I-35 hit-and-run case on hold again
Prosecutors have requested another psychological examination of a Duluth man accused of running over and killing a janitor at a rest area along Interstate 35 in Carlton County last year.
Gregory Allen Scherber, 56, of Duluth appeared for a contested omnibus hearing before Judge Robert Macaulay in Carlton County Court on Monday. Scherber is accused of running down Greg “Blackie” Blackburn at the rest stop near Mahtowa on June 19, 2013, and then leading law enforcement officers on a high-speed pursuit that ended in Hermantown. Scherber is charged with criminal vehicular homicide and fleeing a peace officer in a motor vehicle, both felonies.
At the outset of Monday’s hearing, Carlton County Attorney Thom Pertler stated that a second evaluation of Scherber by a court-
appointed psychologist has proven “inconclusive” in establishing his ability to tell right from wrong at the time of the incident. Pertler then requested a third evaluation be done.
Scherber’s attorney raised objections to that request.
Scherber was found to be mentally incapable of standing trial last September and was civilly committed to Anoka Regional Treatment Center — a secure state-run facility — on an order of “restore to capacity.” Charges against him were placed on hold until he was shown to be mentally competent to stand trial.
Then, in January, a psychologist determined that although Scherber was unable to tell right from wrong at the time he was alleged to have struck and killed Blackburn last June, he had stabilized enough psychologically since that time to be able to cooperate in a trial setting.
Pertler reacted to the dual findings at the time by stating they were highly unusual and he requested permission to seek a second psychologist’s opinion on Scherber’s mental state at the time of the incident.
“We’re talking about an offense that could lead to life in prison (if Scherber is convicted),” Pertler said at the time. “It’s a good idea to have a second set of eyes on this.”
Judge Macaulay agreed, and a second evaluation was completed by a different psychologist. But at Monday’s hearing, Pertler said the findings of the second psychologist were more in the form of a report and termed them “noncommittal.” It was at that point that he requested the third evaluation.
Scherber’s attorney, Kevin Cornwell, objected to Pertler’s request. Cornwell said the first evaluation was done at a time closer to the incident than the following evaluations, and argued that the opinion voiced by the first psychologist was “unequivocal” regarding Scherber’s mental state at the time of his arrest.
“I didn’t object to Mr. Pertler’s request for a second opinion,” Cornwell said, “but it came back essentially not what they were looking for. The state is looking for an opinion that fits their criteria.”
Cornwell argued that he doesn’t believe a third evaluation is needed.
Another point of contention raised at Monday’s hearing concerned questioning that occurred after Scherber was apprehended.
Minnesota State Trooper Erick Sjodin testified that after the high-speed pursuit ended, he and another officer approached Scherber and ordered him to lie prone on the ground with his arms extended. He was then handcuffed and taken to a squad car.
Sjodin said during the course of the apprehension Scherber volunteered a number of comments, mentioning his fear that the Native Mob, a Native American gang, was after him. At that point, Sjodin said, he did not yet know that the hit-and-run in Mahtowa was a fatality, and he was not certain that Scherber was the same man who drove the truck at the rest area.
“I was just trying to get to the bottom of it,” Sjodin said, stating he then proceeded to ask Scherber if he had stopped at the rest area near Mahtowa that night.
“He turned his head away, lowered his eyes and said he wasn’t saying any more,” Sjodin testified. “At that point all conversation ceased.”
Cornwell argued that because Scherber had not yet been issued his Miranda warning, Scherber’s reaction should be suppressed from the evidence, stating it was “meant to elicit a response that could be incriminating.”
Pertler countered by saying there was no formal questioning going on at that time; he classified the give-and-take between Scherber and the officer as “banter” that went back and forth erratically and had not been a calculated attempt to elicit evidence.
“Throughout that time, Scherber had been talking both rationally and irrationally,” Pertler said. “The officer didn’t take any kind of statement. He was simply trying to get to the bottom of the case.”
Pertler said the audio tape from the body microphone worn by Sjodin that night is the best evidence in detailing just what happened and said he would be prepared to play that audio for a jury.
Macaulay agreed to take the requests regarding an additional evaluation and Scherber’s statements under consideration, and issue a written conclusion at a later date.