After weeks of bickering and name-calling between attorneys, a Thurston County judge ruled Wednesday that Olympia Police Officer Ryan Donald must submit to interviews by defense attorneys.
However, the scope of the questioning must be limited when it comes to the topic of racism, Judge Gary Tabor said. The problem with that line of questioning, he said, is that it’s subjective. He ordered that questions posed to Donald must be anchored in fact.
“There needs to be a fact basis before a question is asked, not a fishing expedition,” Tabor said.
“What’s racist behavior? That’s a great debate,” he added.
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Tabor’s ruling comes after a string of emails between Donald’s attorney, Saxon Rodgers, and defense attorney George Trejo, who represents Bryson Chaplin.
In the emails, Rodgers refers to the two defendants in the case as thugs. Trejo responds by calling Donald racist and Rodgers a racist thug, according to court documents.
Chaplin, 22, and his brother, Andre Thompson, 24, each face two counts of second-degree assault. They are accused of attacking Donald with skateboards in May 2015 when he was apprehending them. Donald shot both men during the altercation.
Following an investigation, the Thurston County Prosecutor’s Office declined to file charges against Donald, and an Olympia Police Department internal review determined that Donald did not violate department policy.
Charges were filed against Thompson and Chaplin last September, but their trial has been delayed several times. The trial is now scheduled to begin Oct. 3.
About 40 people packed into a small courtroom for Wednesday’s hearing. The room was so full that Tabor asked the audience to scoot together on the courtroom benches to make room for people standing in the back and aisle.
The hearing was prompted by a motion filed by Trejo on June 30 saying that Donald had refused to submit to an interview, and his refusal infringed on Chaplin’s right to counsel. He also argued that Rodgers shouldn’t be present during the interview, as Donald didn’t have a right to counsel, and that he had a right to ask about Donald’s “past racist behaviors.”
Trejo said during the hearing that he specifically wanted to ask about a $1 million tort claim filed by Tyrone Johnson against six Olympia police officers — including Donald — last June. The claim alleges that the officers drew their weapons and placed handcuffs on Johnson while he was at work late in May 2014. Johnson has not filed a lawsuit against the officers or the Olympia Police Department in Thurston County Superior Court or in U.S. District Court.
A string of emails between Trejo, Rodgers and attorney Sunni Ko, who represents Thompson, was filed with the motion. The attorneys argued about how much time Donald should spend in interviews with defense attorneys.
The argument escalated on June 13 when Rodgers sent the following email to Trejo:
“This whole situation is no more than two thugs, both of which have past criminal convictions, viciously attacking the officer on two separate occasions. If the two suspects had simply stopped and responded to Ryan regarding their thefts at Safeway earlier, they probably would have been issued a citation to appear in court, and none of this would have happened. Instead they chose to attack the officer, and will no doubt suffer the consequences of their criminal acts.”
“You are nothing but a racist thug yourself by enabling your client. Quite foolish on your part. … I am entitled to interview your racist client.”
“When I referred to your client and his brother as thugs, I was accurately describing their pre-incident and incident criminal behavior. I don’t know any positive adjective for people who commit crimes and have no respect for criminal laws and police officers. My description was accurate. Your claims of racism against me and officer Donald are false, malicious, and quite offensive. My statement was accurate and truthful. … I know how you operate and I don’t care whether or not you apologize to me. Ryan Donald feels different. He wants an apology.”
On June 24, Ko stepped in. She wrote:
“It would be much appreciated if we can all get past the name calling and represent our clients in the best way possible, understanding that we all feel passionate about issues involving race. … I know that Mr. Trejo will not apologize and Mr. Rodgers will not apologize. Understanding that, I would like to finish our interview of officer Donald on the 29th, if at all possible, so that we can move on to the bigger issue of trying this case.”
Deputy prosecutors Wayne Graham and Scott Jackson, who are prosecuting the case together, stayed out of the email thread. But on July 18, Graham filed a brief outlining the conversation and Donald’s refusal to be interviewed. He argued that Donald had a right to have Rodgers present during any interview, given that he is the alleged victim of a violent crime.
At Wednesday’s court hearing, Rodgers said that Donald will not consent to an interview with Trejo without a written apology, or unless he is compelled by the court. Tabor ruled that if Donald doesn’t consent to an interview, he will order that Donald be deposed.
However, Ko and Trejo may spend only five more hours interviewing Donald. The attorneys already have conducted about three hours of interviews, with questioning led by Ko.
Tabor also ruled that Donald is an “alleged victim” in the case — given that a judge already has found probable cause for the assault charges — and not a witness as Trejo argued. Donald therefore has a right to counsel during the interviews.
An additional interview will likely be conducted on July 29, Rodgers said.
Tabor prohibited Trejo from questioning Donald about the tort claim filed against the six officers, and said that case could be litigated on its own.