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Many things Jim Nicks didn’t do in Zehm case

Fri., Aug. 19, 2011

Editor’s note: This column has been changed to correct the name and rank of Steven Braun Jr.

Jim Nicks has taken a lot of heat lately, as well he should, for his role in the Otto Zehm case.

Today, though, I come not to bury Nicks, but to praise him. Sort of. Or at least to spread some of the massive manure pile of blame just a bit, because it doesn’t all belong on him.

The city’s assistant chief of police – who was the acting chief and the public face of the dissembling early days of the Zehm investigation – has made sworn court statements that emerged recently, acknowledging that Officer Karl Thompson used excessive force when he beat Zehm repeatedly with a baton and Tasered him in the March 18, 2006, struggle that led to Zehm’s death.

So Nicks did that right. In addition, we shouldn’t forget all the wrong that he didn’t do. Because there is so very, very much of that, as well.

Jim Nicks did not strike Otto Zehm with a baton almost immediately upon entering the Zip Trip to investigate a possible theft. Karl Thompson did that.

He did not shock Otto Zehm and then follow him as he tried to crawl away, striking him repeatedly with a baton – part of what federal investigators deemed a “violent attack.” That, too, was Thompson, prosecutors say.

He did not later tell investigators any number of things that were not borne out by the other evidence, ranging from Zehm’s supposedly assaultive demeanor to his supposedly threatening use of a pop bottle. Thompson, again.

He did not share a Zip Trip aisle with Thompson and Zehm while Thompson delivered seven baton blows – one, two, three, four, five, six, seven – then report later that he had seen zero baton blows. Officer Steven Braun Jr., prosecutors say, did that.

Once Zehm had been wrestled into submission, double-cuffed and hogtied face-down, Jim Nicks did not kneel on his chest/neck area for nearly 3 minutes right before Zehm became “unresponsive.” Officer Jason Uberuaga did that, according to court documents, along with several other officers who applied “excessive … downward force” on the “totally restrained” Zehm.

He did not try to discredit a witness who claimed Thompson had struck Zehm in the head with his baton. Detective Mark Burbridge did that, the feds say, along with another detective.

He did not, it seems, come up with the mythical Lunge of Otto, though he did start telling the myth that night, not too long after the ambulance hauled Zehm away and not long after consulting with Assistant City Attorney Rocky Treppiedi. That lunge – repeated in news releases and public statements along with Thompson’s fictional “defensive” use of his baton – was relayed to Nicks in the various briefings from other officers on the scene. That Kool-Aid was drunk very quickly, and by more than just Jim Nicks.

In the subsequent city investigation into the case, Jim Nicks did not fail to conduct vital interviews and gather evidence, such as the mask Zehm was wearing when he stopped breathing. Nicks also did not fail to follow protocol requiring that witnesses be interviewed in the presence of a county investigator supposedly monitoring the investigation. That was Detective Terry Ferguson and the Major Crimes Unit.

He didn’t decide that two of the four videotape angles of the confrontation contained nothing of value, only to discover later that – hey, look, something of value! Ferguson did that.

He did not fail to perform a side-by-side comparison between Thompson’s statement and the videotape, and shed any light on the contradictions between them. That was Ferguson and the Major Crimes Unit.

He did not refer the investigation to the prosecutor’s office with the finding that there was “no evidence” of excessive force, and that “only that amount of force that was reasonably necessary was used.” Ferguson did that.

He did not commit the “many glaring missteps and omissions” the city’s lead investigator is now expected to admit occurred in the city’s “independent investigation.” That, prosecutors say, is the city’s lead investigator herself: Detective Terry Ferguson, now retired.

Jim Nicks did not write witness reports that softened the “incriminating” nature of the witness’s observations about Thompson, and have those summaries later corrected by the witnesses themselves. Burbridge did that, the feds say.

He did not provide a statement to federal prosecutors saying Thompson used excessive force, then ask to provide a second “clarifying” statement, after meeting with Treppiedi, in which he said that maybe Thompson did not use excessive force after all, depending on how you look at it. Uberuaga did that.

He did not flatly deny that officers applied downward force on Zehm while he was hogtied and wearing a mask. Assistant Chief Al Odenthal, now retired, did that.

Jim Nicks did not write a letter to attorneys for Zehm’s family in June 2006 exonerating Thompson and laying all the blame for the incident on Zehm’s “extraordinary” resistance, before the city’s shoddy investigation was even completed. Rocky Treppiedi did that.

He did not meet with the Spokane medical examiner and try to pry confidential information out of her inappropriately. Treppiedi, prosecutors say, did that.

He did not act as a legal representative for Thompson while also acting as the legal representative for several other officers, some of who are expected to give damning testimony against Thompson at trial, and who are defendants in a civil lawsuit, and he did not engage in other legal shenanigans such as passing along confidential grand jury testimony to Thompson. Treppiedi, prosecutors say, did that.

He did not sit in on interviews of Spokane Fire Department personnel by federal investigators, jumping in to make “substantive clarifications,” which were then adopted by the witnesses – a circumstance that caused federal investigators to conclude they had to use a grand jury to get untainted testimony. An assistant city attorney who is unnamed in court records did that.

Jim Nicks did not file a sworn statement in June 2009 attesting that “The force used upon Mr. Zehm was caused and necessitated by his own acts, and said force was necessary and reasonable …,” despite the fact that Nicks had testified before a grand jury eight months earlier, presumably saying the same things under oath that he is saying now. Rocky Treppiedi did that.

Jim Nicks does not appear, like Waldo peeking from behind a curtain, in virtually every instance where the city has shamed itself; where police made mistakes or told stretchers or switched their story; where blatant conflicts of interest arose and were seemingly exploited; where the city refused to acknowledge publicly the evidence that even its own officers now seem ready to admit. Rocky Treppiedi – There’s Waldo! – did that.

Anything else? Maybe just one thing.

Jim Nicks did not name Rocky Treppiedi city employee of the month in December 2010.

Mayor Mary Verner did that.

Shawn Vestal can be reached at (509) 459-5431 or Follow him on Twitter at @vestal13.

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