Defense attorneys for convicted Spokane Police Officer Karl F. Thompson Jr. filed a motion today claiming everything from judicial error to juror misconduct in their attempt to persuade a federal judge to grant a new trial stemming from the fatal 2006 confrontation with Otto Zehm.
The first allegation is one that has been presented twice – and twice rejected by U.S. District Court Judge Fred Van Sickle – that the government did not present sufficient evidence to show Thompson acted willfully, or with a bad or evil purpose, to deprive Zehm of his Constitutional right to be free of unreasonable force.
“Second, evidence was admitted over objection at trial that unfairly tainted the proceedings,” defense attorney Carl Oreskovich wrote.
A jury in Yakima convicted Thompson Nov. 2 of using excessive force and lying to cover up his actions during the March 18, 2006, confrontation in which Thompson struck the 36-year-old mentally ill Zehm with a baton multiple times and shocked him with a Taser in a Spokane convenience store. Several other officers arrived, hogtied Zehm, kept him on his stomach and placed a non-rebreather mask on his face. He stopped breathing and died two days later.
Van Sickle’s decision to allow testimony from a Zip Trip employee who often saw Zehm purchasing Pepsi products, evidence of Zehm’s paycheck from the crime scene, and Zehm’s comment that all he wanted was a Snickers “allowed the prosecution to make constant reference to Mr. Zehm’s innocence,” Oreskovich wrote.
He also attacked the jury, saying comments attributed to jury forewoman Diane Riely shows that the jury “considered inappropriate extraneous information in making its determination as to Karl Thompson’s guilt,” Oreskovich wrote. “The jury’s misconduct severely undermined the trial process and deprived Karl Thompson of his right to a fair trial.”
Oreskovich also criticized the jury instructions. Telling the jury that Zehm had a right to defend himself “was inappropriate and improperly focused the jury’s attention on Mr. Zehm’s actions and state of mind as opposed to what was perceived by Karl Thompson,” he wrote.
Finally, the defense attorney – who has billed more than $354,000 for his firm as of Oct. 31 – claimed that federal prosecutors engaged in “misconduct throughout the course of the trial. In its opening statement, the government made inappropriate references to Mr. Zehms’ innocence.
“Furthermore, the government blatantly misrepresented the facts during the trial and closing arguments through the mischaracterization of evidence, including evidence regarding Zehm’s innocence.”