Spokane7
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March 20, 2010 in City
Lawyer defends Zehm handling
Says ‘excited delirium’ justified level of force
A lawyer representing the city of Spokane argued for the first time Friday that Otto Zehm was suffering from “excited delirium” before his 2006 confrontation with police, making it a pre-existing mental condition that therefore justified the level of force used to detain him.
Up until the legal argument Friday by Carl Oreskovich, who was hired by the city to defend Officer Karl F. Thompson Jr., police officials had listed excited delirium as a contributing factor to Zehm’s death. But Oreskovich said Zehm had been off his medication for paranoid schizophrenia for weeks before he walked into the Zip Trip at 1712 N. Division St. on March 18, 2006.
“Whenever Mr. Zehm has gone off his medications, he has shown the same or similar types of characteristics,” Oreskovich told U.S. District Judge Fred Van Sickle. “Our theory of the case is the use of force is justified based on the circumstances facing Officer Thompson.”
But Assistant U.S. Attorney Tim Durkin reminded Van Sickle that the criminal case will be based on what Thompson knew, or should have known, when he confronted Zehm after two young women erroneously reported that he had stolen their money from a nearby ATM.
Durkin also argued that any talk of excited delirium is a fishing expedition because Thompson has never said he knew Zehm was suffering from a mental illness before the confrontation. And even if he did, excited delirium is not a recognized medical condition, Durkin said.
The term “excited delirium” is mostly used by police officials to describe a psychotic episode by persons in custody who show some combination of agitation, violent or bizarre behavior, or increased strength. Most instances include suspects who had ingested drugs but some cases have included persons suffering from mental conditions.
“This is a rather controversial topic,” Durkin said in court. Excited delirium “relates to in-custody deaths that are otherwise unexplainable. What (Oreskovich) is arguing is that exited delirium is why Officer Thompson had to use an unreasonable use of force. But that’s not what the video shows.”
The store’s surveillance video shows Thompson rushing into the convenience store and approaching Zehm from behind. Thompson almost immediately began using a baton to strike Zehm, who appeared to be retreating. The 36-year-old mentally ill janitor then continued to struggle with Thompson as six more officers arrived.
They eventually hogtied Zehm and placed him on his stomach. Not long after a plastic mask was placed over Zehm’s face, he stopped breathing. He never regained consciousness and died two days later.
Last year, Thompson was indicted on the felony charges of using unreasonable force and lying to investigators. The trial is set for June 2.
The purpose of Friday’s hearing was for Van Sickle to rule on a request by Oreskovich to obtain medical records from 2000 when Zehm went off his medications and had an episode that caused him to be involuntarily placed at Eastern State Hospital.
“I think it is important for an expert or jury to know … the circumstances that exist when Mr. Zehm is off his medications,” Oreskovich said.
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.
But Durkin argued that the 2000 medical records are inadmissible and that Oreskovich simply wants the records to bolster the argument of the defense’s expert witness. Durkin also said the government has witnesses who will testify they never heard Thompson order Zehm to drop the bottle.
“Mr. Thompson has his version of events,” Durkin said. Thompson “admits he did not have probable cause to arrest (Zehm) when he confronted him. It’s not unusual for an emotionally disturbed person to exhibit this level of strength.”
Van Sickle said he had concerns whether the records from Eastern State Hospital would be admissible. But the judge said he would review all four angles of the videotape and expects to issue his ruling by early next week.
Killing suspect remains at large 
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PlanB on March 20 at 12:41 a.m.
Oreskovich is getting his medication in the form of cash from the citizens of Spokane. Great work if you can get it. My sincere thanks to the city for spending our money to defend the un-defensible. The Mayor, city council members who support this tactic, county prosecutors, SPD… you are truly despicable individuals. It doesn’t get worse than this.
ChefGus/ John Olsen on March 20 at 5:59 a.m.
I deal with Paranoid Schizophrenics every day among my friends that are served at Shalom, and in 5 years of serving food to the homeless my experience has been that none of the folks who are Paranoid have been violent or threatening …..The most agressive folks on the street are the Alcoholics…and the Meth addicted.. the mentally ill rarely pose a threat to anyone else… and only occasionally to themselves.
This “defense” when the officer likely had no way to know who he was dealing with and could not have known Mr Zehm’s mental state.. and could not have figured it out in the three seconds before the bludgeoning viscious attack began. is absolutely bogus.
Even if the officer knew OTTO and his medical history, the situation could have been handled in a much more Low Key manner. It mirrors the extreme response to Mr Levy who could have been easily talked down off the bridge a couple of years ago… and instead was tasered…….The police force is woefully inadequate in some instances in defusing situations and it is mostly the “elderly officers” that just don’t get it..
