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August 10, 2011 in City
City reconsiders Zehm strategy
Nicks’ testimony points to policy violations, poor investigation
The Spokane Police Department’s second-in-command believes an officer didn’t follow department policy in the fatal 2006 confrontation with Otto Zehm, contradicting his previous statements.
That revelation prompted Spokane Mayor Mary Verner to say Tuesday that the city is re-evaluating its legal strategy.
The disclosure, contained in documents recently filed in federal court, includes admissions from Assistant Police Chief Jim Nicks – then acting chief – that Officer Karl F. Thompson Jr. violated department use-of-force policies and that detectives failed to thoroughly investigate the convenience store beating on March 18, 2006. Zehm died two days later.
“Based on the video, during Officer Thompson’s initial engagement of Otto Zehm, Mr. Zehm appears to be ‘active resistant’ and is not assaultive toward the officer. Therefore Officer Thompson was not authorized to utilize an impact weapon on and strike Zehm,” Nicks said, according to the court records.
The testimony is a reversal of what Nicks said the night Zehm was beaten, Tasered and hogtied. It also contradicts the city’s position that its officers handled the case properly, and that Zehm bore responsibility for the escalation of force by continuing to flail as officers beat him.
Nicks’ 2008 grand jury testimony became a key part of the June 19, 2009, indictment charging Thompson with using unreasonable force and lying to investigators. Indications that Nicks would testify for prosecutors became public in March 2010, but Tuesday was the first time any city official acknowledged a discrepancy in their public portrayals of the event.
In a prepared statement, Verner said, “Assistant Chief Nicks’ affidavit is consistent with what (Assistant) U.S. Attorney (Timothy) Durkin indicated the Assistant Chief would testify to in a legal filing in April 2010. As we did then, we are evaluating this information in light of the case the City is involved in – the separate civil case.”
Attorney Breean Beggs, who along with Jeffry Finer, is representing the mother and estate of the 36-year-old mentally ill janitor, said Nicks’ declaration in the criminal case essentially means that the civil case against Thompson and the city is over.
“Nicks speaks for the city. The only remaining thing left for the civil case is the nature and the extent of the damages,” Beggs said.
The tragedy began after two young women erroneously reported that Zehm stole money from their accounts at a nearby ATM. Thompson responded to the call, approached Zehm inside a Zip Trip convenience store and immediately began beating him with a baton. The confrontation lasted several minutes and several other officers responded. They eventually hogtied Zehm and placed a plastic mask over his face before he stopped breathing.
Court records indicate that officers reviewed videotapes from the convenience store on the night of the incident, passed information onto Nicks, who then described a “very horrific fight. The officers were definitely within the (department) policy. … The officers used the lowest level of force possible.”
After Beggs and Finer filed a $2.9 million civil claim against Spokane, city attorneys responded with a 56-page denial on June 18, 2009. That denial blamed Zehm for his own death.
“Any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance,” the city’s response states.
Beggs said it’s now clear that city officials already knew, or should have known, about Nicks’ testimony to the grand jury before they wrote that reply.
“I’m waiting for them to explain to us why they thought it was better not to reveal what they knew about the case from the beginning,” Beggs said. “All this information is going to come out. So why not get it out so the public has all the facts and so the case can get resolved?”
Verner indicated she hadn’t read Nicks’ declaration on Monday night when questioned by The Spokesman-Review. “I’m certainly going to review it carefully to see how it affects the city’s position in the civil and criminal case,” she said.
Then on Tuesday morning, Verner issued the statement saying the city must allow the legal process to run its course.
“Ultimately, we, too, are seeking an outcome that is just and fair, based on all the evidence and circumstances. The City of Spokane and I are committed to open and transparent government, and this is part of the process. Our employees must tell the truth as they see it.”
If that’s the goal, Verner and city attorneys stumbled along the way, said local attorney James Sweetser, who served as Spokane County Prosecutor from 1995-’99.
