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.