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Motion may delay Tankovich sentencing

Sat., Jan. 8, 2011

A Kootenai County judge on Friday heard motions for a new trial from two brothers convicted in October in a hate-crime trial.

Judge John Luster didn’t rule Friday, but indicated a sentencing scheduled for next week may need to be rescheduled.

Luster said he’d never had an inquiry by a juror similar to one made during deliberations in an October hate-crime trial that has caused defense attorneys to request a new trial.

Frank Tankovich and William Tankovich Jr. were convicted of felony malicious harassment and conspiracy to commit malicious harassment for a 2009 altercation with a Puerto Rican man, Kenneth Requena.

The brothers are claiming jury misconduct, saying the foreman improperly halted deliberations and sent a note to the judge expressing concern over racist views expressed by another juror. Defense attorneys said that juror was then harassed and intimidated into delivering his guilty verdict.

“The jury is only supposed to do what you tell them to do and the presiding juror took it upon herself to be an advocate,” attorney Chris Schwartz, representing William Tankovich, told 1st District Judge Luster.

However, Deputy Prosecuting Attorney Art Verharen said questioning of that juror in chambers revealed he did not feel intimidated or coerced. It was clear the juror delivered his verdict after considering the law, Verharen said.

The verdict had to be unanimous, and the other jurors had decided on a guilty verdict.

Luster said jurors frequently will ask for clarification of instructions, but the intent of this request was to question another juror’s behavior. Luster directed the jury to continue deliberating then conducted the inquiry in his chambers after the unanimous guilty verdict was rendered.

Luster said jurors across the country yell and scream at each other every day in an effort to convince each other of an opinion. “That is the reality of the functioning of juries,” he said.

Luster said the important distinction to make is what impact the actions of the presiding juror had on the Tankoviches’ right to a fair trial. He took the motion under advisement and said sentencing, which had been set for 3 p.m. Thursday, might have to be moved.

“Until the court has a chance to fully evaluate this, I think it best not to proceed with sentencing,” he said.

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