“I think the city officials and the litigators at the city have to realize they represent the citizens,” Sweetser said. “Even if the judgment may be paid by taxpayers’ money, full disclosure and honesty has to take precedence over tricky litigation tactics.”
According to court records filed Friday, Nicks is prepared to testify in Thompson’s upcoming federal trial that major crimes detectives failed to analyze the video of the confrontation and compare it to Thompson’s statement; they never followed up on a report from an ambulance crew that Thompson struck Zehm in the head with a baton; and his own review of the video shows that Thompson violated several policies and procedures by applying unjustified force against the retreating Zehm.
Nicks also said, among a list of concerns, that Thompson did not stop and engage Zehm with verbal commands as the officer – who continues to earn $76,000 a year as the investigation stretches past five years – later described to detectives.
Thompson’s immediate use of a baton on the retreating Zehm “was a level of force higher than that authorized by the Spokane Police Department’s policies and procedures governing the use of force on public citizens.”
And the use of a Taser, when it appeared that Zehm had stopped resisting, was “not authorized” and violated department policies. Nicks also said he expressed all the listed concerns to Chief Anne Kirkpatrick, who along with Nicks declined comment Tuesday through spokeswoman Officer Jennifer DeRuwe.
Carl Oreskovich, who was hired by the city in 2008 to prepare both civil and criminal defenses for Thompson, said he and law partner Steven Lamberson, have filed a motion seeking to exclude Nicks’ testimony. That motion was originally filed June 4, 2010, the day they queried Nicks about the full nature of his grand jury testimony.
“My recollection was he told us during the course of the interview that he didn’t consider himself an expert on use of force,” Oreskovich said. “If he doesn’t qualify as an expert, then his opinion is irrelevant.”
Nicks stated in court records that he has spent the majority of his career reviewing officer reports to determine whether their use of force was justified. Ultimately, U.S. District Court Judge Fred Van Sickle will decide whether Nicks testifies.
Sweetser, the former prosecutor, said the public shouldn’t have to wait until a police official testifies under oath before the full story comes out.
“That’s what the public expects. They don’t expect the city to obfuscate and mislead and try to trick public opinion,” he said. “That ultimately undermines confidence in government.”
Reporter Jonathan Brunt contributed to this report.
1992 murder trial begins against sex offender 
Squid on August 10 at 1:34 a.m.
So……. Nicks is telling the public what it wants to hear, after he says he isn’t an expert on the use of force, which disqualifies his testimony. None of it can be used?
It’s all politics. Makes the City look concerned and transparent, but still isn’t an admission, because the City engineered it in a way that his testimony can’t be used. Pretty sneaky.
There is only one defendant, even though several were involved in both the murder and cover up. One sacrificial lamb. The City looks like it is seeking justice, yet it only has one person on trial, which makes it much easier to control. They then have the chief investigator (assumption) admit that he knows nothing about what he is investigating, which makes his entire investigation invalid.
What is Assistant Chief Nicks an expert on? Did they have an accountant investigate a police murder?
Dazzeetrader11 on August 10 at 2:02 a.m.
Trying to quiet the public by looking noble doesn’t mean they are noble. It’s nonsense. The noose is tightening.
Nicks and Verner have had those tapes forever.
Election time for Verner and Nicks is feeling heat.
Bye bye to Thompson only will raie further questions.
“What did you know and when did you know it” won’t be asked if the City pays off the Zehm family. It’s the deepest question…and the public needs someone outside in authority to ask each and every one of those involved including Verner, the police and, of course, the coverer in chief.. Nicks.
Such concern…..hypocrits all of them. They’re concerned for their own skin.
drywitt99 on August 10 at 3:15 a.m.
That’s why we have elections….to hold politicians accountable.
One of the MANY reasons term limits are a stupid idea!
idahocity on August 10 at 5:44 a.m.
is this a section 1983 civil suit? doesn’t really matter if they are “following policy” or if there’s ignorance up the chain. “To be successful with a claim under Section 1983, a plaintiff must establish two things: (1) that the conduct being complained about was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a constitutional right.”
Diana on August 10 at 6:22 a.m.
