May 6, 2010 in City

Judge to rule on request to bar evidence

By The Spokesman-Review
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Background and the latest updates

The attorney representing police Officer Karl F. Thompson Jr. has asked a federal judge to exclude any evidence that Otto Zehm had not committed a crime on the night of his confrontation with Spokane police and to exclude the testimony of two young women whose 911 call sparked the incident.

U.S. District Court Judge Fred Van Sickle in a hearing May 17 is expected to rule on those motions by Carl Oreskovich, the taxpayer-paid private attorney defending Thompson.

Thompson faces felony charges of using excessive force and lying to investigators. His trial is scheduled for June 2 in connection to the 2006 confrontation that resulted in Zehm’s death two days later.

In one of his motions, Oreskovich is asking to exclude the testimony of Allison Smith, also listed in court records as Alison Smith, and Makenzie Murcar, because they apparently gave different accounts to federal agents than what they told police, Oreskovich said in court records.

“For whatever reason Mackenzie Murcar and Allison Smith have elected to make changes to their testimony,” Oreskovich wrote. “To allow testimony … other than the 911 tape … would result in unfair prejudice to Karl Thompson and jeopardize his right to a fair trial.”

Efforts to reach Smith, 22, were unsuccessful, and Murcar, 23, did not return several calls seeking comment.

Oreskovich, who did not return calls made to his office this week, also filed a motion seeking to exclude any “evidence regarding Otto Zehm’s innocence,” because that evidence was obtained following the confrontation where Zehm was beaten with a baton, shocked with a Taser and hogtied on the floor for 17 minutes before he stopped breathing, according to court records.

Thompson responded to the North Side Zip Trip believing that Zehm had either committed or attempted to commit theft or robbery, Oreskovich said in court documents.

“Any evidence as to Otto Zehm’s innocence would … allow the jury to consider more information than was known to (Thompson) at the time of the confrontation,” he wrote. That evidence “would be improper, irrelevant and prejudicial to the determination of whether Defendant Karl Thompson acted reasonably under the circumstances.”

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