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November 26, 2011 in City
Prosecutor rankles judge
No-show to explain slashed charges in plea deal puts shooting case on ice
A judge refused this week to honor a plea agreement brokered by Spokane County Prosecutor Steve Tucker after Tucker brushed off her demand to appear in court and explain his actions.
Earlier this month, Spokane County District Court Judge Debra Hayes put off the deal – which would have reduced seven felony charges from a shooting incident to two misdemeanors – and ordered Tucker to attend a hearing on Tuesday; Tucker was a no-show.
“He indicated that it was his position that the court did not have the authority to compel his attendance on a case like this so he was declining to come,” Deputy Prosecutor Steve Garvin said.
The incident prompted Hayes to refuse to accept the guilty plea of Lucas J. Merrill, 28, who faced seven counts of first-degree assault after he fired several shots into an occupied home in fall 2009 during a dispute over a dog. According to the family who lived there, bullets missed by inches two toddlers who were sleeping in the front room.
“This is about as close to a murder case as I’ve seen as a felony reduction,” Hayes said during a hearing on Nov. 14. “You can probably tell I’m not all that excited about it.”
Garvin told Hayes at the hearing that Tucker personally negotiated the agreement to drop all felonies and have Merrill – who served two tours of duty in Iraq – plead guilty to two counts of misdemeanor reckless endangerment so that his case could be handled through the county’s Veterans Court.
“I recognize it’s an extraordinary settlement,” Garvin said, according to court transcripts obtained by The Spokesman-Review. “But, uh, Mr. Tucker has approved it and so I’m going to recommend it to the court.”
Although Tucker brokered the deal for Merrill, he did not attend the Nov. 14 plea hearing. Hayes, afraid that such a plea may put a federal grant that funds Veterans Court in jeopardy, rescheduled the hearing until she could hear directly from Tucker.
“I’m also going to compel Mr. Tucker to be at that hearing so we can get the information from him, because I think that’s very important because he is the one who negotiated the plea,” Hayes said in court.
When Tucker didn’t show up Tuesday, Hayes told Garvin she “wanted Mr. Tucker to come to this … because he brokered the plea agreement according to what you represented in court.”
“Is Mr. Tucker in the office today?” she asked.
Garvin indicated that Tucker was at work but that he wouldn’t appear.
Hayes responded, according to the transcript: “So he declined to come to court on a case where he actually did the plea negotiations and he ordered you to come up and cover for him?”
“That’s correct, your honor,” Garvin said.
Tucker did not return an email and messages left on his office phone and cellphone seeking comment.
Hayes declined to answer questions about the exchange. She sent the case back to Superior Court, where it remains in limbo pending a January trial date, Garvin said.
The case began in fall 2009, although the exact date is different in court records and the testimony last week. Garvin said the case started because Merrill and his roommate, Brock Woodson, believed that the neighboring Gertlar family had either poisoned or injured their dog.
“That confrontation led Mr. Merrill to become upset at the Gertlars. And, he got very drunk and that festered in his mind to the point where he took his gun and shot their house. There were seven people inside the residence,” Garvin said. “Very fortunately, nobody was injured.”
Hayes asked Garvin whether the Gertlars approved Tucker’s proposed plea deal.
“I’d be dishonest to say they were enthusiastic about it,” Garvin said, “but they did say they could live with it.”
The judge read a letter submitted by Karen Gertlar who said the shooting “has affected our lifestyle and ability to live a safe and normal life.”
“By someone’s careless act, we are constantly in fear and all of us have re-occurring nightmares,” Gertlar wrote.
At the time of the shooting, Gertlar’s daughter was in the home with her young girls, who were 3 and 2 the time. The children were sleeping in the living room and the “bullets missed the grandkids by inches. They will not sit on the couch and are terrified to be in the living room,” Gertlar wrote. “We feel, as a family, that (Merrill) should be charged accordingly.”
Defense attorney Tom Krzyminski said that his client, originally from Colville, served eight years in the military and has been diagnosed with post-traumatic stress disorder and bipolar disorder and has suffered traumatic brain injury.
“I was not the original attorney,” Krzyminski said at the Nov. 14 hearing. “I will tell you that I was a little surprised by the reduction (in charges) when I read the file. But then after meeting Mr. Merill and spending some time with him, I can understand how they got to that point.”
Hayes asked Garvin what Tucker was thinking when he originally approved the plea agreement.