Here’s a suggestion for the City’s new “strategy”:
Tell the truth.
drywitt99 on August 10 at 6:32 a.m.
Whose truth???
Truth is subjective.
Facts are objectiove.
I prefer facts.
SpokyDaBear on August 10 at 6:38 a.m.
Toio bad Zehn wasn’t a pastor on his own land then they could have just shot him….
DHF on August 10 at 6:56 a.m.
5 years later and we still dont have the truth. It says a lot for the Mayor and the Spokane PD.
misjustice on August 10 at 7:05 a.m.
Well, there’s truth and then there’s truthiness…
jddavis on August 10 at 7:10 a.m.
That would solve a lot of problems Diana. Unfortunately, it won’t happen.
DickAdams on August 10 at 7:23 a.m.
And the story says,
“acknowledged a discrepancy in their public portrayals of the event.”
Discrepancy? How about LIAR!!! Isn`t time that something is done about Mayor Verner, Nicks, and Kirkpatrick? How long do the citizens of Spokane have to put up with the SPD?
lewis8457 on August 10 at 7:24 a.m.
Every year before his trial we get to hear more dirt and then it all goes away. Van Sickly does not want to go to trial against a cop he has thrown a wrench in every gear this trial has.
The Zehm family will not see justice we the people of Spokane will not see justice instead the lies will just continue.
And the cops will come on here under aliases (cowards) and call us all cop haters.
Albert on August 10 at 7:33 a.m.
I continue to grieve for Otto. I sometimes try to imagine what went through his mind and emotions as he was beaten, tied, tazed, then died. I also grieve for his mom who went through the ultimate “mom’s grief” for months afterward. Please keep this in mind good friends when you read of these “evolving facts” that are now becoming admissions of deliberate lies. These deliberate lies and resultant cover up were willfully conducted by virtually everyone up the chain of command, Tucker, and Verner.
We need to recall Tucker and vote Verner out. No excuses and no exceptions.
valleyman on August 10 at 7:45 a.m.
At least on this site you folks are being consistent in your distrust of and dislike of the liar Nicks… Bravo for that at least…
horse_feathers on August 10 at 9:04 a.m.
Hey Verner,
They did tell the truth “AS THEY SEE IT” and that is the problem.
How about they just tell the factual truth as it happened, that’s what we pay em to do.
kennyhuston on August 10 at 9:38 a.m.
Meanwhile Karl The Klubber rakes in $380,000.00 while sitting on his arse in what basically amounts to be a PAID 5 YEAR VACATION! Will he have to repay this money? Also WTF is Nicks doing investigating use of force violations if he’s not an expert? Does this invalidate all other use of force incidents he has reviewed?
de3 on August 10 at 9:42 a.m.
SPD is a laughable group of 2nd or 3rd rate Keystone Cops, who incompetently missed several critical steps in the investigation.
Its a serial problem too. Remember when the SPD investigators were going to interview Hirzel “on Monday” without telling us that he was on his Vegas vacation trip? Or remember the SPD officers recording themselves on a video tape about going to incite a riot at the 4th of July celebration?
Every time the video - which is mysteriously lost for weeks or months magically appears - it contradicts the SPD’s official statements. How can we trust or respect these clowns? They lie and get caught at it, repeatedly and embarrass the entire city. These are not just innocent little mistakes - these are deliberate and repeatable lies.
BT on August 10 at 9:44 a.m.
Just remember SPOKANE it’s election year, and whatever happens during the elections YOU voted that person in!
93bird on August 10 at 9:48 a.m.
I may be wrong about Nicks, but he actually appears to be the only one from the city or SPD telling the truth. On the night Otto was killed, Nicks said the officers were justified in their use of force. After viewing the video, Nicks can see for himself what happened and reverses course. His story has been consistent since then. It’s plain to see the SPD murdered Otto and that the city has been trying its hardest to make the killing go away. Chief Nicks’ testimony to the contrary puts the spotlight on the liars.
Slightlyworried on August 10 at 9:51 a.m.
