By Joe Gerrety
Journal and Courier - 5/26/00

Dan and Margie Towery brought props to court with them Thursday to help illustrate how the death of their 24-year-old daughter and her 20-year-old boyfriend has affected their lives, and how it could have been prevented.

A portrait of Sarah Towery and Chip Smith dressed in formal attire. Sarah's diploma from the University of Illinois-Springfield, awarded posthumously earlier this month. A plastic bag containing some of Sarah's ashes.

And a fifth of Captain Morgan Spiced Rum, roughly the amount of 70-proof alcohol that Jeffrey Pedone Trout consumed at the Mirage, a former south Lafayette tavern, in 21/2 hours on March 21, 1999, before he crashed his truck into the car in which Chip and Sarah were traveling. All three were killed.

The only person left to charge criminally -- James W. Irwin, 55, the bartender who served Trout the day of the crash -- was sentenced Thursday to 180 days in jail on his conviction for criminal recklessness. With credit for good behavior, Irwin likely will be free in 90 days.

The Towerys' symbolism wasn't lost on Judge Laura Zeman of Tippecanoe County Court 2. She ordered Irwin, himself a recovering alcoholic, to take one of the props with him to jail.

"As a condition of your good behavior, Mr. Irwin, this picture is going to be hanging in your cell for all 90 days," Zeman said, holding up a copy of the portrait of Sarah and Chip. "That'll be the last thing you look at before you go to sleep and the first thing you see when you wake up in the morning."

Dan Towery said the portrait, a composite of two separate photos of Chip and Sarah taken at separate weddings, was doctored by a computer to make it appear that the two are posing together.

Moments before accepting the sentence, Irwin stood facing the Towerys and Chip Smith's parents, Earl and Jodie Smith of Riverton, Ill., and apologized for the first time.

"I made a bad judgment. I want to apologize, and I do take responsibility," he said.

"It took you 14 months," Dan Towery shot back.

"It's his turn, sir," Irwin's son, Troy, interjected as he and Towery had a brief stare-down.

Afterward, Jodie Smith called Irwin's apology "an empty statement."

Zeman said Irwin was one of two people, the other being an employee of Trout who had confronted him in the Mirage and knew he was drunk, who could have prevented him from driving away.

"You had a legal and moral responsibility," Zeman told Irwin. "He was a problem to you so you sent him out the door and made him someone else's problem."

Zeman also ordered Irwin to pay a $1,000 fine and $1,070 in restitution to the Towerys for damages not covered by a $500,000 settlement in civil lawsuit against the Mirage. All the penalties are the maximum allowed for a class B misdemeanor.

A jury last month convicted Irwin of criminal recklessness but found him not guilty of serving alcohol to an intoxicated person. Several witnesses in the bar testified that it wasn't obvious that Trout was drunk.

But the Smiths wrote in a letter to Zeman: "We feel anyone would have known that the amount of alcohol served to Jeff Trout in those 21/2 hours before our son died would definitely have impaired him whether there were physical signs or not."

Dan Towery, who recently helped establish a Greater Lafayette chapter of Mothers Against Drunk Driving, said he will continue to fight for public awareness and government accountability for drunken driving.

Towery noted that Irwin did not have a valid server's permit the day of Trout's crash, but the Indiana Alcoholic Beverage Commission issued one to him five days after the triple fatality. He questioned why Mirage owner Rodger Heer would hire Irwin, a recovering alcoholic with three drunken driving convictions of his own, as a bartender.

Three months after the crash, the Mirage lost its three-way liquor license. It reopened in August as an all-ages club. Two weeks ago, the business relocated from Brady Center on South 18th Street to Valley Plaza on South Fourth Street.

Towery said he has never gotten an answer as to why the Boone County court system didn't discover that Trout was on probation in Tippecanoe County when it accepted his guilty plea in his fourth drunken driving case and released him on bond just six weeks before the fatal crash.