“I was not present at the meeting,” Garvin said. “I think that (Tucker) was swayed, and I’m reading into this as best I can, I think he was swayed by Mr. Merrill’s … good service in the military, the diagnosis, which is PTSD and a secondary diagnosis.
“I think (Tucker) felt that Mr. Merrill would be well served by the rehabilitative options of Veterans Court.”
Garvin said he thought the plea would allow Merrill to continue his military service. “And, I think Mr. Tucker also felt that was something worth trying to preserve. Again, I can only speak for him as best I can without being present at those discussions.”
Tucker, who makes about $145,000 a year, is a former Washington State Patrol trooper.
1992 murder trial begins against sex offender 
Open_Spokane on November 26 at 5:43 a.m.
Mr. Tucker needs to either resign or be recalled by the people of Spokane County. He has compiled a long list of “no problem here, so why should I prosecute” cases.
Consider the Otto Zehm case, he didn’t see a problem while former Prosecutor Don Brocket was screaming for justice.
He passed on the Joann Savage case, where she died after trying to park in RPS parking garage - Read Death by Parking by Larry Shook.
Now he wants to protect the military career of a drunken vet who displayed a careless disregard for human life.
I’ve seen and read enough about Mr. Tucker to know that he’s inept, lazy or just plain stupid and should be recalled from office.
DHF on November 26 at 6:22 a.m.
From 7 felony to 2 misdemenor charges. If I were the judge I would want some explanation also. She should issue a Subpeona. This guy Tucker is a buffoon.
Orphan on November 26 at 6:45 a.m.
I am hoping Hayes knocks Tuckers ego down a few dozen notches.
DickAdams on November 26 at 8:17 a.m.
I`ve been asking myself why Tucker was reelected, and wondering if the voters even know about his track record? In my mind, it was obviously, name recognition. Anybody following Steve Tucker`s “look the other way” as much, and handing out free passes to the SPD bad cops, the County Prosecutor deserves the boot, PRONTO. With Tucker`s reputation of spending so much time at the 19th hole, he might be imbibing in the grape so much his brain alcohollogged? Voters?? Wake up and do your homework before pulling the lever and know who your voting for.
Ron_the_Cop on November 26 at 8:37 a.m.
RESIGN MR. TUCKER OR BE RECALLED!
For Immediate release - Spokane, WA -
http://tinyurl.com/7k6ea2l
BREAKING - Former Sheriff Tony Bamonte (of Breaking Blue fame ) is forming a committee to seek the recall of County Prosecutor Steve Tucker. A formal announcement will come in the near future. This action will allege malfeasance in office stemming from Tucker’s abdication of his sworn duties and responsibilities to the people.
This action stems from Tucker’s failure to exercise his leadership role in ensuring that recent problematic officer involved shootings and deaths (OIS/OIDs) were fully investigated regardless of whether formal charges were filed - Jo Ellen Savage RPS Parking Garage, Otto Zehm - SPD, Scott Creach - SCSO and Quentin Dodd - SCSO. And there may be more issues and cases that emerge after the committee is formed and begins to prepare its recall petition.
DickAdams on November 26 at 8:38 a.m.
I wonder why the Spokesman moved the Tucker story from the main list of stories where it was in the first place? I think the story may be missed by many folks by removing it from the main menu. Why are you moving the story, editors? Surely your not trying to hide something?
DickAdams on November 26 at 8:42 a.m.
The Tucker story has been put back. What`s going on?
justlilolme on November 26 at 8:56 a.m.
It’s a conspiracy, Dick. I’m sure it is.
lewis8457 on November 26 at 9:34 a.m.
I talked to some of his voters last Sunday night they are old feeble folk that watch TV all day waiting to meet their maker, they were telling me how great Tucker, Verner and Obama are.
samvimes on November 26 at 10:43 a.m.
Once again Steve Tucker proves just how useless he is as a prosecutor. Let the recall begin.
DickAdams on November 26 at 10:52 a.m.
justlilolme:
Your saying its a conspiracy comment is nonsense. Most all of the posters have wondered at times what the heck the SR is doing and question lots of there stuff. One of the biggest complaints by almost everybody, is not carrying forward comments and starting a new thread. Is that a conspiracy, justlilolme?
franceslee on November 26 at 10:53 a.m.
Hey Mr. Clouse, how much does the Judge make?….and Gavin?….for that matter, maybe “pup” reporters like you should disclose how much YOU make if you’re going to be reporting others salaries…
typical hatchet job on politicos and very uneven….
