August 21, 2011 in City

Council late to get Zehm news

City attorney’s office had long known of assistant chief’s changed viewpoint
By The Spokesman-Review
 
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A majority of Spokane City Council members say they weren’t told until this month that the city’s assistant police chief believes officers violated department policies in the beating of a man who died after a confrontation in 2006. 

But city attorneys likely knew at least by September 2009 that Assistant Chief Jim Nicks had changed his view of the incident that resulted in the death of Otto Zehm; that’s when federal prosecutors filed court documents saying Nicks might testify as their witness.

City attorneys surely knew by March 2010 – more than a year before council members say they were informed – because that’s when federal prosecutors filed documents showing that Nicks believed that his officers violated department policy and that the police investigation was flawed.

Zehm, 36, an unarmed janitor who suffered from schizophrenia, was confronted by police in a north Spokane convenience store in March 2006 after he was mistakenly suspected of stealing money. He died two days after he was beaten, hogtied and shocked with a Taser.

Six council members – Steve Corker, Nancy McLaughlin, Richard Rush, Jon Snyder, Joe Shogan and Amber Waldref – said they were unaware of Nicks’ changed assessment of the incident until they were briefed by city attorneys last week. Councilman Bob Apple said he remembered being told before last week but that city attorneys dismissed Nicks’ opinions because they believed he wasn’t an expert on the use of force. 

Two council members whose terms ended in 2009 – Mike Allen and Al French – also said there were unaware of Nicks’ revised view until last week.

“Either the city attorney’s office was withholding information from the mayor or the mayor was withholding information from City Council, and neither one of those look good,” Allen said.

Rush said he doesn’t believe there was a legal obligation to tell the council about developments in the case, because the mayor is in charge of responding to litigation. However, he said the council should have been told about Nicks’ position much earlier, in part, because the council was asked to approve up to $200,000 of taxpayer money to hire an attorney to represent Officer Karl Thompson Jr. in a civil suit filed by Zehm’s estate and family.

“I fail to appreciate the reasoning for that information not being made available to council,” Rush said.

Waldref said it would have been good to know earlier but noted that the civil case has been put on hold pending the criminal trial.

“I’m not sure how this would impact the decisions the City Council could make,” Waldref said.

Snyder said the council should have been briefed earlier because Nicks’ assessment creates a conflict of interest in the case. Snyder said he believes the city should have gotten a separate attorney to represent Nicks in the civil case as soon as officials understood his testimony conflicted with the city’s stance.

“It creates a situation where Nicks needs to be indemnified and have his own separate attorney, and that’s our responsibility,” Snyder said.

Administrators didn’t ask the council to provide Nicks with a separate attorney until earlier this month. The council is scheduled to vote Monday on whether to hire an outside attorney.

Nicks, police Chief Anne Kirkpatrick and Mayor Mary Verner declined interview requests on the topic last week. Verner announced in a news release Tuesday that she had directed city attorneys to work toward a settlement in the Zehm civil case.

Verner declined to answer any questions emailed to her last week by The Spokesman-Review, including questions about when she first learned about Nicks’ concerns and why Nicks didn’t get separate representation earlier.

Instead, she issued a statement noting that the city is not a party to the criminal case and that the civil case has been on hold since 2009 while the criminal case has moved forward.

“At this point, this matter is in active litigation – both as a civil case involving the city and a federal criminal case with a trial that’s set to get under way in less than two months. This week, I expressed my desire to move the civil case forward, and I will carry out that work. Beyond that, we must allow the process to run its course,” Verner said in the statement. “The federal criminal trial should sort out the facts and any potential competing testimony and provide a more complete picture for all of us. The community, the defendant, and surely Mrs. Zehm (Otto Zehm’s mother, Anne) deserve a fair hearing of the facts in the criminal trial.”

Verner also noted that once the cases are resolved, the city will conduct a “thorough internal investigation.”

While documents from 2009 and 2010 show the city attorney’s office surely knew Nicks’ stance in 2009 and 2010, it’s likely that the city attorney’s office understood Nicks’ position in 2008. Federal prosecutors filed a document this month detailing Nicks’ thoughts on the Zehm case based on testimony he gave to a federal grand jury in November 2008.

Although grand jury testimony is closed to the public, nothing would have prevented city attorneys from talking to Nicks about his 2008 testimony, especially since they represented him at the time in the federal civil case.

Federal prosecutors, in fact, wrote in court filings that Assistant City Attorney Rocky Treppiedi was debriefing Police Department witnesses before and after their grand jury testimony. In any case, city attorneys had discussed the case with Nicks at least by September 2009, because the assistant city attorney filed a declaration from Nicks at that time in the civil case. (That declaration does not touch on Nicks’ opinions of officer conduct.)

It’s not clear when Nicks came to his conclusion that Thompson, who continues to work as a senior police officer, violated department policy. 

But Nicks’ notes on the case, which were made public in Thompson’s criminal case, hint that he started having reservations about the investigation at least by August 2006. That’s when he learned there was more security video footage of the incident, a fact known by some subordinates but not relayed to him. He also expressed concern that Assistant Chief Al Odenthal knew for about two weeks without telling Nicks that a mask had been placed over Zehm’s face during the incident to prevent Zehm from spitting.

Nicks, who was the acting police chief when the confrontation with Zehm took place, discussed the problems with his predecessor, Chief Roger Bragdon. His notes say he discussed his conversation with Bragdon in a meeting about the Zehm case with Mayor Dennis Hession.

“Also shared with them my discussion with Bragdon that he was aware of the investigative chain of command weakness and elected to micromanage the division vs. making wholesale changes,” Nicks’ notes say.

Despite Nicks’ growing reservations about the incident, and the fact that they’re representing Nicks in the civil case, city attorneys continued to argue vigorously in court that officers did not violate policy.

Besides voting on the hiring of an outside attorney for Nicks, the City Council on Monday will decide if it will rescind the city police ombudsman’s authority to investigate alleged police misconduct separately from the Police Department’s own investigations as a result of an arbitrator’s decision that said the Spokane Police Guild must agree to the provision.

Zehm’s death was a major impetus to create the position.

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