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Judge questions lawyers in drug case

Thu., Feb. 26, 2009

Eitzen launches review after sanction protested

It was part judicial inquest, part lecture on recent missteps in a controversial criminal case.

The Spokane County Superior Court judge who fined the county prosecutor’s office last month for “careless” handling of a drug robbery case has launched a detailed review in response to the state’s motion to withdraw her $8,000 sanction. She applied the fine after a deputy prosecutor amended the charges immediately before the trial was to begin to show the crimes were committed on a different day.

In a hearing Wednesday, Judge Tari Eitzen lectured chief deputy prosecutor Brian O’Brien, saying that prosecutors are the most powerful people in the criminal justice system and therefore must be held accountable when their conduct threatens people’s fair trial rights.

Eitzen said it was the first time in 16 years on the bench she’d levied a major sanction. The case involved a “perfect storm” of procedural mistakes and flaring tempers, she said.

“There’s a bunch of things I see in this case that I don’t like,” O’Brien replied, including insulting e-mails between the prosecutor’s office and defense attorneys. Eugene Cruz, the deputy prosecutor who inherited the case from his gang unit supervisor Mark Cipolla, sat next to O’Brien.

During the case, Cruz filed a complaint with the Washington State Bar Association against defense lawyer David Partovi after Partovi pushed for a “release-dismiss” agreement for his client, Tyler Gassman. Partovi accused Cruz of prosecutorial misconduct in an unsuccessful effort to dismiss the case.

Cruz amended the charges against the four defendants as the trial was about to begin Jan. 12 to claim that the crimes were committed April 17, 2008, instead of April 15, harming the planned defense, which included three alibis.

“What happened here just didn’t feel right … . There was genuine surprise on the part of the defense. We all had to regroup so these young men could get a fair trial,” Eitzen said.

O’Brien, however, said the case could have gone forward without the date change and sanctions weren’t warranted – suggesting that monetary fines would create a precedent threatening the “camaraderie” among Spokane lawyers.

“I think you’ve already caught the attention of the state in this case … . We need to have cleaner hands,” O’Brien added.

“Are you suggesting that the court should look the other way when things go on that in the court’s view create an unfairness?” Eitzen asked.

“No,” O’Brien said, adding that the sanctions had “thrown some blood in the water.”

Eitzen pressed on, noting the attention her sanctions have garnered, including at a Jan. 28 hearing where she denied a request by defense attorneys to dismiss the case after a three-week continuance she granted to give them more time to prepare after the prosecutor’s date change.

“When I come out on the bench and I see a dozen senior prosecutors sitting in my courtroom – what was the purpose of that? Blood in the water?” she asked.

Duane Statler, the father of defendant Paul E. Statler, said after the hearing that Eitzen should have dismissed the case instead of letting it go forward with the changed dates. “She permitted this to happen,” Statler said.

Eitzen wasn’t able to hear the case because of a conflict with another trial, and it was assigned to Superior Court Judge Michael Price. On Feb. 17, a jury found Robert E. Larson, Tyler W. Gassman and Paul Statler guilty of first-degree robbery, first-degree assault and drive-by shooting. A fourth defendant, Anthony Kongchunji, took a plea deal before trial.

The convictions will “undoubtedly” go to the Court of Appeals, Eitzen said, adding that she’s trying to establish a detailed record of what happened for the appeals court.

Defense attorney Timothy Note gave Eitzen a detailed chronology, including a notice to prosecutors Oct. 28, 2008, of Larson’s alibi for April 15 – a time card from his employer showing he was at work.

That was a notice to the state that the defendants would rely on alibi defenses, Note said. Eitzen had complained earlier in the hearing that only assistant public defender Anna Nordtvedt had provided timely notice of an alibi defense for her client, Larson.

The next day, Oct. 29, sheriff’s Detective William Francis reopened his investigation, contacting witness Kyle Westkamp, who said he’d made a phone call shortly after the robbery. His phone records showed a late-night call April 17.

Larson’s time card showed he was at work April 15, 16 and 18, Note said.

“Detective William Francis made his contact on Oct. 29. Until then, nowhere in any of his reports was there a mention of April 17,” Note said.

A second hearing where Eitzen said she’ll continue to question all the lawyers has been scheduled for March 30.

Reach Karen Dorn Steele at (509) 459-5462 or at

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