Court upholds prosecutorial sanction

Appellate judges on Thursday upheld a $2,000 sanction levied against the Spokane County Prosecutor’s Office for how it handled the trial of three men convicted of robbery and drive-by shooting – a case that a main witness later claimed was a set-up.

Superior Court Judge Tari Eitzen earlier said that the $8,000 she levied against the prosecutor’s office was the first major sanction she imposed in her career. Eitzen fined Deputy Prosecutor Eugene Cruz after he waited until the day the trial was set to begin to change the date of the alleged offense from April 15 to April 17, 2008.

Division III Court of Appeals Judge Stephen Brown ruled – with judges Teresa Kulik and Dennis Sweeney concurring – that because Cruz waited almost two months after being told by police of the discrepancy to change it in the court record, and knowing the defense planned to call alibi witnesses, it “was tenable grounds to impose sanctions.”

“Given all, the trial court did not abuse its discretion,” he wrote.

The prosecutor’s office paid most of the sanction in out-of-court settlements to defense attorneys, leaving the appeal to decide only the $2,000 sanction awarded to defense attorney David Partovi.

“I’m pleased. I didn’t want to have to pay back $2,000. I spent that money years ago,” Partovi said. “What I’m concerned about is getting a new trial.”

Defense attorneys, including Partovi, argued in 2009 that Cruz’s actions hurt their cases because all three defendants had alibis for the original date of the alleged crime.

After sanctioning Cruz, Eitzen allowed the case to go forward and a jury in February 2009 convicted Robert E. Larson, Tyler W. Gassman and Paul Statler of first-degree robbery, first-degree assault and drive-by shooting. A fourth defendant, Anthony Kongchunji, took a plea deal before trial.

The case was further complicated when Kongchunji later came forward and apologized in writing for essentially conspiring with another man to blame Gassman, Statler and Larson for crimes that they didn’t commit. Superior Court Judge Michael Price denied attorneys’ requests for a new trial because the attorneys did not call Kongchunji to testify.

Price then sentenced Gassman to about 26 years, Statler to 41 ½ years and Larsen to 20 years in prison.

Attorneys for all three defendants late last year argued for a new trial based on the new testimony of Kongchunji. While those arguments were heard the same day as those against the county’s sanction, Partovi said he was not sure when appellate judges will decide if the three men get new trials.