March 20, 2010 in City

Lawyer defends Zehm handling

Says ‘excited delirium’ justified level of force
By The Spokesman-Review
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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.

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