August 11, 2013 in City

Men labor to adjust after jail sentences overturned

‘You go from not having a life to having a life, with no notice’
By The Spokesman-Review
 
Kathy Plonka photoBuy this photo

From left, Robert Larson, Tyler Gassman and Paul Statler talk at Mission Park in Spokane about their years behind bars.
(Full-size photo)

It was a special dinner, to put it mildly – a Christmastime meal at Anthony’s, with a crowd of family and friends, in celebration of momentous, life-changing events.

And yet what caught the eyes of Paul Statler and Tyler Gassman was the cutlery.

Metal knives,” Statler said.

“They looked down and were afraid to touch them,” said his father, Duane.

Hours earlier, Paul and Tyler had been released from prison after serving more than four years for a crime they had always maintained they did not commit – an exhilarating and still-not-quite-believable development. Their co-defendant, Robert Larson, would also be released soon.

Their convictions, based solely on the discredited testimony of a single 17-year-old jailhouse informant who cut a deal for a shorter sentence, were the result of staggering failures of the justice system – followed by a triumph of justice. On the day of the dinner, everything was still brand-new for Statler and Gassman. They thought they might be headed back to prison after a retrial; it wasn’t until a few weeks ago that prosecutors finally dropped the charges for good.

Now the men are struggling to regain some sense of normalcy. Statler and Gassman are 26, and Larson is 32. Their release was great news – and yet they find that the effects of the time they spent locked up could not be quickly washed from their lives.

Everything out here can seem strange, from metal knives to unbearable crowds at Costco. Any brief reminder of their ordeal – the sight of a police car, a scent reminiscent of the courtroom, even simply hanging around with friends who had lived on, in the real world, without them – can make them tense and anxious.

“It’s very overwhelming,” Statler said. “It’s a kind of shell-shock.”

‘Cooperating witness’

On an April night in 2008, a small pickup pulled up in front of a duplex in the Garry Park neighborhood. The driver, Matthew Dunham, and some others had arranged to sell $4,000 worth of Oxycontin to three men at the home. In reality, though, the plan was not to sell the men drugs – it was to rob them.

When the would-be drug buyers came out to the truck, they were jumped and beaten by three masked men, one of whom was armed with a shotgun. The robbers took the money and some drugs and fled in the truck, shooting at their pursuers.

Sheriff’s detectives learned of the crime through the arrests of a couple of men involved in a series of local crimes: 17-year-old Dunham and Anthony Kongchunji, 20. Dunham became a “cooperating witness” and identified Statler, Gassman and Larson as his partners in crime. Kongchunji initially went along, but later changed his mind.

Dunham’s testimony constituted the only evidence against the men – a sheriff’s detective acknowledged as much later on the stand. Prosecutors used his accusations to file charges in several cases against the men – all but one ended in dismissals or acquittals. In exchange for his cooperation, Dunham made a deal with prosecutors that drastically lowered the time he was facing behind bars.

This kind of “snitch testimony” – especially when uncorroborated by other evidence – has proved to be a factor in many wrongful convictions. Of 301 DNA exonerations in recent years, almost a fifth of the wrongful convictions were based on informant testimony.

The reason is not hard to see.

“When you give somebody an amazingly good deal to testify against other people, it provides a really good reason to lie,” said Jackie McMurtrie, director of the Innocence Project Northwest, a clinic affiliated with the University of Washington law school that works to free people who have been wrongfully convicted.

Statler, Gassman and Larson maintained their innocence from the start. All had grown up in the Spokane Valley, where they had attended an alternative high school. None of them, Paul Statler admitted, was an angel. Statler and Gassman had juvenile convictions for robbery, and Larson had a federal drug conviction. But all said they didn’t know Dunham, and were shocked when they were charged with the crime.

Prosecutors initially claimed the crime occurred April 15. The men had alibis for that date, and defense attorneys built their defense around those. Larson had the strongest one – he’d been at work at the time of the crime, and defense attorneys obtained his time card records.

Defense attorneys notified prosecutors of the alibi in the weeks before trial; on the first day of the trial in January 2009, prosecutors changed the day they claimed the crime had been committed, from April 15 to April 17. The evidence for this came from the testimony of one of the victims, obtained by investigators one day after prosecutors were notified of Larson’s alibi evidence, said David Partovi, who represented Gassman.

“The government got really connected to Dunham’s version and started taking serious logical leaps to make him correct,” he said. “As soon as the government became aware of our alibis, they went out to close the alibis. They weren’t seeking the truth in this case. They were seeking a conviction.”