I’m not a fan of Tucker, but in this case I actually totally agree with
his decision….
misjustice on November 26 at 12:11 p.m.
Tucker, Tucker, rhymes with _ _ _ _ _ _
DickAdams on November 26 at 12:28 p.m.
justlilolme:
BTW, I think my question was legitimate and I think it only fair the SR answer my question. What about it SR? Note to editor: justlilolme (moniker) says it is a conspiracy. When you respond to my question, why not reply to justlilolmel saying, its a conspiracy? Is it?
hcamper on November 26 at 12:39 p.m.
This story is at the top of the Northwest section of todays paper, but yet is almost invisable on the website. Why? Debra Hayes has my vote(s) going forward. I thought the public voted both to be public servants. At least Ms. Hayes understands the accountable portion of the job. Mr. Tucker? Not so much.
ChefGus/ John Olsen on November 26 at 12:49 p.m.
For those with a short memory, last year there were Four Republicans who were all likely qualified to be prosecutor, who pilloried Mr Tucker during the Primaries. I worked for Frank Malone as did a plethora of other persons… and Mr Malone spoke and argued positions and what would be done different under his authority as Prosecutor. Frank has an MBA , he is a long time well respected attorney in this town, and he is a retired Lt Col from the Air Force Reserves. All of which add up to much better qualifications than Mr Tucker, who’s apparent claim to fame is being an Ex State Patrol Officer. Albeit with all of this differentiation the good citizens of Spokane County chose to re elect Mr Tucker.
Recall while worthwhile is a doomed effort. I am not sure what if any other options are available cept maybe the Feds look into his patterns and practices too?
Frank Malone for Prosecutor…we tried..we really really did…John Olsen
zelda on November 26 at 2:51 p.m.
It’s a mystery to me why Tucker gets re-elected. Woody Allen said that 90% of life is just showing up. Tucker doesn’t even bother to show up…or answer emails…or return phone calls..or (dis)grace a courtoom with his presence. Is the ballot box being stuffed?
I guess the only thing that might make him visible to the public is if the county stops doing auto-deposit on his paycheck and he has to appear in person to pick up his unearned salary.
tomnsahl on November 26 at 4:48 p.m.
Nicely done Judge Hayes !
Ron_the_Cop on November 26 at 5:43 p.m.
Tomnsahl,
Agreed my sentiments exactly!
Tucker just gave this judge the one finger salute. I guess if the folks at SPD can do the same in federal court, this embolden Tucker to stand up this judge.
Tucker probably was indisposed at one of his haunts. Gee you’d think the S-R could hire some gumshoe to get some sub rosa pics - NOT! One of these days Tucker’s gonna run out of his, ” … give me a ride home passes you know I’m the Co Prosecutor “- NOT!
NO ONE IS ABOVE THE LAW - NOT!
brianrbreen on November 26 at 6:16 p.m.
@Tomnsahl
Tom,
I agree to an extent, but I am not quite sure the way it was presented in court is the way it actually was. It would not be the first time that this has happened, and I will leave it at that. Let us wait and see how it washes out. I have a big concern about this, and I would suspect there are many things that Judge Hayes, does not know that a few others do.
It may not be what it appears, and the players are interesting, as is the timing.
Ron_the_Cop on November 26 at 6:22 p.m.
Brian,
Please do tell us all:-) The suspense is killing us!
Jethro_toll on November 26 at 7:10 p.m.
Why didn’t Hayes find Tucker in contempt? It would have been appropriate.
Recall that Hayes aka the plastic Dolly Parten has been boinking Tod Mielke for the last year (according to the Spokesman). The courthouse makes Peyton Place look like Mayberry USA.
Remember you voted for Bugaboo (attorney who is now representing all the Karl the Klubbers Krooked Kop friends and spilt the Stevens Tucker ticket. Malone jumped in to save from either of Buggaboo or Tucker.
You all voters. You get what you vote for. Next time dont vote for a crook, lazy attorney and his pack of losers.
brianrbreen on November 26 at 7:10 p.m.
@Ron_the_Cop
Over the years, I have developed respect for many prosecutors, and at the same time have been in situations where I have had to deal with prosecutors I did not respect. Mostly because of this thing, I have for a prosecutor using a witness any idiot can see is lying. It has been my experience when you can demonstrate that a witness is lying most of the time a prosecutor will realize that and take the steps necessary to correct the situation.
Sometimes that does not happen, the messenger will be attacked for no good reason and without explanation. So then, the gumshoe does his/her thing as to why the attack and in the end when it all comes out in the wash, the client will end up on top so it does not matter to the messenger.
