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Originally published Wednesday, November 30, 2011 at 9:26 PM

Holmes has regrets in police-assault case

Acknowledging what he called "lessons learned," Seattle City Attorney Pete Holmes said Wednesday that his office was forced to dismiss an assault charge against a Seattle police officer after the key prosecution witness turned "a 180" after a private meeting with the officer's attorneys.

Seattle Times staff reporters

Raw Video | Surveillance video of Seattle PD officer kicking suspect

Expert's report on Officer James J. Lee case

Expert's revised report on Lee case

quotes Pete Holmes: You got played. Get a new "Expert"! Read more
quotes Bragg, Buck, Offenbecher, Holmes... plenty of legal firepower to ensure Lee got off... Read more
quotes Why do I feel like I need to take a shower after reading this article? Read more

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Acknowledging what he called "lessons learned," Seattle City Attorney Pete Holmes said Wednesday that his office was forced to dismiss an assault charge against a Seattle police officer after the key prosecution witness turned "a 180" after a private meeting with the officer's attorneys.

"I would do things differently if I had this case all over again," Holmes said, insisting he was ultimately left with no choice but to drop the charge when the prosecution's witness suddenly changed his mind about the officer's conduct.

The witness, an expert on police training, changed his opinion after two attorneys for Officer James J. Lee showed him new evidence with no city prosecutor in the room.

The charge against Lee, who repeatedly kicked a teenage suspect in a convenience store last year, was officially dismissed in court Wednesday, a week after Holmes' office first announced the case had fallen apart.

But Holmes said he has not ruled out refiling the charge if new evidence is uncovered. He also noted that federal prosecutors could examine the case.

Documents disclosed Wednesday raised new questions about what led to the dismissal, including the role played by Ted Buck, the attorney hired by the city to defend Lee in a civil suit brought by the teen. Buck was present at the meeting, along with Lee's criminal-defense attorney, that led the witness to change his mind.

Buck has a long record of defending police officers, including Ian Birk, who resigned after his fatal shooting of woodcarver John T. Williams last year was ruled unjustified.

The prosecution's key witness, Robert Bragg, of the Washington Criminal Justice Training Commission, originally concluded in a March 2 report that the last of three kicks used by Lee to take down the suspect was unwarranted.

But Bragg noted he had reached his opinion without reading Lee's use-of-force statement written shortly after the Oct. 18, 2010, incident inside a downtown convenience store. Lee had chased the teen, then 17, into the store after an undercover buy-bust drug operation erupted in chaos.

The statement was not provided to Bragg as part of a State Patrol investigation because Lee had been compelled to provide it under the so-called "Garrity" rule. The rule, named after a U.S. Supreme Court decision, bars prosecutors from using statements that might force an officer to make incriminating statements normally protected by the Fifth Amendment.

Bragg, in his report, called the lack of information "unprecedented in my experience as an expert witness," adding that his inability to judge Lee's perceptions "hinders my ability to reach a thorough conclusion regarding reasonable force application."

Bragg determined Lee's first two kicks were an acceptable to way to gain control of the suspect, but the final kick delivered to the head wasn't "reasonable and necessary."

City prosecutors charged Lee in April with fourth-degree assault, a gross misdemeanor punishable by up to a year in jail.

The teen, D'Vontaveous Hoston, had his hands in the air as Lee approached him, surveillance video showed. Bragg wrote that he presumed Hoston was not following Lee's commands to place his hands behind his back.

Hoston, who was later acquitted of an attempted robbery charge, filed a federal lawsuit against Lee and the Police Department in April.

After prosecutors charged Lee, city attorneys faced the problem of pursuing the criminal case and defending the lawsuit, Holmes said Wednesday.

At that point, in consultation with an outside ethics expert, the city decided to create a wall between the criminal case and the civil action, Holmes said.

Additionally, the city hired Buck as outside counsel to represent Lee in the civil suit to avoid the appearance of a conflict of interest, Holmes said.

While awaiting trial, Lee's defense attorney, Peter Offenbecher, offered to let Bragg see Lee's use-of-force report, along with a frame-by-frame viewing of the video, as long as prosecutors agreed not to ask for the report, Holmes said.

On Nov. 8, Bragg met privately with Offenbecher and Buck, according to the documents disclosed Wednesday under a public-disclosure request by The Seattle Times.

No prosecutor was present because of the terms of the meeting, Holmes said.

"This was done to supply our expert witness with all the information available in rendering his opinion, and to thoroughly prepare the case for trial," Holmes' office said in a prepared statement Wednesday.

Holmes defended the decision to keep prosecutors from attending the meeting, saying he didn't want to risk tainting the case if it had gone forward to trial.

Bragg, after the meeting, decided to "turn a 180," Holmes said, noting that he was "completely unimpressed" with Bragg.

In a Nov. 21 report, Bragg wrote of the third kick: "I believe that the kick in fact contacted and glanced off of Hoston's shoulder prior to possibly contacting his head."

Bragg wrote that he now believed Lee's use of force was acceptable and fell within training parameters, although the third kick was "not the best tactic available."

Efforts to reach Bragg, whose office voice mail says he is away until next week, were unsuccessful.

The alternative of finding a different expert would lead to a "battle of the experts," with the defense able to call Bragg as a witness, Holmes said.

Offenbecher declined to comment Wednesday night, except to say Holmes "did the right thing" in dropping the case.

Buck, reached Wednesday night, said he was in the room with Bragg as Lee's attorney in the civil case.

Buck said he was there at Offenbecher's invitation to view the video and gauge Bragg's reaction to it.

Buck said he knew that the video could be relevant to his defense in the civil case and that Bragg could even be a witness. But Buck said he played no role in Bragg's turnabout, although he conceded it didn't hurt his defense.

"Offenbecher's interest is to get (Lee) out of the criminal case, and I certainly would have no reason to want that prosecution to go forward," Buck said. "I have a contrary obligation in the civil case than (Holmes') office does in the criminal case. But that does not mean there is a conflict."

Buck insisted there was no undue influence placed on Bragg by his presence.

"I've known Bob Bragg for years," Buck said. "I'm not persuasive enough to chase him off what he believes is the truth."

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

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