Brian Eggleston's third trial for killing Pierce County Sheriff's Deputy John Bananola seven years ago got under way last Friday when Superior Court Judge Stephanie Arend began hearing pre-trial motions.
Courtroom observers there were four or five got an inkling of how things were going to go when the judge began by formalizing the procedures that will be followed in seating a jury. (This was a bit ominous for Eggleston, because several of the defense's motions are, as the lawyers say, dispositive of the matter.) So, it looks like Brian Eggleston will be going to trial again, despite his contention that the case should be dismissed for a variety of reasons, including prosecutorial misconduct and police perjury.
The high-profile case isn't exactly back to square one, though. During his first two trials, Eggleston was charged with aggravated murder and faced the death penalty. The first jury couldn't reach a verdict on the aggravated murder charge, and jury number two found him guilty only of a lesser included offense - murder in the second degree. The Washington Court of Appeals later reversed his murder conviction, though, and the worst that could happen to Eggleston this time around is another conviction for murder-2.
The stakes may not be quite as high in Eggleston III, but the case is sure to be prosecuted and defended just as vigorously as Eggleston I and II. Reputations and careers are at stake. Everyone is playing for keeps.
Veteran prosecutors Lilah Amos and Jim Schacht were to her honor's right. (Amos and Gerry Horne prosecuted Eggleston in his first trial; Amos and Schacht prosecuted him in the second trial. Horne, of course, has since gotten a promotion.) Defense counsel, once again, are Monte Hester and Zenon Olbertz. They're no slouches, either.
Pre-trial motions. Sounds dull. In fact, though, pre-trial motions are one of the more important aspects of a criminal proceeding. Nothing less than what evidence the jury will be allowed (or not allowed) to hear is at stake, and the judge's rulings on motions determine the way a trial will unfold. Moreover, the motions themselves provide some insight into the lawyers' thinking and "strategey."
Judge Arend spent the entire day sifting through the state's motions, and by 4:00 p.m., it was clear the defense will once again be fighting an uphill battle.
Eggleston's defense team has a major problem, namely, that he was a small-time drug dealer when Sheriff's deputies raided his mother's East Tacoma home on the morning of October 16, 1995, and the deputies were there to execute a lawful search warrant. The State Court of Appeals has said so and nobody appealed.
Judge Arend ruled that the state can re-make its drug case against Eggleston which is all but guaranteed to cast him in an unsympathetic light. Despite the defense's insistence that Eggleston is not on trial for possessing or selling drugs, Judge Arend ruled that marijuana and some (but not all) of the guns found in the home can be admitted into evidence. Thus, although the jury will not be told that Eggleston admitted the drug charges (that would be prejudicial) prosecutors will once again be able to portray Eggleston as an armed drug dealer--which, of course, he was.
But the prosecution has some problems, too. After the jury in Eggleston I deadlocked, some of the state's witnesses changed their testimony ever so slightly for Eggleston II. Then the lawsuits began, tongues started wagging, and fingers were pointed.
Deputy Bananola's then-minor daughter, Brooke, sued the county for negligence and wrongful conduct in the death of her father. The case was later settled out of court for an undisclosed sum and everybody clammed up, but depositions were taken.
Eggleston's mother, Linda, sued the county for destroying her home, literally taking it apart in a "search for evidence." More depositions were taken.
A blue-ribbon panel took testimony from the participants in the raid as it investigated the incident, and Sheriff's Department policies were changed as a result of the Eggleston case. Pierce County deputies serving drug search warrants can't dress like ninja warriors or wear masks anymore, and uniformed officers must lead raid teams.
In short, there is a voluminous record in this case and prosecution witnesses are sure to be peppered with "isn't it true" questions, as in "Isn't it true that on such and such a date you said thus and so and today you are saying this and that?" It's a defense attorney's dream, and a nightmare for the prosecutors.
Which is probably why the state moved to exclude any testimony about civil actions and policy changes that came about as a result of Deputy Bananola's death. Judge Arend granted that motion, but reserved a ruling on whether witnesses will be provided with transcripts of their previous testimony during cross-examination.
Among other things the jury won't be hearing about:
Eggleston's medical condition, colitis, for which he was taking prescribed medication including Librax, which contains a tranquilizer in the same class as Valium and Xanaxon, the morning of the raid.
Any evidence tending to support Eggleston's claim that he was using marijuana to treat his colitis.
Any evidence relating to Eggleston's lack of a police record.
Any evidence suggesting that Deputy Ben Benson, who was Bananola's partner and the man who obtained the search warrant and led the fatal raid, omitted material facts and stretched the truth well past the breaking point in his representations to the issuing judge.
There's really only one issue in the Eggleston case, and it hasn't changed in seven years: did Brian Eggleston initiate a gun battle with Sheriff's deputies and knowingly execute a police officer just to protect a small quantity of marijuana and a few hundred dollars? Or was he, as the defense insists, acting in self-defense, the semi-innocent victim of a botched police raid?
Judge Arend will consider defense motions October 4, and there might be a verdict by Christmas.