A judge delayed action Monday in an incident in which a
runaway SUV plowed into a crowd of Germantown bar patrons,
after a hearing at which the mother of the most seriously
hurt victim demanded justice.
Speaking publicly for the first time, Marilyn Marchese of
testified before Washington County
Circuit Judge David Resheske that her son, Andrew Beres,
lost most of his face when he was pinned against a wall by
the driverless Ford Expedition.
"I am not motivated by revenge; I don't want to see these
kids go to prison," Marchese said. "I am motivated by
responsibility. My son lost his face."
Resheske said he wanted to look at case law pertaining to
reckless driving statutes.
"What occurred here is so incredibly tragic that it cannot
help but leave an impression on those have come into contact
with it," he said. "And that hopefully extends to those who
may bear some responsibility."
Marchese is saddened that her son has also lost a lung and
his gallbladder. She is worried about the effect years of
plastic surgery will have on the 24-year-old, who is also
the stepson of Waukesha County Supervisor Joe Marchese. But
mostly she is angry that some people apparently didn't tell
the truth about the accident that resulted in her son nearly
"They have all come here to muddy the waters," she said.
"They were worried about saving their own skins when my son
lost his. My son's life is altered forever, and that is
criminal to me."
Resheske earlier heard several days of testimony about the
March accident at Tequila Boom tavern
The driver, Andrew Schwellinger, jumped out of the car to
help a friend who appeared to be in a fight. Schwellinger
was arrested on suspicion of drunken driving but no charges
were filed. In testimony, witnesses gave conflicting
accounts of the accident, with some saying the engine revved
just before it struck the crowd.
Jessica Flemming, a passenger in the SUV, climbed over the
front seat in an attempt to stop the Expedition as it hit a
parked vehicle and then rammed the crowd. No one can be sure
whether she inadvertently touched the gas, according to
Assistant District Attorney Peter Cannon.
Resheske can recommend that either criminal charges or
municipal citations be issued. Or he can agree with Cannon
that there is not enough evidence to charge anyone with
Cannon told the judge that many of the witnesses had been
less than forthcoming.
"I didn't expect a lot of cooperation from Mr.
Schwellinger's friends and family," Cannon said. "But we
didn't have the most cooperative of people here testifying
about that night."
Some witnesses said the Expedition was going 25 mph, while
police experts estimated the speed at a little more than 5
mph. Other witnesses claim to have heard the Expedition
accelerate, while some say they heard nothing except the
There were just too many discrepancies, Cannon said. "In
terms of proving this case beyond a reasonable doubt, we
just couldn't do it," he told the judge.
Resheske said the John Doe investigation had been a thorough
attempt at gathering evidence and getting to the truth. He
said he expected to issue a written decision on the case
rules in SUV case - Not enough evidence
for criminal charges
Journal Sentinel (WI) -
Wednesday, June 27, 2001
Journal Sentinel staff
A Washington County judge ruled Tuesday
that there is not enough evidence to
issue criminal charges in the case of a
runaway SUV that smashed into a
Germantown tavern ,
leaving one man seriously injured.
Circuit Judge David Resheske said the
only reasonable conclusion was that the
sport utility vehicle was left in gear
when the driver jumped out of the
vehicle but agreed in his written ruling
that the district attorney would not
have been able to prove anyone was
Resheske earlier heard several days of
testimony in a John Doe proceeding
called to determine whether charges
could be filed.
On March 12, the Ford Expedition slammed
into the front of Tequila Boom, a bar on
Mequon Road. Several people were hurt.
The most seriously injured, Andrew Beres
of Sussex , spent
several weeks in a hospital after being
trapped between the vehicle and the
building. He lost a lung and his
gallbladder and will need plastic
surgery to repair injuries to his head
Kevin Schwellinger was arrested that
night on suspicion of drunken driving.
His blood-alcohol level came back at
0.03, less than a third the limit
considered proof of intoxication.
Authorities have said that when he
jumped out of the SUV to help a friend
in a fight, he left the vehicle in gear.
Jessica Fleming was in the back seat of
the SUV and felt it move, according to
testimony at the John Doe. She testified
that she climbed over the seat and
attempted to stop the truck. It hit a
parked car and then went into a crowd of
patrons leaving the bar.
Resheske cleared Schwellinger of any
"The only reasonable conclusion is that
he left the vehicle in gear when he got
out," Resheske wrote. "There is no
evidence that he knew the vehicle was in
gear, and, in fact, he himself was
struck by the vehicle. I cannot find
that the conduct was criminal."
Fleming's blood-alcohol level was 0.09,
and Resheske noted that was below the
level of evidence of intoxication but
high enough to be relevant to whether
she was impaired.
He went on to say that any case against
her would hinge on her ability to
control a car she had never driven and
what effect the first collision with a
parked car had on the direction of the
"Any deviation in direction would have
caused the vehicle to strike the posts
outside the entrance and presumably have
stopped the vehicle from entering the
front of the building where Mr. Beres
was standing," he wrote.
Beres' mother, Marilyn Marchese, asked
the judge at the last hearing to force
those involved to take responsibility
for the accident that left her son near
In his written opinion, Resheske
addressed her concerns.
"I listened with concern to (her
statement) and her desire to hold
someone responsible for the tragic
injuries caused to her son," he said. "I
would feel the same way in her position.
"While I sympathize with her feelings, I
must make my findings according to the
law. In this instance I must agree with
the (district attorney) that the
probable cause does not exist for the
filing of a criminal complaint."
Assistant District Attorney Peter Cannon
handled the inquiry and told the judge
previously that he didn't think his
office could prove a case beyond a
Cannon said Tuesday he "respected the
Members of Beres' family declined to
comment until they have talked with
Michael F. Hart, who represents the
family, said that the family understood
the judge's ruling but was disappointed.
"All they wanted from the beginning was
for the appropriate parties to be held
responsible for their conduct," Hart
He said there are options still
available to the family.
"While the John Doe may not have
produced enough probable cause for the
issuance of criminal charges, they
remain hopeful that the justice will be
served and responsible parties will be
held accountable," Hart said.
Beres is the stepson of Waukesha County
Supervisor Joe Marchese.
Schwellinger declined to comment.