September 13, 2009 in City

Feds unhappy with city attorney

Treppiedi defends actions in Zehm-related case
By The Spokesman-Review
 
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Federal prosecutors have grown increasingly critical of what they describe as questionable behavior by the Spokane Police Department’s chief legal adviser, who reportedly used his position to provide “traditionally confidential” information to the officer under FBI investigation following the fatal confrontation with Otto Zehm.

In documents filed recently in U.S. District Court, prosecutors describe a pattern of behavior by Assistant Spokane City Attorney Rocky Treppiedi that raises questions about whether the city actively sought to interfere with the federal investigation that led to a grand jury indictment of Officer Karl F. Thompson. Treppiedi disputes any suggestion that he has acted improperly.

But in court filings, Assistant U.S. Attorney Tim Durkin has advised the judge presiding over the criminal case against Thompson of the following:

•Treppiedi “prepped and debriefed” the majority of the police officers and other city employees subpoenaed to testify before the federal grand jury deciding whether criminal charges should be filed, despite a gag order imposed by Spokane police Chief Anne Kirkpatrick.

•Treppiedi channeled “traditionally confidential grand jury information to the federally targeted defendant” – Thompson – that the attorney received during the debriefings of other city employees appearing before the grand jury.

•An expert hired by Treppiedi to enhance the video of the fatal encounter concluded that Thompson did not use his police baton on Zehm for the first 73 seconds of the struggle, despite Thompson’s own statements to the contrary.

•On June 21, 2006, Treppiedi issued a letter that was posted on the city of Spokane’s Web site that “exonerated” Thompson of using “excessive force” before the police department’s own investigation was completed.

Treppiedi said he’s unaware of any concerns surrounding his actions in the case. “There isn’t anything inappropriate in terms of the few simple filings that have been made so far,” he said in a telephone message.

City Attorney Howard Delaney and Chief Kirkpatrick did not return phone calls seeking comment. City spokeswoman Marlene Feist said in an e-mail that city officials do not anticipate commenting on the case until its conclusion.

Two legal ethicists asked by The Spokesman-Review to review the court filings, however, said the case raises troubling questions about whose interest the city is representing.

“The public interest is in having a well-run police department,” said John Strait, an ethics professor at Seattle University School of Law. “And if one of those unusual cases of bad police conduct has occurred, it is important to assure that the public interest is being fulfilled unaffected by the interest of the individual officer.”

University of Washington law professor Rob Aronson said that if the actions described in court documents are accurate, it appears to be misuse of a public position.

“To the extent that (Treppiedi) used his position to thwart a department gag order and obtain secret grand jury information and funnel it to the target of a criminal investigation, his conflict of interest would be clear, as well as an abuse of his position,” Aronson said.

Thompson was the first police officer to confront Zehm, a mentally ill janitor mistakenly identified as a robbery suspect on March 18, 2006. In the struggle that followed, the unarmed Zehm was beaten with a police baton, shocked several times with a Taser and eventually overpowered by a half-dozen officers who then hogtied him on the floor of a convenience store and put a plastic mask over his face. Zehm lapsed into a coma and died without regaining consciousness.

Thompson argues that Zehm refused to drop a plastic soda bottle, which the officer feared could be used as a weapon against him.

The grand jury, however, indicted Thompson on charges of using unreasonable force to detain Zehm and of lying to investigators. A U.S. District Court trial is scheduled to begin Feb. 8.

The city is paying private attorney Carl Oreskovich up to $200,000 to defend Thompson against a civil lawsuit brought by the public interest law firm Center for Justice on behalf of Zehm’s mother.

But according to Durkin’s court filing, Treppiedi has conducted a “shadow grand jury” that blurred the boundaries between representing the city in the civil case and defending Thompson against the criminal charges.

Durkin wrote that Treppiedi “has opined that since he personally represents and continues to personally represent the Defendant Karl Thompson, that he is obligated to disclose to the target of the federal criminal investigation (i.e., the Defendant Karl Thompson) and his counsel Carl Oreskovich information from the Grand Jury proceedings that has traditionally remained confidential.”

Aronson, the legal ethicist, said it’s troubling because a city attorney’s role should have been supporting efforts of the grand jury to seek the truth “and not preparing witnesses to support the defendant.”

“Here, it looks as though the city attorney, prior to the completion of a reasonable investigation, immediately went into ‘defense-attorney mode,’ and worked virtually exclusively to defend the alleged criminal and gather evidence in support of his civil (and, thus at the same time, his criminal) defense.”

Oreskovich declined comment, saying, “That needs to come from either Mr. Durkin or Mr. Treppiedi.”

Durkin and U.S. Attorney Jim McDevitt both said they could not comment and referred all questions to the court documents. Likewise, Jeffry Finer, of the Center for Justice, declined comment on the civil case.


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