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Defense contends shooting case was weak

Prosecutor decided to dismiss charges rather than risk losing trial

Defense attorneys who forced Spokane County prosecutors to dismiss charges stemming from a downtown shooting say they’d have won an acquittal anyway because the state’s case was weak.

Prosecutors chose to believe four witnesses who identified Lamont Brooks as the man who fired more than a dozen shots at cars in a fast-food restaurant parking lot on Dec. 19.

But Chief Assistant Public Defender Richard Fasy said Friday that prosecutors should have reviewed the evidence and realized their case wasn’t strong enough to convict Brooks, 19, of attempted murder.

Four eyewitnesses identified Brooks as the man who fired at their vehicles in the Jack in the Box drive-through lane.

Fasy and co-counsel Jay Ames, however, say they had three witnesses who identified another man, Nathaniel Dishneau, as the shooter.

Neither side got to present their evidence, because Superior Court Judge Robert Austin excluded statements by three prosecution witnesses this week prior to trial.

County Prosecutor Steve Tucker decided to dismiss the charges rather than lose the case in court.

Fasy said he and Ames found witnesses who are convinced the shooter was 19-year-old Dishneau.

He is currently in custody in the Spokane County Jail, facing seven counts of attempted first-degree murder as an accomplice.

Prosecutors say he was in a car with Brooks the night of the shootings. He has pleaded not guilty to the charges.

Fasy said police gave several other witnesses photo lineups that included Brooks, but identified the shooter as someone else.

And Brooks, weeks before the trial, passed a carefully administered polygraph exam, said Fasy.

“They (prosecutors) were aware of this,” he said.

“Perhaps from a misguided sense of loyalty to their witnesses, they kept going despite solid evidence that Mr. Brooks was not guilty,” Fasy said.

Prosecutors also tried to convict Brooks of the same crimes in May.

That trial lasted a half-day until the same judge declared a mistrial. He said Brooks’ defense attorney, Brad Plumb, was incompetent.

This time, Deputy Prosecutor Mark Cipolla never made an opening statement. On Monday, Austin excluded testimony by three witnesses who believed Brooks was the man who fired about 14 bullets into three parked cars outside the West Third restaurant.

Cipolla would not comment on Austin’s ruling or on Fasy’s remarks.

Jack Driscoll, chief criminal deputy prosecutor, said only that “we felt there was sufficient admissible evidence to justify taking the case to trial.”

It’s not clear if Brooks will be called as a witness in Dishneau’s October trial.

While prosecutors claim Brooks was in a white Cadillac at the Jack in the Box, he has insisted he was nowhere near there on Dec. 19.

Fasy said Austin’s exclusion of the testimony of the eyewitnesses was consistent with state law that recognizes how eyewitness testimony can be tainted by suggestive techniques.

In this case, Austin concluded the police photo sheet made Brooks’ face appear larger than the other five.

The montage also featured five light-skinned African-American males and Brooks, whose face was clearly darker.

That mattered because witnesses initially described the gunman as a dark man about 6 feet 2 inches tall, 220 pounds.

Brooks is 5-foot-7 and weighs 160 pounds.

After hearing testimony, Austin agreed that the police montage was “impermissibly suggestive” that only one of the six men met the physical features of the man witnesses first identified.

Austin then concluded, after listening to the four state witnesses, that three of them had trouble initially identifying Brooks when looking at the photo sheets.

Spokane Police Sgt. Keith Cummings testified in Austin’s court last week that a computer had chosen the five other men featured in the montage.

Cummings said he didn’t intend to use a montage with five mulatto men to make Brooks appear more obvious to witnesses.

Cummings did not return repeated phone calls this week.

Spokane Police spokesman Dick Cottam said the department would say nothing about the Brooks case or Austin’s ruling.

Fasy also said police wrongly concluded they were looking for Brooks on Dec. 19 because they had erroneous information on the car he drove.

In July 1998, police stopped Brooks while he was driving a white Lincoln. An officer incorrectly entered information into a police computer saying Brooks was in a Cadillac, Fasy said.

Fasy said officers investigating the Dec. 19 shooting determined that the gunman pulled his pistol from a white Cadillac.

The prior error led the police to Brooks, according to the defense lawyers.

Cottam disagreed. “It’s not the case that there’s only one person who we know drives a white Cadillac,” he said.

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