Decision on new hate trial delayed

COEUR d'ALENE - First District Court Judge John Luster signaled Friday he planned to delay sentencing of two Coeur d'Alene brothers found guilty by a jury of a hate crime while he wrestles with possibly granting them another trial.

Brothers Frank J. Tankovich and William M. Tankovich Jr. and several members of their family attended a hearing on a motion for a new trial in which their defense attorneys cited alleged juror misconduct.

The Tankovich brothers were found guilty on Oct. 28 of felony counts of conspiracy to commit malicious harassment and malicious harassment, and were scheduled to be sentenced late next week.

Defense attorneys Chris Schwartz and Jedediah Whitaker told Luster that the presiding juror exceeded her power when she halted deliberations after juror No. 6 expressed opinions she and other jurors considered to be racist. Luster ordered the jury to resume.

Schwartz and Whitaker argued their clients' right to a fair trial was violated when the presiding juror and others pressured and bullied juror No. 6 to change his mind.

Schwartz said, "The jury is only supposed to do what you tell them to do."

"She stepped outside of her role," Whitaker said.

Juror No. 6 was interviewed by court officials after the verdict in Luster's chambers and said his opinion was the brothers were not guilty, but based on the law he believed they were, and that's why he voted to convict on both counts, deputy Kootenai County prosecutor Art Verharen argued.

In a transcript of the post-verdict interview, juror No. 6 was quoted as saying, "I felt they're guilty based on the law, but not in my opinion."

Juror No. 6 told other jurors during deliberations that he and friends would sometimes draw swastikas on their trucks while out mud bogging. That led the other jurors to ask him if he was racist.

"'I'm not (racist), but to a point I guess I am,'" was his response, according to the transcript.

"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, prosecutors and defense attorneys.

He told the court officials that he didn't think his views prevented him from being a fair juror.

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

Schwartz and Whitaker wrote in their motion seeking a new trial that, "The post-verdict, in-chambers discussion with (juror No. 6) makes it clear that the unanimous verdict was the result of a compromise reached as a result of the presiding juror's conduct."

The juror misconduct allegations are just the latest "unusual twist" in the high-profile case, Luster said.

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 testified that in fear he pulled out a handgun and called police after the Tankovich brothers got out of the truck and approached him.

The two brothers, and a third, Ira Tankovich, left the house, but returned later on foot.

William and Frank Tankovich returned with a pit bull on a chain, and Ira Tankovich 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 was getting 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 in that trial. He also pleaded guilty to being a felon in possession of a handgun for returning to the scene with the weapon.