March 1, 2009 in City

Otto Zehm case at crossroads

Federal civil suit likely; criminal charge possible
Staff writer
 
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Background and the latest updates

Special section
Previous coverage of Otto Zehm and the investigation into his death after an encounter with police.

On the eve of the third anniversary of the police-encounter death of Otto Zehm, a civil rights suit against the city of Spokane and its Police Department could be filed as early as this week in U.S. District Court.

And not far behind, sources say, a federal criminal charge could be filed against Karl F. Thompson Jr., the first police officer who encountered the unarmed Zehm on March 18, 2006, inside a north Spokane convenience store.

The officer entered the store, police baton in hand, and within 30 seconds had Tasered the mentally disabled janitor and struck him at least six times. After Zehm was restrained on the floor with labored breathing, a plastic oxygen mask was strapped to his face as an improper anti-spitting device. He soon lapsed into unconsciousness and died two days later.

Police dispatchers, based on presumptions of a teenage 911 caller, told Thompson and other patrol officers to find a possibly drug-crazed robbery suspect spotted moments earlier at a nearby bank’s ATM.

In fact, Zehm was a sometimes eccentric-acting mentally disabled janitor who had committed no crime but had stopped taking his prescription medication for behavior issues. He regularly used that bank machine to get spending money for soda and candy bars at the convenience store.

His death was ruled a homicide by the medical examiner.

After filing a $2.9 million damage claim with the city on behalf of Zehm’s estate, attorneys for the Center for Justice made it known that they were more interested in affecting change within the Police Department than getting a big cash settlement.

For months, attorneys for the center and the city have held private negotiating meetings, but have reached no agreement, with the March 18 statute of limitations deadline now looming.

The filing of the civil suit and criminal charges, if they come, may provide an answer to this three-year-old question:

Did one or more officers deviate from standard, accepted police practices and violate Zehm’s civil rights, causing his death?

Mayor Mary Verner and Police Chief Anne Kirkpatrick said last week they are convinced police did nothing wrong. They are standing, arms crossed, behind Thompson and other officers involved in the incident, even providing outside legal help at taxpayer expense.

“I’ve looked into the details surrounding this incident,” Verner said, “and I just don’t think the behavior of the officer rose to a criminal behavior.” The mayor declined to say if the Spokane Police Guild pressured her office to provide legal representation for officers involved.

Kirkpatrick said Thompson “has my unequivocal support.”

“Based on all the information and evidence I have reviewed, I have determined that Officer Karl Thompson acted consistent with the law,” she said.

That conclusion isn’t shared by investigators for the U.S. Department of Justice and attorneys for the Center for Justice.

The FBI and the Center for Justice say there is evidence showing Thompson may have acted outside the “color of law” – the triggering mechanism for a federal criminal civil rights charge.

Thompson, now represented by premier private defense attorney Carl Oreskovich, has declined interview requests. Police Guild President Ernie Wuthrich also declined comment.

The civil and criminal cases likely will center on a comparison of police dispatch calls and logs, video surveillance from inside the convenience store and police reports.

“Spokane’s medical examiner concluded that Otto Zehm was killed by the Spokane Police Department almost three years ago,” said Breean Beggs, the center’s director. “Since that time, the department has not offered either a contrary medical opinion or an apology to the family.”

It is not disputed, Beggs said, that Zehm had broken no law as he picked out a bottle of soda inside the convenience store and saw Thompson approaching, wooden baton raised.

“Aside from one Internet chat room apparent confession, no one on duty that day, from the dispatcher to the acting police chief, has ever offered to take responsibility for the department’s role in Otto’s death,” Beggs said. “The family is left with no other option of preventing future deaths among the disabled community than to fulfill the duty they owe to the estate by filing a civil suit in federal court.”

With the filing of the civil suit likely this week, U.S. Attorney Jim McDevitt on Friday acknowledged the federal criminal investigation continues at a painstaking pace.

“I don’t like the passage of time any more than you do,” the region’s top federal law enforcement official said. “But these are matters that deserve very close attention to detail.”

“If I were investigating a case involving your career, you’d want me to be very careful, wouldn’t you?” McDevitt said. “These are matters that, basically, you do it right, take your time, get it correct.”

Other Justice Department sources say McDevitt, appointed by former President George W. Bush, has let it be known that he would very much like to have criminal charges filed before a new U.S. attorney for Eastern Washington takes office, probably this summer.

Meanwhile, the City Council agreed last October to an initial expenditure of $45,000 to hire Oreskovich – ostensibly to be involved in defending the city in the forthcoming civil suit at the request of the city attorney’s office.

But the move is seen by some as an effort to keep Oreskovich up to speed with the ongoing criminal investigation so he can become Thompson’s defense attorney if federal charges are filed this spring.

Beggs, of the Center for Justice, says he has discussed the civil claim with former city attorney Jim Craven and his successor, Howard Delaney, but has had no meetings regarding that claim with Oreskovich.

Delaney did not return a telephone call for comment last week.

Oreskovich wouldn’t say when he was contacted by the city attorney’s office, and offered at times seemingly contradictory responses about his role. “I also don’t want to comment about what I was asked to do,” he said.

“I represent Karl Thompson with respect to the criminal investigation,” Oreskovich said, later adding: “The city is not paying me to represent Thompson in the criminal case.”

Oreskovich, representing Thompson, has contacted the U.S. attorney’s office, which oversees the FBI criminal civil rights investigation.

City officials wouldn’t immediately release Oreskovich’s billings, seeking public payment for his services, and he wouldn’t discuss those details.

The hiring of Oreskovich may have another effect for the city attorney’s office: It may keep Chief Judge Robert Whaley – described as a “fly-fishing buddy” of Oreskovich’s – from handling either the civil rights suit or a possible criminal case for conflict of interest reasons. The city and the county have been on the losing side of constitutional issues brought before Whaley in the past.

In an unrelated civil rights case last month, Whaley blocked the city’s attempt to bring Oreskovich into the suit at the last minute. Whaley, in a written order, accused the city of “judge shopping.”

Bill Morlin can be reached at (509) 459-5444 or billm@spokesman.com.

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