Former officers to pay for acts - Detectives each fined $1,000 for damaging taillights of Hub City resident's vehicle

Two former Aberdeen police detectives were found Thursday to have intentionally damaged the property of a man who was once the prime suspect in the kidnapping and rape of a 6-year-old girl.

A six-woman, six-man jury also found that neither former detectives Steve Pionk and Dave Lunzman nor former Chief Ken Schwab caused Steven L. Tosh severe emotional distress.

Pionk and Lunzman were each ordered to pay Tosh $1,000 for drilling holes in the taillight of Tosh's car. They did it when Tosh, 48, of Aberdeen was being investigated in summer 1999 so they could better track him as he drove when it was dark out.

Schwab was dismissed from the case as it related to damaging Tosh's car. He testified that he didn't approve of or order that the holes be drilled.

Jack Hieb, the Aberdeen attorney who represented the officers, said Pionk and Lunzman were willing to pay for the taillight before Tosh filed his civil lawsuit. Lunzman testified that he drilled the holes. Pionk was along at the time.

Hieb said he would file a motion to have the amount the jury ordered Pionk and Lunzman to pay reduced to $178.09, the actual cost of the taillight.

Reasons for lawsuit: The lawsuit contended that Schwab, Pionk and Lunzman caused emotional distress to Tosh by interrogating him, making aggressive comments and monitoring him 24 hours a day for a time in late summer 1999. Tosh sought unspecified damages for the distress.

Jury members found that Schwab acted outrageously, but that he did not cause Tosh emotional distress.

Drew Johnson, the Aberdeen attorney representing Tosh, said during the trial that Schwab told Tosh in September 1999 that if he didn't like being investigated, he could always kill himself.

Pionk and Lunzman did not act outrageously or cause Tosh emotional distress, the jury ruled.

Reactions: Hieb said his clients were pleased with the verdict. The jury appreciated the fact that the officers worked hard to make sure the right person was convicted, Hieb said.

Johnson said he was not disappointed with the verdict because he respects the jury's work. He said an appeal is possible, but a decision hasn't been made.

A preliminary DNA test eliminated all but about 200 people in the Aberdeen area, including all the suspects tested except for Tosh, from the kidnapping and rape. A second, more detailed DNA test eventually eliminated Tosh.

In January 2002, Shane A. Luce of Aberdeen was convicted of the kidnapping and rape. About a month later, he was found dead in his cell at the state prison. Prison officials say Luce used his bedsheets to hang himself.

Closing arguments: During closing arguments Thursday morning, Hieb told jurors that the only way they could find that Schwab, Pionk and Lunzman inflicted extreme emotional distress on Tosh is if they were trying to get him to confess "for sport." They wanted to arrest the right person so such a crime would never be committed again, Hieb said.

Hieb said Tosh's mental health records show that he was depressed and even suicidal before the he was the prime suspect in the case. He said no evidence was provided that Tosh's condition got worse as a result of the investigation.

Wednesday, an expert police witness testified that the Aberdeen officers handled the investigation properly.

Johnson, however, disagreed. He said that the officers knew of Tosh's depression and tried to use it to force a confession from an innocent man. He told the jury they should disregard the expert witness' assertion that the investigation was proper.

Lunzman acted properly during most of the investigation, Johnson said. But, he said, comments similar to "If I did what you did, I wouldn't be able to live with myself" made by Pionk were inappropriate.

Earlier in the week, Tosh testified that he told police they were destroying his life. That was one sign of emotional distress, Johnson said.

Hieb said that when the first DNA case came back, there was probably enough evidence to convict Tosh and send him to prison. But, he said, police had doubts that he committed the crimes, so they continued the investigation. For that, Hieb said, Tosh should be thankful.

Johnson, on the other hand, said there's no way police should have treated an innocent man like Tosh as if he committed a kidnapping and rape.

Tosh sued the city of Aberdeen and the three officers in 2002 claiming his constitutional rights were violated when he was being investigated. A federal court judge ruled that Tosh's rights were not violated. The case was then scaled back and refiled in state court. When that happened, the city was dismissed from the case.