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October 5, 2011 in City
Zehm trial moves to Yakima
Judge sides with Thompson defense on all major questions
A federal judge Tuesday moved the upcoming criminal trial of Spokane police Officer Karl F. Thompson Jr. to Yakima after defense attorneys raised concerns that local media coverage of Thompson’s fatal confrontation with Otto Zehm could bias a Spokane jury.
U.S. District Court Judge Fred Van Sickle also ruled to exclude Spokane County residents from the jury pool. Potential jurors will be selected from a portion of Adams County and all of Franklin, Walla Walla, Yakima, Kittitas, Benton and Klickitat counties.
While Van Sickle said he’s not persuaded that the publicity has created “actual” or “perceived” bias against Thompson, he decided to move the trial nonetheless.
“There has been a great deal of publicity in the community,” Van Sickle said. “Yakima is not that far away.”
Yakima is about 200 miles southwest of Spokane.
Thompson is scheduled to appear for trial on Oct. 11. He faces felony charges of lying to investigators and using unreasonable force during the March 18, 2006, confrontation with Zehm, a 36-year-old schizophrenic janitor who died two days later.
Van Sickle sided with the defense in all major decisions Tuesday.
Defense attorneys had attempted to exclude the testimony of Assistant Chief Jim Nicks, who was acting chief at the time.
Van Sickle said he will allow Nicks to testify, but the assistant chief can’t offer testimony on whether Thompson violated department policy. That testimony is “irrelevant and becomes confusing for the jurors,” Van Sickle said. “It’s not something that needs to be addressed or should be addressed by Nicks or any other witness.”
On the night of the incident, Nicks made public statements that Zehm “lunged” and “attacked” Thompson, and that Thompson had followed department policy. But Nicks later told a federal grand jury that Thompson’s use of force violated department policy and that his department conducted a shoddy investigation of the incident.
Thompson, responding to an erroneous report that Zehm had stolen money from an ATM, approached Zehm inside a Zip Trip at 1712 N. Division St. and began striking him with a baton. Six other officers responded, hog-tied Zehm and placed a plastic oxygen mask over his face to prevent him from spitting. Zehm stopped breathing and did not regain consciousness.
The judge was asked to reconsider his previous ruling that barred prosecutors from telling the jury Zehm had not committed a crime on the night of the incident.
Victor Boutros, a trial attorney with the Department of Justice, previously argued that evidence of Zehm’s innocence was necessary to show that Zehm had no reason to expect a police officer would be coming for him. The issue caused a delay in the case as federal prosecutors sought guidance from the 9th U.S. Circuit Court of Appeals, which upheld Van Sickle’s ruling but said his reasoning gave the appellate judges “pause.”
Van Sickle said if he allowed the evidence of Zehm’s innocence, he likely would give Thompson’s defense attorneys the opportunity to explore the issue. The result would be a “waste of time to determine whether or not Mr. Zehm had committed a crime,” the judge said.
He noted that appellate judges ruled that the evidence was not necessary for prosecutors to prove their case.
While Van Sickle previously ruled that attorneys on both sides could not reference Zehm’s schizophrenia, prosecutors had sought to include evidence of Zehm’s cognitive delay as part of their argument that he would be slow to react to an officer rushing at him with a raised baton.
Van Sickle denied the motion. “I think intellectually these concepts are distinguishable,” he said referring to the difference between mental illness and mental capacity. “But … I don’t believe you can separate part of a person without including all of it.”
Van Sickle also denied several motions to exclude the testimony of defense experts. He ruled, however, that one defense expert, Dr. Dan Davis, could not testify about his opinion of the cause of Zehm’s death. Davis, a forensic pathologist, said in a court filing that he believed Zehm stopped breathing just a few minutes after two other officers applied downward pressure on Zehm while he was hog-tied.
Zehm’s “cause of death is not relevant,” Van Sickle said. “But (Davis) can testify whether Zehm received a blow to the head or neck.”
At the end of the hearing, Van Sickle asked the attorneys whether plea negotiations were under way.
