Spokane7
61°
December 17, 2010
9th agrees to expedite review of Zehm appeal
The criminal case against Spokane Police Office Karl F. Thompson Jr. now has a slim chance of proceeding in March after the 9th U.S. Circuit Court of Appeals on Friday agreed to speed up its review of the appeal that stopped the case cold in June.
The federal appeals court will hear the case in February after prosecutors appealed U.S. District Court Judge Fred Van Sickle’s ruling that they could not present evidence that mentally ill janitor Otto Zehm had not committed a crime on March 18, 2006, when he was confronted by Thompson. Zehm died two days later.
“Appeals before trial are so rare that it does not surprise me that the circuit decided to speed up the process,” said attorney Jeffry Finer, who represents the Zehm estate in a separate civil case.
Assistant U.S. Attorney Tim Durkin said he could not comment on the case and defense attorney Carl Oreskovich could not be reached for comment.
In another development, court records indicate that one of the witnesses who saw Thompson confront Zehm in the Zip Trip at 1712 N. Division St. died on Oct. 1. Tracy “Tre” Lamont, 36, can be seen flinching on the video that shows a baton-wielding Thompson as he began to strike Zehm.
“I did not know that he died,” Finer said. “It is the kind of problem that plagues any case when there are delays. I’m very sorry for his family’s loss. He was a primary witness, but not an essential witness so it doesn’t harm the case directly. But it underscores the reasons for this case to move forward promptly.”
However, Finer said a February review does not necessarily mean the trial will begin March 7.
“It’s unlikely but not inconceivable,” Finer said. “The circuit can take weeks or months to make its decision. The court then has to make room on his docket for a lengthy trial and the parties have to get ready for trial. It could be far past March before the case is in front of a jury.”
After two young women erroneously reported that Zehm had stolen money from a nearby ATM, Thompson approached and immediately engaged Zehm, striking Zehm with his police baton and shocking him with his Taser as Zehm held a 2-liter soda bottle in front of his face. Additional officers hogtied Zehm for about 17 minutes and put a plastic mask on Zehm’s face before he stopped breathing.
At issue is how attorneys use evidence in the criminal trial in which Thompson faces the felony charges of using excessive force and lying to investigators. Most case law has held that officers should be judged based on what they knew at the time of a confrontation.
However, another court case, Boyd v. City and County of San Francisco, held that certain evidence prior to an incident can be used if it tends to show that one version of events is more believable. Based on that case, Van Sickle agreed to allow testimony from other officers that would tend to make Thompson’s version of events more believable — that Zehm was combative and refused to comply with demands.
But federal prosecutors argued that under the same case law, they should be allowed to show that Zehm had not committed a crime and therefore would have no reason to turn and hold a Pepsi bottle in a way that it could be used as a “significant weapon” as Thompson described to investigators.
Both attorneys submitted lengthy written arguments about why the appellate judges should either reverse or agree with Van Sickle.
“The excluded innocence evidence is critical to the United States’ proof on both charges since it tends to show the defendant lied about his justification for his initial use of force,” Durkin wrote.
But Oreskovich wrote that Van Sickle made the correct decision excluding the evidence that Zehm had not committed a crime.
““Jurors would be unable to overcome the fact that an innocent man died after a confrontation with police officers, evidence of Zehm’s innocence is unfairly prejudicial,” Oreskovich said.
Mediation set in Zehm case against Spokane Police 
PlanB on December 17 at 7:43 p.m.
““Jurors would be unable to overcome the fact that an innocent man died after a confrontation with police officers, evidence of Zehm’s innocence is unfairly prejudicial,” Oreskovich said.
Oh… My… God… Why on earth would it be unfairly prejudicial? Because the a**hole you are defending is clearly, and unequivocally, guilty of murder?
terrymr on December 17 at 9:11 p.m.
How on earth do you steal money from an ATM anyway ? The very premise for going after him in the first place doesn’t make sense. Any force at all against a man you had no business harassing must be excessive.
karl2002 on December 17 at 9:21 p.m.
In a case where the jury may be swayed if they were informed of the victim’s innocence in a confrontation with a police officer, would they also not be swayed towards the presumed guilt of wrongdoing on the part of the victim by his being in a confrontation with a police officer in the first place?
Since you cannot remove the role of the officer from the testimony, you must allow also the presumption (and fact) of innocence on the part of Zehm.
PlanB on December 17 at 10:11 p.m.
No, law enforcement and the good ol’ boys want it both ways based on who is who. If there was a confrontation, they insist that be made known. But if there was NO confrontation, they insist that be hidden.
More bizarreness. Conditional ethics. And for the most part, the mindless masses are mute to the monumental violation of rights and to the complete breakdown of the judicial system.
But hey, he was just a mentally challenged janitor, right? So who cares?
mikeln on December 18 at 7:34 a.m.
So, when a cop thinks I have commited a crime they can assume any action I take to be hostle? Kind of makes it hard for somone who is innocent to even give up without a good beating.
lewis8457 on December 18 at 7:50 a.m.
mikeIn you hit , it on the nose. When are we not presumed guilty? when we are in a box?
The sad part is the video doesn’t show anything even close to Thompson’s story.
I hope we see justice for Otto but I am not holding my breath.
He was killed in cold blood by 7 of our finest. And i am supposed to trust a confrontation with the police will not result in my death? Honestly with the SPD that is all I can count on.
But many in this town think murder by cop is OK as long as it isn’t them. I suppose that is why they voted Tucker back in.
dataxman on December 18 at 7:56 a.m.
The presumption of guilt the police want to paint the victim with is a serious cause of concern. If you ever see SPD doing something wrong, don’t report it - run for you life. Otherwise a double tap to center mass and your were attacking him. Hey, who is a jury going to believe? A upstanding officer or the dead guy?
mikeln on December 18 at 8:07 a.m.
The other thing that concerns me about this is the apparent lack of medical intervention once the para-medics arrived. Could they not see this man was in trouble or were they told not to help him, scares the hell out of me and should scare the hell out of everybody else, this could be you or a loved one that suffers from this lack of judgement.