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No charges filed in Arco Arena death

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Posted: Tuesday, May 17, 2005 10:00 pm

Two Lodi men will not face criminal charges for getting into a fistfight that led to the death of Mark Leidheisl, 39. The incident happened last month near the parking lot of the Arco Arena in Sacramento.

Sacramento County District Attorney Jan Scully announced her decision not to file any charges against Donnie Garibaldi and Jeff Berndt on Tuesday.

Mark Leidheisl

She said in the report that Leidheisl, a senior vice president with Wells Fargo Bank, appeared to have been drunk, under the influence of drugs and acting aggressively the night he died.

But friends and family say Leidheisl, of San Ramon, was a gentle and considerate man, and the image portrayed by the DA's office is inaccurate.

During the fight, Berndt reportedly threw one punch that hit Leidheisl in the head sending him to the ground. Leidheisl's skull broke when his head hit the street, causing his death.

Reasonable self defense

"There is no evidence that (Leidheisl's) death is other than a consequence of either the reasonable use of self-defense or mutual combat," a statement announcing the decision said. "Criminal charges against Mr. Berndt and Mr. Garibaldi are not warranted."

Transcript of press release

Jan Scully announced today (Tuesday) that no charges will be filed against Jeffrey Berndt or Donnie Garibaldi, as a result of the death of Mark Leidheisl after the Kings game on April 20, 2005. After a thorough review of the police investigation, it is clear that Mark Leidheisl died as a result of mutual combat between he and Jeffrey Berndt. One punch thrown in self-defense by Jeffrey Berndt struck Mark Leidheisl in the face, causing him to fall backwards striking his head on the asphalt pavement. This fall fractured Leidheisl's skull, causing his death.

The investigation revealed that Mark Leidheisl had at least a .13% blood alcohol level. This alcohol level is consistent with statements about Leidheisl's drinking that evening given by David Ott, who was with the decedent the entire evening. In addition, opiates were present in the blood sample taken when Leidheisl arrived at the UC Davis Medical Center, and an unmarked pill bottle in Mr. Leidheisl's car contained Paxil, extended tab Morphine, as well as a third pill that has yet to be identified by the District Attorney's Crime Lab or Poison Control.

Several witnesses came forward as a result of media coverage of Mr. Leidheisl's death. All describe a consistent pattern of insulting and aggressive behavior by Mr. Leidheisl at the game. Some of this conduct included intentionally flicking the head of the older man seated in front of Mr. Leidheisl, and pointing out various individuals, commenting to Mr.Ott that he could "take" them and beat them in a fight. Leidheisl also directed rude and offensive comments to spectators around him as well as a game official. David Ott gave a similar account of Mr. Leidheisl's behavior during the game.

As Mark Leidheisl left the Arco Arena parking lot, he was driving recklessly and at an excessive speed, according to his passenger. Mr. Ott told investigators that he "was scared of Mark's driving and was telling him [Leidheisl] to slow down." Ott reported that Leidheisl responded, "Don't worry, I do this all the time." Ott also told investigators that at one point an officer directing traffic yelled at Leidheisl to slow down.

It was Mr. Leidheisl's driving that brought him in contact with Donnie Garibaldi (driver of the SUV) and Jeffrey Berndt (passenger in Garibaldi's vehicle) who were also leaving the game. Leidheisl almost side-swiped Garibaldi's SUV as he attempted to change lanes to leave the arena parking lot. Both Ott and the occupants of the Garibaldi vehicle stated that Leidheisl began to aggressively challenge the occupants of the other vehicle to a fight. He continued driving so as to either impede the Garibaldi vehicle or alternatively to drive beside it to make further challenges to fight. This continued as the vehicles turned onto Truxel Road. At Prosper Drive, Leidheisl turned off Truxel Road for the fight. The Garibaldi vehicle turned right behind Leidheisl. Just before the turn, Leidheisl asked Ott if he (Ott) thought they could take them. Ott admitted replying, "Yeah, let's take these guys."

After both vehicles stopped, Leidheisl quickly got out and began fighting with Garibaldi. Ott and Berndt stood to the side, with Ott telling Berndt that he wasn't going to fight and that it was Leidheisl's "deal." After a minute or two, Garibaldi and Leidheisl were on the ground wrestling. Ott thought that Garibaldi was getting the better of Leidheisl, while Berndt thought Leidheisl had the upper hand on Garibaldi. By this time, Ott had backed up a short distance from the roadway into an adjoining field. Berndt approached the two men fighting on the ground and pulled Leidheisl off Garibaldi, separating the two. Garibaldi got up and started back to his vehicle. Leidheisl then turned on Berndt and began hitting him. Berndt deflected most of these blows, but one struck him on the side of the head, by the right ear. Berndt responded with one punch striking Leidheisl in the face, likely in the lower mouth area. Leidheisl fell directly back striking his head on the pavement. Berndt and Garibaldi immediately left the scene. Dave Ott approached Mr. Leidheisl, saw that he was bleeding about the head and unconscious on the ground. He immediately called "911" for medical attention.

There is no evidence that weapons were involved, nor is there any indication that both Garibaldi and Berndt were fighting Mr. Leidheisl at the same time.

