2007-06-01 / Front Page

Bain Drunk Driving Trial Heats Up

Possibility Of Probation Worries Victim's Mom
By Howard Schwach

By Howard Schwach

Donna Marie Murtagh Bain 
            in a 2005 photo shortly before she died in an automobile crash. Her 
            husband, Edward is being tried for DUI and manslaughter in 
            connection with her death.Donna Marie Murtagh Bain in a 2005 photo shortly before she died in an automobile crash. Her husband, Edward is being tried for DUI and manslaughter in connection with her death.

Shortly after Edward Bain slammed into a Cross Bay Boulevard telephone pole while allegedly driving drunk and was partially thrown from his crushed vehicle, he told police and EMT workers that he was not responsible for the crash and that he did not know the victim, and that she was not his wife, adding that he only had five beers before getting into the car with his wife, Donna, who died in the crash.

Court records show that he taunted the police by saying, "What are you going to do, find the bartender [who served me]?"

At Bain's trial last week, however, a retired police officer who had worked in the 100 Precinct and who had responded to the crash, testified that Bain told him that he had "killed the best thing that ever happened to him."

Police Officer Jonathan Cappa, who came from his retirement home in Florida to testify in the trial, said, "He stated that he did not operate the vehicle, that he was in the backseat and did not even know who [she] was."

The trial of Bain, who is charged with manslaughter and driving under the influence in the death of his wife in connection with the 2005 crash, has caused few surprises.

Opening statements and testimony from the first prosecution witnesses, police officers and EMT's who observed the Belle Harbor man at close range shortly after the crash occurred were heard earlier this week. Assistant District Attorney Brian Lee reportedly told Jackie Murtagh, Donna Bain's mother, that he expected it to be a "long and difficult trial" that could last at least two more weeks or longer.

In his opening statement, Lee said that Bain was drunk and "driving in excess of 80 miles per hour" when he lost control of his car and plowed into a telephone pole, killing his wife, Donna Marie. He said that he would prove by the evidence that Bain was drunk when he took the wheel that night.

"He set things up to escape responsibility that night," Lee said. "He told an EMS worker that he only had five beers...that was a gross understatement."

Court papers show that Bain refused to take a sobriety test the night of the crash and was tested the next morning after a warrant was obtained forcing him to allow the test. Those records show that Bain's Blood-Alcohol Count hours after the accident was .08, indicating that he was legally drunk under New York State law.

One of Bain's two lawyers, however, disputed the district attorney's statements in his own opening.

Attorney Dennis Coppin told the jury that he had witnesses who would testify that Bain was driving at barely over the speed limit on a dangerous curve when it began raining and he lost control.

Coppin added that he would provide expert testimony to prove that Bain could not have been traveling as fast as prosecution witnesses said.

"Any speed close to 100 miles an hour and you're flying to Pluto," Coppin told jurors."

He added that he would prove that Bain was not legally drunk at the time of the crash.

Donna's mother told The Wave in an exclusive interview this week that she is glad that the trial has finally begun, but worried that Bain might be sentenced to probation if he is found guilty, because of the Bain's 11-year-old son, Thomas Peter Bain.

Bain has custody of his son, who has been living with him since the accident and the death of Donna Marie. Bain's mother, who often assisted in child care, died a short time ago. Both the son and the father have been estranged from Murtagh for some time, a fact exacerbated by Donna's death.

"He is using his son as a defense to keep him from going to jail," Murtagh said angrily. "I was told that he might get probation if he is found guilty because of his son. That is not right. He should not be free and walking the street after killing my daughter."

Murtagh said that she did not expect to get custody of Thomas, but that there are many "Murtagh family aunts and uncles who would love to raise him."

Referring to Murtagh, Thomas, who has been at the trial, told a Daily News reporter, "She's not really thinking about me. She's thinking about putting my father in jail."

The question of who will raise Thomas should his father go to jail will wait until after the trial, Murtagh said.

"I'm emotional about losing Thomas, we were very close once," she added. "But his dad caused this, not me and we just want justice."

Bain faces fifteen years in prison should he be found guilty. He turned down a plea deal last year that would have sentenced him to two years in jail. Experts say that he would have served only 16 months and probably would have been out of jail by the end of this summer had he accepted the plea.

At press time, the prosecution was still presenting its case. The defense is expected to take center stage next week.

Repeated calls to Bain's attorney for comment went unreturned.

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