Judge Tari Eitzen was unhappy with the date change and issued an $8,000 sanction, the first such penalty she had ever handed out. That sanction was later overturned. Eitzen also delayed the trial, but did not dismiss the case as defense attorneys asked. Judge Michael Price eventually took over.

At trial, Dunham testified that he was “100 percent” certain that the three men had committed the crime with him. A jury found him persuasive, and convicted the three men of robbery, assault and drive-by shooting.

“My heart fell out of my chest,” said Duane Statler.

Gassman was sentenced to 26 years and sent to the prison in Walla Walla, where Larson was to serve his 20-year sentence. Statler was sent to Clallam Bay to serve 41 years.

Dunham, who had been facing 30 to 40 years in prison, received a sentence of 17 months in juvenile detention.

“He got out the day we were getting sent to our main institutions,” Gassman said. “Back to doing whatever he was doing before he got locked up.”

The Statlers, Gassman and Larson are particularly critical of sheriff’s Detective Doug Marske’s role in the case. They say he worked harder to support his informant’s story than to investigate the crime.

“If he truly would have investigated, he would have known they couldn’t have done it,” Duane Statler said. “But once the snitch started singing, he just kept singing, and they didn’t do any investigation at all.”

‘Christmas miracle’

Not long afterward, Duane Statler received a letter from Kongchunji.

“I thought that I should let you know that Paul, Tyler and Robert were not involved with any of the alleged incidents … because I was involved,” he wrote. “The prosecution has threatened me with more charges if I was to get on the stand and tell my story.”

Kongchunji said Dunham had come up with the story to blame the crime on the three men; he had initially gone along with the plan, and agreed with Dunham’s story during a “free talk” with detectives, in which they provided information about other crimes. But though Kongchunji implicated Statler as part of a guilty plea to his role in the crime, he didn’t get the plea deal that Dunham did. He later changed his story, but when he considered testifying that the allegations against the men were false, he was told by Marske that he could face perjury charges.

Defense attorneys used the letter to seek a new trial. Price denied the request, saying the attorneys could have subpoenaed Kongchunji in the original trial.

Duane Statler, a high school janitor, took up the defense of the three men with a passion – pestering anyone he could for help, for redress, for justice. He drove across the state every couple of months to visit his son.

The men’s case was appealed, and their convictions were upheld by a 2-1 decision at the Court of Appeals in 2011. Justices ruled that Kongchunji’s testimony would have had “reduced credibility,” because it conflicted with past statements, and that recantations are inherently questionable.

In fall 2011, the Innocence Project Northwest began working to have the convictions vacated. The project put a team on the case, made up of staff attorneys and law students. They began focusing on the date of the crime – which prosecutors had moved from April 15 to April 17. One of the robbery victims had claimed he missed work the day after the crime; the team pursued the man’s time card records, and found that he had been at work on April 18, but had missed work on April 16 – strongly suggesting the actual date of the crime was the one investigators had claimed initially. The one for which Larson had a solid alibi.

The Innocence Project filed a motion seeking to have the convictions vacated in September, based on that information and other evidence – including phone records that showed Dunham had talked on the phone, both before and after the crime, with the victims, whom he had claimed not to know. On Dec. 14, Price vacated their convictions, ruling that the date discrepancy alone supplied plenty of reasonable doubt.

It was a joyous day for the defendants and their friends and family. One family member called it a “Christmas miracle.” For the Innocence Project team, it was a significant victory – and one that had come, in the usually slow-moving legal system, with great speed.

For Statler, Gassman and Larson, it was also disorienting.

“Here we go from years of fighting – I had a 41-year prison sentence – to all of a sudden you’re being released in 45 minutes,” Statler said. “I was so shocked I didn’t eat for three days.”

Even at Anthony’s, at that celebratory dinner. A bite of lobster, a drink of champagne – no appetite.

“You go from not having a life to having a life, with no notice,” Statler said.

‘The whole system failed’

Who is accountable for what happened to Statler, Larson and Gassman?

The Sheriff’s Office investigator, Marske, did not return calls seeking comment. The family of Robert Larson believes Marske has inappropriately harassed them since the exoneration. Larson’s father died, and Marske held on to the police report into the death, involving some missing prescription drugs, for weeks, which held up a payment of death benefits that has caused the family hardship, said Larson’s mother, Janelle.

She said, “What I need is the police report and the EMT report, and this policeman, as long as he’s investigating” – her tone puts that word in quote marks – “I can’t file for the life insurance.”