In response, Steve Tucker issued the following statement from the tenth tee box at Indian Canyon: “Lies! All lies! It is impossible for a police officer in my jurisdiction to make a mistake. Now if you’ll excuse me, I have the honors.”
PlanB on August 10 at 10:21 a.m.
The truth is great but I think acknowledgement of the obvious is an important step that only Nicks seems to be taking. As many have pointed out, without the video there would be no hope of justice. That is frightening.
kennyhuston on August 10 at 11:06 a.m.
Just imagine if there were no video to contradict Karl The Klubber’s account of the events. How many other questionable situations were swept under the rug? Now I understand why the city doesn’t opt for those little personal video recorders for EVERY officer, (the city would be swamped in lawsuits).
Ron_the_Cop on August 10 at 11:54 a.m.
There is an earlier post of this article with some 50 comments. Definitely worth a read. I’m not going to rehash my comments here. Go to this link and scan the comment thread:
http://www.spokesman.com/stories/2011/aug/09/xxxx/?comments#c330051
Ron_the_Cop on August 10 at 12:19 p.m.
An also should read is the comment thread in Vestel’s related article today:
http://www.spokesman.com/stories/2011/aug/10/shawn-vestal-truth-about-zehm-sure-took-a-while/
Ron_the_Cop on August 10 at 12:52 p.m.
Ok here’s all four article links that now have comment threads on this breaking story:
http://www.spokesman.com/stories/2011/aug/09/xxxx/
http://www.spokesman.com/stories/2011/aug/10/city-reconsiders-zehm-strategy/
http://www.spokesman.com/stories/2011/aug/10/shawn-vestal-truth-about-zehm-sure-took-a-while/
http://www.spokesman.com/stories/2011/aug/10/key-players-and-contradictions/
Spokane_Citizen on August 10 at 5:00 p.m.
For all of you blaming Mayor Verner….and so adamant that a mayor is totally responsible for all bad things that happen on their watch…..please note that the Otto Zehm tragedy (3/18/2006) occurred early in Mayor Dennis Hession’s term of office (1/3/2006 - 11/9/2007). It would appear to a reasonable person, that the current mayor, Mary Verner, is the one helping to drag this issue out in the open once the full facts became more apparent, regardless of the political consequences….which is the sort of truly decent human being she really is.
A reasonable person would also conclude that neither mayor were early provided, by their subordinates, a complete set of facts as this depth of this mess unfolded.
riverlaw on August 10 at 6:22 p.m.
Good point Spokane_Citizen. The true test of leadership is what the Mayor and City Council do with this — will we make changes as a result, will we seek to heal this community.
brianrbreen on August 10 at 7:35 p.m.
@Spokane_Citizen
I like to believe I’m a reasonable citizen and I’m sure the Mayor is a truly decent human being, but I’m having a hard time with your contention that she is helping to drag this issue out in the open. She knew what Nicks and several other officers was going to testify to in April of 2010 when the government provided her attorneys with a proffer which included their expected testimony. But since April of 2010 up to the point she was confronted by two reporters from the SR she has said nothing nor has the chief, and now she still says nothing.
You also contend that a reasonable person would also conclude that Mayor Verner and Mayor Hession were not early provided by their subordinates a complete set of facts. Well I think it would be reasonable for anyone to expect both Mayors over the span of several years this mess has been going on to get a complete set of facts from their subordinates and then tell the public what the facts are. I would assume that would be the expectation of most reasonable voters. I would also think that if a Mayor wasn’t getting a complete set of facts from their subordinates a reasonable voter would wonder why the subordinates weren’t fired.
http://www.spokesman.com/stories/2010/apr/15/feds-testimony-altered/
http://media.spokesman.com/documents/2010/04/20100414zehm.pdf
Spokane_Citizen on August 10 at 7:46 p.m.
Brianrbreen……Since there’s several almost identical parallel threads going on…..That’s precisely my point…….
