October 5, 2011 in City, News

Feds ask judge to keep Zehm trial in Spokane

By The Spokesman-Review
 
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A federal prosecutor has asked a judge to reconsider his Tuesday decision to move the upcoming criminal trial of Spokane police Officer Karl F. Thompson Jr. to Yakima. But defense attorneys support the move.

Assistant U.S. Attorney Timothy Durkin filed a motion outlining the difficulties of moving more than 100 witnesses some 200 miles for a trial he predicted would last five to six weeks. He asked for an expedited review of the motion by U.S. District Court Judge Fred Van Sickle.

Thompson has been charged with using unreasonable force and lying to investigators in the aftermath of Spokane police officers’ fatal confrontation with janitor Otto Zehm in 2006.

“The new venue has caused significant adverse logistical difficulties in re-scheduling and re-arranging witnesses’ appearances and testimony, which has already been a difficult and burdensome process,” Durkin wrote. “Notably, neither party requested the Court to change the venue of this trial to Yakima.”

But defense attorney Carl Oreskovich filed a response to Durkin’s motion and essentially said he’s good with Yakima.

“The court correctly determined that the saturation of pretrial publicity and political attention has had a likely affect on the jury pool. Additionally, the continued publicity this trial will receive if it is to remain in Spokane, including the likely possibility of demonstrations and protests, has the potential to infect the jury with prejudice,” Oreskovich wrote.

“The best option for all parties involved, is to remove the trial from the Spokane area to protect Officer Thompson’s constitutional right to a fair trial.”

Thompson was the first officer to respond to an erroneous call that Zehm had stolen money from a nearby ATM. Thompson rushed up to Zehm inside a convenience store and began striking him with a baton.

Eventually, six other officers joined the struggle. Zehm, a 36-year-old mentally ill janitor, eventually stopped breathing after he was hogtied and a mask was placed over his face. He never regained consciousness and died two days later.

Durkin indicated that prosecutors intend to call about 60 witnesses and the defense has already subpoenaed 57 witnesses of some 100 witnesses it could call.

“Together, the parties anticipate calling an estimated 120 witnesses in their respective cases,” he wrote. “Approximately 90 percent of these identified witnesses are local residents of Spokane and its nearby areas. All of these witnesses will be significantly and adversely impacted by the Court’s election of a venue that is more than 200 miles from these witnesses’ residences, families and places of employment.”

Instead, Durkin suggested that the jury selection begin on Oct. 11 and that jury, from a pool which does not include Spokane County, would then be transported to Spokane for the trial.

In a second court filing, Durkin noted that some 61 Spokane police officers have been ordered to appear for the trial.

“These administrative challenges for the SPD and the measures needed to ensure adequate local law enforcement coverage have been significantly compounded by the Court’s moving of the trial venue from Spokane … to Yakima, which is an approximate 7-8 hour round trip,” the motion said.

But Oreskovich countered with an email from Chief Anne Kirkpatrick saying that it’s her understanding that only two or three officers would be missing each day.

At the very least, Orekovich wrote that he would not object to delaying the start of the trial a couple days so they can move their personnel and case materials to Yakima.

But Durkin reminded the judge that such a logistical move could hinder the prosecution from presenting its case.

“In sum, there are no utilities gained from the Court’s venue decision,” Durkin wrote. “The victim’s family was not given notice of the Court’s venue election and was deprived of the opportunity to comment and/or participate.”

But Oreskovich said the victim’s family shouldn’t be a consideration for moving the trial back to Spokane.

“While Defendant is mindful that the change of venue may make it more difficult for Otto Zehm’s family and friends to attend the trial, nothing is actually prohibiting them from doing so,” Oreskovich wrote.


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