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.”