Posts tagged: 9th u.s. circuit court of appeals
A jury likely will not learn that Otto Zehm was innocent of a crime when he was confronted by a Spokane police officer in a fatal encounter five years ago, federal appeals court judges ruled Thursday.
The 9th U.S. Circuit Court of Appeals supported a decision by U.S. District Court Judge Fred Van Sickle to exclude from the trial of Officer Karl F. Thompson Jr. the evidence that Zehm had not committed a crime prior to the incident on March 18, 2006.
Carl Oreskovich, one of the attorneys defending Thompson against the felony charges of excessive force and lying to investigators, said he was “obviously” pleased with the decision.
SEATTLE — A jury should be told Otto Zehm hadn’t committed any crime before he was beaten by a Spokane police officer who claims Zehm was aggressive and defiant when confronted in a North Side convenience store, a federal appeals court panel was told Monday.
Federal prosecutors have appealed a pretrial ruling by U.S. District Judge Fred Van Sickle in Spokane that excludes evidence of Zehm’s innocence as prejudicial and inflammatory. They told a three-judge panel from the 9th U.S. Circuit Court of Appeals it would help the jury decide whether Thompson was lying when he later described Zehm with words like sinister, aggressive, defiant and resolute.
But an attorney for Officer Karl Thompson said the trial judge is right to keep such information from a jury when the trial starts, because Thompson didn’t know those facts when he approached Zehm. It’s inflammatory and could prejudice the jury against the officer, attorney Carl Oreskovich said.
The criminal trial of Spokane police Officer Karl F. Thompson Jr. has been delayed again.
U.S. District Judge Fred Van Sickle agreed to a request by defense attorney Carl Oreskovich to change the date of the trial despite objections from a federal prosecutor.
The trial, stemming from the 2006 confrontation between Thompson and Otto Zehm that resulted in Zehm’s death, has been moved to Oct. 11 from March 7.
The trial was put on hold last summer after prosecutors asked the Ninth U.S. Circuit Court of Appeals to overturn a ruling by Van Sickle that prevented them from presenting evidence that Zehm had not committed a crime on March 18, 2006, when he was confronted by Thompson in a Spokane convenience store.
Thompson struck Zehm with a police baton and shocked him with a Taser during the confrontation, which included six other officers.
Attorneys for both sides will travel to Seattle on Feb. 7 to present oral arguments to a panel of appellate judges.
An attorney representing Spokane police Officer Karl F. Thompson Jr. is asking a federal judge to postpone the March 7 trial while an appeals court considers questions over the admissibility of certain information about the fatal encounter with Otto Zehm .
Carl Oreskovich (right) wrote in the request that court officials say it generally takes the 9th U.S. Circuit Court of Appeals three months to a year to issue its written decisions. Oreskovich and Assistant U.S. Attorney Tim Durkin have submitted lengthy written arguments and are scheduled to appear in Seattle on Feb. 7 to present oral arguments to a 9th Circuit panel on the pre-trial admissibility dispute.
“While there is no way to predict a timetable as to when the Ninth Circuit will issue its written opinion, it is highly unlikely that a decision will be available prior to the March 7, 2011 trial date,” Oreskovich wrote.
Federal prosecutors are asking appellate judges to overturn a decision by U.S. District Judge Fred Van Sickle to bar evidence showing that Zehm, a 36-year-old mentally ill janitor (pictured left), had not committed a crime on March 18, 2006, when he was beaten and shocked with a Taser by Thompson.
Oreskovich said the trial may include up to 100 witnesses.
“Many of these witnesses will need to be interviewed again prior to the time of trial,” Oreskovich wrote. “This process will take an enormous amount of time and resources, all of which will be wasted again if the trial date is not moved.”
Federal prosecutors have not yet filed a response.
A Spokane sex offender with a long list of lawsuits against various entities recently lost an appeal to one of the country’s highest courts.
Robert M. Waggy argued to the U.S. 9th Circuit Court of Appeals that his arrest in 2004 on a bench warrant was unlawful.
Waggy was arrested on April 19, 2004, after reports that he’d threatened to kill a Department of Social and Health Services caseworker and planned to “conduct a shooting rampage at a local elementary school,” according to court documents. He posted bail but was rearrested the next day on a bench warrant after authorities ruled he’d violated the terms of his supervision child rape and molestation charges.
Waggy appealed the U.S. District Court’s rejection of his lawsuit over the bench warrant arrest to the 9th U.S. Circuit Court of Appeals, alleging Deputy Prosecutor Kelly Fitzgerald acted outside her role as a judicial advocate when she obtained the bench warrant.
Waggy also claimed Spokane County had an “unconstitutional policy” and didn’t properly train or supervise prosecutors on bench warrants.
The 9th Circuit rejected Waggy’s appeal in an 11-page opinion issued Feb. 5, ruling that a prosecutor applying the law to get a bench warrant isn’t acting an investigator as Waggy claimed, but is a judicial advocate.
Waggy also claimed that Spokane County had a unconstitutional policy, but “he failed to allege any facts supporting this claim,” according to the ruling. “He points us to no express county policy or custom, and he provides no evidence showing even an inference that such a procedure exists.”
Waggy also claimed Spokane County failed to supervise and train prosecutors on bench warrants.
But Waggy failed “to provide any facts” about what policies allegedly violate the constitution, according to the ruling.
Reached by phone today, Waggy said he hadn’t heard of the ruling and declined comment.
While the 9th Circuit rejected Waggy’s claims in a slam-dunk, hands-down ruling, news archives could lead you to believe he knows his way around the court system.
In May 2007, Waggy filed a $250 billion lawsuit against the state, alleging officials repeatedly refused to allow him contact with his daughter.
Waggy has filed a multibillion-dollar lawsuit against Cowles Publishing Co., saying a Spokesman-Review news item about the state lawsuit was libelous.
He has also filed recent lawsuits against RentalDirectory.com, U.S.. Bank, Spokane Mental Health, the state Department of Corrections and Spokane County, according to court records.
For all that grief that 9th Circuit appeals judges take from those who consider them too liberal, here’s a ruling, issued this morning, that might come as a surprise: 22 years too lenient for al Qaida-trained bomber captured in Washington state with a vehicle full of explosives while on his way to blow up LAX. Here’s the initial AP brief from the speed wire:
SAN FRANCISCO (AP) — A federal appeals court says the 22-year prison sentence is too lenient for al-Qaida-trained terrorist convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals tossed out the sentence Tuesday. It also removed the Seattle trial judge from the case and assigned the re-sentencing of Ahmed Ressam to another federal judge.
Border agents in Washington state arrested Ressam in December 1999 after he entered the United States from Canada on a ferry with a car packed with explosives.
A judge cited Ressam’s cooperation with investigators in meting out the original sentence. But since Ressam recanted his cooperation after two years, the appeals court says he deserves a longer sentence.