May 26, 2010 in City

No conflict in Otto Zehm case

Defense of officer OK, judge rules
By The Spokesman-Review
 
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A federal judge decided Tuesday there’s no conflict of interest in how private attorney Carl Oreskovich has defended Spokane police Officer Karl F. Thompson Jr. in civil and criminal cases stemming from the fatal confrontation with Otto Zehm.

U.S. District Court Judge Philip Pro, of Las Vegas, had been appointed to decide the conflict issue. The presiding judge, U.S. District Court Judge Fred Van Sickle, is expected to hold a hearing this week to discuss how to move forward with the criminal trial in which Thompson is charged with using excessive force in subduing Zehm, who was unarmed, and with lying to investigators about the March 2006 encounter in a north Spokane convenience store.

Pro ruled that Thompson understood the ramifications when he waived his right to a fair trial, which allows Oreskovich to represent him in both a $2.9 million civil case filed by Zehm’s family and the criminal case set to start June 2. That dual representation creates an inherent conflict because what’s best for the city of Spokane in the civil case might not be in Thompson’s best interest in the criminal trial, and vice versa.

“Although it is not possible at this point to predict whether some actual conflict of interest may emerge as this case proceeds through trial, none is apparent now,” Pro wrote. “As set forth above, any potential conflict is not so serious that Thompson could not waive it.”

Assistant U.S. Attorney Timothy Durkin asked Pro on Monday to decide how to proceed after alleging in court records that Oreskovich used his position as special city attorney to gather information provided by confidential interviews conducted by Assistant City Attorney Rocky Treppiedi.

Durkin pointed out that Treppiedi and other city attorneys withdrew from the civil case only after federal prosecutors alleged a conflict of interest about how they interviewed officers before and after they testified before a federal grand jury and passed that information about the criminal case to Oreskovich.

But Pro said he could find “no evidence” that Oreskovich has received information that would have normally been kept secret as attorney-client communications.

Pro agreed that the city’s decision to hire Oreskovich to represent Thompson in the civil case and his appointment to represent him in the criminal case “may give rise to appearance or potential for conflict of interest,” he wrote. “However, an examination of the factual record shows no actual conflict of interest exists.”


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