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Judge upholds Swenka’s two year sentence

By Lori Lindner
North Liberty Leader

JOHNSON COUNTY– The two-year prison sentence for 20-year-old Zachary Lee Swenka will stand.
On Monday, Dec. 16, Judge Stephen Gerard presided over the hearing of a motion for reconsideration of Swenka’s Oct. 24 sentencing to two years in custody for pleading guilty of involuntary manslaughter.
Swenka was charged with the 2011 death of a Clear Creek Amana High School student, 14-year-old Mackenzie Lown, after the car Swenka was driving on the way home from a cross country team practice collided with an oncoming van. Lown was ejected from the vehicle in the crash and killed. Swenka and four others were passengers were injured, as were the occupants of the minivan, Bryan and Toni Cooling. The prosecution in the case maintained that Swenka, then 18, was driving with excessive speed and recklessness, thereby willfully causing Lown’s death.
Last Monday, attorney Leon Spies presented new documents that were not considered as part of the original case.
“There was important information about the circumstances of the offense that the court would have wanted to have known in its assessment as to what an appropriate sentence would be,” Spies told the court.
New documents included letters of support on Swenka’s behalf, psychological evaluations, and a report from an accident reconstruction specialist that conflicted with the findings of the Iowa State Patrol on the crash details.
“The document reveals, in the testament of Ray Knight, the foremost accident reconstructionist in the state of Iowa, that there were serious flaws in the examination of the accident by the Iowa State Patrol. Far from going 99 to 103 mph at the time he lost control, he was going 70 to 77 mph,” Spies said.
Spies asked that a probationary sentence replace Swenka’s prison sentence.
“Probation is not an act of lenience. It’s a substantial restriction of freedom, not forgiveness and not an endorsement of the offense,” Spies said. “Probation is punishment that will be felt by Mr. Swenka and his family, now and years to come.”
Johnson County Attorney Janet Lyness asked the court to uphold the original sentencing.
“Nothing presented today changes the basic facts,” Lyness argued. “Mr. Swenka was driving at an excessive rate of speed. He drove off the side of the roadway and then proceeded to run into the van driven by the Coolings.”
In the letters of support written by Swenka’s friends and family members, the prosecution said there were references that the defendant seemed to be expressing remorse, but “we have not heard that here today,” Lyness said. “We have yet to hear anything from Mr. Swenka to change the position of this court in terms of him taking responsibility.”
Spies noted that in comments made during the sentencing hearing in October, one could “discern an apparent estimation that Zachary was not demonstrating remorse or accepting responsibility. He said to the court that his last recollection was that he was going 60 mph. Based on his post-accident loss of memory and also on the finding of Knight’s evaluation, that statement was not beyond the realm of possibility.”
The question of whether or not Swenka expressed remorse for his part in the collision was a factor in comments made by Mackenzie Lown’s parents, Kelly Smith and Michael Lown, and, ultimately, by Judge Gerard.
“To the Swenka family, I understand that you want a healthy son as any parent would,” said Smith, “but teaching your son not to admit his actions killed my daughter and not making him serve his punishment is wrong. I think it’s bad parenting.”
To the defendant, Smith made an equally critical statement.
“I don’t know how you can sit here and not admit to anything. Don’t you want to heal? Don’t you think it would make you feel better? I think admitting your actions killed my daughter is the first step to healing. It’s time to accept the responsibility and deal with the punishment,” Smith said.
Michael Lown said regardless of the speed the vehicle was moving at the time of the crash, Swenka was still breaking the law.
“It was your hands on the wheel and your foot on the gas. And it wasn’t the first time you’d done that,” Lown said.
Judge Gerard took about 10 minutes to consider the evidence in the defendant’s exhibits, but said none of it changed the facts of the case. A finding of fact regarding the speed of the vehicle at the time of the crash was immaterial, he added, because Swenka had already pleaded guilty.
Gerard acknowledged the concerns about whether or not Swenka had shown remorse for his conduct, but said that also did not impact his decision.
“I have been in this position long enough to know there are many constraints that can be interpreted as a lack of remorse by those not part of the legal system. At no time have I felt, nor do I now feel, that in the defendant’s plea proceeding, his statements at the time of sentencing– or lack of statements today– to demonstrate that he has a lack of remorse for what happened in this accident,” Gerard said.
However, Gerard said, witness testimony weighed heavily.
“The court did view and still finds significant in the decision making the fact that the passengers in Zachary’s car were not willing participants in the impulsive, immature and reckless driving behavior, and that they were scared and fearful and that Zachary did not respond to that. The court has considered all the criteria to be evaluated in reaching a just and fair sentence,” said Gerard.