Spokane7
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June 4, 2010 in City
Zehm delirium evidence dropped
Ruling by trial judge precludes any mention of his schizophrenia
After years of Spokane police officials claiming that Otto Zehm suffered from “excited delirium,” a defense attorney said Thursday that he will avoid offering any evidence or expert testimony about the disputed medical condition often cited by police agencies to explain controversial in-custody deaths.
Defense attorney Carl Oreskovich said he could no longer include testimony about excited delirium following rulings by U.S. District Court Judge Fred Van Sickle barring any mention that Zehm suffered from paranoid schizophrenia or that he’d had a physical confrontation with a Spokane County deputy sheriff in 1990.
Oreskovich is representing Spokane police Officer Karl F. Thompson Jr. in a trial set to begin Monday. Thompson faces federal felony charges of using excessive force and lying to investigators about his March 18, 2006, confrontation with Zehm, who died two days later.
“I don’t know how I can offer excited delirium without getting into issues of mental health or medications,” Oreskovich said. “I will not offer excited delirium evidence.”
Van Sickle ruled that attorneys can present evidence of the injuries Zehm sustained, but not his cause of death because that is not related to the excessive force and lying charges. It’s unclear how attorneys will handle the autopsy by Spokane County Medical Examiner Dr. Sally Aiken, who included a reference to “excited delirium” in her findings that Zehm died as a result of homicide caused essentially by a lack of oxygen to his brain.
Thompson and other officers struggled with Zehm, hit him with police batons, shocked him with Tasers and hogtied him for about 17 minutes before he stopped breathing. He was erroneously accused of taking money from a nearby cash machine.
Van Sickle pointed out that Thompson will be judged on what he knew at the time he confronted Zehm. Therefore, any prior mental illness, medications and the confrontation with a deputy that didn’t lead to charges in 1990 would all be excluded at trial.
However, Victor Boutros – a U.S. Department of Justice trial attorney based in Washington, D.C., – argued that prosecutors should be allowed to provide the jury evidence that Zehm committed no crime on the night of the fatal police confrontation.
Van Sickle initially ruled that Thompson could not have known Zehm was innocent, and that information therefore would be excluded.
But Boutros argued Thompson has claimed all along that Zehm saw him coming, took an aggressive stance, picked up a 2-liter soda bottle and held it in a way that it could be used as a “significant weapon” against him.
“The conduct of Zehm has become central to the case,” Boutros said. Without evidence of Zehm’s innocence, the jury may get the “perception that (Zehm) was ambushing (Thompson) when he had no information that the officer would be coming at all.”
Van Sickle cited a ruling in an unrelated case of a police shooting where attorneys were allowed to bring in evidence that the suspect had committed previous crimes because it may have shown that the police’s version of events was more believable.
Boutros said that ruling should apply to information explaining Zehm’s reactions.
“The ruling goes both ways. (Zehm) had no reason … to target Officer Thompson,” he said.
Stephen Lamberson, who works in the same firm as Oreskovich and also has been appointed to defend Thompson at taxpayer expense, argued that rulings in other federal courts clearly show any evidence of guilt or innocence learned after the fact is inadmissible.
Van Sickle said he would study the issue and rule on that and several other issues prior to jury selection on Monday.
In other rulings, the judge barred any reference to Thompson’s divorce, which prosecutors alleged in court records entailed a fraudulent transfer of assets.
He also ruled to exclude a 911 recording of two young women who reported seeing a suspicious-acting man at a nearby cash machine, because Thompson acknowledged that he never heard most of what was recorded. Van Sickle also said the testimony of Makenzie Murcar and Alison Smith – who made the 911 call that night – would be limited to what they saw of the confrontation between Thompson and Zehm.
Van Sickle said he will allow the government to show the jury a 3-D, computer-generated video showing the confrontation between Zehm and Thompson.
The jury pool will be called from the Eastern District of Washington, which essentially is all of the state east of the Cascade Mountains. Van Sickle said he expects the jury will be seated by Monday afternoon and opening arguments to begin on Tuesday.
“Is there any potential resolution without a trial in this case?” Van Sickle asked.
“There have not been discussions of that nature for some time,” said Assistant U.S. Attorney Timothy Durkin. “So it appears no.”
Closing Geiger: Wise or worrisome? 
Scoutster on June 04 at 6:40 a.m.
Excited delirium…the Sasquatch of mental health.
Albert on June 04 at 7:50 a.m.
Let’s face blatant reality; you beat an unarmed man to death - period. How many years, thousands of dollars, and endless hours in court will you subject We The People to? Every time I see an SPD unit drive by, I remember Otto. I seriously doubt that anyone in Spokane, outside the immediate family and friends (?) of SPD employees, have any respect for these species. It would be nice to see them go away, including the “do nothing” chief.
lewis8457 on June 04 at 8:40 a.m.
dropping that defense makes the case harder for Thompson to win, too bad can Karl say don’t pick up the soap?
DavidBray on June 04 at 9:28 a.m.
Another example of the double standard of our Spokane Police. I’m so sick of this crap. We have a systemic problem in our SPD and it’s never going to get better until we clean house and get rid of the Police Guild.
Interesting that when you face a Spokane cop, you’re guilty until proven innocent…..but our legal system likes to boast how we’re all innocent until proven guilty
spokanada on June 04 at 9:54 a.m.
For anyone thinking of moving to Spokane……don’t. Your future tax money will go towards paying for legal defense for at least a dozen cops over the past couple of years.
This story dominates the news but Spokane has problems with cops that like to drive drunk, let suspects delete child pornography when caught, shoot people in the head after a night of drinking at a gay bar, speed through the streets of Spokane, and harass the local population.
I know there are a good cops in Spokane but they are most often standing behind the men that ruin their reputation.
ChefGus/ John Olsen on June 04 at 11:04 a.m.
It seems the only “Excited Delerium” here is that behaviour we can observe on the video tapes of a Police Officer out of control… still wonder bout the use of Anabolic Steroids and Testosterone supplements for body building in our aging police officers… Roid Rage ( like the young man who plays Lacrosse and likely murdered his ex girlfriend) is a real problem in our tinder dry society. John
Scoutster on June 04 at 11:09 a.m.
Does anyone know the protocol for drug testing SPD officers, particularly when they are in an altercation or a shooting?
Are they routinely checked for steroids and other crazy-making substances?
spokanada on June 04 at 1:42 p.m.
They probably should be drug tested. It seems like the only cops that get busted for roids are the ones distributing them to other cops in the gym. I think dateline or 60 minutes did a story about this a couple years back.
lewis8457 on June 04 at 9:56 p.m.
Police do not take drug tests of any kind their union wont allow it, your state employees don’t either DSHS for sure that I know of. Just because the rest of us are expected to show all our elected and civil officials don’t.
I have been taking testosterone for 5 years my doctor recently took me off of it because I was having mood swings. He said prolonged use isn’t good for stress situations and my kidneys. Glad to be off it, it is very expensive although I am sure the police medical plan pays 100%.