A lawyer for the City of Spokane argued today that Otto Zehm was suffering from “excited delirium” before the 2006 encounter with Spokane police that led to his death, causing “extraordinary” strength and stamina and explaining why Zehm allegedly refused police commands to drop a soda pop bottle.
Attorney Carl Oreskovich, who is representing Officer Karl F. Thompson Jr. in federal criminal and civil proceedings, made the excited-delirium argument in a hearing seeking a subpoena for Zehm’s medical records from a stay at Eastern State Hospital in 2000.
“For a month leading up to this particular event, Mr. Zehm had stopped taking medications for paranoid schizophrenia,” Oreskovich told U.S. District Court Judge Fred Van Sickle. “Whenever Mr. Zehm has gone off his medications, he has shown the same or similar types of characteristics. Our theory of the case is the use of force is justified based on the circumstances facing Officer Thompson.”
Assistant U.S. Attorney Tim Durkin responded that excited delirium is not a recognized medical condition. “This is a rather controversial topic,” he told the judge. “It relates to in-custody deaths that are otherwise unexplainable.”
Durkin said Oreskovich is seeking previous medical records as part of a legal fishing expedition “so he can show that excited delirium is why Officer Thompson had to use the unreasonable use of force. It’s clearly not admissible.”
Thompson faces felony charges of using unreasonable force and lying to investigators. His trial is scheduled to begin in June.
Durkin and Oreskovich agreed that the case will hinge on what Thompson knew at the time he entered the Zip Trip, at 1712 N. Division, after receiving a call from two young women who erroneously reported that Zehm had stolen their money from a nearby ATM machine.
Oreskovich said Thompson twice told Zehm to put down a 2-liter bottle of soda. Zehm first responded by saying “Why,” and then said “No” to the second command, the attorney said.
“Would someone who is faced with a police officer in his police uniform with a baton in his hand respond with ‘Why’ or ‘No?’ It’s consistent with being in excited delirium,” Oreskovich said.
Durkin responded that a store security video clearly shows Zehm did nothing but retreat until Thompson started beating him with him with a police baton. He also said the government can call witnesses who will testify that they did not hear Thompson tell Zehm to drop the bottle.
Thompson “admits he did not have probable cause to arrest (Zehm) when he confronted him,” Durkin said. “Mr. Thompson has his version of the events. That’s not consistent with what the video showed. It’s not unusual for an emotionally disturbed person to exhibit this level of strength.”
Van Sickle said he would review the four angles of the video tape and should rule by early next week to issue the subpoena or deny Oreskovich’s request.