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Friday, October 22, 1999 - Page updated at 12:00 AM

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Ex-Detective Faces 2Nd Theft Trial -- But Former Sergeant Still Won't Testify

Seattle Times Staff Reporters

A former homicide detective accused of stealing more than $10,000 from a dead man's apartment will be tried a second time, despite the fact most jurors in his first trial favored acquittal, King County Prosecutor Norm Maleng said today.

"This is a case that a jury, acting as the conscience of the community, should decide," Maleng said as he outlined his reasons for trying a second time to convict former Seattle Detective Earl "Sonny" Davis Jr. of first-degree theft.

In a case that has provoked wide criticism of how suspected police misconduct is handled, Maleng also said that his office will not charge Davis' former sergeant, Don Cameron, or call him as a witness, even though Cameron's absence in Davis' first trial contributed to jurors deadlocking 7-5 in favor of finding Davis not guilty.

Maleng said it isn't unusual for a co-conspirator to be absent from a trial, and that he believes jurors can be persuaded to focus on the evidence.

He said Cameron would invoke his Fifth Amendment protection against self-incrimination if called as a witness, which would unfairly prejudice Davis.

Maleng also spelled out, for the first time, why prosecutors won't grant Cameron immunity in exchange for his testimony.

He said Cameron's compelled testimony, even with immunity, would be "wholly inconsistent" with what prosecutors believe is the evidence, although he stopped short of saying Cameron would be untruthful.

"We have a basis for that belief," he said. He declined to elaborate, but sources said Cameron's attorney, Anne Bremner, has provided the Prosecutor's Office with a general description of what Cameron would say.

Bremner said today, "Don Cameron is a legend, and his reputation for integrity is unparalled." She said Maleng's decision to not charge her client "was correct at the outset, and it's correct now."

Maleng said the 7-to-5 split in favor of acquitting Davis at his first trial was not a "magic number," and that his office has retried cases after similar results.

"I don't think the most signficant thing is the split," he said, adding that "in certain cases" a decision to retry a defendant is made regardless of an earlier jury's vote.

In the second trial, Maleng said, jury selection will be a key factor, although he declined to lay out the specific strategy.

"I'm disappointed," said Davis' attorney, Anthony Savage. "I think it's a shame that Norm Maleng and his office have succumbed to political pressure. Obviously, groups such as the NAACP (National Association for the Advancement of Colored People) and ACLU (American Civil Liberties Union) can bring more pressure to bear than a retired police officer."

Savage said he regards a second trial as a waste of taxpayers' money. He said he's taken an informal poll of lawyers, police officers and judges, and none can remember a decision to retry a case when the first jury had seven members favoring acquittal.

"They tried their best," he said. "They had two very good prosecutors. They put on the full dog-and-pony show. But if they want to do this, we'll be there."

Learning from first jurors

Several jurors in the first trial provided insights that will be useful in retrying the case, Maleng said, declining to elaborate because the information will be used to develop a strategy for the second trial.

Maleng also declined to hand the case to an outside prosecutor, as the American Civil Liberties Union of Washington had recommended in a letter to Maleng two weeks ago.

In its letter, the ACLU said the Prosecutor's Office should not make the decisions on Davis or Cameron because of its long working relationship with the former detectives. The letter also suggested there was evidence to charge Cameron with a felony.

ACLU spokesman Gerald Sheehan responded to Maleng's decision today by saying the organization "stands by the positions described in the letter." Sheehan said Maleng is responsible for his decisions and accountable to the people of the county. "So we'll leave it at that."

In rejecting the ACLU's call for an outsider, Maleng said the ACLU had cited no specific conflict of interest.

"I'm elected," Maleng said. "I'm accountable. You lose that accountability when you appoint special prosecutors."

Maleng said there is insufficient evidence to charge Cameron with a felony and that the ACLU was asking him to misapply the law to force Cameron to respond to allegations about his conduct.

"I will never use the power of this office to file charges not supported by the law or the facts to gain a strategic advantage in court," Maleng said. "That would be a breach of my ethical duties as a prosecutor and an abuse of this office and power entrusted to me by the people of this county."

Maleng said the ACLU was seeking to make a political statement about the Police Department at the expense of its "historic mission" to promote due process.

"I am disappointed that the ACLU has chosen to ignore the principles of civil liberties in order to involve itself in the politics of policing in our community," Maleng said.

Maleng's decision means not only that Davis will be put on trial again, but that a spotlight also will remain on the code of silence in the Police Department that kept the theft allegation from coming to light until seven months ago.