Each of the four men involved in this series of events exercised poor judgment. The exercise of poor judgment does not equal criminal conduct in this instance.

Mr. Leidheisl was the aggressor in a fight which led, unfortunately and tragically, to his death. But there is no evidence that his death is other than a consequence of either the reasonable use of self-defense or mutual combat. Criminal charges against Mr. Berndt and Mr. Garibaldi are not warranted.

-- From the Office of the District Attorney of Sacramento County.

Garibaldi's lawyer, Randy Thomas, said his client would not comment on the case because of the possibility of a civil suit.

"First of all I want everyone to understand my client continues to be deeply saddened by this gentleman losing his life," Thomas said. "We'll always have concerns in that regard."

Thomas said he does not know if Leidheisl's family will file a civil lawsuit because of the incident. Further, he did not know what affect, if any, Leidheisl's behavior or apparent intoxication on the night of his death will have on the possibility of such a suit.

"I'm sure it's a factor, but again it just doesn't do any good to guess," he said.

Donald Heller, the attorney representing Leidheisl's widow, did not return calls for comment Tuesday.

Berndt's attorney, Doug Jacobsen, said his client did not want to speak to the media about the case, but did say Berndt is "very thankful for the decision."

Jacobsen, too, thinks a civil suit is possible, especially as Leidheisl's widow has retained an attorney.

Berndt and Garibaldi got into a confrontation with Leidheisl and his companion, David Ott, following an April 20 Sacramento Kings basketball game.

According to the DA's report, the incident began with Leidheisl driving recklessly out of the arena's parking lot after the game, nearly sideswiping the car being driven by Garibaldi. The DA's report said Leidheisl continued to drive "so as to either impede the Garibaldi vehicle or alternatively to drive beside it to make further challenges to fight."

Road rage turned violent

Garibaldi eventually pulled his car over and the four men got out of their vehicles. The report said "Leidheisl quickly got out and began fighting with Garibaldi" while Ott and Berndt stood to the side.

Garibaldi and Leidheisl fought briefly until Berndt pulled Leidheisl off Garibaldi. Leidheisl then "turned on Berndt and began hitting him."

The DA's report said Berndt deflected most of Leidheisl's punches until one struck him on the side of the head.

"Berndt responded with one punch striking Leidheisl in the face, likely in the lower mouth area," the report said. "Leidheisl fell directly back striking his head on the pavement."

After Leidheisl fell to the ground, Garibaldi and Berndt left the scene, and Ott called 911. Ott had reportedly stood in a field nearby where the incident occurred.

In addition to clearing Garibaldi and Berndt of criminal charges, the DA's office also determined that Leidheisl was drunk and under the influence of drugs at the time of his death.

A blood sample, analyzed by the UC Davis Medical Center, revealed that Leidheisl had a blood alcohol level of .13 percent and had opiates in his system. California's legal driving limit is .08.

Investigators also found an unmarked pill bottle in Leidheisl's car that contained the antidepressant Paxil, an "extended tab" of morphine as well as an unidentified third pill.

Several witnesses said Leidheisl had been drinking during the game and acting in an "insulting and aggressive" manner that included taunting other spectators sitting near him in the arena and a game official. Leidheisl also reportedly pointed out people to Ott and told him that he could beat them up in a fistfight.

Dave Wellenbrock, who recently retired as the San Joaquin County Deputy District Attorney and teaches criminal procedure at Humphreys College, said the case appeared to him to be a clear cut matter of self defense.

From what he knows of the case, he said Leidheisl was the aggressor in the incident who was stopped by just one punch from Berndt. And, he added, he believes the Sacramento County DA's office did a thorough and complete job.

"Citizens have a right to self defense," Wellenbrock said. "It doesn't sound like an inappropriate decision to me."

Decision causes shock and relief

Reactions to the news were sharply different among people who knew the involved parties.

Lodi ophthalmologist John Zeiter, a friend of Garibaldi's for 10 years, was happy to hear his friend would not be facing criminal charges.

"It's what most of his close friends and relatives expected," he said. "The facts that had been presented to date have shown that he was basically innocent of this tragic death."

But according to Leidheisl's friends, the tragedy is that Garibaldi and Berndt won't be facing charges.

Miki Bradshaw said she grew up with Leidheisl in North Highlands and felt he was like a little brother to her.

"I think that Mark was probably just going to try to talk to these guys and never got the chance," she said.

Bradshaw also said Garibaldi and Berndt should have faced charges because they chose to stop and confront Leidheisl.

She feels the DA's decision is sending a message to members of the public that if they get into fights and someone gets hurt, there's a good chance they won't face charges.

The Leidheisl's memorial Web page listed dozens of posts from family, friends and colleagues on a memorial blog praising Leidheisl's character.

"My Uncle Mark was the person that made everything seem right," read one post by a relative in Roseville.

"Even if you were having the worst day you could talk to him and your day would be turned around for the best. I love Uncle Mark and I will miss him very much. Thank you Uncle Mark for always being there for me."

Contact reporter Andrew Adams at andrewa@lodinews.com.

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