She said that given Marske’s central role in the wrongful conviction of her son, he should have given that case to someone else.

“When he saw the name and address, he should have assigned it to someone else,” she said.

This week, Marske’s boss, Sheriff Ozzie Knezovich, said he could not comment on the case in detail without consulting with Marske, who was on vacation. He said he didn’t believe investigators would bring a case for prosecution based only on a single informant. If they did, he said, they’d be laughed out of court.

The prosecutor, Eugene Cruz, chose not to comment. Another prosecutor, who eventually decided not to refile the charges, did not return a call seeking comment. Their boss, Steve Tucker, did not return a call seeking comment.

“There’s so many things in the system that allowed this to happen that I can’t really say which thing upsets me more than the rest,” Duane Statler said. “The whole system basically failed.”

Price, in vacating the convictions of the men in December, was specifically and harshly critical of the men’s trial attorneys – Partovi and Tim Note, who were assigned the case to avoid conflicts in the public defenders office, and public defender Anna Nordtvedt.

None of the defense attorneys sought the workplace records or other testimony from the victims of the crime, Price said – information that wound up exonerating the men. They also failed to interview detectives, a potential alibi witness or take other investigative measures on behalf of their clients, Price said in findings of fact.

Implicit in the judge’s critique of defense attorneys is the idea that the prosecution’s case was weak.

“An hour or two of investigation by Trial Counsel would have cast doubt on the State’s case,” Price wrote. “Trial Counsel had an obligation to take representation seriously. They did not provide their clients with the zealous representation the clients deserved. … There is no greater responsibility than representing a person accused of a serious felony. Attorneys who are not willing to undertake that responsibility should engage in other practices of law, such as writing wills.”

Note, who represented Paul Statler, defended his work in the case, pointing out that he won an acquittal and a dismissal for his client in other cases involving Dunham’s claims. Both Paul and Duane Statler place more of the blame on investigators and prosecutors than on Note, who is still doing some legal work for Paul.

Partovi said the prosecution’s date-change on the crime was just one example of the difficulties defense attorneys had in the case; Note said prosecutors were “underhanded” and it was difficult to combat the “spontaneous evidence” that came up at trial. The Innocence Project was able to do it after months and months of work, he said.

“I don’t care what route the judge took to reach the just decision,” Note said. “I’m just glad he finally got there.”

‘Get back on the horse’

Robert Larson has recently gotten a part-time job helping young people with substance abuse problems – he says he likes the idea of helping kids who face some of the same challenges he has. He, Gassman and Statler say they’ve had a difficult time getting employers to give them a second look, because of the gaps on their resumes and the complicated story behind it.

Gassman and Statler live with Statler’s mom, and Larson is living in the home of his late father. Janelle Larson says the men have had a hard time adjusting socially. Their friends, young adults at ages of great change in their lives, have moved on, and the three men are self-conscious and uncomfortable around them, she said.

Paul Statler remembers taking a trip to Costco with his father on a crowded weekend day. It put him on edge, and when a woman inadvertently bumped into him, he rounded on her with such speed and intensity that it scared her.

“He looked at me and said, ‘Dad, why’d you bring me here?’ ” Duane said. “And I said, ‘This is why. You need to get back on the horse.’ ”

They’re angry over what happened to them, but feel powerless. They’re looking into the possibilities of civil action. Though their convictions were vacated in December, the possibility of a retrial hung over them for months. Prosecutors eventually dropped all charges against the men in July.

Duane Statler, meanwhile, has been pushing for changes in Washington state laws. Rep. Matt Shea helped push a bill that allows the wrongfully convicted to seek recompense from the state of $50,000 per year of incarceration and free tuition in state colleges. Gov. Jay Inslee signed the bill into law. Statler also is pressing for legislation that would require prosecutors to have corroboration for informant testimony before bringing a case; that legislation has not made it through in Olympia, though Statler says he’s not giving up.

“This is going to be my life’s goal from now on,” he said. “I’m not going to leave these (lawmakers) alone until this gets changed.”

McMurtrie, the Innocence Project director, says the men’s case is a triumph against an injustice. But it’s one that will always be tempered by wrongs that cannot be righted.

“There’s a tragedy that accompanies every wrongful conviction,” she said. “People spend time in prison for crimes they didn’t commit. It will take them time to recover from that, if they ever do.

“It’s terrifying to think they might have spent their 20s, 30s, 40s and 50s in prison.”

Shawn Vestal can be reached at (509) 459-5431 or shawnv@spokesman.com. Follow him on Twitter at @vestal13.

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