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Fast-food shooting case dropped

Photo lineup ‘likely tainted’ witnesses, judge says

Spokane County prosecutors dismissed charges Wednesday against a man accused of trying to kill seven people at a downtown fast-food restaurant after a judge determined that three witnesses possibly had been tainted by a flawed police photo lineup.

Lamont Brooks, 19, was due to stand trial this week in Spokane County Superior Court for a Dec. 19 shooting spree in the drive-through lane of the Jack in the Box restaurant on West Third.

Brooks was accused of firing about 14 shots with a 9 mm pistol, some of the bullets narrowly missing seven people sitting in three cars.

Brooks, who has spent nearly seven months in jail, insists he wasn’t at the restaurant when the shots were fired.

The trial would have been the second for Brooks. The first ended in a mistrial in April when the judge declared Brooks’ defense attorney incompetent.

Prosecuting Attorney Steve Tucker said Wednesday his office dismissed the charges after three witnesses were prevented from identifying Brooks as the gunman. Tucker said prosecutors faced going to trial and likely losing the case.

On Friday, before jury selection began, Superior Court Judge Robert Austin said the three witnesses had “likely been tainted” by a photo lineup sheet that depicted Brooks in such a way as to suggest he was the suspect in the shootings.

Out of six mug shots of African-American men, Brooks’ photo was centered on the sheet and the most prominent, Austin said.

The judge made the decision after Brooks’ public defenders, Richard Fasy and Jay Ames, asked him to exclude the photo sheet and the statements by witnesses identifying Brooks based on the photos.

The two attorneys claimed the sheet - called a montage - made Brooks’ face larger and much darker than the other five potential suspects.

After Austin’s decision, Tucker said prosecutors felt “We were left with just one witness. And we felt that that witness was a little shaky.”

Tucker said the attempted first-degree murder charges cannot be refiled against Brooks.

On Tuesday, prosecutors asked the state Court of Appeals to overturn Austin’s decision. After an emergency session, the appeals court denied the request, saying Austin acted within his authority in excluding the witness identifications of Brooks.

Three of the four witnesses were either passengers or drivers in three cars at the Jack in the Box on Dec. 19.

The fourth witness was an employee who said he watched the shootings from inside the restaurant.

Police say a dispute broke out around midnight between occupants of two cars in the parking lot of the downtown restaurant.

The four witnesses all said Brooks jumped out of a car and chased a man from a second vehicle.

The witnesses said they saw Brooks fire a gun at the man, who ran down the street and away from the area. They told police Brooks then walked alongside their parked cars, spraying bullets inside the vehicles.

None of the occupants was wounded.

A passenger in one of the parked cars, Jennifer McWatters, criticized Austin for dismissing the case on what she believed was a technicality.

“If one of us had been killed, what would his decision have been,” said McWatters. She said she ducked onto the floor in the back seat of the car and never saw the gunman clearly.

Her testimony was not excluded, however, since she was never asked to identify Brooks’ face in the montage. But the other three witnesses were tainted by the photos, Austin said.

Before making his decision Friday, Austin listened to testimony from the three witnesses - Cory Tobin, James Young and Angela Andresen.

Prosecutors considered Tobin their best witness. He was with Andresen in the third car fired upon. He also said he had a clear view of the shooter for at least five seconds.

But defense attorneys pointed out that Tobin hesitated in identifying Brooks when handed a montage.

He finally named Brooks as the shooter. Questioned last week by defense attorneys before the trial, Tobin said the initial photo he picked was “horrendous” and barely resembled the man he saw firing bullets on Dec. 19.

Young, the Jack in the Box worker, also testified that he had to look at two montages before identifying Brooks. The second viewing took place a month after the shooting, he said in court.

The dismissal of the case took place after 70 potential witnesses spent several hours Monday and Wednesday answering questions and waiting for the trial to start.

The attorney who defended Brooks in the first trial said he knew all along the evidence arranged by prosecutors was flawed.

Attorney Brad Plumb said he never asked Austin during the first trial to suppress the montage or disqualify witnesses because he wanted jurors to see for themselves “how this was part of a vendetta to convict Lamont.”

Said Plumb on Wednesday: “I was convinced the jurors would look at the montage and become absolutely outraged.”

They never got the chance to express an opinion, since Austin declared a mistrial in April after a half-day of testimony. He said Plumb was not prepared to ensure Brooks received adequate representation.

Before that trial, Plumb said he asked the police detective who prepared the montages why Brooks’ photo always stood out from the others.

According to Plumb, Spokane Police Detective Keith Cummings said that “the photos are produced by a computer without any control on his part.”

Plumb said he asked Cummings why Brooks’ photo always was placed in the most prominent spot on the sheet - either in the middle of the top row of three photos or the middle of the bottom row of three photos.

“He said that was his way of `always knowing where the suspect was’ when witnesses looked at different montage sheets,” Plumb said.

Deputy Prosecutor Mark Cipolla, who handled the case in court, could not be reached for comment.

Brooks, who turned himself in to police in January, left jail Wednesday several hours after prosecutors dropped charges against him.

He planned to move to Florida to live with his wife, said Dina Goin, who worked as a private investigator for public defenders Fasy and Ames.

Brooks’ mother said the experience has scarred her son to the point that he will require counseling.

“I think prosecutors need to start thinking about how they label some people and they need to think of the damage that does,” Janice Tensley said.

If convicted of the seven counts of attempted murder, Brooks could have been sentenced to more than 100 years in prison.

Another man, Nathaniel Dishneau, is charged as an accomplice in the shootings. Prosecutors say he was the man driving the car with Brooks on Dec. 19.

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