Otto Zehm’s fingerprints are not on the plastic soda bottle that police say he used to threaten an officer during the fatal March 18 struggle inside a Spokane convenience store, Spokane County Prosecutor Steve Tucker confirmed Tuesday.
The disclosure raises even more questions about the police version of events and has prompted Tucker to hire an outside expert to enhance the security video, which captured much of the confrontation between the 36-year-old mentally ill janitor and seven officers. That examination has delayed Tucker’s decision on whether to file charges against any of the officers by at least another month. The Spokane County medical examiner ruled that Zehm died as a result of homicide following the confrontation.
“I thought I could see (Zehm) stop at the Pepsi rack and grab something,” said Tucker, who only recently viewed the video for the first time. “I see his arms come up but I can’t tell if he has anything in his arms or not because of the shelf. I can’t tell if it’s aggressive or not.”
Police consider the bottle key to the case, saying in numerous public statements and reports that Zehm’s aggressive use of the bottle helped justify Officer Karl Thompson’s decision to pre-emptively strike Zehm with a baton.
Thompson and several witnesses told investigators that they saw Zehm with the bottle in his hands, Tucker said. But the partially obscured surveillance video does not show that Zehm ever had the bottle in his hands while he retreated from the baton-wielding Thompson.
Breean Beggs, of the Center for Justice, which is representing Zehm’s mother, said he welcomed the new review of the video if it provides more answers about the confrontation.
“When we look at the video, it does not support Officer Thompson’s version of events,” Beggs said. “And … even under his version of events, it did not justify it.”
On Tuesday, Tucker received the written report detailing the fingerprint evidence from the soda bottle that was collected as evidence from the Zip Trip convenience store at 1712 N. Division. Tucker, who walked through that store on Monday, acknowledged that police investigators hadn’t tested the bottle for fingerprints until they were asked by Zehm’s attorneys.
“That was the last part of the investigation,” Tucker said of the fingerprint evidence. There were “no fingerprints from Zehm or anybody. There were no prints on it at all.”
Tucker said the bottle was smooth, which should have made it a good surface to collect fingerprints. But he would not speculate what that evidence, or lack of evidence, suggests for his overall decision on whether to charge officers with a crime.
Beggs said he was surprised investigators had to be prompted to test the bottle for fingerprints.
“What we were eager for was two things. One, for the public to know as much information as possible about what really happened. And secondly, to stop some of the statements coming out of the police that did not seem to be supported by the more objective evidence,” Beggs said.
In his March 22 interview, Thompson described in detail to Detective Terry Ferguson how Zehm was standing, acting and how he held the bottle in the seconds prior to the confrontation.
Zehm “picked up an object and it was held in a manner that I realized was in a position that he could use it as a significant weapon against me,” Thompson told Ferguson in the taped interview.
Thompson explained the soda bottle gave Zehm a “huge tactical advantage. Realizing that, I decided to strike his leg with my baton to pre-empt what I believed was about to happen.”
But, Zehm wouldn’t drop the bottle, Thompson said. “He is holding the bottle even though the bottle is in one hand at this point. Um, he’s holding it by the neck which still allows enough of a grip that he could swing that with a lot of force and, uh, hit me.”
Tucker acknowledged discrepancies between what the video shows and what Thompson described. That prompted him to hire Grant Fredericks, who is a forensic video expert. Deputy Prosecutor Jack Driscoll attended a seminar by Fredericks in June where the former police officer from Vancouver, B.C., described how digital videos can be misleading, Tucker said.
Tucker said Fredericks has reviewed a thousand cases with video evidence. In one of them, Fredericks helped exonerate a mother who was convicted of assaulting her infant. The only evidence prosecutors had in the case was a digital video that purported to show the woman shaking the baby, Tucker said.
Fredericks, who did not return a call Tuesday seeking comment, said at the seminar that digital video often leaves gaps in the action. In the case of the mother, Fredericks was able to enhance those gaps to show the mother was in fact reaching to provide care to the infant, Tucker said.
“He just said there are a lot of inconsistencies in digital video,” said Tucker, who expects Fredericks’ review to cost about $5,000. “I’m trying to get the real picture about what the video is all about. I want to have as much information as possible before deciding.”
Ferguson, who was the lead detective in the Zehm case, recommended in her May 31 analysis that Tucker not charge Thompson or any of the other officers with a crime.
Tucker said he noticed that Ferguson’s seven-page report of the evidence did not mention the oxygen non-rebreather mask that an officer placed over Zehm’s mouth and nose about three minutes before he stopped breathing.
“Yeah I questioned it. There is nothing in here about it,” Tucker said in reference to Ferguson’s summary. “She seemed to summarize everything else.”
Beggs said he wasn’t surprised that Ferguson did not mention the mask, which she had a forensic specialist retrieve after it had been discarded in a trash bin for bio-hazardous material.
“The tenor of her report was that the Police Department didn’t bear any responsibility for Otto’s death,” Beggs said. “Failing to mention the mask was consistent with that.”
Tucker has resisted calls to ask a prosecutor from another jurisdiction to handle the Zehm case.
“I said, ‘No. I can do it,’ ” said Tucker, who did not name who made the inquiry. “It just looks weak to say, ‘Wow this is a tough one. I should give this to someone else.’ It’s my job to make the decision.”