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Shawn Vestal: In case of exonerated men, everyone sees mistakes but the sheriff

Robert Larson, Tyler Gassman and Paul Statler talked at Mission Park in Spokane on Wednesday, July 31, 2013, about the years they spent in prison for crimes they did not commit. (Kathy Plonka / The Spokesman-Review)

You could look at it as a three-quarter-million-dollar mistake – that’s how much state taxpayers will likely fork over to pay for the wrongful convictions of three Spokane men in a series of 2008 “drug-rip” robberies.

Or you could look at it as a 3,741-day mistake – that’s how long Paul Statler, Tyler Gassman and Robert Larson collectively spent in prison for crimes for which a judge ruled this month they are “actually innocent.”

You could see it as series of investigative mistakes – Spokane County sheriff’s detectives pushed for and relied almost exclusively on highly unreliable “snitch” testimony to put the men behind bars, exchanged for a light sentence in one case and recanted in the other.

You might even suspect an intentional frame-up, as some of the men’s supporters do – detectives changed the date they said the crime occurred, seemingly in order to swerve around the men’s alibis. You could see it as a prosecutor’s mistake to pursue a weak case, a defense team’s mistake to lose initially to such a weak case, a jury’s mistake to convict on such bad evidence…

Mistakes everywhere. Even an internal sheriff’s department investigator said in a deposition it was “extremely poor police work.”

You might think it would be pretty hard, at this stage, to defend the investigation.

But that’s what Sheriff Ozzie Knezovich is doing. He was asked by an attorney in a recent deposition, “Do you feel like (detectives) conducted a thorough investigation?”

“I do,” he responded.

In an interview this week, Knezovich called it a “very, very, very strong case,” and referred to a judge’s opinion that it was a “very solid case.” There was, he said, “a ton of evidence.” He argues that prosecutors should have tried the three men as part of a wider conspiracy, and not for individual robberies. He noted that he did reprimand one of the detectives, Doug Marske, who was later promoted before retiring to become an investigator for the Liquor and Cannabis Control Board.

“There were things that could have been done better in this case,” Knezovich said. “Very much so.”

The sheriff’s department’s internal investigation of the case painted a much different picture. “As a result of my extensive review of the reports, affidavits and various other documents related to this series of robberies, as well as my interviews with (investigators), I did find several instances where those involved in the investigation could have been more thorough,” Sgt. Tim Hines wrote.

Hines cited “mistakes and assumptions”; a failure to take “various investigative steps” such as interviewing key witnesses, re-interviewing witnesses and obtaining cellphone records; a failure to challenge “contradictions” in testimony; a willingness to accept statements from witnesses with “obvious credibility issues … with little or no effort made to confirm their veracity”; a failure to document investigative steps; the inclusion of “numerous apparent inaccuracies” in court filings as a result of “inattention to detail”; and the inclusions of proposed testimony in court filings “for which no supporting statements can be found.”

Hines’ conclusions – and Knezovich’s defense – are likely to play a role in an upcoming federal lawsuit, which alleges two investigators deprived the three men of their civil rights by witness-tampering, recklessness, failure to turn over exculpatory evidence and other violations. The suit alleges that the two detectives, Marske and William Francis, are liable, as is the county for its failures in oversight.

Duane Statler, the father of Paul Statler, said the federal case is important to try and achieve some accountability.

“I just don’t feel they learned their lesson,” he said. “I don’t feel the state learned their lesson and I don’t feel the county learned their lesson. … Who’s watching these guys? I hope the federal case actually sheds a little more light on the changes that need to be made.”

The federal suit is headed for a trial date this summer, even as a state lawsuit may be drawing toward a close. Spokane County Superior Court Judge John Cooney ruled in April that the three men were “actually innocent” and deserved compensation under a new state law allowing wrongfully convicted people to receive damages. The men were awarded roughly $500,000, and attorneys expect that to be increased to nearly $750,000 to include compensation for the year the men spent in jail awaiting trial.

“It’s just astounding,” said Micah LeBank, who is representing the men in the federal suit. “The level of work that was done in these cases – it’s either utter laziness or it’s really malicious. Or a little bit of both.”

Case falls apart

The three men were swept up as part of a complicated series of armed robberies in the spring of 2008, and the number of different witnesses, crimes, claims and counter-claims involved is dizzying.

But it boiled down to this: They were convicted initially on the testimony of a single 17-year-old informant, Matt Dunham, who was given a light sentence in exchange for cooperating. Detectives failed to pursue evidence to support or contradict the man’s testimony, even in the face of reasons to doubt his truthfulness, according to numerous rulings and reviews.

Dunham was one of four men first arrested, and later convicted, in the robberies. He implicated Paul Statler, Gassman and Larson “after he previously presented numerous fabrications to law enforcement,” Cooney wrote in a decision April 7. Dunham also had been housed with another defendant in the case, and had a motivation to shift blame away from his brother, Cooney wrote.