I only am saying I do not know the circumstances, and as much as I feel it is time for Steve Tucker to retire, I do not know what transpired, despite what was said in court.
I suspect you along with others will do their own gumshoe, like in most cases you take what you get, then you have to make the trip to do the interviews before you realy know what went on.
brianrbreen on November 26 at 7:17 p.m.
@Jethro_toll
Yes I did, but by the same token maybe I know more than you do.
nosheet on November 26 at 8:00 p.m.
Umm…didnt you people vote him in? and arent you the same people who now want Ozzie in charge of all the law enforcement in the region..but were screaming for his head on a stick last August? You Spokane really are bass ackwards…..
brianrbreen on November 26 at 8:12 p.m.
@Ron_the_Cop
Do not get me wrong here, pure speculation on my part but I suspect John Cooney’s firm had Merrill first, brokered the deal and then left Merrill for the PDs, to take the plea.
My point is I have no idea what anyone’s involvement is in the deal including Garvin.
@misjustice
You would have to go back 9 years or so to the Danielle Van Dam murder case.
Marie on November 26 at 8:18 p.m.
@brianbreen
Why do you think the timing is interesting?
brianrbreen on November 26 at 8:22 p.m.
@Marie
Zehm, Creach, etc. “Recall” , people fighting for a spot.
Marie on November 26 at 8:27 p.m.
@brianbreen
I would be very surprised if there turned out to be a legal basis for a recall.
brianrbreen on November 26 at 8:39 p.m.
@Marie
I know, but as you know there are some folks worried. If the P&P happens it would be a good time to retire (time is up in the spring I think) because there will be some heat there and a whole lot more work. It really does not matter to Steve he has it knocked. The question is where does that leave everyone else.
Ron_the_Cop on November 26 at 8:47 p.m.
@Brian,
Quite possible but to stand up the Judge is very bad form if in fact Tucker brokered the deal. Tucker should be man enough to show his face in court if in fact this was his deal to defend it in open court. Transparency? The Judge has discretion whether to accept the plea. She is not simply a rubber stamp. Besides if this was indeed a multiple felony filing why is it in a District Court and not Superior Court? I’m not familiar with the local protocol here re what courts hear felony/misd cases.
What relationship does Tucker have with this firm?
@Marie,
How about malfeasance in office. The facts and circumstances in the Zehm case cry out for a negligent homicide/manslaughter under RCW. The burden is only “reckless disregard,” and not the much higher standard of “willfulness” for the fed CRV.
Also the Creach case it appears this was pushed because of the pending election. Google KREM and “cage fight.” This case was handed off before the ME’s report was in. I think it will get very interesting when ME Howard is on the stand and under cross. I think it will become apparent that ME Howard’s words were filtered and he was given all the facts like ME Akin in the Zehm case.
Also we’re researching to see if we can bring up previous cases in an earlier term - the Jo Ellen Savage case. Both Sheriff Bamonte and I have a very extensive paper trial where Tucker fell on the ball in this case when the feds gave it back to him for further investigation. He did nothing!
Marie on November 26 at 8:55 p.m.
@brianbreen
What does “P & P” mean?
@ Ron the cop
Since prosecutors can decide what charges to file or not file it will be hard to get a court to ok a recall on that ground.
If I understand the article, it looked as if Merrill was going to be in the Veteran’s Court, which is part of District Court.
Ron_the_Cop on November 26 at 8:55 p.m.
@Brian,
Tell me more about next Spring? Does Tucker max in the retirement system?
As I challenged above -
RESIGN MR. TUCKER OR BE RECALLED!
Former Sheriff Bamonte and I are dead serious about leading a recall effort. Shannon Sullivan is now on board on this effort:-)
If Tucker can pull the plug in the Spring I would strongly recommend he do it as Tucker’s rumored extracurricular activities either on our nickle or his may be confirmed and exposed.
brianrbreen on November 26 at 9:00 p.m.
@Ron_the_Cop
Reduction to a misd. Ordinarily the District Court Judge would not have said crapolla, and it would have been done. Good for her! I think neither attorney was expecting it. Figured it was a done deal.
brianrbreen on November 26 at 9:06 p.m.
@Marie
DOJ Patterns and Practice Review of the SPD. I am sure Tucker has talked to King County and knows it would mean a lot more work for his office.
Marie on November 26 at 9:11 p.m.
