December 14, 2011 in City

Prosecutor defends decision-making

Tucker offers responses to recall petition’s points
By The Spokesman-Review
 

Prosecutor Steve Tucker said Tuesday that he sees nothing in a petition to recall him except “rumors and hearsay, and ‘facts’ that are not true.”

The petition for a recall election was organized by Shannon Sullivan, who led the successful recall drive against Spokane Mayor Jim West in 2005.

Sullivan accuses Tucker of failing to perform his duty in several cases, including prosecution of police misconduct in the 2006 death of Otto Zehm and attempts to cover it up.

Tucker said he had no indication of a cover-up when Mayor Dennis Hession asked the FBI to investigate, and he still has no formal report, nor a request from law enforcement to file charges in the Zehm case.

“I still haven’t gotten a referral from law enforcement, and that’s how we operate,” Tucker said.

To preserve his objectivity, he said he deliberately didn’t monitor the trial at which a Yakima County federal jury convicted now-retired Officer Karl Thompson on Nov. 2 of using excessive force and lying to investigators.

He said a state double-jeopardy statute and a higher standard of proof would make it “really hard” to bring state charges against Thompson.

However, Tucker said, “I know a bunch of the officers changed their testimony, and the other officers could be facing charges.”

Tucker makes no apology for the law enforcement perspective that caused him to find no fault in security videos that showed Thompson clubbing the mentally handicapped janitor as Zehm clutched a 2-liter bottle of pop in a convenience store.

Tucker was a Washington State Patrol trooper from 1973 to 1984.

Thompson thought he was responding to a felony in progress and didn’t know whether Zehm had a knife or a gun, Tucker said.

“If an officer comes in and says, ‘Drop the pop,’ you should drop the pop,” Tucker said. Otherwise, “he’s got to take some other actions to try to control you to see if a felony actually occurred or not.”

Tucker said he has been prepared to evaluate any evidence the FBI sends him, but the recall allegations will cause him to consider appointing a special prosecutor – perhaps someone from the state Attorney General’s Office.

The recall petition says Tucker stated publicly that he won’t prosecute police officers, a claim he said is false and “sets the tone for the whole thing.”

“How could I say I wouldn’t prosecute police officers when I already have?” he said. “We’re in the process of collecting names, but I believe there are seven or eight police officers we have prosecuted.”

He said they include Spokane police officers James “Jay” Olsen and Jay Mehring.

A jury acquitted Olsen of first-degree assault and reckless endangerment in his off-duty shooting of an unarmed, fleeing man in February 2007. Mehring, charged with felony harassment of his wife, also was acquitted by a jury.

Sullivan attributes the allegation that Tucker said he won’t prosecute police to Ron Wright, a retired detective from Southern California who has been a prolific writer of online comments under the name “Rocketsbrain.”

“He has no credibility in this office,” Tucker said.

A related allegation that Tucker stated he won’t prosecute public employees is attributed to Spokane City Councilman Bob Apple. Tucker said it’s possible he said he wouldn’t prosecute employees in his own office, but he seeks outside prosecutors for cases involving staff members or close relatives.

Public employees outside his office are prosecuted routinely, Tucker said.

The recall petition also cites Spokane firefighter Daniel W. Ross’s lack of prosecution for having sex with a 16-year-old girl in a firehouse in 2006.

Tucker said there were problems with the evidence in that case, including the fact that police detectives ordered Ross to delete photos of the encounter from his digital camera.

However, Tucker said, “We got a second shot at him and convicted him.” A jury found Ross guilty of fourth-degree assault with sexual motivation for molesting another 16-year-old girl in 2007.

Sullivan’s petition also faults Tucker for a recent decision to drop felony charges against a man who allegedly fired shots into a neighbor’s home – and for failure to obey a judge’s order to come to court and explain the decision.

Tucker said District Court Judge Debra Hayes had no authority to order him to appear personally, citing the separation of powers between the executive and judicial branches of government.

The incident began Nov. 14, when Deputy Prosecutor Steve Garvin acknowledged to Hayes that reducing seven counts of first-degree assault to two counts of misdemeanor reckless endangerment was “extraordinary.”

“But Mr. Tucker has approved it, so I’m going to recommend it to the court,” Garvin said.

The purpose of dropping the felony charges was to get defendant Lucas J. Merrill, 28, into a “therapy court” for military veterans.

Tucker failed to show up Nov. 22 as directed, and Hayes sent the case back to Superior Court, where the felony charges are still pending.

Tucker said he directed Garvin to reduce the charges to misdemeanors so Merrill would be eligible for the veterans court, but the deal called for the same 90-day sentence Garvin had already offered.

Tucker said he conferred with District Court Judge Vance Peterson, who ran the veterans court until he was summoned to military duty in October.

Peterson agreed to take the case, but Hayes said she and a probation officer feared federal funding might be jeopardized because the court wasn’t supposed to handle “serious, violent” cases.

Tucker said he changed his mind about the deal because of new information, and Garvin would have taken it off the table if the Nov. 22 hearing had proceeded.

Peterson couldn’t be reached Tuesday, and Garvin declined to comment.


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