Trial under way in ATV death

PHOTOGRAPHER: Edward Munger Jr.

Holly Gibson stood silently outside the Florida Town Court for about five hours on Monday as jury selection took place in the courtroom, behind closed doors.

Gibson plans to attend the entire trial of David H. Kietzmann, 53, who faces two counts of endangering the welfare of a child, because her son, Josiah Mazurkiewicz, died at age 8 while riding an ATV on Kietzmann’s property three years ago.

Following about an hour of testimony, Gibson, 29, of Queensbury, said it’s difficult to relive the scene as described by witnesses and to know she’ll never see her son again.

“You just wonder what he’d be doing,” she said in tears.

Police said Kietzmann was to blame for the accident because the boy and the daughter of the babysitter were riding his 500cc four-wheeler on his property without helmets and without supervision. At issue in the trial now under way is whether he gave permission for them to ride the ATV, or whether he even knew they were riding it, though that question wasn’t directly raised, or answered, on Monday.

Following opening statements, assistant Montgomery County District Attorney John Clo called Lisa Meyer to the stand.

Meyer said Gibson’s mother asker her to baby-sit Mazurkiewicz on Sept. 20, 2008, so she and her then-10-year-old daughter Kaitlyn went to the town of Florida to pick him up.

Meyer said the three went to a neighboring farmer’s place in hopes of letting the kids look at the dairy cows, but the farmer was busy so they went to the Kietzmann farm, owned by friends of her family for at least 25 years, she said.

David Kietzmann was not home when they arrived. They went inside and spoke with Kietzmann’s wife and children and Kietzmann arrived home at some point later.

The children went outside and the next thing she knew, Meyer said, the phone was ringing. She heard there was an accident and she ran outside.

She got a ride from a passerby down to the muddy field across Thayer Road and behind Kietzmann’s dairy barn where she saw the scene.

“I saw my daughter there, and I saw Josiah and the four-wheeler,” Meyer said as she cried.

The ATV was on top of Mazurkiewicz, so Meyer and the passerby lifted it off of him and started CPR until firefighters arrived, she testified.

Mazurkiewicz, then a third-grader at Division Street School in Saratoga Springs, was taken to St. Mary’s Hospital in Amsterdam and pronounced dead. He’d suffered severe head trauma, according to his mother.

During cross-examination, Kietzmann’s defense attorney, William Lorman of Amsterdam, pressed Meyer about what she actually saw that day.

Meyer, answering questions posed by Lorman, said she never saw Kietzmann moving the ATV nor unhooking a trailer of pumpkins from it, and she didn’t witness Kietzmann walking to the barn, across Thayer Road, with the children.

Meyer also admitted she never verbally relinquished responsibility for the children to Kietzmann or to anybody else that day.

Following Meyer’s testimony, Town Justice Stephen Brown concluded the trial for the day.

Gibson, who now has a 2-year-old daughter who will never know her brother, said she wants to see the trial through and she’s hoping for some closure after waiting three years for it.

The lack of a judge stalled the case for months and then legal wrangling continued until August 2010, when Kietzmann agreed to a plea agreement. He pleaded guilty to disorderly conduct, paid a $250 fine and surcharge of $125.

But Montgomery County District Attorney James “Jed” Conboy had demanded Kietzmann plead to the misdemeanors or go to trial. During a hearing in March 2011, the prosecutor told the court the plea deal was withdrawn in writing prior to Kietzmann’s actual plea — so the plea was invalid, setting up this week’s trial.

Gibson said it’s hard to accept the idea that her son is responsible for his own death — he’d never ridden an ATV by himself and when he did get on recreational vehicles, he’d always worn safety gear.

“My whole theory on it is good people make bad choices,” Gibson said.

Testimony is scheduled to resume at 9 a.m. today in Florida Town Court.