2nd mistrial in ex-cop's theft case

The second theft trial of former Seattle homicide detective Earl "Sonny" Davis Jr. also ended without a verdict yesterday after one juror was unwilling to conclude that Davis stole money from a crime scene.

"I think there were doubts in my mind about all the testimony that was given," said juror Erin Leary, whose unwavering position forced King County Superior Court Judge Anthony Wartnik to declare a mistrial.

The 11 other jurors had agreed that Davis stole money from a dead man's belongings in 1996, several other jurors said.

But because of Leary's position, they never decided whether the prosecution had proven that Davis took enough money to be found guilty of theft in the first or second degree.

Davis was accused of taking more than $10,000 from the crime scene in October 1996, then returning with his sergeant the next day to put back most of the money.

The prosecution alleged that by keeping $10,000 overnight, Davis was guilty of first-degree theft, which requires that at least $1,500 be stolen.

But prosecutors argued that, at the least, Davis stole more than $250, the threshold for second-degree theft.

Although jurors didn't decide that issue, most of the six-man, six-woman panel would have favored a conviction if the deliberations had gotten that far, jurors said.

"We couldn't sway one person," said the jury foreman, Jack Nason, who wouldn't identify Leary by name because of an agreement among the jurors.

The deliberations, which began Monday, were halted after about 11 hours when jurors delivered a note to Wartnik saying they were unable to reach a verdict.

King County Prosecutor Norm Maleng must now decide whether to try Davis a third time over a matter that rocked the Seattle Police Department, leading to sweeping reforms that included the creation of civilian-led office to oversee police internal affairs.

Davis' first trial last year ended with jurors deadlocked 7-to-5 in favor of acquittal, an outcome that prompted the prosecutor in the case, Marilyn Brenneman, to present a shorter case in the second trial, with a greater emphasis on certain pieces of evidence.

Brenneman particularly cited to jurors the importance of believing Davis' former partner, homicide Detective Cloyd Steiger, who testified that he saw Davis pocket a wad of cash while the two were searching the South Seattle apartment of an elderly man who had been shot by police during a standoff.

A guilty verdict, Brenneman argued, would send the message to the Police Department and the community that honesty will be rewarded over loyalty to the department.

Testimony in the case showed other Seattle detectives failed to tell superiors that they were aware of the theft allegation, and Steiger came forward only by casually mentioning the matter to a prosecutor 2 1/2 years later.

Nason, the jury foreman, said he was particularly swayed by testimony showing that Steiger told a colleague about the alleged theft hours before Davis said he first found the money during the return visit to the crime scene.

Steiger would have to be clairvoyant to guess that Davis was going to find money, Nason said.

Juror Paul Wierenga, 34, of Seattle, said he believed Steiger because various pieces of circumstantial evidence supported his claim, including bank records that showed Davis broke his regular habit of making cash-machine withdrawals for about two months after the alleged theft.

Referring to Leary, Wierenga said "the particular person who held out couldn't find definite, smoking-gun evidence."

Leary, who acknowledged her role in an interview last night, said she couldn't find enough evidence to overcome the presumption of innocence afforded a defendant.

"I couldn't get to where the others were," she said, emphasizing that she was "absolutely comfortable" with her position.

"I wouldn't have done it if I didn't feel comfortable, if nothing else for the courage of my convictions," said Leary, 41, of Kirkland.

Leary said she was never badgered or pressured by other jurors.

Leary said at one point during yesterday's deliberations she speculated that Steiger might have stolen the money to frame Davis.

But the main issue was "holes in the prosecution" that created a reasonable doubt in her mind, she said.

"It comes down to one person's word against another," she said.

Maleng will announce his decision whether to re-try within a few days, said his spokesman, Dan Donohoe, who noted that it is rare for the office to prosecute someone three times.

It has only been done once in the last 10 years, Donohoe said, and that case involved the death of a child whose parents were ultimately convicted.

Nason said he would like to see Davis tried again, but other jurors said the matter should be ended because of the difficulty of winning a conviction.

A source close to the prosecutor's office said Maleng is likely to drop the case, in part to spare Steiger having to testify a third time.

Steiger said, "I'd rather have them acquit than have a hung jury. It's time to move on."

Davis, retired from the force, said he was prepared to continue his fight to clear his name. "I'm still charged with a crime I didn't commit," he said. "The expectation would be that this would go away and leave the police department alone. If I had brought this case to the prosecutor, they would have laughed me out of the office."