Spokane7
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March 25, 2011 in City
Appeals court upholds ruling on Zehm innocence
A jury likely will not learn that Otto Zehm was innocent of a crime when he was confronted by a Spokane police officer in a fatal encounter five years ago, federal appeals court judges ruled Thursday.
The 9th U.S. Circuit Court of Appeals supported a decision by U.S. District Court Judge Fred Van Sickle to exclude from the trial of Officer Karl F. Thompson Jr. the evidence that Zehm had not committed a crime prior to the incident on March 18, 2006.
Carl Oreskovich, one of the attorneys defending Thompson against the felony charges of excessive force and lying to investigators, said he was “obviously” pleased with the decision.
“This evidence should never come in,” Oreskovich said of Zehm’s innocence. “The officer’s actions are not judged in hindsight. They are based on the facts and the circumstances that he knew at the time. What happens is that we learn things after the fact and people judge. That’s not the fair threshold for this type of case.”
Assistant U.S. Attorney Timothy Durkin said he could not comment about any aspect of the case. But in previously filed court documents, Durkin argued that the evidence was key because it could help explain why Zehm acted the way he did when Thompson confronted him.
“The excluded innocence evidence is critical to the United States’ proof on both charges since it tends to show the defendant lied about his justification for his initial use of force,” Durkin wrote.
The confrontation between Thompson and Zehm, a 36-year-old janitor with paranoid schizophrenia, began after two young women erroneously reported that Zehm had stolen money from a nearby ATM.
Thompson responded to the call, entered a Zip Trip at 1712 N. Division St. and struck Zehm with a police baton and shocked him with a Taser as Zehm held a 2-liter soda bottle in front of his face. Additional officers hogtied Zehm for about 17 minutes and put a plastic mask on Zehm’s face before he stopped breathing. Zehm never regained consciousness and died two days later.
Thompson’s criminal trial is currently set for Oct. 11.
Most case law has held that officers should be judged based on what they knew at the time of a confrontation. However, federal prosecutors asked the 9th Circuit Court to review Van Sickle’s decision excluding the evidence of Zehm’s innocence under a previous court case, Boyd v. City and County of San Francisco, that held that certain evidence prior to an incident can be used if it tends to show that one version of events is more believable.
But the circuit judges noted that they could not overrule the discretion of a sitting judge unless he or she abused that discretion.
“Although the (Van Sickle’s) reasoning for its Rule 403 ruling gives us pause, we cannot say that it is ‘illogical, implausible, or without support in inferences that may be drawn from the record,’ ” according to the written opinion by Judges Betty Binns Fletcher, Sandra S. Ikuta and Richard A. Paez.
However, while the opinion supports Van Sickle’s decision based on his discretion, it left a legal door open for federal prosecutors once they start presenting evidence.
“Further, we take note of the district court’s statement that, if warranted by the evidence at trial, it would reconsider its ruling,” the judges wrote. “The court’s willingness to revisit the issue is significant because the court issued its ruling pretrial, without the benefit of the witnesses’ actual testimony.”
1992 murder trial begins against sex offender 
ChefGus/ John Olsen on March 25 at 4:54 a.m.
Think “The Lincoln Lawyer” here… ?Justice? no… it is “Just Us” Gus
Ninch on March 25 at 7:35 a.m.
So can they find any jurors who do not know that Zehm was innocent? This ruling may be null and void at this point.
philipgregory on March 25 at 7:55 a.m.
What happened to “innocent UNTIL proven guilty”.
It isn’t alright for police to “assume” guilt!
The appeals court needs to be removed and reasonable judges put in their place.
TheRoyLarsen on March 25 at 8:24 a.m.
They were reasonable. The Ninth Circuit upheld Graham v. Conner.
BitofBacon on March 25 at 8:29 a.m.
This ruling by the 9th Circuit reminds me of that old saying-even a blind squirrel will occasionally find an acorn. Their track record is abysmal but they finally got one right.
Orphan on March 25 at 8:47 a.m.
Thompson was totally out of line, he should not get off here. Time to start fighting back, legaly use your recorders to record Cops every time you see them stop someone. We need to insist that each officer have an audio/video device up and running on them at all time while in duty. Kirkpatrick and Ozzie complaine about the cost but what has the Zehm case cost amd we are not done. Get the caneras and most of this will stop.
TheRoyLarsen on March 25 at 11:02 a.m.
The incident WAS recorded.
DemoDriver on March 25 at 2:37 p.m.
Billy Budd.
Orphan on March 25 at 7:02 p.m.
Not from the Officers point of view, that is critical to fully understand what happened.
D Statler on March 25 at 7:43 p.m.
Spoon feed the jury just what the police want them to hear. Then let the jury hear how Otto had multiple previous run ins with the law.Next,that he was suicidal or had a mysterious dylireum.Wait, we have to hand pick a jury selected exclusively from GUILD members. Maybe he had a rock in one hand and a 2-liter bottle in the other. We better just change the date and time of the incident to the day that Otto was not at work. We can do it the morning of the trial.The Judges won’t do anything about it.The Appeals judges probably didn’t even read the papers filed on Otto’s behalf.They just rubber stamp the first ruling and “legality is served”. “MORALITY” doesn’t make any difference to these judges.Our whole legal justice system in Spokane is erred.I am saddened that we the people have to suffer the vicious acts of a few bad POLICE OFFICERS and immorral rulings handed down by our Judges.The same Judges sworn to serve we the people.Lets hope the Washington State Supreme Court considers morality and legality when they rule on this mess in the end!
I am sorry to rattle on and on.There has been too much corruption and not enough leadership to fix the problems.
lewis8457 on March 26 at 7:15 a.m.
This case will be just like Jay Olsons, a pile of our money will be spent only to let another murdering cop get off as usual.
What a farce, while Otto is in box and Thompson and his death squad sit back and collect their pay, while our so called justice system drags it feet.
The MLK bomber has already been to court, after what 2 months? And Otto’s case going on 5 years now isn’t it.
I have already resigned my self to the fact Thompson will walk free. and all his uniform buddies will be jumping in the courtroom, high fiveing each other for the right to kill disabled folk at will.
and people wonder why i don’t like the cops
D Statler on March 26 at 2:59 p.m.
Lewis,it is not all cops.I have extreme disrespect for the bad cops too. Please remember there are five good cops for every bad one. :^) The Prosecutors office,The Drug and Gang taskforces, Judges that will not protect the publics rights.Commissioners that look the other way.There are lots of pieces to this broken puzzle that need repaired. Morality seems to be missing from the entire legal justice system!
lewis8457 on March 27 at 7:56 a.m.
undooley sure we can hope it is only a few cops but is that true? 7 cops were on scene the night the put Otto down. Add to that the killings we had last summer we can add 6 more cops to that figure. Now lets add in how many accidents they had blaming it on the other driver? 6 that i can remember? 19 bad cops are bit more then a couple. Then of course they are no longer on the force but we had a cop cause a DUI hit and run, and of twinkle toes Olsen who took a loaded gun into a bar. Now we are up to 21 bad cops. That we know of.
All we have to do is wait for the others to come to the surface. But how many of us get to die in the process?
Frankly any cop who stands next to Torok and Thompson in my book is a bad cop. Loyalty is one thing but going against your very beliefs to stand with a murdering brother makes them no better then Thompson or Torok.