October 16, 2010 in City

Decision on Creach shooting charges unlikely before election

By The Spokesman-Review
 
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Background and the latest updates

Spokane County Prosecutor Steve Tucker is asking voters for another four years in office at the same time he is trying to decide whether to bring charges in a controversial police shooting that killed a local pastor.

Democratic challenger Frank Malone, 67, previously suggested that Tucker – a former Washington State Patrol trooper – turn over the decision about the Aug. 25 shooting of Wayne Scott Creach by a Spokane County sheriff’s deputy to a prosecutor from a different county.

“All he had to do was follow my advice. Give it to an independent prosecutor and get it out of his lap,” Malone said. “It was the right thing to do and the politically safe thing to do and he decided to mock me.”

Last month, Tucker replied to Malone’s suggestion by saying, “Until he gets elected, he’s just somebody talking.” Being a finalist in the November election “doesn’t give him standing to make any calls for my office.”

Tucker has said he wanted to make a charging decision in the Creach shooting before the Nov. 2 election. But he said this week it may not happen by then.

A charging decision “still might happen, but we are still waiting for one test result,” Tucker said. “We are going to do a thorough job.”

Tucker similarly was dealing with a controversial case involving a death caused by law enforcement during the 2006 election. That year, Tucker defeated Bob Caruso at a time when the Otto Zehm investigation was still active.

Tucker said in August 2006 that he would push for coroner’s inquests to get the public more information, faster, about controversial in-custody deaths. But after his landslide win, the county never held a single inquest because Tucker said Medical Examiner Dr. Sally Aiken wasn’t comfortable with the concept.

An inquest involves the coroner or medical examiner presiding over a hearing while attorneys present evidence. A six-person jury votes on whether to charge the officer, with the prosecutor retaining the right essentially to veto the jury’s decision.

In the Zehm case, Tucker never determined whether Spokane police Officer Karl Thompson should face criminal charges for the March 20, 2006 confrontation with Zehm that resulted in the death of the 36-year-old, mentally ill janitor.

The Federal Bureau of Investigation took over the investigation and discovered new information that the agency didn’t turn over to him, Tucker said, so he chose to wait.

“Why would I make a decision if they are going to take the whole investigation? They are going to trial on this with supposedly new evidence. I won’t find out what that is until they go to trial,” Tucker said.

Thompson still could face charges through his office, Tucker noted: “Murder doesn’t have a statute of limitations.”

Federal officials brought two felony charges against Thompson; the trial is scheduled to begin in March.

Former U.S. attorney for Eastern Washington Jim McDevitt, who turned the job over to Spokane attorney Mike Ormsby on Friday, declined to comment on whether there’s a legal reason Tucker had to delay making a charging decision in the Zehm case.

“We really don’t confirm or deny anything, or talk about our relations with law enforcement partners,” McDevitt said. “We pretty much operate on our own and they operate on their own.”

Whatever decision Tucker makes on the Creach case likely will spark controversy.

Creach, a 74-year-old pastor, grabbed his gun – as he had before – to check on what he apparently thought was a prowler in the parking lot of his nursery business adjacent to his Spokane Valley home.

Spokane County sheriff’s Deputy Brian Hirzel later told investigators that he saw Creach approaching with a gun and a flashlight, and that Creach refused several commands to drop the gun, although he did slip the gun into the back waistband of his pants.

Hirzel said he told Creach to get down on the ground and struck him with a baton on his knee when Creach refused. Hirzel claimed that Creach reached for his gun and Hirzel fired when he saw the butt of Creach’s pistol.

Creach’s son, Alan Creach, maintains his father had every right to carry a gun to protect his property. However, Tucker has said state law is clear that a person must obey a lawful order from police.

“He did not give us any hope that this was something he was going to get on and prosecute,” Alan Creach said, referring to a meeting his family had with Tucker. “We didn’t feel like after talking to him that he was as outraged as everybody else we have talked to. If Steve Tucker wants four more years, he needs to prove that to this community.”

Malone said that if he’s elected, he would hire an independent prosecutor if the charging decision on the Creach case is still pending.

“The county has liability, potentially, and shouldn’t be investigating itself under those circumstances,” Malone said. “That’s a clear conflict in my view.”

Tucker said the county often hires private counsel to represent it for civil lawsuits, but he expects to make the call on the criminal side of the Creach case.

“I’m the one responsible for making final decision for any police use of deadly force,” Tucker said. “This is the path that we take.”


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