritz is charged with DUI manslaughter.
According to state law at the time of the crash, DUI manslaughter occurs when a person with a blood alcohol level over 0.08 "operates a vehicle" and "who by reason of such operation, causes or contributes to causing...the death of any human being."
So far, it seems pretty clear that Leyritz's blood alcohol was above 0.08.
(Whether it was 0.14 or 0.18 doesn't really matter, so I don't understand why the complicated extrapolation is worth the technical fight, since it might have been based on an inadmissible second blood test).
And it seems pretty clear that Leyritz was operating his vehicle.
The key question: Did Leyritz contribute to Veitch's death with his actions.
Whether Leyritz ran a red light seems important in assigning blame, but the jury might not need to go there
This is where the prosecution can shift gears: Instead of focusing on whether the light was definitively red, the prosecution can say that Leyritz contributed to Veitch's death by failing to slow down for a signal that was either red or yellow.
And that he contributed to her death by slamming into her car, causing it to overturn, after his reflexes were dulled by alcohol.
Of course, the flip side is that if the light was still yellow for Leyritz, that means it was red for Veitch.
And since jurors have already heard about her alcohol consumption, that might provide all the reasonable doubt they need about Leyritz's criminal culpability.
We won't know what jurors think until the verdict is in.