A day after authorities decided against filing serious criminal charges again a St. Paul attorney who struck and killed Scott Spoo last February, the jogger’s attorney announced plans to file a wrongful death civil suit.

On Wednesday, Hennepin County Attorney Mike Freeman announced that his office had found Peter Berge’s conduct not to be grossly negligent and would not file felony charges. An investigation determined that the 61-year-old was not under the influence of drugs or alcohol at the time of the Feb. 22 collision, nor was he on his cellphone, the Hennepin County attorney’s office reported.

However, on Thursday, attorney Jay Urban released a statement arguing that Spoo’s death was caused by Berge’s behavior behind the wheel that day and not by an undiagnosed brain tumor, which authorities had alluded to.

Although the Hennepin County attorney’s office said that a search of Berge’s cellphone records revealed he had not been on his phone since 4:26 p.m. that day, Urban argued that witnesses told a different story.

After the 4:40 p.m. crash at Mississippi River Boulevard and Dayton Avenue, “Berge blocked investigators from unlocking his iPhone by invoking his Fifth Amendment right again self-incrimination. Because of Berge’s refusal to cooperate with police, they have been unable to verify his texting or app activities on his phone when he crashed into Spoo,” Urban said in a written statement, noting that prosecutors only looked at phone call records despite eyewitnesses claiming to see Berge on his phone at the time of the crash.

Prosecutors relied on witness statements and accident reconstruction to make their decision, the office reported, noting that their analysis estimated that Berge was driving just over 30 mph in a 25-mph zone at the time of the collision and that he drifted into oncoming traffic several times before shifting back into the correct lane, authorities say.

Police arrested Berge on suspicion of criminal vehicular operation shortly after his sport-utility vehicle collided with Spoo in the crosswalk. At the time, officers suspected Berge of being under the influence because he failed balance tests. They also said at the time that there was reason to believe he might have been on his cellphone when he struck the 35-year-old 3M employee, who lived in St. Paul.

A massive tumor was discovered on Berge’s brain two days after the crash.

But Urban said the crash had nothing to do with that.

“The lack of criminal charges against attorney Peter Berge does not clear him for responsibility in the death of avid sportsman Scott Spoo,” Urban wrote in his statement. “In fact, evidence that prosecutors ignored shows that Berge’s actions, and not a health condition, directly caused Spoo’s death.”

Urban states that his office has evidence that Berge was “very active and able-bodied” days before the crash: two weeks before Berge had taken a weeklong bicycle trip in Southern Calfiornia; five days before he’d attended a Guthrie Theater play opening; and four days before, he had attended a Diana Ross concert during a weekend trip to Las Vegas.

In addition, Urban said, prosecutors have not sought medical opinions about Berge’s condition from independent doctors, but have “relied on Berge’s own retained attorney who claims to study ‘neuroscience,’ a field that does not involve treatment or diagnosis of neurological impairment.”

Urban claims this shows that local authorities are biased toward Berge, a well-known Twin Cities attorney and that this influenced their decision on whether to prosecute him.

Given these local connections, Spoo’s family asked the case be handled outside Hennepin and Ramsey counties, but their request was denied.

Hennepin County prosecutors handled the case because Berge had financially supported Ramsey County Attorney John Choi’s political campaigns.

Urban said the wrongful death lawsuit would be filed after the St. Paul city attorney’s office reviews the case for any possible misdemeanor-level charges.

Reached at his home Wednesday, Berge deferred any comments on the charging decision to his attorney, Charles Hawkins.

Speaking on his behalf, Hawkins said he and Berge were “very appreciative” of Freeman’s decision.

“We are just appreciative for the time and the effort that the Hennepin County attorney’s office gave in reviewing the case and their willingness to hear our side of things before they made their decision,” Hawkins said.

He added that he provided medical records about Berge’s cancer diagnosis to authorities.

Berge’s brain tumor affects his vision, Hawkins said, and therefore prevented Berge from seeing Spoo in the crosswalk that day. Related Articles Man pleads guilty to poaching black bear on northern Minnesota reservation

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He declined to get into the specifics of Berge’s prognosis but said the combination of the diagnosis and his involvement in the fatal collision have been “extremely traumatic” for the longtime attorney.

Urban said that to truly show remorse, Berge should “unlock his iPhone for a search; provide testimony from competent, independent medical doctors who treat and understand his condition; and stop having his lawyers comment on opinions in the media rather than the evidence.”

Sarah Horner contributed to this report.