Defense attorneys for convicted Spokane police Officer Karl F. Thompson Jr. filed a motion Friday claiming everything from judicial error to juror misconduct in their attempt to persuade a federal judge to grant a new trial for charges 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 on 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, hog-tied Zehm, kept him on his stomach and placed a mask on his face. He stopped breathing and died two days later.
Van Sickle is scheduled to sentence Thompson on Jan. 27. Court testimony indicated that federal prosecutors will seek up to 10 years in prison for the decorated officer.
As part of his motion – to which the government has not yet responded – Oreskovich was critical of 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, which “allowed the prosecution to make constant reference to Mr. Zehm’s innocence,” Oreskovich wrote.
Oreskovich again took aim at comments juror forewoman Diane Riley made to The Spokesman-Review. In an interview after the trial, Riley said that one of the jurors made comments during deliberations describing politics in Spokane as “corrupt and dirty.” She also said the jury believed “100 percent this was a police cover-up.”
“The alleged political climate in Spokane, or so-called police cover-up, was not an issue that was ever presented to the jury or a fact that was to be considered during its deliberations,” Oreskovich said. “Therefore, information regarding a corrupt political climate is properly classified as extraneous information.”
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 after being appointed to represent Thompson at taxpayer expense – claimed that federal prosecutors engaged in “misconduct throughout the course of the trial,” including presenting evidence of Zehm’s innocence.
To make his point, Oreskovich quoted Victor Boutros, a trial attorney with the Department of Justice. Oreskovich claimed that Boutros repeatedly misstated the evidence in his opening and closing arguments in an effort to influence a conviction out of the jury.
For example, Oreskovich listed the transcript of the testimony from now retired Detective Terry Ferguson, who later acknowledged that she and Detective Mark Burbridge either changed or omitted information from witness statements about baton strikes to Zehm’s head.
In his closing argument, Boutros talked about how Ferguson sent her report to prosecutors: “She knows the defendant has said deadly force is not justified, and she writes a report to the prosecutor saying not only don’t prosecute, there is no evidence, none, of excessive force,” according to court records.
But Oreskovich said Ferguson contained “no such recommendation” despite writing in her 2006 report to prosecutors that she found no evidence that Thompson or any other officer had committed any crimes.
“This reference by Mr. Boutros is yet another example of the government’s disregard for the truth, in pursuit of their conviction of Karl Thompson,” he wrote. “This behavior materially affected the fairness of trial. Therefore, a new trial should be granted.”