January 29, 2009 in City

Home invasion case to proceed

Judge had fined ‘careless’ prosecutor’s office but determines trial against four ‘not tainted’
By The Spokesman-Review
 

The judge who sanctioned the Spokane County prosecutor’s office for “careless” handling of a home invasion case has denied a motion by defense attorneys to dismiss that case.

After spending months in jail, the four defendants will go to trial next week before Superior Court Judge Tari Eitzen, who ruled Wednesday that their speedy trial rights had not been violated despite other problems with the “chaotic” case.

Eitzen earlier this month sanctioned the prosecutor’s office and fined it $8,000 after a deputy prosecutor amended the charges at the last minute to show that the crimes were committed April 17, not April 15. The change effectively gutted defense preparations for the trial.

“I can find no specific issues of misconduct that taint this case other than what we talked about on Jan. 12 – when the state had been careless and remiss in not moving to amend earlier … . I find this trial is not tainted,” she said.

The Wednesday hearing in the case of Tyler W. Gassman, Robert E. Larson, Anthony M. Kongchunji and Paul E. Statler drew nearly a dozen members of the prosecutor’s office because of the unusual penalty Eitzen ordered the office to pay. The money went to four defense attorneys for the additional trial preparations required because of the date change.

“There must not be much going on here today,” Eitzen said as she smiled at the crowd of prosecutors.

Prosecutor Steve Tucker’s office has asked Eitzen to reconsider her sanction, which the judge will consider during a Feb. 25 hearing. She’d originally ordered the $8,000 to be paid by the date of trial, but that order will be stayed until after the hearing.

Eitzen heard from two defense attorneys who argued the case has become so tainted she should throw it out. The four men are charged with robbery, attempted first-degree murder, assault and two counts of drive-by shooting for the April incident.

David Partovi, representing Gassman, told Eitzen that deputy prosecutor Eugene Cruz has engaged in a “pattern of prosecutorial misconduct” in a string of related 2008 home invasion cases.

Gassman was charged twice without probable cause and a police report clearing him of guilt “was never disclosed to the defense” in a previous case dismissed when the report turned up, Partovi said.

“Why should I dismiss the current case because of alleged misconduct in a prior case?” Eitzen asked.

Partovi said problems that led to the dismissal of Gassman’s prior case extend to the current one. “You must judge the length of time this man has had to sit in jail. It’s just not fair,” Partovi said.

Deputy Public Defender Anna Nordtvedt, representing Larson, said the case has become a “huge cluster” that has damaged her client by forcing him to sit in jail for more than seven months. She said it wasn’t her intention to blame Cruz, who inherited the case from another prosecutor.

“Proving someone evil or dishonest is not our position – we are talking about mismanagement. Mr. Larson’s right to a fair trial has been prejudiced over and over again,” Nordtvedt said.

Cruz, arguing against the motion, said that the state has been trying to “move these cases along” and that the defense had not proved prejudice against the defendants.

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


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