Family questions Wood Co. DA not charging OWI homicide after seeing crash pictures

Published: Feb. 25, 2016 at 8:36 PM CST
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The loved ones of a 31-year-old father of six and his 10-year-old son killed when a suspected speeding drunk driver crashed into their horse drawn wagon say investigator pictures show inconsistencies in Wood County District Attorney Craig Lambert’s January decision not to charge the suspect with OWI homicide.

"It seems like it's skewed. And that's the way the family feels too. They do not feel it has done justice," Kempf family friend Arne King said.

The Kempf family provided King with more than 100 pages of Wood Co. and state reports, including crash pictures, to show NewsChannel 7 Investigates what happened around 6:00 p.m. November 20th, as Chris Kempf and his son Melvin made the short ride home from harvesting corn.

Investigators say as 31-year-old Seth Nelson, of Necedah, sped down Highway HH to his sister's, going 63 to 68 miles per hour, in the 55 mile per hour zone, Nelson could not see the Kempf's horse drawn wagon until it was too late. First responders found the Amish man thrown 20 feet away from the wagon. He died the next day. Melvin died 10 days later.

After reconstructing the scene, Trooper Thomas Parrott concluded a lack of lighting on the Kempf's wagon was a significant factor in the crash. Parrott also said even though Nelson's blood alcohol concentration was .13, a computer comparison showed his response time was similar to a sober driver.

However, King said the Kempf family feels pictures of the State Trooper crash reconstruction, DA Lambert cited as his reason for not charging Nelson with OWI homicide, does not look the same as what Nelson would have seen at the time of the crash.

While the State Patrol reconstruction shows a tripod with a new slow moving vehicle sign on the left, compared to the Kempf's actual sign on the right against a dark background, Kempf's loved ones say that is inconsistent with what Nelson would've really been seeing at the time of the crash.

"And when you have that against a dark background verses just a singular sign I don't think it's a fair comparison at all," King said.

The picture of the actual crash shows the slow moving vehicle sign on a white boarded wagon, which would have been filled with corn stalks. King says they feel if Nelson had been sober, and going slower, he would have seen the Kempf’s wagon sooner, even if it lacked lighting.

"It's portrayed like he was at fault. And a percentage he was. There wasn't accurate lighting” King said. ”But that doesn't deter from the other individual involved in it. And there's a lot more blame on that part."

However, Lambert said he is confident he made the right decision in the Nelson case.

“The law says he has a defense to the OWI homicide if he can show the accident would've occurred regardless of his impairment,” Lambert said. “My own expert witness says that. I can't overcome his defense. When my own expert says that. And frankly have an obligation not to charge the homicide, when I don't have the evidence to support it."

Saying she was ‘gratified our Seth’ would not face homicide counts, Nelson’s Madison-based attorney Tracey Wood reiterated Lambert’s point.

“Under Wisconsin law, a homicide conviction is not permitted if the accident would have happened even if alcohol were not involved. Investigation by both the Wisconsin State Patrol and a private expert as to visibility issues showed that the wagon in question could not be seen, given the conditions, in sufficient time to have prevented the accident. Additionally, the Department of Transportation did not administratively suspend our client’s license after the administrative hearing in this case. Seth is, however, facing a civil first offense drunk driving charge,” Wood wrote in a statement.

“This was a horrible tragedy, and we want to say on behalf of Seth and our firm that our hearts go out to the family of the victims of this terrible accident. We are hopeful that the community can come together in a constructive way to support the family and allow its members to begin the healing process,” Wood said.

Based on the 731 out of 750 OWI cases his office has prosecuted from 2013-2015, Lambert said his office is doing its’ job, as the law dictates, well.

"Yes, two people are dead here. And it's tragic,” Lambert said. "But this guy isn't guilty of a homicide. And it's my job to apply the law to the facts and make the right legal decision."

Lambert said while most of the OWI cases result in plea deals, the important part is his office has a 97-percent OWI conviction rate.

Since Nelson's drunk driving charge is a first offense, under Wisconsin law that civil penalty means he could face up to a $300 fine and lose his driver license for nine months.

But to the Amish community, King said Lambert’s decision is a tremendous letdown. To a group that teaches their children the importance of forgiveness, as they now try never to forget Chris and Melvin Kempf, King recounted how it was difficult for one Amish man to explain the justice in Lambert's decision.

"He said if our children were to do wrong - when we raise our children - we do forgive them. If they do repent we do forgive them of it. But there are still consequences for their actions. And we punish them. We discipline them in some respect. And they feel this is really lacking in this case," King said.