March 29, 2014 in City

Shawn Vestal: Key witness left out of sheriff’s inquiry

By The Spokesman-Review
 
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Read the full internal affairs investigation here.

An internal affairs investigation into the work of a Spokane County sheriff’s detective – who helped convict three men who were imprisoned for years before their convictions were thrown out – has found he failed to file reports properly, but clears him of the most serious misconduct accusations.

Sheriff Ozzie Knezovich said the investigation was a thorough attempt to examine the claims made about Sgt. Doug Marske, who now heads up the department’s Major Crimes Unit. But it did not satisfy critics, who questioned the independence of the investigation, conducted by a longtime colleague of Marske, and who criticized the report for failing to interview a key witness who was allegedly coerced by Marske into not testifying on behalf of one of the defendants.

“I don’t feel at all confident that they did an impartial investigation,” said Duane Statler, the father of one of the freed defendants. “The federal marshal should have been the ones to do the investigation.”

The investigation resulted primarily from an online comment made by one of the men’s defense attorneys, Tim Note, below an extensive article on the case in The Spokesman-Review last August. Note referred to Marske as a “liar” in the comment.

“We had an attorney publicly state that a law enforcement officer had lied,” Knezovich said. “That’s serious. When I went to Marske and talked to him about it, he said, ‘Boss, do an investigation.’ ”

The case is part of a long and complicated series of events tied to a series of “drug-rip” robberies in Spokane in 2008. Detectives investigated five of the robberies, resulting in a series of separate cases and trials; Paul Statler, Robert Larson, Tyler Gassman were charged and convicted, based entirely on the discredited testimony of a jailhouse informant.

Their case was taken up by the Innocence Project Northwest, an effort of the University of Washington Law School. In vacating the convictions, Judge Michael Price was critical of defense attorneys – though his criticism also strongly suggested the case was very weak. “An hour or two of investigation by Trial Counsel would have cast doubt on the State’s case,” Price wrote in a decision vacating their convictions.

Among the key criticisms of Marske was that he had coerced a witness who was going to testify to the innocence of one of the defendants. The man, Anthony Kongchunji, had identified the three men in a “free talk” with detectives while negotiating a lighter sentence for his own role in the crimes. He later recanted and was prepared to testify on their behalf – but changed his mind after Marske threatened him with a perjury charge, Kongchunji has said.

“The prosecution has threatened me with more charges if I was to get on the stand and tell my story,” he wrote in a letter to Duane Statler, where he said he had wrongly blamed his son and the others for the crimes.

Marske said in interviews that he told Kongchunji if he changed his story, Marske would have to testify to what he’d said earlier, and he acknowledged suggesting he might face a perjury charge – though Kongchunji’s identification of the men during the free talk had not been under oath. The Court of Appeals had ruled earlier that this constituted a legitimate warning rather than a threat. The investigator, Sgt. Tim Hines, concluded there was no misconduct.

But Hines did not interview Kongchunji, saying he was “not available” because he was in prison in Walla Walla, and does not indicate if there was any effort to arrange an interview with him there. Hines also did not interview retired Detective Bill Francis, who played an integral role in the cases, because Francis would not consent to an interview. On the stand in one of the cases, Francis acknowledged under questioning that the testimony of a single confidential informant constituted all the evidence against the defendants.

Hines submitted questions to the prosecutor in the case, Eugene Cruz, and Cruz did not respond to them.

Marske also defended his revision of an affidavit of probable cause, filed in one of the men’s cases. Initially, he had written that a witness said Gassman looked like one of the robbers. The case was dismissed and refiled, and the affidavit was revised to reflect more certainty on the part of the witness in identifying Gassman. Marske told Hines that this second phrasing was more accurate, and Hines found the explanation “reasonable” and found no reason to believe Marske was being anything other than “truthful and candid.”

Note was not persuaded. Among his reasons for feeling Kongchunji had been coerced was a meeting with him after he changed his mind – where he said it was obvious that someone had gotten to him.

“I’m not surprised by the outcome,” he said. “I still maintain my opinion as to the actions of Detective Marske regarding both the changing of the affidavit and what I believe transpired between him and Mr. K., based on the personal observations I made after that threat purportedly took place.”

The report also cleared Marske of allegations of suppressing evidence. Regarding allegations that the overall investigation was shoddy, and investigators became focused on building evidence against the three men and ignored exculpatory evidence, Hines concluded that Marske had made many mistakes in terms of not filing complete reports, but concluded they had not ignored or disregarded exonerative evidence.

“While there are clearly things that could have been done that weren’t, and things that were done that could have been done better, there doesn’t appear to be any evidence to support the allegation that either Detective Francis or Detective Marske intentionally ignored or disregarded any facts or evidence that ‘didn’t comport with their version of events,’ ” Hines wrote.

Duane Statler noted that, at the end of the day, the investigation produced a confession that a judge threw out – and only after the men had spent years of their young lives in prison. He said the fact that Marske has been promoted to a leadership position is troubling.

“I was surprised they even said they found he didn’t file his reports (properly),” he said. “I would have expected they’d have whitewashed everything.”

“How can the sheriff promote someone who’s got this on his record?” He added. “It’s unbelievable it ever went to trial.”

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


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