October 22, 2009 in City

Work on federal suit must wait, judge rules

Criminal case against officer must be resolved first
By The Spokesman-Review
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Background and the latest updates

Developments in Zehm case

A federal judge ruled Wednesday that most legal preparations for a civil lawsuit brought by Otto Zehm’s family against the city of Spokane can’t take place until after the criminal trial of a Spokane police officer.

The attorney for the police officer charged in the criminal matter filed a request to delay the criminal trial until May. Currently it’s scheduled to start Feb. 6.

The judge said he wouldn’t rule on complaints by federal attorneys that city attorneys engaged in “inappropriate conduct,” saying it’s a “side issue.”

Most of the legal preparations for a federal lawsuit against the city over the death of Otto Zehm will be put on hold until the criminal trial against a Spokane police officer takes place, a federal judge ruled Wednesday.

U.S. District Judge Lonny Suko said he had to balance the rights of Zehm’s family members to get information they need with Officer Karl Thompson’s right to use the Fifth Amendment to avoid self-incrimination and federal prosecutors’ concerns over evidence from a grand jury investigation.

The criminal case, which alleges Thompson violated Zehm’s civil rights and lied about the incident to investigators, is scheduled to go to trial Feb. 6. The civil trial isn’t scheduled until late 2011.

Attorneys in the civil case already have lots of information, and allowing them to take sworn statements from witnesses or interview them under oath means they could be taking depositions right up to the day the criminal trial starts, the judge said.

Thompson’s attorney, Carl Oreskovich, sought Wednesday to delay the criminal trial until May, but the federal government is objecting to that delay. Even if it’s granted, there will be adequate time to interview witnesses and get other evidence for the civil trial through discovery, Suko said.

“Discovery,” in a legal context, is a pretrial disclosure of pertinent facts, documents or other evidence.

Although many of the witnesses in the criminal trial may also be called in the civil trial, the issue of delaying the discovery process comes up because rules for making witnesses answer questions under oath are more liberal in civil cases.

Such delays are common, said Victor Boutros, of the Justice Department’s civil rights division. “Protecting the integrity of the criminal case is paramount.”

Oreskovich, who represents Thompson in the criminal case and serves as an adviser to the city in the civil suit, objected to the delay.

The defendants in the civil case – who include officers other than Thompson – have to wait to clear their names and the news media and public have “an extremely high interest” in the case, he said.

“I can’t imagine when interests could be higher,” Oreskovich said.

But Thompson’s interests are already protected, Suko said.

He can use the Fifth Amendment to avoid testifying and incriminating himself, and he has access to information from the grand jury.

That information can’t be shared with Zehm’s attorneys or the city attorneys representing the other officers in the civil case before the trial.

Jeffry Finer, an attorney representing Zehm’s family and estate, originally objected to the delay but Wednesday agreed it was the right move. “I don’t want the criminal case to (be delayed) because of something we do here.”

Suko said he wasn’t going to rule on complaints by federal attorneys that city attorneys had engaged in “inappropriate conduct” in talking about grand jury testimony with Spokane police officers, or sworn statements that city attorneys filed to defend their actions.

“It’s a side issue,” the judge said, and not related to the request to delay evidence-gathering for the civil trial.

He said he would issue a written order on the stay within a few days after he settles on the proper wording.

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