October 29, 2010 in City

Brothers guilty of racially harassing man

Verdict came in third trial of Tankoviches
By The Spokesman-Review
 

Following the third trial in eight months, two Coeur d’Alene brothers were found guilty Thursday of racially harassing and threatening a Hispanic man in August 2009.

Sentencing was set for Jan. 13 for Frank James Tankovich, 47, and William Michael Tankovich Jr., 50, who were found guilty of malicious harassment and conspiracy to commit malicious harassment against Kenneth Requena, a Puerto Rican man.

“For a while there, I felt like I was on trial,” said Requena, who felt so threatened when the Tankovich brothers drove by his home on Aug. 16, 2009, that he pulled a gun and had his wife call 911. Defense attorneys said it was Requena’s actions that escalated the incident.

“I really did nothing wrong except standing in front of my house minding my own business,” Requena said. “I guess justice was served.”

The first trial in March ended in a mistrial. The second trial, in April, ended in a hung jury, with the vote 11-1 in favor of acquittal on the malicious harassment charge and 8-4 in favor of not guilty on the conspiracy charge.

A third brother, Ira, was found guilty of conspiracy to commit disturbing the peace and also pleaded guilty to being a felon in possession of a handgun in relation to the incident. He was sentenced to nine years in prison, three fixed.

Frank and William Tankovich were accompanied to court daily by numerous family members, some of whom testified. Defense attorneys Chris Schwartz and Jed Whitaker promised not only to appeal, but also plan to file a motion alleging jury misconduct. Schwartz declined to elaborate.

“We just totally got railroaded,” Frank Tankovich said. “It wasn’t anything about hate, not at all.”

The felony charges carry a maximum sentence of 5 years and a $5,000 fine.

The verdict had to be unanimous to stick and the jury’s presiding officer, Tracey Crook, of Coeur d’Alene, said she felt the strongest evidence was the fact that after an initial incident in front of Requena’s home, the Tankovich brothers returned from two different directions.

“One comes down the street with a gun and the others came with their dog,” Crook said, adding that Requena couldn’t have helped but feel threatened when the truck decorated with a swastika drove past his house, stopped and slowly backed up.

Kootenai County Prosecutor Barry McHugh said the biggest difference between this trial and the last was testimony by Tim Higgins, a gang symbols expert with the Idaho Department of Corrections, who explained the possible meaning of the Tankovich brothers’ tattoos. In addition, McHugh said, additional evidence regarding the timing of William Tankovich’s 911 call showed “it was not made with an attempt to actually report a crime because it didn’t even take place until the police were on the scene. It was made to justify their returning to the residence a second time.”

The defense had cited that 911 call as evidence that the Tankovich brothers had no intention of committing a crime because they would not have invited the police to come.

McHugh said the verdict “perhaps reflects on the larger community’s acceptance of the existence of (hate crime statutes). They accept them and will utilize them when asked.”

The defense, however, took issue with the introduction of the testimony by Higgins, the gang symbols expert. He testified about William and Ira Tankovich’s tattoos, saying all were common symbols of white supremacy.

Schwartz, the defense attorney, disputed Deputy Prosecuting Attorney Art Verharen’s reference to those tattoos in his closing arguments as white supremacist tattoos, saying it’s impossible to prove what those symbols mean to his client, William Tankovich, who did not testify.

Verharen began his closing argument by drawing a large swastika on a white board, next to the words “born 2 kill,” both of which he contended were drawn on the side of the truck in the dirt when it drove by Requena’s home that day. He also posted in front of the jury photographs of the tattoos.

No reasonable person could believe the Tankovich brothers intended anything but to harass Requena, Verharen said. Malicious harassment requires the prosecutor prove Requena was threatened because of his race and Verharen said that occurred on numerous levels, from the truck stopping and backing up to the way the brothers returned to the home.

They told Requena they’d be back and they told him they were going to harm him, Verharen said. They said numerous times they were going to take care of the situation themselves, he said. And they did this, Verharen said, while uttering repeatedly one of the few words that would be offensive to Requena.

“They didn’t call Mr. Requena a jerk,” Verharen said. “They called him a beaner, and they did it many times.”

Schwartz and Whitaker tried to persuade the jury that the case was not about race, a prerequisite to a malicious harassment finding. They said the men were driving by the home when they saw Requena’s electrical contracting truck and stopped to buy some phone cable. When Requena pulled a gun, they became upset and only returned to the scene to contact the police.

“Why is Mr. Requena lying to you?” Schwartz asked, attempting to cast doubt on Requena’s testimony that all three men charged at him from the truck. “It’s because he knows he instigated this.”

Schwartz said the defense has made no attempt to hide the fact that the Tankoviches did, repeatedly, utter a racial slur. But he said that’s not illegal when there’s no threat attached.

“We can all hate what they say,” Schwartz said. “But it is not against the law to be ignorant.”

Whitaker told the jury Verharen wanted them to “check your common sense at the door and look at it in a vacuum,” he said. “Don’t do it. It’s not about race.”


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