Dr John
ChefGus/ John Olsen on March 20 at 6:02 a.m.
Oh.. as an addendum I personally would be very very ashamed to be the parent of this attorney. He is the type that gives lawyers a much deserved reputation. No ethics, and money talks. John
Truthhurts on March 20 at 6:14 a.m.
Overhand strikes with the baton, on the head, are lethal force.
There was no excuse to deploy lethal force.
There was not excuse to suffocate.
There is no such mental or physical condition as “excited delirium.”
Other than that, the defense to homicide is airtight.
Scoutster on March 20 at 6:23 a.m.
This whole sordid incident, and the way it has been played since, shows how in this society folks are reluctant, adverse even, to being held accountable for their actions.
Man up, police department!
A far more humane and believable and forgivable explanation would have been: We are sorry. We made a mistake. We will do better.
I am embarrassed to be paying this attorney’s fee. It shouldn’t have gotten here, and didn’t need to if someone would have just said “We blew it.”, which is what we all know.
liarsinnews on March 20 at 7:06 a.m.
Its so sad our justice system appears to have taken the blind fold off. Poor OTTO, didn`t even know what was happening having done nothing wrong yet a rouge cop beat him and suffocated him to death. In this instance, the SPD reminds me of the SS troops during WWII.
Ninch on March 20 at 7:53 a.m.
Not the first time SPD deliberately murdered a “suspect” (or were called to handle a suicidal person and gladly granted him his wish). The video tells all about the Zehm killing and is combined with the killer lying to cover up his evil deed. Guilty, guilty, guilty.
BTW: Our criminal justice system requires advocacy for prosecution and well as criminal defense. Don’t blast the attorneys for doing their job. An inadequate defense would let this killer go free when he appealed.
Albert on March 20 at 8:23 a.m.
2 very good points: Chef Gus and Truthhurts - both with legal precedence established.
I trained sheriff’s deputies in the use of weapons, to include a baton and the legally justifiable grounds for their use. There is absolutely no justification for this use of excessive force by the officer against Otto - absolutely none. Please understand that a baton is not to be used - at anytime - on the head. The officer in his California training received this mandated training, to include this established legal requirement, thus he is without excuse. I have no doubt that the federal prosecutors will put this evidence before the judge at trial. The officer’s attorney is of course well aware of this proven precedence and is doing a pirouette to throw off the court. Money, power, and the quest for fame all dictate conscience. Satan continually tried these tactics before the Lord while He was in the wilderness in a weaken condition. He finally told satan to leave and of course won out against evil. What price will one compromise for money, fame, and power?
Hank Greer on March 20 at 8:25 a.m.
Just want to set one point straight. This is in federal court and Mr Oreskovich is getting paid out of federal funds so technically all taxpayers are chipping in. Under the Criminal Justice Act, 18 U.S.C. §3006A, all persons charged with federal criminal offenses who are financially unable to obtain counsel are entitled to appointment of counsel to represent them. I don’t know the precise rules for determining if a person is “financially unable”, a determination made by a Federal Magistrate Judge, but it’s my understanding that defending a criminal case in federal court is such an expensive undertaking that most people qualify for court-appointed counsel. The way this is addressed in the US District Court’s Criminal Justice Act plan at http://www.waed.uscourts.gov/cja/cjaplan.pdf (PDF) indicates it is a judicial determination based on several factors.
While there is a federal defenders office, they do not have enough attorneys to handle the case load. Private attorneys in good standing and meeting other requirements may apply to become a member of the Criminal Justice Act panel and be assigned criminal cases. According to the court’s CJA plan, they handle 25% of the case load. Mr Oreskovich is on the CJA panel.
Now as to how Mr Oreskovich came to be appointed to this case, it could have been his turn to take on a case or he could have been directly assigned. From the court’s CJA plan:
“Appointments from the list of private attorneys should be made on a rotational basis, subject to the Court’s discretion to make exceptions due to the nature and complexity of the case, an attorney’s experience, and geographical considerations. This process should result in a balanced distribution of appointments and compensation among the members of the CJA Panel, and quality representation for each defendant.”
SugarShane on March 20 at 10:49 a.m.
Lemme guess, during all of this, Thompson is on paid administrative leave, right?
CharlesBillford on March 20 at 4:23 p.m.
Justice would be starving both Oreskovech and Thompson for a month and then placing the two together in a cell with one knife and fork and a salt and pepper shaker….and then just walk away.
and our Hot Air Buffoons at the city council twiddle their thumbs.