Judge declines to dismiss charges against teen in fatal hit-and-run

Jesus Ayala, 18, is accused of ramming a stolen vehicle into the back of Andreas Probst’s bicycle in August, killing the retired police chief.

Ayala and his co-defendant, 16-year-old Jzamir Keys, who is accused of filming the car hitting Probst, were indicted in October on charges of murder, attempted murder, failing to stop at the scene of the crash, battery, residential burglary, grand larceny of a vehicle and possession of a stolen vehicle.

Chief Deputy Public Defender David Westbrook, who is representing Ayala, filed a petition to dismiss the indictment, arguing that prosecutors failed to properly instruct the grand jury, did not properly present exculpatory evidence and failed to determine if the grand jury was tainted by media coverage of the case.

District Judge Jacqueline Bluth dismissed the petition during a court hearing on Tuesday. Westbrook said he has not determined if he will appeal the judge’s decision.

“It’s certainly an option, and it’s something that we might consider, but I need to review the transcript,” he said following the hearing.

Westbrook argued that when prosecutors took the case to a grand jury, they failed to instruct the grand jury on the definitions of willful, premeditated and deliberate murder, which are elements of a first-degree murder charge.

Chief Deputy District Attorney John Giordani said that prosecutors were not required to present those definitions to a grand jury. He said that grand jurors were asked to indict Ayala on a charge of open murder, which is a charge prosecutors use to encompass the various potential murder charges for which a defendant could be convicted.

Westbrook also argued that prosecutors did not show the grand jury the entirety of a video of Ayala speaking with an officer after his arrest. In the video, Ayala said he expected to be out of custody in 30 days. Westbrook argued that the comment was not about hitting Probst, but that Ayala was referring to crashing a vehicle after he hit Probst, shortly before his arrest.

Bluth said that grand jurors had the option to view the entire video, and that it should be up to a jury during a trial to determine what Ayala meant when he spoke with the officer.

Westbrook also said that local and national media coverage of the case could have affected the grand jury proceedings, which are typically held in secret outside the presence of a judge.

He said grand jurors should have been asked if they had seen media coverage of the case, or the case should be reviewed by the District Court chief judge.

“I think that I had a valid concern that maybe some members of the grand jury might have developed a bias against my client, in a place and at a time where I had no power to protect,” he said.

Giordani said there was no evidence that grand jurors were biased, and that prior case law cited by Westbrook did not apply to Ayala’s case.

“I’m not going to bring every case that the RJ or Channel 8 decides to do a story on to the chief judge. That’s implausible,” Giordani said.

The judge said she agreed that the law did not require prosecutors to instruct the grand jury on the first-degree murder elements, or to question the grand jurors about their bias.

Probst’s daughter, Taylor Probst, attended Tuesday’s hearing alongside her mother. She said that while part of her is concerned that media coverage could affect the case, she believes the defendants are the reason the video of the hit-and-run gained national attention.

“Ayala and Keys were the ones who initially put the video out there, who were spreading it around,” she said.

The teenagers are accused of stealing multiple cars and filming themselves intentionally hitting another bicyclist and rear-ending a separate vehicle before ramming into Probst.

A trial is scheduled for Nov. 12.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240.