Bystander could face prison for role in hit-and-run

Bobby Allyn | The Tennessean

NASHVILLE -- A 22-year-old man who prosecutors say told a suspect to flee after a fatal hit-and-run faces up to six years in prison for his advice.

In one of the more closely followed vehicular homicide cases in recent years, the role of a third person, a bystander, has been largely overlooked.

Jordan Hawbaker was on the scene of an accident near the Music Row roundabout that claimed the lives of two young men in December 2011. Hawbaker, who had been drinking at a nearby bar, is said to have encouraged the driver to flee the scene. That suggestion broke the law, prosecutors say, and was enough for them to charge him with being an accessory to a crime, along with the two in the vehicle.

But the state's prosecution of Hawbaker is far from an open-and-shut case, several defense lawyers say. Friday, Hawbaker is expected to appear in court with the two from the vehicle. Both sides acknowledge a plea bargain is likely, though many are now watching Hawbaker's role with acute interest.

After leaving a holiday party in the early morning of Dec. 10, 2011, Trevor Bradshaw, 24, and then-girlfriend Erin Brown, 23, fatally struck Michael Brooksher and Tommy Allen. Bradshaw was driving Brown's Toyota Scion and, because of a legal technicality, both Bradshaw and Brown are facing charges of vehicular homicide — Brown because prosecutors say she knew or should have known that Bradshaw was in no condition to drive.

Prosecutors say Hawbaker acted as an accessory after the fact when, they say, he told Bradshaw to run away. That charge would trigger a conviction only if the state could meet a tricky burden of proof.

Under state law, accessory after the fact applies to someone who helps a suspect avoid arrest after knowing a felony was committed — providing a getaway car or hiding someone in a home, for instance.

The state would have to show that Hawbaker knew a felony occurred, as opposed to just a car accident, before telling Bradshaw to run, said defense attorney David Raybin, a former district attorney. Prosecutors also would have to show that Hawbaker intended to help Bradshaw avoid authorities, Raybin said.

"I think the government will have a hard time twisting the facts to convict him of accessory after the fact," Raybin said. "I don't think that his behavior falls within the statute."

Kyle Anderson with the District Attorney's office said Hawbaker took on a criminal liability when he told Bradshaw to flee. "It may not make sense to a layperson, but it's the law," he said.

Accessory to what?

In Tennessee, fleeing the scene of a property accident is a misdemeanor, and fleeing the scene of a personal injury accident is a felony.

Hawbaker's charge for allegedly telling Bradshaw to flee carries a maximum penalty of six years in prison.

Karl Pulley, Hawbaker's attorney, maintains his client broke no laws. "I think the state is pursuing all of the avenues at their disposal, but we are pleading not guilty."

Also notable, legal experts say, is that Hawbaker is being prosecuted on the same indictment as Bradshaw and Brown.

Criminal defense attorney Patrick McNally said that could be a problem for the state if the case goes to trial. For example, it might dilute the case the state has against the two others. And charging all three at once could confuse a jury.

"Underneath that is the position that they want to discourage people from this kind of behavior," McNally said. "You have some pretty reprehensible behavior here, the death of two individuals, so maybe the state thinks they can get a conviction on the bystander by tying him in."

Providing a suspect with advice, Raybin said, can implicate someone in a crime. In this incident, however, Hawbaker is accused of encouraging Bradshaw to run away, not to commit the crime with which he is charged.

"What the government is suggesting is that, morally, he was wrong in doing that, encouraging him to flee," he said. "I agree with that. But what he was an accessory to is not the vehicular homicide, but the fleeing."