More Spokane police officers could face criminal charges over the city’s handling of the fatal confrontation with unarmed janitor Otto Zehm, with newly filed court documents indicating a federal probe is continuing into potential obstructions of justice.
The new documents filed by Assistant U.S. Attorney Tim Durkin contain new details about the confrontation that suggest police and city officials have misled the public and others about what happened the night of March 18, 2006, when Zehm was beaten with a police baton, shocked with a Taser, and hogtied by a half-dozen officers before lapsing into a coma and dying two days later.
Among other things, federal prosecutors say Officer Karl F. Thompson Jr.’s attack on Zehm included baton strikes to the head, which contradicts the official police version of the struggle and could signal new problems in the city’s insistence that officers reacted appropriately.
City officials contend they’ve never interfered with the federal investigation and will soon offer their rebuttal to the court.
Head strikes are universally considered lethal force, a response considered acceptable only when officers fear serious injury or the loss of life, according to a use-of-force expert Roy Bedard, who was contacted by The Spokesman-Review.
“So, the question really is: Was the officer allowed to use deadly force at the time he was striking the subject?” said Bedard, who helps write the curriculum that officers use as part of Florida’s police academy.
Spokane police claimed for four months that Zehm first “lunged” at Thompson, even though video of the encounter showed no such action. Police also argued that Zehm refused to drop a plastic soda bottle that Thompson feared could have been used as a “significant” weapon.
“I don’t mean to make light of it, but if an officer can’t recognize a plastic 2-liter bottle as a nondangerous item … then we have a training problem,” Bedard said. “Unless there is no counterevidence to suggest otherwise, I would say this is not looking good for the officer. But, that’s what we have juries for.”
The court documents were filed late Tuesday by Durkin as part of a request to shut down the civil case until Thompson’s criminal trial can be held on Feb. 8.
A grand jury indicted Thompson in June, charging him with using unreasonable force when he attempted to detain Zehm and for lying to a detective investigating the fatal encounter.
Thompson was the first police officer to arrive on March 18, 2006, at a local convenience store after two young women erroneously reported that Zehm attempted to rob them at a nearby ATM machine.
As part of his motion, Durkin included a 28-page brief documenting a series of what he asserts are missteps by the Spokane Police Department, and for the first time acknowledged a federal probe of “one or more” officers listed in the civil case for “possible federal obstruction offenses.”
“In light of compelling government and public interests, and the preference of the speedy resolution to the criminal case trial, as well as the conclusion of the ongoing and continuing obstruction investigation, the United States respectfully submits that a global stay of the civil action and discovery process is warranted,” Durkin wrote.
Assistant City Attorney Rocky Treppiedi returned a call seeking comment and left a recorded message where he said the city will be responding with a motion of its own.
“You need to know there is absolutely no hindrance of the federal investigation in any way, and we’ll be establishing that with the documents we will be filing in court, and there is no further comment beyond that,” said Treppiedi, who is also the chairman of the board of Spokane Public Schools and is seeking re-election.
Jeffry Finer of the public interest law firm Center for Justice, which is representing Zehm’s mother in the civil case, called Durkin’s motion a “significant turn in the case.”
“The allegations in the government’s motion … raise new problems that we were unaware of,” Finer said.
As he had in past motions, Durkin again called into question the actions of Treppiedi, who apparently gleaned information from police and civilian witnesses called to testify before the federal grand jury and then fed that information to Thompson even after Chief Anne Kirkpatrick told federal officials that she imposed a department-wide gag order to help preserve the integrity of the government’s investigation.
“Mr. Treppiedi acknowledged being aware of his client’s gag order, but explained that since he was not an SPD employee that he was not bound by his client’s gag order nor by Chief Kirkpatrick’s expressed intention to help maintain the confidentiality of the (Department of Justice’s) investigation,” Durkin wrote.
Durkin said he spoke with several other federal prosecutors who have served the past 25 years for the Eastern District of Washington, and this case was the first time he could find that a fellow law enforcement agency’s civil legal counsel has funneled “normally confidential” investigation activities to the target of a federal probe.
Aside from conflict-of-interest issues, the case will be won or lost based on the government’s new assertions, said Richard Rosenstock, a longtime civil rights attorney from Santa Fe, N. M., who has written extensively about police misconduct.
“Deadly force changed the calculation. (Thompson) has to show that his or someone else’s life was in danger or the danger of serious bodily harm. That’s a big difference than having to show that you acted reasonably and used the amount of force needed for this guy,” Rosenstock said.
Rosenstock, who was retained as an expert by the Center for Justice to analyze the case but is no longer involved in the litigation, said city officials have also created a credibility issue because they have maintained for so long that Thompson didn’t hit Zehm in the head with a baton.
“If they win at trial, they can say that they saved money. But because of the way (city officials) are handling it, if they lose, the taxpayers are going to pay more,” he said. “It’s incredible that the city has not recognized what is going on and not tried to put it behind them.”
Bedard, the expert from Florida, said the public understands that officers put their lives on the line every day.
“They support the use of deadly force … when it’s reasonable and necessary,” Bedard said. “Absent that, the public is very, very hard on officers who are less certain about what level of threat they are facing and then respond with that level of force.”