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March 31, 2011 in News
Mistrial declared in attempted murder case
A judge has declared a mistrial in the case against a Spokane Valley man who was facing up to 50 years in prison following an attack on his ex-girlfriend and his former best friend.
Superior Court Judge Jerome Leveque halted the trial Wednesday because information that hadn’t been provided in advance to the lawyer defending 29-year-old Don R. Davis was given to jurors considering his guilt or innocence. The information came from a prosecution witness who testified that Davis had admitted to possessing a gun that investigators said was used in a drive-by shooting as part of the case.
Defense attorney Rob Cossey objected because that information had not been presented to him by the witness or by Deputy Prosecutor Gayle Ervin in preparation for the trial.
“It was completely out of the blue. It was out of the witness’s mouth before I could do anything,” Cossey said. “I asked for a mistrial and the judge granted it.”
Ervin had charged Davis with 10 criminal charges, including two counts of attempted first-degree murder, following a series of events that began on Oct. 4, 2009, with wild vehicle chase on Interstate 90 that included several collisions as Davis attempted to force his former best friend, Clayton Cooper, off the roadway, according to court testimony.
Davis was also charged with breaking into an apartment and stealing a shotgun that witnesses said was used in a drive-by shooting. Just minutes after that event, deputies conducted a search warrant and found the stolen gun in the trunk of the car Davis was driving, according to court testimony.
Based on all the charges, Davis faces as much as 411 months in prison plus about 200 months for the weapons charges, said Cossey, who argued in court on Tuesday that the case was “way overcharged.”
A hearing has been set for April 6 in which Davis is expected to plead guilty to some of the charges and could determine whether a new trial is needed.
“We think we can reach a resolution,” Cossey said, “but it doesn’t include the attempted murder charges.”
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bszottlinger on March 31 at 2:50 p.m.
How many times does it take for the Spokane County Prosecutor’s Office to withhold Brady material causing a mistrial, requiring another tax payer funded trial on the same charge, or a plea agreement to a lesser charge, before someone takes notice. I wonder if anyone is keeping track.
Kivaari on March 31 at 3:41 p.m.
It just happens everywhere. We nearly lost one, when the PA started playing a tape in court, that he had not listened to prior to trial. It contained information of prior convictions. It seems that the state and the defendandt get equally poor lawyers, too many times. Deputy prosecutors seem to be killing time until they can get “real jobs”.
horse_feathers on March 31 at 3:46 p.m.
Problem is our local judges don’t have the brass &@!!$ to sanction our lawless prosecutors.
JayNW on March 31 at 4:10 p.m.
what if this witness never said it to the Prosecutor? Sometimes you never know what will come out of someones mouth no matter how much you talk to them before trial.
There’s a heck of a lot more that goes on that you don’t read about in the news, and remember when you are watching all those court TV shows- thats not how its really done.
bszottlinger on March 31 at 4:17 p.m.
Horse_feathers:
Can’t blame it all on the Judges, when was the last time someone sought sanctions?
Truth_and_Justice on March 31 at 4:48 p.m.
@ bzottlinger - - Objection. Assumes facts not in evidence. The article doesn’t say DPA Ervin had the information. Also, “Brady” material is exculpatory. This sounds pretty inculpatory to me. Either way, if she knew it, she should have disclosed it. Knowing her I doubt that’s the kind of thing she would withhold from the defense.
bszottlinger on March 31 at 5:17 p.m.
T&J:
Objection noted. Sounds inculpatory could be exculpatory and may go to credibility. May be she didn’t know, likely not. I don’t doubt you for a second, You know where I could go from here regarding pretrial interviews but I won’t. Seems like a pretty elementary question that should have been asked by LE or the ADA pre-trial.
eagleproducer on March 31 at 6:04 p.m.
I have total faith in our criminal justice system.
It is infallible.
The only times mistakes occur is because my perception has been either biased by television, other media forms, or I hang out with the wrong crowd.
As long as I don’t commit any crimes, why should I ever worry?
brianrbreen on March 31 at 6:10 p.m.
Horse_feathers:
Judge Eitzen recently sanctioned the Spokane County Prosecutors Office to the tune of $8,000.00 for a discovery issue, so I don’t think the Judges are all to blame. I realize Spokane is a small community but if the defense bar sought sanctions more often and money started flowing perhaps some people would pay a little more attention. T&J is right if the ADA didn’t know she shouldn’t be sanctioned, but the fact she didn’t know calls attention to other areas of concern.
bszottlinger on March 31 at 6:29 p.m.
Truth and Justice:
I withdraw my inference that you folks don’t get sanctioned. I wasn’t aware of Judge Eitzen’s sanction.
bszottlinger on March 31 at 8:46 p.m.
Truth and Justice:
Hope you are following this. Since the issue of discovery came up and my discussion group is talking about Henthorn Requests this weekend. I was wondering if you ever get any, and if you have protocol in place with the local LE agencies to handle them.
eagleproducer on March 31 at 9:02 p.m.
The state sanctions the state?
Perfect.
And who gets left holding the bag while only a single person in the DA office is held to account by the public?
Is there any way taxpayers in Spokane can just cut a check to Cossey’s law firm and eliminate all the middle men?
D Statler on March 31 at 10:15 p.m.
The $8,000 dollar sanction levied was a poor decision on Judge Eitzens behalf. The case should have been dismissed.She went on to say “These boys are victims of the perfect storm of procedural misconduct” and “I suppose those thirteen prosecutors in my courtroom were sharks circling the scent of blood in the water”. Judge Eitzen knew the boys were innocent and caved to preassure from the prosecutors office.No justice was served from the $8,000 sanctions or from letting three innocent young men go to prison for a crime that was committed and confessed to by the state’s informants.I am saddened to know that there is really no accountability for the prosecutors actions or lack there of. I will be personally haunted by Judge Eitzen’s poor decision for the next 41 years if the Washington State Supreme Court doesn’t correct the mess she created.Sanctions were not the correct answer in this case.
D Statler on March 31 at 10:27 p.m.
@ eagleproducer, You need not commit a crime.You just have to be charged with a crime. The prosecutors office always overcharges.They know that eventually something will stick.They also know that if they hold somebody in County long enough.They will accept a deal just to get out of jail,guilty or not.The system is failed and there are no checks and balances for probably the most powerful office in America.The Prosecutors Office :^( You are right,This is not TV and justice is not always served.Morality isn’t always legality either.
Truth_and_Justice on March 31 at 11:14 p.m.
@ bszottlinger re: Henthorn
I myself have not had such a request but I know the office has and I know who to talk to when/if I ever get one. FWIW, Brady issues were covered extensively at the last WAPA training I went to. For most of us it takes but we are only human.
bszottlinger on April 01 at 8:43 a.m.
Truth and Justice,
Just curious regarding Henthorn if there is a protocol placing some of the onus on LE, or is it entirely a matter of responding to requests?
We all are human, I even made a mistake once…okay twice, but the statue ran along time ago.
bszottlinger on April 01 at 9:15 a.m.
BTW,
I spoke with a small group of your adversaries not long ago, only one had done an HR, in another state, and some of them had no idea what I was talking about. Things don’t always sink in on both sides. You might look for a few more to pop up in the future and you might just be lucky enough to have to deal with one. :)