Appeal that delayed Ellis cops’ trial is moot, justices say. Tacoma payroll hit to top $1M

Mar. 13—A delay in the trial of three Tacoma police officers charged with killing Manny Ellis three years ago turned out to be unnecessary, adding to the frustration of relatives and advocates of Ellis who say their wait for justice had already dragged on too long.

About two weeks ago, the day before the three-year mark of the incident, the Washington Supreme Court ruled that a dispute over whether the city of Tacoma should disclose an uncharged officer’s compelled internal statement as evidence against his colleagues had been resolved by the time it got to justices’ desks.

Meanwhile, the city continues to pay the three defendants, who have been on administrative leave since June 2020 when the medical examiner ruled Ellis’ death a homicide. The cost to taxpayers is expected to top $1 million by the time the officers go to trial on Sept. 18, according to pay stubs analyzed by The News Tribune.

The Attorney General’s Office charged officers Matthew Collins and Christopher “Shane” Burbank with second-degree murder and officer Timothy Rankine with first-degree manslaughter in May 2021, alleging they beat, Tasered and restrained Ellis on a South End street corner on March 3, 2020. He died at the scene.

Ellis’ relatives and advocates have noted how high-profile cases involving Black men dying in police interactions in other parts of the country seem to move more quickly, such as the January firings of five Memphis officers before they were charged with beating Tyre Nichols to death, or the conviction of ex-Minneapolis officer Derek Chauvin within a year of murdering George Floyd.

Ellis, a musician and father of two, would be 36 this August.

“It wasn’t, and clearly isn’t, a priority of theirs,” Ellis’ sister and advocate, Monet Carter-Mixon, told The News Tribune recently, referring to the Pierce County criminal justice system. “Three years — it’s a long time. A lot can happen in three years.”

“A lot has happened,” she said.

Justice delayed?

The most recent lag in the Ellis case came in December when the Washington Attorney General’s Office sought the Supreme Court’s review regarding the use of compelled internal interviews of law enforcement officers as evidence against colleagues charged with crimes. Pierce County Superior Court Judge Bryan Chushcoff had declined to reconsider a prior ruling on one officer’s statement.

Under a U.S. Supreme Court decision known as Garrity v. New Jersey, internal statements officers are forced to give under the threat of termination can’t be used as evidence against them in criminal prosecutions because it violates their Fifth Amendment rights against self-incrimination.

Prosecutors first subpoenaed the city for 13 officers’ internal interviews last spring, but city attorneys argued turning them over would undermine the Police Department’s ability to conduct internal investigations in the future.

“If the State is permitted to circumnavigate Garrity and the Fifth Amendment in this way in this case, it will likely have a chilling effect on all law enforcement officers’ cooperation with all subsequent IA investigations statewide,” deputy city attorney Barrett Schulze wrote in his motion to block the state’s subpoena.

Chushcoff decided in July that the city should hand over internal statements from all but one uncharged officer, Armando Farinas, who the judge ruled might have incriminated himself. Farinas agreed to provide the transcript upon a court order in January, but Attorney General Bob Ferguson’s office pleaded for justices to hear oral arguments anyway to set a new precedent for other cases.

Then-interim Tacoma Police Chief Mike Ake exonerated Farinas and a fifth officer, Masyih Ford, of wrongdoing in December 2021, but the Attorney General’s Office has declined to grant Farinas immunity from prosecution in the Ellis case, according to court filings.

Charging and investigative documents show Collins and Burbank hit, choked and used a Taser on Ellis to get him in handcuffs, then Rankine sat on his back while Ford, Collins and Pierce County detective Sgt. Gary Sanders bound Ellis’ legs in a hogtie. At some point shortly thereafter, Farinas placed a spit hood on Ellis’ head, which now-retired Medical Examiner Dr. Thomas Clark opined was a significant factor in his death, along with the hogtie position and the weight of officers. Only Collins, Burbank and Rankine have been charged with crimes.

Internal investigations of the charged officers are ongoing. The city of Tacoma denied The News Tribune’s public records request for the officers’ statements, citing a court order making them confidential.

Carter-Mixon told The News Tribune she understood some of the risk prosecutors took in an attempt to penetrate the so-called blue wall of silence among police officers but questioned why the trial had to be delayed for several months and whether attorneys and court officials had other options. Until the criminal case concludes, her family’s wrongful death lawsuit against the city remains on hold.

Carter-Mixon said she thought the trial would start about six months after the Attorney General’s Office filed charges.