@brian
Thanks for the info.
Ron_the_Cop on November 26 at 9:17 p.m.
@Marie,
P & P - US DOJ Office of Civil Rights civil pattern and practice investigation of SPD et al as is currently being done in Seattle.
Yes prosecutors have wide latitude to file charges but when it’s dropped in your lap and you don’t compel a complete and thorough criminal investigations that would have followed the leads in the case that was turned over to him by the feds then you’re talking malfeasance in office and also failure to abide by his oath of office.
RCW 29A.56.110 [recall]
Initiating proceedings — Statement — Contents — Verification — Definitions. . .
(1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;
(a) Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and
(b) Additionally, “malfeasance” in office means the commission of an unlawful act;
(2) “Violation of the oath of office” means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.
RCW 29A.56.140
Determination by superior court — Correction of ballot synopsis.
Within fifteen days after receiving the petition, the superior court shall have conducted a hearing on and shall have determined, without cost to any party, (1) whether or not the acts stated in the charge satisfy the criteria for which a recall petition may be filed, and (2) the adequacy of the ballot synopsis. The clerk of the superior court shall notify the person subject to recall and the person demanding recall of the hearing date. Both persons may appear with counsel. The court may hear arguments as to the sufficiency of the charges and the adequacy of the ballot synopsis. The court shall not consider the truth of the charges, but only their sufficiency. An appeal of a sufficiency decision shall be filed in the supreme court as specified by RCW 29A.56.270. . .
42.20.100
Failure of duty by public officer a misdemeanor -
Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their wilful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor.
RCW 9A.80.010
Official misconduct.
(b) He or she intentionally refrains from performing a duty imposed upon him or her by law.
Shelala on November 26 at 11:06 p.m.
I think, most plea bargains are agreed upon before being presented to a Judge, who will ultimately accept or deny the agreement. Although I am no fan of Tucker, I think there is more to this story. I suspect there are many instances in which this type of thing takes place within the “system” with many different players, but none really gets publicized. I agree the timing is off, especially since he is obviously aware of recent public scrutiny of all things related to law enforcement and the legal system.IMO, Maybe a bad move of Tucker’s, but not an uncommon event
brianrbreen on November 27 at 7:08 a.m.
@Shelala
I have real difficulty believing that the Deputy Prosecutor wasn’t involved at least to some extent with the plea deal. In any plea negotiations I’ve been involved in with Tucker he has always involved the Deputy and even though the final decision was Tucker’s the Deputy had lots of input and in most cases made the call. Others may have had different experiences but that’s been mine.
Jethro_toll on November 27 at 7:21 a.m.
That smell in River City is the sewer backing up in the prosecutors office. Way past due to call Rapid Rooter and pour a bucket of Drano in there. All the RATS are clogging up the flow. Now who was the prosecutor that failed several times to file paperwork on time, but had the time to give free legal advice to a civilians?
brianrbreen on November 27 at 8:23 a.m.
@Marie
Here is a link to a SR story regarding the Seattle PDs P&P. I also link the letter sent by the DOJ to the Seattle Mayor.
If the Seattle PD doesn’t comply with the recommendations in the letter, then the DOJ can bring suit to force them to comply. The reason these links relate to this story is because the County Prosecutors Office has to be on board with any changes and has to take an active role in helping to implement the change. The prosecutors office has to be proactive in that regard and not reactive. A change is needed in the prosecutors office, otherwise, should Spokane be fortunate enough to get a DOJ P& P a lot of the forced changes will go for not.
http://www.spokesman.com/stories/2011/nov/25/seattle-police-policy-seen-as-too-broad/
http://www.documentcloud.org/documents/268702-doj-letter-to-spd
samvimes on November 27 at 10:02 a.m.
I have it on very good authority that Steve Tucker will not run for re-election. As a lame duck he apparently feels that he can thumb his nose at the judge and not worry about any consequences. He can’t be held in contempt as his presence at the hearing was a request, not a court order. Don’t know if the judge can issue such an order at this point, but it would certainly give me some joy to see this waste of taxpayer money get some justice of his own.
Ron_the_Cop on November 27 at 4:00 p.m.
Samvimes,
I’ve heard that too. We can’t wait that long. Another three years - no way! Besides I want my money back. He’s useless and he’s costing us $145K per year plus benefits.
samvimes on November 27 at 4:29 p.m.
Not disagreeing, Ron. I’ve become a friend of the recall facebook page and will do whatever I can to help rid our county of this useless parasite.