Spokane7
61°
December 18, 2010 in City
Delay likely in Zehm case
Federal appeals court to accelerate review of pretrial appeal
The criminal case against Spokane police Officer 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.
“Because 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.
Doney’s sentence upheld 
liarsinnews on December 18 at 8:12 a.m.
The justice system is broken. How sad for the Zehm family. Poor OTTO. The case on his behalf is “tied up” again.
lewis8457 on December 18 at 8:24 a.m.
Thompson and his buddies have gotten away with cold blooded murder. Ozzie recently said no cop goes to work wanting to kill a citizen. But Otto death pretty much proves to me they may not be planning to murder but they also don’t mind doing it. even though 7 officers were on scene that night not one of them tried to stop the beatings.
And so of course our city did nothing, our foster parent mayor even said killing Otto was OK by her. With that attitude i wonder what her foster kids had to deal with? Daily floggings?
and so the Feds got into the mix and many of us were wishing we would see Thompson led to a jail cell in Walla Walla. But as it is the SPD promoted him to the instructor of arrest procedures. Is it any wonder we have so many dead at the hands of the cops? the arrest procedure instructor is a man who beat a disabled man to death with a baton.
And the feds well, we get to see they are just like our local justice system. cases against normal citizens fly off the docket while a case about a COP killing a citizen is delayed over and over giving said cop another possible chance to kill someone else.
But we are supposed to have blind faith the officers that have killed before wont kill again. and so the circus continues and the dead are stacking up.
Not that ANYONE of authority cares.
k9coug on December 18 at 6:43 p.m.
Why do you continue to use the term “hogtied”? It’s not appropriate, it’s not descriptive, it’s not accurate, but it is inflammatory. The paper’s continual use of the term is irresponsible.
Ed Byrnes on December 18 at 9:07 p.m.
It was in the 19th century that British politician William Gladstone asserted that “justice delayed is justice denied.”
Dazzeetrader11 on December 19 at 2:51 a.m.
K9Coug..what would you call it? It looks pretty bad on film. And it’s what suffocated this poor guy. Tied up and suffocated by a pack of wild dogs who then tried to cover it up.
Nicks is underneath all of this. He’s the only one who was in a position to know everything. Verner too but she “won’t comment”. She’s not about to dirty up her skirts by admitting she knows what happened. Her, Nicks and Kirkpatrick know exactly what happened. Video was whisked away….evidence lost, etc etc..
Nicks could settle this in 30 secs if he wanted to. He doesn’t.
Best delay till things fade. Something tells me this one won’t vanish.
Karl Thompson jr knows and he knows that Nicks knows. It’s a bd spot when these guys keep circling one another…all the while they’re seemingly insensitive to the family… Makes one wonder why further delays and what’s to learn by delays..can’t just be judicial protocol…
Dazzeetrader11 on December 19 at 2:57 a.m.
Let me correct…Nicks, etc didn’t cause this tragedy. I do think they know the course of things though and could shed more light on who did what and when…etc. Lies of omission and lies of commission…always must be considered. Failure of an instiutional control is common in these situations.
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