None of the seven Spokane police officers involved in the March 18 fatal confrontation with mentally-ill janitor Otto Zehm will be charged unless Spokane County Prosecutor Steve Tucker gets new evidence from federal investigators.
Tucker will hold a 2 p.m. news conference today to announce that he won’t be filing charges against the officers, following a review of work by a forensic video expert paid by Spokane police to enhance the digital video that captured much of the action between the officers and Zehm inside the Zip Trip, at 1712 N. Division St.
However, Tucker said he is keeping his investigation open to give detectives from the Federal Bureau of Investigation more time to finish their probe in case they find more evidence that could change his mind.
“They are out a ways from giving a final conclusion,” Tucker said of federal investigators. “I’m going to have to wait until their investigation is complete or I’m going to look pretty stupid.”
Breean Beggs, one of the attorneys at the Center for Justice that is representing Zehm’s mother, had mixed feelings about Tucker’s announcement.
Earlier Tuesday, Tucker spent hours with the Zehm family’s attorneys and explained the latest in a string of delays in deciding the case. Beggs said the attorneys from the Center for Justice, a public-interest law firm in Spokane, also met with officials from the FBI and U.S. attorney’s office.
“They are conducting an independent analysis of the (surveillance) video at the FBI laboratories,” Beggs said. “The attorneys for the Zehm family are pleased because that is what we have been asking for from day one, which is that type of investigation.”
The controversy began on March 18 when two young women erroneously reported to police that Zehm had stolen their money out of an ATM near Ruby Street and Indiana Avenue, according to police reports.
Officer Karl Thompson was the first to respond and located the 36-year-old Zehm inside the Zip Trip. Surveillance video of the incident shows that Thompson immediately engaged Zehm, who retreated down an aisle.
Thompson began striking Zehm with his police baton and shocked him with his Taser as Zehm held a 2-liter soda bottle in front of his face. The struggle continued and eventually included six more officers who arrived to help Thompson restrain Zehm.
He stopped breathing about three minutes after one of the officers obtained an oxygen non-rebreather mask from a paramedic and placed it on Zehm’s face. The mask was never attached to an oxygen tank for which it was designed, according to police reports.
At the time, Zehm was lying on his stomach while officers kept his ankles and wrists bound with nylon straps.
After Zehm stopped breathing, paramedics rushed him to Deaconess Medical Center, where he never regained consciousness and died on March 20.
On May 30, Medical Examiner Sally Aiken ruled that Zehm died as a result of homicide. She listed the official 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 lack of oxygen to the brain due to heart failure while being restrained on his stomach.
Last month, Aiken issued Tucker her opinion that the mask did not contribute to Zehm’s death. But Beggs disputed those findings, saying that when Aiken asked experts at Michigan State University to test the effects of the mask, she specifically instructed them to avoid creating the same conditions that Zehm faced that night.
Instead, the expert tested the airflow of the mask on people who exercised on a treadmill, Beggs said.
Spokane Fire Department officials also announced last week the results of an internal investigation.
As a result, the department will no longer issue the non-rebreather masks, which have a breathing hole the size of a dime, to police officers in cases where suspects are spitting.
Previously, fire officials had no official policy regarding use of the masks. But the plastic masks were occasionally used by paramedics to prevent uncooperative patients from spitting on responders, according to Fire Department records.
Under a new “mask utilization policy,” Fire Department paramedics will issue gauze masks if they are needed to prevent spitting by “violent patients.”
Tucker, who last week watched the enhanced video on his big-screen television at his home, said he just didn’t have the necessary evidence.
“I don’t have enough to charge criminally and try to prove it beyond a reasonable doubt. But (federal investigators) may well find something,” he said. “It’s sort of put me on hold, unfortunately.”
Federal officials met with Tucker on Monday because they knew he was about to make a decision, he said.
“They indicated that maybe I should wait until they finish,” Tucker said. “I thought I was pretty ready. But when I found out there is more information out there, I would be foolish to make it now.”
Tucker faces Democrat Bob Caruso in the Nov. 7 general election.
“I shouldn’t let that control me making a decision,” Tucker said. “I know what my opponent is going to say. I can almost hear it.”
Caruso has repeatedly attacked Tucker for what he calls slow or incorrect decisions on several high-profile cases involving Spokane area law enforcement.
“He’s already made the claim that he’s too close with law enforcement,” Caruso said of Tucker, who is a former Washington State Patrol trooper. “He’s made a decision not to make a decision, which is a non-decision. He’s not going to do anything.”
Caruso said if he is elected he will take the Zehm case to a grand jury.
“If we get an indictment we will have a prosecution,” Caruso said. “I’m disappointed. These issues are not going to go away, and I’m not going away.”