Juror: Zehm reports moot
Forewoman says outside facts didn’t come into deliberations
The forewoman of the jury that convicted Spokane police Officer Karl F. Thompson Jr. said none of the jurors brought information to deliberations that they picked up from media reports, as alleged by defense attorneys seeking a new trial.
Diane Riley, 57, of Ellensburg, contacted The Spokesman-Review Monday to voice her concerns about allegations that jurors may have been exposed to television reports indicating Otto Zehm was mentally ill.
U.S. District Court Judge Fred Van Sickle had barred from the trial any mention of Zehm’s mental illness.
Thompson’s defense attorney, Carl Oreskovich, alleged after his client was convicted that some jurors were exposed to television coverage about the beating death of a mentally ill man while they were staying at a hotel during the trial in Yakima.
But Riley said no juror mentioned anything about gleaning information from media accounts and that the jury decided the case based only on the information presented at trial. She said one of the jurors sent a note to the judge during the trial asking for more information about Zehm, but it had nothing to do with outside media reports.
“I was presiding over this group of people. I could tell that none of them were being fed information from the outside,” she said.
Van Sickle is expected to rule soon on a request by Oreskovich to query jurors about what they may have seen on the televisions at the Oxford Suites hotel in Yakima. That hotel housed the three-attorney defense team, Judge Van Sickle and five of the 12 jurors who convicted Thompson on Nov. 2 of using excessive force and lying to investigators.
Oreskovich also included in a court filing an email from an alternate juror – who wasn’t part of the unanimous decision to convict Thompson – indicating that the alternate did not agree with the verdict.
“I was shocked to hear the news,” the unnamed juror wrote in the redacted email, according Oreskovich’s filing. “I do not have the same opinion of my fellow jurors. I am sorry.”
Oreskovich did not respond to an email request for an interview. Assistant U.S. Attorney Timothy Durkin said he could not comment about any aspect of the case.
As for Riley, she said it was Oreskovich’s allegations of juror misconduct that prompted her to contact the newspaper.
“I was rather disturbed about a recent article I read in which I learned the Thompson defense is asking for a new trial because jurors ‘may have seen’ news about the trial while staying at a hotel in Yakima – and specifically as it was related to Zehm’s mental condition,” Riley wrote in an email Monday.
“I do not believe for a moment the jury was influenced by anything outside the courtroom; the conclusions and ultimately the verdict were based fairly and honestly on what was seen and heard in the courtroom,” she continued. “It would be such a shame if politics were to sabotage the hard work the jurors and the court did to avail justice.”
‘Why wouldn’t someone give in?’
In a telephone interview Tuesday, Riley said the jury had several unanswered questions about Zehm. They did not know that Van Sickle had previously barred information that Zehm was innocent, mentally ill and not using drugs on the night of the incident.
“What we were searching for was why wouldn’t someone give in finally? We had suspected that there was something different about Otto just for that reason,” Riley said. “We had plenty on Mr. Thompson, but nothing on (Zehm). It was hard. That’s what took us so long. We went over and over and over things and asked pertinent questions. I said, ‘Keep the emotion out of it.’ When you don’t have enough facts, it’s hard.”
After convicting Thompson of using excessive force and obstruction of justice, Riley said she couldn’t sleep “the whole night.”
“We convicted this police officer of something that will be forever with him. You still walk away and say, ‘These are the facts. This is what he failed to do in the scope of his job.’ Yet, he’s still a human being and you don’t want to make a mistake. There is always that little spark of doubt about whether we did the right thing. That’s why you have more than one juror.”
The next morning, Riley got on her computer and read previous coverage of Thompson’s interaction with Zehm.
“First, I learned about his mental condition, and two, he didn’t have any drugs in his system,” she said. “I was like, wow, we did make the right decision. I slept like a baby the next night.”
Case turned on officer’s testimony
The case turned, according to Riley, when federal prosecutors called Spokane police Officer Tim Moses to the stand. Federal prosecutors provided Moses a letter of immunity so he couldn’t invoke his Fifth Amendment protections against self-incrimination. Moses previously testified to a grand jury that Thompson told him he hit Zehm in the head with a baton, which would have constituted unjustified lethal force.
“We were all on the fence until Tim Moses took the stand. That man gave everything away,” Riley said of his hostile demeanor toward prosecutors. “You could tell by his attitude and how he presented himself. You don’t get that way unless you are guilty of something or hiding something. It was just a gut instinct that this man was covering something up. His attitude in general turned us off.
“And when (Officer Sandy) McIntyre took the stand and followed suit, I remember somebody saying that the feds really must have done a number on her to make her cry like that,” Riley continued. “I said, ‘That’s a possibility. But I don’t know about you guys, but if I’m in trouble I cry.’ ”
Despite the troubling testimony, Riley said she waited until the case was complete before she made up her mind.
“I didn’t decide until the very end, purposefully, just like the judge asked,” Riley said. “I have three daughters and 13 grandkids. I learned that you have to hear all sides of the story to be fair.”
The jury listened to testimony for 3 ½ weeks. On the first afternoon of deliberations the jurors all “vented.”
“We went around the room and kind of expelled our emotions and pent-up comments,” she said. “For 3 ½ weeks, we couldn’t speak” about the case.
Obstruction charge caused disagreement
On Nov. 1, the jury decided relatively quickly that Thompson had used unreasonable force when he confronted Zehm on March 18, 2006, in the Zip Trip at 1712 N. Division St. But four jurors “remained on the fence” about the obstruction charge.
“There were about four jurors who felt (Thompson) was the fall guy for the department,” Riley said. “Everybody felt 100 percent this was a police cover-up. But the four felt that Thompson was the victim of the department cover-up. That’s why they couldn’t say at first that he intentionally, willfully obstructed justice.”
But after lunch on Nov. 1, the jury asked to listen to the taped interview Thompson gave on March 22, 2006, describing how he struck Zehm with a baton to pre-empt an expected assault.
The four jurors “couldn’t get past the department cover-up. I said, ‘Let’s pretend there was no department cover-up. Let’s just look at the statement,’ ” she said.
Regardless of whether the word was “lunged,” which police officials used for months to describe Zehm’s movements, or whether Zehm “came at” Thompson, “it doesn’t matter the word,” Riley said. “Did Otto Zehm do something that could be construed as aggressive? It was a resounding no.”
The experience will forever remain with the corporate manager-turned-trucker.
“It was a terrible, emotional experience,” Riley said of her first time sitting on a jury. “But it was wonderful in the sense that this was a federal trial and I got to see the machinations about how it works.”
During the trial, Riley said she had no sense how important the case was to Spokane.
“Most of us had never heard of this case,” she said. “We didn’t know the particulars. But one of the jurors had an acquaintance who lived in Spokane. (The juror) made comments in deliberations. She said politics in Spokane are corrupt and dirty. That was the only person who had a sense of what was going on.”