Another man convicted in the robberies, Anthony Kongjunchi, initially identified the men in an unrecorded “free talk” with detectives, but later recanted and said he planned to testify that none of them were involved. Kongjunchi has claimed that Marske threatened him with a perjury charge to prevent him from testifying, which Marske denies. Kongjunchi did not testify in the initial trial, but did so in the appeal and civil case.

The state argued that Kongjunchi changed his story only once he realized he couldn’t get a reduced sentence; Cooney ruled that he gave “virtually no weight to Mr. Kongjunchi’s testimony” either way, given his criminal record and past statements that he “is never honest with police.”

Prosecutors have also argued that a shotgun found at Statler’s home was similar to the description of one used in one of the crimes, but that information came from Dunham. Additionally, Hines said in a deposition that the shotgun did not actually fit the description of the one used in the crimes – it didn’t have a sawed-off barrel.

“These are three guys who literally didn’t do anything,” said their attorney in the state compensation case, Mack Mayo. “They spent eight years having to try to prove they didn’t do something, which is incredibly hard.”

‘Actually innocent’

Detectives had initially said the crimes Statler, Gassman and Larson were charged with happened on April 15, 2008. But the men had alibis for that date. Hours before their trial was set to begin, prosecutors changed the date in the charging documents to April 17 – a date for which the men did not have an alibi.

LeBank said it was just one of many suspicious “coincidences” in the case, where investigators happened across changes in the evidence that just so happened to weigh against the men they had locked onto as suspects. When the original date didn’t work, he said, they simply went looking for one that did.

Knezovich said that there was corroborating evidence for the April 17 date.

“It wasn’t like they just pulled the 17th out of the air,” he said.

The men were convicted and sentenced to prison in early 2009. Attorneys with the Innocence Project Northwest, a project of the University of Washington law school, took up the case after Kongjunchi wrote a letter to Duane Statler, telling him his version of what had happened with Marske and apologizing.

Innocence Project lawyers also obtained phone records from another man convicted in the robberies that showed the crime could not have occurred on that date, and very likely occurred on the original date, April 15. The convictions were vacated, and the men were released from prison in December 2012. Each had spent almost three-and-a-half years in custody.

In throwing out the convictions, Judge Michael Price pointed the blame at the men’s defense attorneys for failing to triumph over such a weak case.

“An hour or two of investigation by Trial Counsel would have cast doubt on the State’s case,” Price wrote.

In his ruling this month, Cooney said that even if the informants’ testimony and the shotgun had been reliable, the men’s alibis were “clear and convincing evidence” that they had not engaged in any of the illegal conduct they had been accused of.

(Cooney initially rejected the men’s claim for damages, arguing they did not meet a burden of proof that it was “nearly certain” they had committed no illegal acts. The state appeals court ruled Cooney had applied an incorrectly high standard to the case, and that the law called for meeting the “clear and convincing evidence” burden in determine whether exonerated suspected were to be considered “actually innocent.”)

Cooney’s ruling cleared the way for the men to be awarded compensation under a law passed in the wake of their release. Duane Statler, who worked in support of the law, said he was happy with the recent ruling, but that the process had been “disheartening.”

“My whole take on this is, it’s just a crying shame,” he said. “A crying shame that it all comes back to a taxpayers’ burden for something that should have been handled … if it had been handled correctly, our kids would never have even been arrested.”

‘Hard to re-engage’

Knezovich has steadfastly defended the work of his investigators. He has said he wished prosecutors had “taken another run at it” and tried the men again, and said that he believes a conspiracy case, which would have allowed jurors to consider evidence connecting the men to other crimes, would have been successful.

Asked why he defends the investigation when so many others are critical, Knezovich said, “I gave a written reprimand (to Marske), did I not?”

“There were things that could have been done and I wish they would have done it,” he added. But “they were not fatal errors.”

Knezovich said his office is encouraging the state attorney general to appeal Cooney’s decision. Meanwhile, the federal case is proceeding. Attorneys for the county did not return a message seeking comment this week, nor did Marske. They deny most of the allegations in the suit, and argue in court filings that the investigators’ work was “objectively reasonable.”

Attorneys for Statler, Gassman and Larson allege the detectives pressed forward with a case against the men in the face of contradictory information, failed to turn over exculpatory evidence to the defense, fabricated evidence to support their theory, and “woodshedded” a witness – Kongjunchi – with threats of a perjury charge to prevent him from testifying on the men’s behalf.

As the case proceeds, attorneys will argue over a host of details in the case. But for Duane Statler, it’s pretty simple.

“If they were guilty, they’d still be in jail,” he said.

He said his son is struggling with stress disorder, and has had a hard time finding work, as has Gassman. Larson has gotten a job as an inpatient drug treatment counselor, Duane Statler said.

“It’s hard for them to re-engage in life,” he said. “Work is a struggle. What do you put on your job application for five years that disappeared out of your life?”

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