Vehicular fatality case encounters added delay Written By Leon Thompson Tuesday, November 03, 2009 Conflict of interest for Judge Rainville ST. ALBANS CITY –– The newest judge on the Franklin District Court bench has recused himself from a continuously delayed road fatality case because of former ties to a defense witness.     Meanwhile, Public Defender Dan Albert, has filed a motion for dismissal, claiming the state cannot prove that Joseph Kenvin operated his vehicle in a grossly negligent manner when he allegedly struck and killed Mark Luna, 48, of Enosburg, on Sept. 3, 2008.     Fourteen months after Luna died while riding his motorcycle in Berkshire, Kenvin still has not faced a jury. His case was set for a pre-trial conference Monday, but Judge Greg Rainville continued the proceedings and set jury selection for mid-January.     “Are we looking at a one day trial?” Rainville wondered.     “I think that may be optimistic, your honor,” Albert replied.     Albert has hired accident re-constructionist Robert Dahine, a former Vermont State Police trooper now residing in Tennessee. Health issues have delayed Dahine’s role in the case and slowed it.     Rainville explained that he would have to remove himself from Kenvin’s case, because Rainville repeatedly employed Dahine as an expert witness, when Rainville worked as an attorney.     Rainville, a Franklin County native, succeeded Judge Michael Kupersmith on the Franklin District Court bench in September.     It was unclear yesterday whether Rainville would rule on an Oct. 18 motion filed by Albert that asks for a complete dismissal of Kenvin’s charge. Kenvin has pleaded not guilty to grossly negligent operation of a motor vehicle, with death resulting.     “Specifically, the state will be unable to prove at trial by substantial admissible evidence that … he operated in a grossly negligent manner,” Albert wrote in his motion.     According to police, Kenvin was traveling west on Route 188, in Berkshire, just after 6:30 p.m., when his Nissan pick-up truck collided with Luna’s motorcycle. Kenvin tried to turn left onto Water Tower Road as Luna traveled toward him, in the opposite direction. They hit head-on.     According to state law, the standard for conviction in grossly negligent operation cases is “examining whether the person engaged in conduct which involved gross deviation from the care that a reasonable person would have exercised in that situation.”     In his motion, Albert cited a 2000 case in which a Vermont motorist hit and killed a pedestrian in a well-marked crosswalk. As in Kenvin’s case, the defendant was trying to make a left-hand turn across the opposite lane of traffic, but he didn’t see the pedestrian in front of him on the crosswalk, because traffic distracted him.     The trial court granted a dismissal of that 2000 case, and the Vermont Supreme Court upheld that ruling following the state’s appeal, “finding that a mere error in judgment, loss of presence of mind, or momentary inattention does not rise to the level of gross negligence,” Albert said in his motion.     The pedestrian in the 2000 case died of his injuries three months later. Luna died the day that Kenvin’s vehicle allegedly struck him.     Also, the state dropped a DUI charge against Kenvin, because, when the Berkshire crash occurred, he was taking the prescribed amount of antidepressants and alcohol was not involved. Kenvin, a former Bellows Free Academy-St. Albans English teacher, was previously convicted of DUI in February 2002 and July 2006.     In May, Kupersmith denied Kenvin’s request to drive again, so that he could apply jobs and re-enter the school system. Kenvin taught at BFA for 10 years.     Albert’s motion for dismissal is set for a hearing later this month.

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