A Washington state trooper’s testimony to get out of a traffic infraction six years ago could have implications for pending felony charges against a Spokane firefighter who previously was wrongfully accused by the same agency.
In addition to its potential impact on the ongoing assault case against suspended firefighter Todd Chism, the handling of the 2004 traffic infraction against Spokane-based Trooper Greg Birkeland raises questions about the role of two lawyers now among five candidates for Spokane County prosecutor – incumbent Steve Tucker and Chris Bugbee.
Documents indicate key records may have been withheld in 2004 from the Spokane County deputy prosecutor handling the case against Birkeland, whose defense attorney was Bugbee, and that Tucker reportedly blocked the filing of any additional charges against the trooper after the new information emerged.
Both men insist they did nothing improper.
But earlier this year, defense attorney Carl Oreskovich used the 2004 case to successfully persuade a judge to remove Stevens County Prosecutor Tim Rasmussen – the Spokane County deputy prosecutor on the Birkeland case – from the felony assault case against Chism.
Chism is charged with assaulting Birkeland and another trooper during a DUI investigation on April 6 outside Chism’s home on Highway 291 in Stevens County.
Oreskovich said in court documents that he intends to call Rasmussen as a witness to Birkeland’s credibility. Rasmussen attempted to prosecute Birkeland in connection with a Jan. 1, 2004, incident where Birkeland admitted drinking before crashing into a neighbor’s truck and leaving the scene of the collision, according to court records. Court rules prohibit Rasmussen from being a witness in a case he’s prosecuting.
“I reached the conclusion that Trooper Birkeland had been less than truthful in his testimony,” said Rasmussen, who at the time was a deputy prosecutor under Tucker. “I asked Mr. Tucker if I could file charges.”
After a few months with no decision, Rasmussen said he again asked Tucker if he could pursue a hit-and-run charge against Birkeland. “I was informed that (Birkeland) had been administratively sanctioned (by the WSP) and we would not prosecute any criminal charges,” Rasmussen said. “Tucker told me, ‘We’re done with him.’ ”
Tucker, who is in a hotly contested primary race against Bugbee, Dave Stevens, Jim Reierson and Frank Malone, didn’t deny Rasmussen’s claim, but he said he couldn’t remember the exchange.
“I remember the trooper hit a neighbor’s vehicle. I don’t remember seeing any evidence that he lied or what the hit-and-run allegation was based on,” Tucker said. “But I wouldn’t be making that decision. Even if I decided to charge, it would go through (Deputy Prosecutor Brian) O’Brien.”
O’Brien said he doubts the exchange took place the way Rasmussen remembers.
“We didn’t have a criminal case. What I thought we had was an unprovable driving under the influence case. It was Jan. 1. It doesn’t take a rocket scientist to figure out what is going on. But as a prosecutor, I can’t engage in speculation,” O’Brien said.
According to court records, neighbor Thomas Butler called Crime Check in the early morning hours of Jan. 1, 2004, to report that someone had crashed into his pickup, parked in his driveway at 12314 N. Fairwood Drive.
A deputy arrived more than six hours later and took photographs showing the suspect vehicle had swerved all over the street before crashing into the back right of Butler’s 1992 Chevy pickup. The impact pushed Butler’s parked truck onto a concrete retaining wall and forced it into a closed garage door, causing approximately $8,000 in damage.
The suspect vehicle “had been driving in circles in the street, onto the sidewalks and lawns both north and south of the victim’s home,” Deputy Thomas Blair wrote in his report.
Birkeland arrived at the scene that morning. Butler told the investigating deputy that Birkeland “smelled like a brewery.” Blair questioned Birkeland, who said he had consumed “a couple beers” but that he was not intoxicated at the time of the collision.
“He told me he was distracted at the time and then he realized he was in the wrong lane,” Blair wrote of his interview with Birkeland. “He then corrected to drive back into the (northbound) lane but lost control.”
Photos taken at the time show broken snow and ice on Fairwood, which is the widest street in the subdivision. It is a two-lane residential street with parking lanes on each side and sloping curbs with sidewalks. The street is straight and level for nearly a block on either side of the crash site.
