November 12, 2011 in City

Tucker mum on charges

Following Thompson’s guilty verdict, lawyers question prosecutor’s inaction
By The Spokesman-Review
 

Spokane police Officer Erin Raleigh, left, and Officer Jason Uberuaga are shown in photographs taken by investigators after the March 18, 2006, fatal confrontation with Otto Zehm.
(Full-size photo)(All photos)

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Ten days after a jury convicted Officer Karl F. Thompson Jr. in federal court, Spokane County Prosecutor Steve Tucker has given no indication that he will move forward in state court with an investigation into Thompson or other officers involved in the 2006 confrontation with Otto Zehm.

Tucker avoided questions for more than a week. His only response to multiple calls and office visits was an email on Friday asking about the “specific case” reporters were inquiring about. He then didn’t respond by 5 p.m. Friday to a list of emailed questions.

In 2006, Tucker put his investigation on hold, saying he wanted to know what federal investigators would find. But a federal source, who spoke only on condition of anonymity, said neither Tucker nor anyone from his staff has requested any of the evidence obtained in the federal probe, which is continuing.

One former, longtime prosecutor believes he has seen enough evidence presented by the FBI to charge two officers with first-degree manslaughter in connection with the death of Zehm, who stopped breathing while hog-tied by police on March 18, 2006. And another former prosecutor said at the very least, Tucker needs to seek a prosecutor from elsewhere to continue the investigation.

“I thought everybody in the case and cover-up should be immediately terminated and an independent investigation should be started to determine if anyone should face prosecution,” said Don Brockett, who served as county prosecutor from 1969 to 1994. “What is lost in this – this wasn’t just the assault and beating of Otto; It caused his death.”

Five years ago, Tucker shunned a suggestion – by someone he refused to identify – to hand the Zehm investigation over to a prosecutor from another jurisdiction. “It’s my job to make the decision,” Tucker said in July 2006.

Three months later, Tucker put his investigation on hold after he learned federal agents had found a witness that Spokane police had not interviewed. Last year, while successfully running for a fourth term in office, which pays about $145,000 a year, Tucker said he still didn’t know what evidence the FBI had obtained.

Thompson’s recent four-week trial in Yakima produced reams of evidence that painted a troubling image of the Spokane Police Department. Federal prosecutors described a department-wide “whitewash” of an investigation into its own officer.

Testimony revealed that police detectives refused to give witness statements to a medical examiner and other officers contradicted their own statements to a federal grand jury. Federal prosecutors said the missteps, gaffes and misstatements were all done to make Thompson look less culpable.

“What the family has wanted all along was full accountability,” said Breean Beggs, who represents Zehm’s mother in a companion civil suit. “We would be encouraged if the county prosecutor would investigate with all the information he now has. We have been and continue to take the prosecutor at his word that once he has the information from the federal case that he will continue his efforts.”

As for Tucker, he indicated during an interview in 2010 that the only charges he thought would apply would be misdemeanor assault charges against the officers. And, he said, those crimes would have all reached the statute of limitations.

But several witnesses testified they saw Thompson use deadly force by striking Zehm in the head.

Although he was barred from testifying about cause of death during the trial, defense medical expert Dr. Daniel Davis said it was clear to him that Zehm died because officers Erin Raleigh and Jason Uberuaga placed their weight on Zehm while he was hog-tied and lying on his stomach.

Davis’ analysis shows that Raleigh applied pressure on Zehm’s abdomen for 1 minute, 34 seconds; Uberuaga “remains on Zehm’s chest/neck area for a total of 2 minutes, 47 seconds,” Davis wrote in his report. “After pressure was removed, it was noticed almost immediately that (Zehm) was unresponsive.”

Brockett said that evidence alone would provide a legal basis for Tucker to charge those officers with first-degree manslaughter, which requires someone to act recklessly to cause another’s death.

“You can’t stand there and watch someone die and not say it was negligence. Now that we found out they had their knees on his back, that makes it reckless,” Brockett said. “It’s inexcusable. It’s got to change.”

Jim Sweetser, who succeeded Brockett as county prosecutor, said Tucker’s role has been compromised because of his close association with local law enforcement. During his four years in office, Sweetser successfully prosecuted former Spokane County Sheriff’s Deputy Tom Dibartolo for killing his wife in 1996.

“If he does nothing, then the public should be outraged, because that is part of his job,” Sweetser said of Tucker, who is a former trooper with the Washington State Patrol. “Whatever decision is made, it needs to be credible. It needs to be something we can trust and not subject to the interpretation of bias.”

Brockett said he still hasn’t heard an explanation for why oxygen wasn’t supplied to the mask Raleigh placed over Zehm’s face to reportedly keep him from spitting. Firefighters have since ended the practice of handing over the non-rebreather masks to officers.

“I couldn’t believe it that an officer (Tim Moses) had to be provided immunity to testify. I thought that was the blackest mark the Spokane Police Department has ever received,” Brockett said.

At the trial, prosecutors showed photographs of Thompson and other officers who responded that night. The photos, taken at the Public Safety Building immediately after the Zehm confrontation, were used to document any possible injuries or damage to officers’ uniforms.

The photos show Raleigh and Uberuaga smiling for the camera at the same time Zehm was losing the battle for his life at Deaconess Medical Center.

Uberuaga did not respond to email requests for interviews, but Raleigh’s attorney, Chris Bugbee, said he understands that the public might take offense to officers smiling after such a serious incident.

“I’ve spent a lot of time with Officer Raleigh. He’s a goofy kid who smiles pretty regularly,” Bugbee said. “It doesn’t surprise me – knowing Officer Raleigh and his personality – that when asked to have his picture taken he smiled.”

Bugbee said the photo was taken at a location some distance from the crime scene and after the incident as officers were attempting to “cool down.”

“I can tell you that Officer Raleigh certainly considered this to be a serious and important situation,” Bugbee said. “He would not have made light of it. There is no question in my mind.”

As for Brockett’s calls to charge his client with manslaughter, Bugbee said he doesn’t agree. He said his client and Uberuaga walked into a situation where they believed Zehm was resisting other officers’ attempts to detain him.

“I think it was pretty clear to federal investigators and prosecutors that Officer Raleigh did just as he was trained to do. I think it’s been pretty well established that they needed to change how they train to hog-tie and deal with someone in Mr. Zehm’s situation,” Bugbee said. “The death occurred because they ended up putting Mr. Zehm in a situation where it caused his death.

“But they did what they were trained to do,” he continued. “I don’t have any concern that he is under investigation or suspicion of being involved in a criminal homicide.”


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