A plastic mask with a dime-size hole apparently did not cause Otto Zehm to stop breathing during his fatal March 18 confrontation with Spokane police officers, the medical examiner has ruled.
Spokane County Prosecutor Steve Tucker said he asked Medical Examiner Sally Aiken to take a second look at her previous findings to determine if the mask, which an officer placed over Zehm’s mouth and nose, contributed to his death.
Aiken recently submitted her report, and she “doesn’t believe that contributed to his death,” Tucker said. “The cause of death is unchanged.”
But a lawyer representing Zehm’s mother questioned the method Aiken used, saying the tests failed to mimic the circumstances of the confrontation or consider the psychological effects of having a mask placed on Zehm’s face while he was struggling with police.
“The report in my mind doesn’t affect the case at all because it doesn’t attempt to measure what actually happened,” said Breean Beggs of the Center for Justice, a public interest law firm in Spokane.
The controversy began on March 18 when two young women erroneously reported to police that Zehm stole their money out of an ATM machine near Ruby Street and Indiana Avenue, according to police reports.
Officer Karl Thompson was the first to respond and located the 36-year-old mentally-ill janitor inside the Zip Trip at 1712 N. Division. 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 rolling struggle continued and eventually included six more officers who arrived to help 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, 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.
Tucker said Aiken asked an expert at Michigan State University to test the effects of the mask.
It “did not restrict airflow under stress,” Tucker said. “They put one or two people on a treadmill and said the airflow was the same.”
But Beggs, who is representing Zehm’s mother, received the same report and said Aiken specifically instructed the researchers to avoid duplicating the conditions as they were on that night inside the convenience store.
“They didn’t put someone on their diaphragm with their legs held back and check to see what effect the mask would have on their ability to breathe,” Beggs said. “And it did not measure whether or not the stress of having the mask on would have contributed to the heart attack that (Aiken) says killed him.”
Asked about the conditions of the testing, Aiken said she was restricted to talking only about the cause of death, which she confirmed had not changed.
“I can’t comment on our investigation because the law in Washington state says it’s confidential,” Aiken said.
Beggs said he doesn’t know why Aiken would specifically ask the researchers not to re-create the same scenario.
“I don’t attribute any bad motive for not doing it, but to me it doesn’t provide any good data because it doesn’t duplicate the situation,” Beggs said.
Tucker said he is still waiting for a video forensic expert to finish his review of the surveillance videos. He won’t rule on any possible criminal charges until that review is complete.
“I think it will be within days of getting the video and having a chance to review it,” Tucker said. “I’m just waiting to see if it helps make up my mind.”
Asked how long that might take, Tucker added: “I hope it’s over by the general election” which is Nov. 7. “I know what the accusations will be then.”