A Clark County judge on Tuesday denied a motion to dismiss a first-degree murder charge against Matthew E. Starr after detectives placed an informant in Starr's jail cell for two days in November.
Starr, 20, of Vancouver is accused of robbing and killing his roommate, Joshua R. Schenk, in what he claimed was a mercy killing, in February 2012 near Vancouver Lake.
Superior Court Judge Rich Melnick, in his written decision, found that the state engaged in misconduct by placing informant Dion Ward in Starr's cell from Nov. 18-20. However, the misconduct did not jeopardize Starr's right to a fair trial, Melnick concluded.
"Firstly, no evidence was obtained from the defendant while Mr. Ward was the defendant's cellmate …," Melnick wrote. "Secondly, had there been some information gained, the appropriate remedy would be suppression (of evidence)."
Starr's attorney, John Henry Browne, claimed that the murder charge should be dismissed because Vancouver police detectives violated Starr's constitutional rights to have counsel during questioning and to remain silent when they placed Ward in Starr's cell.
Browne said that Ward informed detectives that Zachary Searcy was the driver of the vehicle used to transport Starr, his friend, Zachary Mattson, and the victim to Vancouver's Lower River Road, where Schenk was killed.
But evidence shows that investigators already knew about Searcy by mid-March from Starr's friend, Patrick Forbes, Melnick wrote.
Ward had contacted Starr in jail on his own accord sometime in or after June 2012 because the men had both had the same attorney. During their conversations, Ward said he learned information about Schenk's killing.
Starr told Ward about Searcy on or before September, which was before the detectives placed Ward in Starr's cell and before Ward had established an "agency relationship" with detectives.
At that time, "… Ward was acting on his own, solely for his benefit," Melnick wrote.
Ward had hoped that helping the prosecution would win him a reduction or dismissal of a charge against him of violating a no-contact order, according to previous testimony.
When Senior Deputy Prosecutor Kasey Vu learned that Ward had been placed in Starr's cell, he immediately had them separated.
"Shortly after being removed from the cell, the police officers told Mr. Ward that they were not going to be using him in the investigation," Melnick wrote. "They did not debrief him. They did not gain any evidence from him."
Starr is accused of shooting Schenk twice after the four men went target shooting near Vancouver Lake. Starr said Schenk was first shot accidentally when one of the other men slipped. He said he then shot Schenk in the back of the head to put him out of his misery, according to a probable cause affidavit.
After Schenk died, Mattson allegedly helped Starr drag the body to a resting place about 4 or 5 feet away and cover it with a plastic tarp, court documents say.
Melnick said in a letter to the attorneys that he has not yet decided whether Vu will be allowed to resume as the prosecutor on the case. Vu was temporarily suspended from handling the case because he was a witness in the motion-to-dismiss hearing. Deputy Prosecutor Anna Klein and Chief Criminal Deputy Prosecutor Scott Jackson have been handling the case since then.
Starr's trial is scheduled for Dec. 2.