March 30, 2010 in Idaho, News

Mistrial declared in malicious harassment trial

By The Spokesman-Review
 

A mistrial was declared Tuesday in the trial of three Coeur d’Alene brothers accused of racially harassing a Hispanic family in August.

Deputy Prosecuting Attorney Art Verharen had just called his first witness in the trial of Ira Gino Tankovich, 48, William Michael Tankovich, 49, and Frank James Tankovich, 46, all charged with conspiracy to commit malicious harassment. The latter two also are charged with malicious harassment.

The trial stems from an incident on Aug. 16, 2009 in which the Tankoviches confronted the family of Kenneth Requena at his home near 20th Street and Pennsylvania Avenue. Attorneys for the Tankoviches say the brothers stopped at the home to ask Requena, an electrical contractor, whether he had any electrical cable for sale. When Requena displayed a handgun, the brothers left, but returned 20 minutes later to give statements to the police, one defense attorney said.

The prosecution, however, said the Tankoviches drove by the home in a truck decorated with a swastika, spotted the Requena family, then stopped and backed up. When Requena, who felt threatened, displayed a handgun, they left and returned 20 minutes later with a gun and a pitbull, yelling racial slurs.

Kootenai County First District Judge John Luster declared the mistrial after the prosecution played a 911 tape in which witness Julie Oliver, a neighbor, offered an opinion on two points that the prosecution must prove. In the 911 tape, Oliver tells the dispatcher that she believes “this is a racist thing,” and also that her neighbor, Requena, was being threatened.

Both go to the heart of the case, Luster said, because a malicious harassment charge forces the prosecution to prove, first, that Requena was threatened, and second, that the threat was racially motivated. The 911 tape offered opinions on both before any foundation of evidence had been laid, Luster said.

“That is a significant problem,” Luster said. “It’s clearly a violation. A legal error has occurred.”

Luster scheduled a new trial for April 12 with a pretrial conference set for April 9.

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Did Judge John Luster make the right call in declaring a mistrial?

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