SEATTLE — A jury should be told Otto Zehm hadn’t committed any crime before he was beaten by a Spokane police officer who claims Zehm was aggressive and defiant when confronted in a North Side convenience store, a federal appeals court panel was told Monday.
Federal prosecutors have appealed a pretrial ruling by U.S. District Judge Fred Van Sickle in Spokane that excludes evidence of Zehm’s innocence as prejudicial and inflammatory. They told a three-judge panel from the 9th U.S. Circuit Court of Appeals it would help the jury decide whether Thompson was lying when he later described Zehm with words like sinister, aggressive, defiant and resolute.
But an attorney for Officer Karl Thompson said the trial judge is right to keep such information from a jury when the trial starts, because Thompson didn’t know those facts when he approached Zehm. It’s inflammatory and could prejudice the jury against the officer, attorney Carl Oreskovich said.
“A person that is innocent can act defiantly” when confronted by an officer, Oreskovich said. “A guilty person can simply give up.”
Police confronted Zehm in a north Spokane Zip Trip in March 2006 after hearing a report that he may have stolen money from a nearby automatic teller machine. But evidence later established Zehm, who had some developmental disabilities, was merely using the ATM and hadn’t broken any laws.
Thompson, the first officer in the store, struck Zehm repeatedly with his baton and shocked him with a Taser, then when other officers arrived they placed him in restraints. He lost consciousness and died two days later in a hospital.
Thompson is charged in federal court with using excessive force and lying to investigators about what happened.
Members of the panel seemed to weigh carefully the prospect of overturning a ruling a trial judge familiar with the case usually has the discretion to make. “The fact that Thompson just beat (Zehm) to death, isn’t that enough to convict Thompson?” Justice Betty Fletcher asked at one point.
They also wondered whether the jury could be told to consider Zehm’s innocence for the limited purpose of reaching a verdict on the charge of lying to investigators, and told to disregard it for the excessive force charge.
Jurors could be told to do that, but they may not follow that order, Oreskovich argued.
Maybe not, Justice Richard Paez said, but that is common practice. “We do it all the time.”
Thompson’s trial is scheduled for Oct. 11. The panel is considering the appeal of Van Sickle’s ruling on an expedited basis and could rule within the next few months.
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