Attorney for former UK student wants to block some evidence from trial in boy’s death

Five months before former University of Kentucky student Jacob Heil will stand trial on reckless homicide and DUI charges in the crash death of 4-year-old Marco Shemwell, his attorney has sought to keep some evidence from jurors.

Heil, 19, had a blood-alcohol level of 0.051 in the Sept. 15, 2018, crash that resulted in the death of Marco, who was crossing Cooper Drive near Scoville Drive with his family outside a UK football game. The boy died two days later at Kentucky Children’s Hospital.

Christopher Spedding, Heil’s attorney, has motioned for the preliminary breath test to be dropped from evidence, claiming it is “irrelevant and introducing it at a trial in this matter could only serve to unfairly prejudice” Heil.

“While the (preliminary breath test) is admissible for the limited purpose of establishing probable cause for arrest ... it is inadmissible to prove guilt for sentencing purposes,” Spedding wrote in his motion.

Aside from the breath test results, Heil’s blood-alcohol level was above the 0.02 limit allowed for those under 21, according to a police report. The legal blood-alcohol limit for those over age 21 is 0.08. Heil told police he drank two beers and that he was at “game tailgating” before Marco was hit.

In addition to the breath test, Spedding hopes to get the judge to exclude pictures of the shoes thrown off of Marco during the incident. Spedding said, “These photos serve no purpose other than to garner emotional reactions from the jurors as the victim’s shoes are completely irrelevant to the charges.”

On the other hand, Spedding sought to give jurors access to the scene of the accident during the trial, scheduled for April 6-9 next year, so the jury can “reach a fully informed verdict.” He asked the judge to permit a visit.

Lexington police Sgt. Stephen Yoder said immediately after the crash that Heil’s vehicle might have “veered off the road a little bit,” before striking Marco, but Spedding said later “all the information we have is that he did not” veer off the road.

In his latest motion, Spedding said there were contradictions between officer Greg Marlin, an accident reconstructionist, and witnesses’ testimonies to the grand jury, which added reckless homicide to the charges against Heil. Spedding calls it a “key subject of dispute” whether Marco was in the road or standing beside it.

“Any aerial representation of the scene would be inadequate to provide the jury with an understanding of the scene to appreciate the dynamics of the accident,” Spedding said.

Heil’s attorney also wishes to question each juror about how much pretrial publicity they have seen or heard regarding the case. He claims “significant portions” of accounts given by media have been inaccurate.

The motions on Heil’s behalf were set to be heard during a pretrial conference Friday morning, but it was rescheduled for Jan. 15.

Heil was initially charged with DUI before the reckless homicide charge was added in a February indictment. He has pleaded not guilty to both charges.

The university suspended Heil and the fraternity he was pledging, Alpha Tau Omega, UK President Eli Capilouto announced in a campuswide email a week after the incident. A day later, the national ATO chapter dissolved its UK chapter and announced it “no longer has a presence on campus.”

The fraternity had collected money to buy alcohol to serve at a tailgate held off campus at 214 Waller Avenue the day of the game. In addition to minors having alcohol, a UK letter to the fraternity said, an investigation noted that pledges also served alcohol to fraternity members, which was a hazing offense.

Marco’s family has sued the national fraternity and its former chapter at UK, saying the organizations were responsible for the death of the boy.

This story was originally published December 5, 2019 at 4:18 PM.