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Zehm’s mother can give statement, judge rules

Thu., Sept. 24, 2009

Woman is ‘very ill’; deposition to be used for civil case

The ailing mother of a man who died after being struck, Tasered and hogtied by Spokane police officers should have a chance to have her statement preserved for a civil lawsuit even though a criminal trial is pending, a federal judge ruled Wednesday.

U.S. District Judge Lonny Suko refused to grant a request by federal prosecutors to halt all discovery in a separate civil suit involving the 2006 death of Otto Zehm. He told lawyers for Zehm’s estate, the city and the police officer named in the criminal indictment to get together and figure out what documents each has that the other may have a right to see for the civil case.

Taking testimony from Officer Karl Thompson, who faces charges of using unlawful force against Zehm and lying to investigators, will have to wait because of potential violations of his Fifth Amendment protection against self-incrimination. But some documents that Thompson has from other people may be “fair game” for the lawyers in the civil case, Suko said.

Federal prosecutors have asked for a “global stay” on discovery in the civil case as the criminal case, set for next February, approaches. In a motion filed Tuesday, Assistant U.S. Attorney Timothy Durkin accused Assistant City Prosecutor Rocky Treppiedi of running a “shadow investigation” to the grand jury probe that ultimately indicted Thompson, improperly contacting potential witnesses for the criminal case and sharing information with Thompson’s court-appointed criminal attorney Carl Oreskovich. Oreskovich is also being paid by the city to help with the civil case.

Suko said he’ll rule on other aspects of the “global stay” after a hearing Oct. 21. But he saw no reason to delay a deposition by Anne Zehm, the victim’s mother, who Center for Justice attorney Jeffry Finer said was “very aged, very ill.”

Treppiedi objected that the city would be at “a complete disadvantage” if the deposition were scheduled too quickly: “We do not have information about Mrs. Zehm and her relationship with her family and Otto.” Finer offered to send what limited information he had, which he said “would fit in a small folder.”

Replied Suko: “Her testimony is going to be that of a mother. … I’m not inclined to delay that deposition.”

Durkin agreed, noting that Anne Zehm is not a witness for the criminal case. “This is something that should be done.”

At one point, Suko seemed to chide attorneys for a blizzard of documents that preceded the hearing, including some filed late Tuesday night or right before Wednesday morning’s session. He ordered anything needed for next month’s hearing to be filed a week in advance and warned the attorneys that “cross-allegations of what happened, who spoke to whom, when, are not going to be critical” to next month’s decisions.

Among the documents this week were sworn statements from Spokane police officials, some of whom objected to the federal government’s stay because it would delay their chance to have their reputations cleared in court.

The judge seemed surprised by those, considering the civil trial is scheduled for 2011 by an agreement of all the parties. “We are moving as rapidly as we can to get the case tried,” he said.

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