The case already has deeply shaken the department, prompting Mayor Paul Schell to adopt sweeping ethics reforms recommended by a citizen panel, including a new Office of Public Accountability within the department to be headed by a civilian director.

Davis, 55, who retired in March, is accused of stealing at least $11,400 on Oct. 1, 1996, from the belongings of an elderly man, Bodegard Mitchell, fatally shot by police during a standoff at a South Seattle apartment.

Much of the case rests on the testimony of Davis' ex-partner, Cloyd Steiger, who alleges he saw Davis pocket a bundle of cash - which Steiger initially believed to be about $100 - while the two were searching the apartment for evidence.

Steiger testified in the first trial, which ended Sept. 30, that Davis asked him if he had a problem with taking money, referred to it as a "squad thing" and said Cameron would be watching how Steiger responded.

According to prosecutors, Cameron failed to make sure Davis booked money into the evidence room.

It wasn't until Steiger angrily confronted Davis and Cameron the next morning, prosecutors allege, that Cameron returned to the apartment and put back $10,000.

But prosecutors argued in the first trial that Davis kept at least $1,400 and possibly up to $3,000, based on estimates of how much money Mitchell likely had in his apartment and bank records that showed Davis made no cash-machine withdrawals for about two months after the alleged theft.

Although Deputy Prosecutors Marilyn Brenneman and Patrick Sainsbury, who tried the case, wanted to charge Cameron as an accomplice to the theft - and even named him a co-conspirator in court papers - Maleng overruled them before the first trial, saying there was insufficient evidence to bring a felony charge.

Maleng said then that Cameron could have been charged with a misdemeanor, such as rendering criminal assistance, but that the two-year statute of limitations had expired.

The jurors' perspective

Jurors in the deadlocked trial said they were troubled by Cameron's absence, especially after prosecutors described him as a key player in the case.

Some of the jurors who favored acquitting Davis said they also had problems with Steiger's testimony that he didn't formally report what he had seen.

Jurors also were troubled by the testimony of several Seattle officers and a former sergeant in the department's internal-investigations section, who admitted they learned of the allegation from Steiger in 1996 and 1997 but didn't report it.

Those witnesses were not asked to give detailed explanations of their conduct during the first trial, which prompted some jurors to question whether Steiger's story was viewed as a rumor, as Savage strongly suggested throughout the trial.

What happens next

In a second trial, sources said, prosecutors likely will draw far more information from the current and former officers, in hopes of showing they believed Steiger but felt bound to remain silent for various reasons.

A second trial also is likely to include closer jury selection, sources said, with prosecutors placing more emphasis on learning what prospective jurors already know about the case and their ability to comprehend circumstantial evidence.

Seattle Times staff reporter Nancy Bartley contributed to this report.

Steve Miletich's phone: 206-464-3302. E-mail: smiletich@seattletimes.com

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Chronology of Davis case

-- March 3, 1969: Earl "Sonny" Davis Jr., is hired by Seattle Police Department. -- Feb. 1, 1984: Davis is assigned to the homicide unit, supervised by Sgt. Don Cameron. -- Sept. 30, 1996: Bodegard Mitchell, 84, fires a shot at a Seattle Housing Authority employee. When police arrive, Mitchell shoots a police officer in the arm. Officers return fire, killing Mitchell. -- Oct. 1, 1996: Davis and his partner, Cloyd Steiger, search Mitchell's apartment. Steiger later says he saw Davis pocket a wad of cash during this search. -- Oct. 2, 1996: During a follow-up visit to the apartment, Davis, accompanied by Cameron, finds $10,000 in a sewing cabinet in what prosecutors will later call a charade to cover up a theft. -- March 1999: During a break in a murder trial, Steiger mentions the incident to a deputy prosecutor. Davis and Cameron are subsequently placed on administrative leave. -- March 30: Davis retires. -- April 27: King County Prosecutor Norm Maleng files a felony theft charge against Davis but does not charge Cameron with helping cover up the theft. -- May 7: Mayor Paul Schell names a panel to examine how police handle suspected misconduct in their ranks. -- May 11: Cameron retires. -- Aug. 19: Schell's panel submits a 34-page report, calling for a new office, headed by a civilian, to oversee internal police investigations. -- Sept. 13: Davis' theft trial opens in King County Superior Court. -- Sept. 21: Schell endorses the idea of having a civilian oversee investigations, but rejects a proposal to open internal-affairs files to public scrutiny. -- Sept. 27: Jurors in Davis trial hear closing arguments and begin deliberations. -- Sept. 30: A mistrial is declared after jurors announce they cannot reach a unanimous verdict.

Copyright (c) 1999 Seattle Times Company, All Rights Reserved.

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