Birkeland also claimed that he left a note on the windshield of Butler’s crashed truck “but that he found it lying on the sidewalk down the street when he walked up this morning,” Deputy Blair wrote. Sheriff’s officials cited Birkeland with negligent driving. Rasmussen prosecuted the traffic case in a hearing later that spring before Court Commissioner Charlie Rohr. But when Rasmussen took it to court, he was told by Spokane police records employees that they had no records other than what Deputy Blair wrote on the ticket.
Under oath, Birkeland made no mention of realizing he was in the wrong lane before losing control. He claimed that he lost control coming out of what he initially described as a “dog leg” in the road which he later called a “corner,” according to a tape recording of the hearing obtained by The Spokesman-Review.
“The roadway is very narrow. In fact the collision occurred one block from our residence,” Birkeland said. “There was compact snow and ice on the roadway at the time. And when we came around the corner … we slid into the back of Butler’s truck.”
Birkeland was with Trooper Matt Weberling and their wives at the time of the crash. The records show that investigators placed only one phone call to Weberling, which he did not return. The records do not reflect any attempts by investigators to interview the wives.
During the hearing, the judge announced that the complete investigative files had been faxed over but he declared them inadmissible because the hearing had already started. Bugbee argued that the conditions caused the crash, not Birkeland.
“If a state trooper can’t get around that corner going 25 mph, you would be hard pressed to find anybody who could do that,” Bugbee said.
The street contradicts Birkeland’s story. Fairwood has no corner in that area. At best, it has a jog in the road almost a block away from Butler’s house. The deputy’s diagram in court records likewise shows a straight road.
Rasmussen told the judge that Birkeland’s version of events was “blatantly ridiculous.” “He takes the position that he had absolutely nothing to do with it. That’s ridiculous, too. Judge, he was going too fast for conditions.”
But Rohr ruled in favor of Bugbee and Birkeland.
With the traffic infraction settled, the case went dormant after Rasmussen said he couldn’t get approval from Tucker to prosecute Birkeland for hit and run.
Four years later, in an unrelated case, the WSP charged Chism, a lieutenant with the Spokane Fire Department, with possessing child pornography after one of Chism’s credit cards was linked with purchasing child pornography. The case was dropped four months later after investigators learned he had nothing to do with the purchases.
Then on April 6, Trooper Gregory Riddell responded to a report of a vehicle in the ditch off Highway 291 just outside of Chism’s driveway. Riddell contacted Chism, who failed a sobriety test – according to state records – and the trooper called for backup because he was nearing the end of his shift.
Birkeland answered the call and Chism became angry when Birkeland said something about Chism’s name sounding “familiar.” The troopers claim that Chism resisted arrest and a physical altercation ensued that left both troopers injured.
Chism was charged with felony assault against both troopers. That trial is scheduled for Oct. 4.
During the investigation of that case, defense attorney Carl Oreskovich – who declined to comment for this story – learned of Birkeland’s previous negligent driving charge.
“Mr. Rasmussen cross-examined Trooper Birkeland without benefit of the complete investigative report and it was later determined that Trooper Birkeland did not testify truthfully while he was previously under oath regarding his hit-and-run accident,” Oreskovich wrote in court records. “Officer Birkeland is one of the arresting troopers in the … case against Mr. Chism so his credibility will be a material issue.”
Efforts to contact Troopers Birkeland and Weberling were directed to WSP spokesman Bob Calkins.
He said if the two troopers had been administratively sanctioned, as was told to Rasmussen, a union agreement calls for purging those records from their personnel files after five years.
“Out of general fairness, if you do make a mistake as an employee it doesn’t necessarily haunt you for your entire career,” Calkins said. “That withstanding … I would say that an officer’s credibility is always an issue.”
Calkins said the department has requested records from Rasmussen about Birkeland’s 2004 testimony but it has not yet received those records.
“We’ve heard allegations, but we haven’t had the chapter and verse conveyed to us that would allow us to pursue an investigation,” Calkins said. “Until that occurs, we pretty much have to stand behind our employees.”
As for Birkeland’s credibility with the most recent confrontation with Chism, Calkins said: “X-rays don’t lie. Trooper Birkeland has a broken thumb.”