DickAdams on August 10 at 8:16 p.m.
spokane_citizen, re Mayor Verner. How long has she been sitting on her back side and doing nothing until the SPD pissed in their own soup and so many people watched the tapes including other LE agencies and the case finally caught up with the liars and they are now eating tainted soup. No, my friend, Verner deserves absolutely no credit what`s so ever, IMO. Oh, and a few other liars are eating the soup as well..
Spokane_Citizen on August 10 at 8:31 p.m.
Dick…I’ll say one thing, and one thing only….good people find it very difficult to believe that other people they trust would do something they’d never do. The real test (the test of action, and appropriate response) comes when the blinders fall off, and they learn that such trust has been abused. Old friend, your blinders fell off many years ago, and sometimes I think you have lost your trust for anyone in government….I totally understand your frustration….but the barrel isn’t totally filled with rotten apples. Don’t throw out the baby with the bathwater.
Ron_the_Cop on August 10 at 9:21 p.m.
Spokane Citizen,
I wouldn’t be so quick to criticize Mr. Adams. If you’ve read the threads here I’ve said many times there are many fine men and women doing a very difficult job day in and day out at SPD. What we do have is an incompetent, who fails to lead and sometimes co-opted and corrupt police leadership in turn led by a City Attorney’s Office that aggressively defends the City’s interests that skates on the verge of being criminal.
I’ve told Mayor Verner many times that she should fire Chief Kirkpatrick for several serious lapses in professional judgment. If you don’t believe me read this piece:
http://tinyurl.com/48qh6et
Mayor Verner is in charge, it’s our ship she’s at the helm. I’m sorry if the aftermath of this incident went down on her watch but she failed to act.
Spokane_Citizen on August 10 at 9:45 p.m.
Ron, I’m not ‘being quick to criticize Mr. Adams’,
but I suspect the mayor is conducting some very aggressive internal investigations to determine ‘who knew what when’ and will be responding appropriately to failures in communication of salient facts.
Ron_the_Cop on August 10 at 11:11 p.m.
Spokane Citizen,
Thank you for your reply.
I should advise that both former Sheriff Tony Bamonte and I have longstanding official complaints with OPO Tim Burns on matters involving Chief Kirkpatrick from a year and a half ago. Still no resolution. I’m sure the Mayor knows the substance of our complaints. Read more here about the substance of our complaints:
http://tinyurl.com/2454jjf
Squid on August 11 at 3:07 a.m.
Maybe the higher powers wouldn’t be suspect if they fired the bad apples long ago. It makes them appear to bad apples, themselves. I realize there are rules dictated by the union, but there are always ways to get around those, especially when Thompson’s statement is contradictory to the video. Especially when Odenthal edited the video, and retired to keep his benefits and pension. There were six other cops on the scene who allowed and aided Thompson to kill Otto. There were how many who allowed and aided Thompson to lie? There were how many who allowed and aided Odenthal to edit the video?
One was charged.
Hard to believe Verner didn’t see the real video within 24 hours of the murder.
Hard to believe Nicks didn’t see the real video within 24 MINUTES of the murder.
TheRoyLarsen on August 11 at 12:27 p.m.
So Nicks lied in 2006? Or is he lying now?
lewis8457 on August 11 at 2:56 p.m.
Roy i hate to admit it but you hit it on the head if he tells two stories it will be easy to have his statement thrown out of court and then we are right back where we started.
stuck in a city with cops that can kill at will and a police chief and mayor that simply look the other way.
Spokane-citizen you have a lot of faith in Verner could you be her hubby? Last year it was reported the fed found out Rocky was scripting all city employees to be questioned at trial, are you really trying to tell us Verner did not know about it or at least see that article in the SR? She has said many times she knows nothing until she reads it in the SR.
or maybe your Ernie the union president she loves the police guild, as we noticed last year when she gave you everything you wanted plus 54 days of extra vacation time.
ChefGus/ John Olsen on August 11 at 3:13 p.m.
