January 13, 2009 in City

‘Careless handling’ draws ire of judge

Prosecutor’s office fined for late change to charges
By The Spokesman-Review
 

The Spokane County prosecutor’s office was sanctioned Monday and fined $8,000 by a judge angry over mishandling of a critical detail surrounding a home-invasion case that could send several men to prison for the rest of their lives.

At issue was a last-minute change Monday by Deputy Prosecutor Eugene Cruz, who altered the date – from April 15 to April 17 – that the robbery and attempted first-degree murder occurred on, effectively gutting defense preparations for the trial. At least two of the four men charged with the crime had strong alibis for the original date that prosecutors used in filing criminal charges, including one who was attending a court-ordered alcohol monitoring test.

Although prosecutors can make minor adjustments in the charges leading up to trials, changing something as critical as the date of the crime, on the morning the trial was set to begin, was too much, Spokane County Superior Court Judge Tari Eitzen said. Further, prosecutors had known for months that they wanted to change the date of the crime but waited until the day of the trial to do it.

“I am sanctioning the state for what I consider to be – I’m not willing to say purposeful – but for a careless handling of these cases,” Eitzen said.

She ordered the prosecutor to pay $2,000 to each of the four defense attorneys for additional work to prepare defense cases reflecting the changed date.

At Monday’s hearing, Cruz told Eitzen he knew last fall that the charging information had the wrong date, but didn’t alert defense counsel to the mistake.

Jack Driscoll, the county’s chief criminal deputy prosecutor, said Eitzen’s sanction against his office was “highly unusual.” He could only remember one other similar sanction in his career.

“It’s within the court’s prerogative to do this. We’ll discuss it and we may ask the court to reconsider,” Driscoll said.

Defense attorney David Partovi was pleased with Eitzen’s ruling.

“I don’t see a lot of accountability for case mismanagement. Eitzen was right,” he said. Partovi has filed a request to dismiss the case, which will be argued Jan. 21.

The new trial date is Feb. 2 for Robert E. Larson, 28; Anthony M. Kongchunji, 20; Tyler W. Gassman, 20; and Paul E. Statler, 22. Each is charged with first-degree robbery, attempted first-degree murder, first-degree assault and two counts of drive-by shooting.

The victims in a series of 2008 home invasions, including the April incident, were “allegedly involved in drug transactions,” Cruz told Eitzen during Monday’s hearing. The victims aren’t “forthcoming witnesses” prone to tell detectives “ ‘I was just robbed of my drug cash,’ ” he added.

A related trial involving the four defendants was abruptly dismissed at the request of the prosecutor’s office last week; the new home invasion trial was suddenly scheduled to start Monday.

“This was an intentional and strategic act intended to sandbag us,” Partovi complained to Eitzen.

Eitzen said there had been other minor mistakes on both sides but acknowledged the case had imploded, calling it “an alarming situation.”

“This is an example of a breakdown in our criminal justice system based on a lack of resources … but I can’t let that result in a lowering of standards for either the prosecution or the defense,” she said.

“Mr. Cruz, his caseload being what it is, realized he has the wrong date on the information, but waits – it’s unclear how long – bringing it to the court’s attention this morning that he wants to amend the information,” Eitzen said.

While minor changes in charges are often made routinely, “This is a big deal – this changes the case,” Eitzen added.

A jury panel brought in last week to hear the home invasion cases will be dismissed and a fresh jury pool called next month.

Eitzen didn’t go far enough in sanctioning the prosecutor and should have dismissed the charges, said Janelle Larson, the mother of Robert Larson. She said her 28-year-old son, who works for a tile company, was at work at the time of the home invasion and wasn’t involved. He has been jailed for months, she said.

Reach Karen Dorn Steele at (509) 459-5462 or at karend@spokesman.com.

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