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Tankovich brother wants new trial

by David Cole
| December 14, 2010 8:00 PM

COEUR d'ALENE - An attorney for Frank J. Tankovich, one of two brothers found guilty by a jury in October for a hate crime, has filed documents in District Court seeking a new trial.

Public defender Jedediah Whitaker sited what he considers improper conduct by the presiding juror during the deliberations, arguing it violated his client's right to a fair trial.

Tankovich and his brother, William M. Tankovich Jr., were found guilty of felony counts of conspiracy to commit malicious harassment and malicious harassment. Sentencing is scheduled for Jan. 13.

No similar motion appears to have been filed on William Tankovich's behalf, though the two brothers were tried together.

Whitaker said in court documents that the verdict, handed down Oct. 28, should be vacated and a new trial scheduled. A hearing on his motion is set for Jan. 7.

Whitaker said the presiding juror, who was selected by her fellow jurors, halted deliberations after another juror had expressed an opinion she didn't agree with.

"The action completely exceeds the authority granted a presiding juror," he wrote.

He argued that her actions were designed to intimidate other jurors, and tainted the process.

"That juror, through the use of guilt, recrimination, harassment and the false display of authority ... behaved as a partisan advocate and basically a bully," he wrote.

One juror told the others that he and friends would sometimes draw swastikas on their trucks while out mud bogging.

Other jurors, he told the court, asked him if he was a racist.

His response to them was, "I'm not, but to a point I guess I am," he reported to the attorneys for both sides and the judge in a post-verdict interview in the judge's chambers, according to a court reporter's transcript.

He told court officials that he didn't think his views prevented him from being a fair juror. He also said he initially planned to vote not guilty.

"They all got after me. I got tired of it after about one hour of that, and I said 'guilty.' I don't know if I feel good about my decision," he told the judge and attorneys. "I felt they're guilty based on the law, but not in my opinion."

What the other jurors said about his beliefs, in part, changed his mind, he said.

Whitaker wrote, "The post-verdict in chambers discussion with one juror makes it clear that the unanimous verdict was the result of a compromise reached as a result of the presiding juror's conduct."

Jurors decided the two Tankoviches, in part motivated by race, harassed a Puerto Rican man in front of his home, at the corner of Pennsylvania Avenue and 20th Street in Coeur d'Alene, in August 2009.

When the two sides first encountered each other, the Tankoviches' pickup truck, which stopped in front of the victim's residence, had a swastika drawn in the dirt on its side. The victim pulled out a hand gun and called police.

The brothers left the house, but returned with another brother, Ira, later on foot.

Two of them returned with a pit bull on a chain, and the third approached from a different direction with a handgun.

An initial trial for the three Tankovich brothers in March ended in a mistrial, just as it started.

A second trial, a month later, ended with a hung jury for William and Frank Tankovich. Ira Tankovich was found guilty of conspiracy to commit disturbing the peace. He later pleaded guilty to being a felon in possession of a handgun in relation to the incident.

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