The fact that these strings are repetitive and the posts on them are not carried forward is a pain…. seems a simple software fix to simply cut and past prior comments on an exactly the same article when it is “reposted” on the next day’s paper…. asking again and again for a fix on this… even if it is someone with a simple “cut and paste” of all of the prior posts…. even i can do that from outside the server…what’[s up?? John
cassandracomplex on August 11 at 8:07 p.m.
Cheaper than the London Riots…
Law enforcement see the worst of society. Addiction, psychosis, cruelty, neglect… and everybody lies to them. Civilians get to see the success cases, people who overcome adversity. Law enforcement deal only with those who succumb to adversity.
They are trained, but they are human. They get worn down, burnt out. They get depressed and anxious, but are supposed to be invulnerable, so they do not seek out, nor are they offered professional help, until something really bad happens.
There are no allowances for honest mistakes, or PTSD, in a job rife with extreme variables. There is no way to do the job, without ever making mistakes. There is no way to do the job, without it affecting them professionally and personally, because they are humans, not machines.
They only get understanding from each other. They close ranks when mistakes are made, because the way the system works, it’s all or nothing. Admit a mistake, and get sued and fired, or cover it up, which ads more stress to an already stressful job, and puts the careers of coworkers, at risk.
I’ve lobbied for Police Eye View cameras to protect the public, but also to protect police. Most people they deal with are impaired in some way, and don’t understand how they appear to an officer that doesn’t know “ they wouldn’t hurt a fly”.
I also suggest a special court for mistakes and accidents. My friend was coming home from work on his motorcycle. He was stopped at a light when the car next to him tore out. A cruiser was a few cars back, driven by a rookie, who rushed to chase down the car. It all happened so fast, my friend didn’t have a chance to get out of the way. The cruiser bumped his motorcycle and he fell and broke his arm. The rookie stopped to help and was all apologetic, when he was silenced by a ranking officer. They made sure my friend got to the hospital, but said the dash cam was off and that my friend slipped.
My friend supports his aged parents and is helping to send his brothers to college. He isn’t the type to sue for a million dollars over a mistake, but it would have been nice if they’d have covered the medical bills and damages to the motorcycle and any sick days that weren’t covered.
There should be a separate hearing for just these kinds of cases, where the citizen is compensated and the municipality is protected from litigation.
There needs to be a safe and consistent way for police to vent their frustrations and trauma. Maybe a confidential session at the end of every shift or at least once a week, with an independent mental health professionals , experienced with the stresses of law enforcement, where they can talk things out and practice various therapeutic techniques. This needs to be mandatory for all law enforcement, so no single officer is stigmatized. There should be treatment options for more chronic problems and the counselor should have the authority to take any officer off the street who they deem to risky to deal with the public. This can save the career of the officer and his/her colleagues. It can also alleviate undue stress on the officer’s family and other loved ones.
I can see cops shaking their heads and rolling their eyes over this letter, but look how many careers are threatened over Otto Zehm. Not just the ranking officer’s, but the careers of his subordinates that felt compelled to participate, then cover it up. They are all going to be hung out to dry by the superiors who don’t want to be hung out with them. Look at the costs of litigation and investigations. I think any or all of these suggestions are far more cost effective and could save careers, families, reputations and lives.
Sincerely,
Nancy McCormick
Chewelah, WA
brianrbreen on August 16 at 8:16 a.m.
@cassandracomplex
Although I agree with your assessment that a police officers job is stressful and carries with it some heavy burdens and expectations, I do not agree that there are no allowances for the honest mistakes officers throughout the nation make every hour of every day. The vast majorities of those officers making mistakes admit them and learn from them. When a culture is allowed to develop within a department not to admit mistakes and leadership makes every effort to hide them out of fear that it will reflect on their leadership that is the beginning of the downfall of that department and it is hard to recover from.
There is a distinct difference between an “honest mistake” and an “abuse of power”. It is evident to me the Zehm case represents an “abuse of power” not only at its beginning but throughout the entire attempt to cover it up.
Citizens understand officers will make honest mistakes, but no citizen should tolerate any Officer from the lowly patrolman to the Chief of Police abusing their power.