June 1, 2006 in City

Zehm files under gag order

Thomas Clouse Staff writer
 
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Hours before Acting Police Chief Jim Nicks held a press conference Tuesday to defend his officers by talking about portions of the investigation into the death of Otto Zehm, a city attorney crafted a court order that prevented the dead man’s family from doing the same thing.

Assistant City Attorney Rocky Treppiedi filed what’s called an “agreed protective order” Tuesday that provides all investigative files, tapes, 911 calls “and other evidence gathered” to be turned over to the family of the 36-year-old mentally ill man and their attorneys at the Center for Justice.

However, that document specifically orders both the city and the family to keep all that information confidential unless both parties agree it should be released. If not, either the city or the family attorneys can be held in contempt of court.

Terri Sloyer, the attorney for the Center for Justice who signed the order, said the city did not tell her about Tuesday’s 4 p.m. press conference. But she would not comment on whether she believes Nicks violated the court-imposed agreement.

“Read the order,” she said. “Judges rule in many ways, but the people can make a determination for themselves. Realize our first duty is always to our client and to the court.”

Calls to Nicks and Treppiedi were not returned Wednesday.

The order, which became public Wednesday, reads in part: “Confidential material shall hereafter be used solely by the parties for the purpose of conducting this litigation and not for any other purpose without order of the Court or written consent of the parties or their counsel.”

Sloyer said she made a public records request to obtain the department’s investigative files into Zehm’s death. She was denied because the case was under investigation. But she found another state law that allows the city to release the files with conditions.

“That was the only way we could get the information,” she said. “They said they would give us those records so long as we enter into the protective order. It keeps everything confidential under penalty of contempt of court.”

On Tuesday, Nicks used excerpts from Zehm’s autopsy, and he described witness and officer statements about how Zehm reacted on March 18 inside the Zip Trip on North Division.

Spokane police Officers Karl Thompson and Steven Braun Jr. were the first of seven officers who arrived at the store to respond to a call from a woman near a cash machine. But police have been vague as to what crime she was reporting.

Department spokesman Cpl. Tom Lee initially said Zehm “lunged” and “attacked” the officers who were responding to a call about a man behaving suspiciously near a cash machine. Nicks later described the initial call as an attempted or actual robbery.

On Tuesday, Nicks said Zehm “turned” on the officer with a 2-liter bottle of soda.

Braun and Thompson used their Tasers, and Thompson also used a police baton in efforts to restrain Zehm, police said.

“In reviewing the investigative reports, it is clear that the officers’ intent was to detain Zehm for a reported theft or attempted theft at an ATM, and who at times was behaving in a bizarre manner,” Nicks read from a prepared statement. “The techniques applied by the officers appear to have been within policy and training.”

Asked to comment about what she saw in those same investigative reports, Sloyer said: “We will not be commenting because of the protective order. We intend to honor the order.”

A security camera recorded some of the encounter between Zehm and the officers, but Spokane County Prosecutor Steve Tucker said he considers that tape evidence and has refused to release it. While Nicks has said the department was willing to release the video, it appears Treppiedi’s court order would now put the police officials in danger of court sanctions if they did so.

Zehm died two days after his encounter with police. Spokane County Medical Examiner Sally Aiken ruled the manner of Zehm’s death was homicide. She listed the cause of death as “hypoxic encephalopathy due to cardio pulmonary arrest while restrained in a prone position for excited delirium.”

That basically means that Zehm died from a lack of oxygen to the brain due to heart failure while being restrained on his stomach. Toxicology tests found no illegal or prescribed drugs in his system.

During the encounter, officers finally were able to control Zehm by “hobbling” his wrists to his ankles and laying him on his stomach, which makes it difficult to breathe, Nicks said. But the officers quickly turned Zehm on his side.

“He was pretty much on his side the majority of the time once he was restrained,” Nicks said.

While the “restraints were considered to be a factor” in Zehm’s death, Nicks refused to turn over the entire autopsy report. Aiken also refused to release her findings, other than what was listed on the death certificate.

“It’s not public record by state law,” Aiken said. “It’s not releasable to anybody but some parties, including family members, law enforcement, et cetera. So, no, I cannot release it under any circumstances.”

Sloyer said the family has obtained a copy of the autopsy report from Aiken.

While it does not fall under the court order to keep it secret, Sloyer said the family had no comment until Zehm’s mother has a chance to sit down with Aiken and get an “understanding about what all this medical lingo means.”

“It’s very personal to her,” Sloyer said of Ann Zehm. “That gets forgotten in the storm. This is a mother who lost her son.”

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