October 24, 2009 in City

Zehm tape raises doubts

Lawyers say 911 call doesn’t back police
By The Spokesman-Review
 
Editor’s note

The original version of this story had incorrect information about transcripts of the 911 call released to the news media and through discovery.

More information on this topic can be found in this Oct. 31 story.

Attorneys for Otto Zehm are questioning the city of Spokane’s claim that the woman whose call to 911 prompted his fatal 2006 encounter with police said she thought Zehm was on drugs.

Court documents filed Friday by attorneys for the Center for Justice echo a complaint raised Wednesday in a hearing on the civil rights lawsuit filed on behalf of Zehm’s mother, Ann Zehm, against the city and several police officers. The city’s claim that a witness said Zehm is “on something” is unsubstantiated by a tape of the 911 call provided by the city to the news media in July 2006.

The city made its claim about being told Zehm was “on something” in a response to the lawsuit filed last June, as it sought to defend the actions of Officer Karl Thompson and other officers who responded to the suspicious behavior call. Officers confronted Zehm in a Zip Trip convenience store after two young women erroneously reported that he tried to rob them at a nearby ATM.

The unarmed 36-year-old Spokane man was beaten with a baton, shocked with a Taser and left “hogtied” on the floor. He lost consciousness at the scene and later died in a hospital.

In June, the city asked the federal court to deny the Zehm claim, contending that he was responsible for the incident that led to his death and officers were justified in their actions. One of the reasons, the city said in its “affirmative defenses,” was that they had reason to believe he was on drugs because of the 911 call.

“The caller was asked … ‘Did he seem high or intoxicated?’ ” city attorneys wrote in the June filing. “The caller responded … ‘I don’t think he was drunk. He’s on something.’ ”

The dispatcher told officers “the complainant thinks he appears to be high,” the city said in its court papers.

But a copy of the recorded 911 call released to the news media by police in July 2006 contains no such discussion between the dispatcher and the witness regarding Zehm’s possible intoxication. That recording has two apparent gaps where there’s no talking or background noise. In one spot, the recording, which carries a notation that it’s “redacted,” also includes a loud tone to obscure the name and birth date of the woman calling 911.

The recording released to the news media is apparently the same recording supplied to the Center for Justice.

“The City did not provide any explanation for the existence of two versions of the 911 recording,” Jeffry Finer, an attorney for the center, wrote in Friday’s court filing.

Finer raised questions about the tape at a hearing Wednesday regarding witness testimony: “We’ve been put at a disadvantage at every turn on this. I had no idea I had a 911 tape that wasn’t accurate.”

Finer said the city faces two separate problems if it supplied an incomplete tape without explaining why some parts are missing. One is that it’s failing to provide evidence needed for the trial; the other is that it could be found in violation of the state’s public records act, which carries fines for each day a public record is improperly withheld.

City Attorney Howard Delaney and Deputy City Attorney Rocky Treppiedi could not be reached for comment.

The city also filed documents Friday in federal court, asking that some of the lawsuit’s claims for damages filed under state law be dismissed because the statute of limitations had passed. Documents filed a few hours later by Zehm’s attorneys seek to counter that argument and raise questions about other evidence not supplied by the city, including pages from a notepad by acting police Chief Jim Nicks, who said on the night of the incident that Zehm “lunged” at Thompson when he was confronted in the store.

Videotape from the store later showed that Zehm did not lunge at Thompson.

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