“I hope there’s no more delays. I hope this is the last thing,” Carter-Mixon said on the phone Thursday. “Other cities and states have swift justice … It’s hard to make future plans.”

Supreme Court review

After the Supreme Court granted review in November, Chushcoff and attorneys on both sides of the case agonized over how to accommodate the high court’s lengthy review process. Chushcoff decided that the safe bet was a September trial date and suggested the Attorney General’s Office subpoena Farinas for his statement in hopes of progressing toward trial while the justices conducted their review.

“There’s a part of me that just wants to wait and see,” said Chushcoff from the bench Dec. 2, but he worried aloud that trial dates would fill up in the interim and push a trial deeper into the fall. “There’s no good answer here for me.”

On Jan. 3, Farinas agreed to hand over his Internal Affairs statements to the Attorney General’s Office if subpoenaed, according to court documents. He provided the transcript in the first week of February.

The Attorney General’s Office did not file to terminate the Supreme Court review and then fought a Feb. 17 motion from the city of Tacoma to rule the issue moot. Prosecutors argued the Supreme Court should still hear their arguments because of the issue’s importance to the public.

“… If this case is dismissed, it would strain credulity to believe that other local governments and police departments will not follow the City’s lead,” the Attorney General’s Office wrote in a filing with the Supreme Court. “… The very fact that the City can make these arguments imposes needless and legally baseless burdens, costs, risks and delays that makes investigating and prosecuting police misconduct harder.”

In court papers, the city of Tacoma criticized the Attorney General’s Office for not subpoenaing Farinas sooner or terminating the Supreme Court review, resulting in the stall in the criminal case.

The Supreme Court unanimously terminated its review on March 2 and canceled oral arguments scheduled for March 14.

Attorney General’s Office spokesperson Brionna Aho said prosecutors respect the decision.

“We achieved the objective we sought in this case. The officer in question, through his private counsel, chose to provide the statements we were seeking in our case,” Aho wrote in an email statement. “Despite achieving our ultimate objective, we had hoped the Supreme Court would weigh in to provide clarity about the law in this matter.”

Farinas’ attorney, Ryan Lufkin, declined to comment on the case during a phone call with The News Tribune. Courts documents show Farinas expressed he didn’t want to impede the criminal case.

Rankine’s defense attorneys, Anne Bremner and Mark Conrad, told The News Tribune on Friday that they don’t see the September trial date moving up.

“We need to stay with the trial that we have based on what we have to do,” Bremner said on the phone. Rankine is “eager to resolve this matter and he looks forward to clearing his name in court and we look forward to clearing his name for him. … He did everything he was supposed to do.”

Tacoma paying up?

In early settlement talks with the city of Tacoma, Carter-Mixon said officials insulted her family with an offer “nowhere near” the amount paid to Collins, Burbank and Rankine over the past three years while they’ve been on administrative leave.

“My brother’s life doesn’t have a dollar amount,” she said. “It’s draining.”

Tacoma Police Chief Avery Moore, who joined the department last January, has indicated he won’t decide whether to fire the three officers until after their trial, according to public records obtained by The News Tribune.

If the officers were to rejoin the Police Department, their ability to contribute to criminal prosecutions would be undermined by their involvement in Ellis’ death. The Pierce County Prosecuting Attorney’s Office, which previously declined to charge the officers, added them to a list of recurring witnesses with credibility issues in November and placed the Attorney General’s charging papers in files that must be disclosed to defense attorneys.

Collins and Burbank, who also face lesser first-degree manslaughter charges, received double-digit pay raises last January when the union for rank-and-file officers reached a new bargaining agreement, granting back pay and bringing their hourly rates to nearly $62 as of last fall. The raise for Rankine brought his pay to nearly $58 an hour.

The union contract set the top base hourly rate for officers at $53, but those who have more than two years with the Police Department, special assignments, advanced training, post-secondary degrees or military service can earn additional pay increases.

“You have the right to fire them,” said Carter-Mixon, Ellis’ sister.

Carter-Mixon pointed to the recent terminations of a Tacoma police officer who had sex on duty and a Puyallup office who has been implicated in two rapes as examples of local officers who have been disciplined with similar amounts of evidence of misconduct.

“It’s clear what occurred that night (with Ellis), and he is not here anymore,” she said. “And I feel like if it would have been in another state, or if he would have been white, or had been more important to some people in power in this state, or city, we would have been through trial. Charges would have been filed quicker. I had to argue my way into getting the governor to pay attention.”

This story was originally published March 13, 2023, 5:00 AM.

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