Boutros, the Justice Department attorney, told the judge that attorneys have had “conversations … but we have no resolution regarding that matter.”
Defense attorney Carl Oreskovich said: “We are preparing for trial.”
When asked after the hearing to respond to the judge’s ruling for the defense on all of the major motions, Oreskovich winked and laughed out loud as he walked to a waiting elevator.
1992 murder trial begins against sex offender 
Ron_the_Cop on October 05 at 12:04 a.m.
There’s an extensive comment thread in the earlier version of this article:
http://www.spokesman.com/stories/2011/oct/04/thompson-trial-moving-yakima/
avboden on October 05 at 12:47 a.m.
Carl Oreskovich is an evil, evil man.
Spokane_Citizen on October 05 at 6:21 a.m.
No, Oreskovich is merely doing what a good attorney does; aggressively representing the interests of their client. Those that can’t understand that simple fact are truly clueless.
brianrbreen on October 05 at 6:43 a.m.
Carl O, is a good man, as well as a darn good, and very ethical lawyer. Despite my position on the Zehm case I’m glad to see Thompson is receiving quality representation.
TheRoo on October 05 at 8:01 a.m.
It doesn’t look for “the truth, the whole truth and nothing but the truth”.
I’m just sayin…
The_Seer on October 05 at 8:16 a.m.
It is looking more and more like Thompson will walk.
There is very little justice for most of us. If Karl the Klubber had to actually pay for his defense team he would have accepted a plea long ago in order to avoid bankruptcy. But since the rest of us are left holding his bag he can “afford” to drag this out to trial or enter a plea bargain agreement right at the end.
PlanB on October 05 at 9:06 a.m.
Let me get this straight: Van Sickle saw no “actual” or “perceived” bias, but moved the trial anyway and excluded spokane county residents as jurors.
If the fact that Otto didn’t commit a crime is not relevant, why not just inform the jurors that he didn’t commit a crime?
Sounds like Van Sickle is showing actual bias.
yourkiddingme on October 05 at 9:39 a.m.
not really bias, i think he is trying to make sure any chance of an appeal by thompson will be limited. For the feds to go to trial they had to be prepaired for every possible situation with evidence getting limited or excluded. I will agree, if thompson had to foot his own bill he would have reached a deal long ago.
Ron_the_Cop on October 05 at 10:23 a.m.
The-Seer,
I will bet lunch the jury will convict Ofc. Thompson in getting caught up in the cover up by way of making false statements to investigators.
GDodd on October 05 at 10:31 a.m.
McDonalds…………..again?
misjustice on October 05 at 10:58 a.m.
GDodd………what does the Miranda Lambert video have to do with the Zehm case? Yeah, I know……White Liar.
brianrbreen on October 05 at 12:06 p.m.
@Ron_the_Cop
You won’t get that bet from me, but I would suspect that all of the parties realize that may be the easiest count to prove, especially if the second target testifies that she warned Thompson the video didn’t show a “lunge” and that warning was reflected in his statement to Detective Ferguson.
In order to prove that count it would be necessary for the government to go into to all of the evidence available that would demonstrate that among other things there may have been a cover-up all the way up the line( if you want Marlene I’ll go into that), which would be great from the stand point of the public gaining an understanding of what actually goes on.
As far as running into a Zip Trip and immediately starting to whack the suspect in the head with a baton then saying, never whacked him in the head is concerned, I guess the jury MAY have to decide that issue.
From the standpoint of the community, I’m hoping that the government sticks to their guns and doesn’t take a plea just on the obstructing charge.
BlondeSquawker on October 05 at 12:46 p.m.
I don’t know what on earth we would do without RTC telling us about the other thread on this subject. When you go there, he tells you to go here. Lol.
The_Seer on October 05 at 2:22 p.m.
bonde: We’d be left to wonder why users of this site have to do the work that would take any competent IT professional five minutes to fix permanently?
I can prove, through massive amounts of video evidence, that an impartial jury could have been seated from residents of the Spokane area. I have literally hundreds of people (shot during Pig Out and The Interstate Fair) admitting they know nothing or next to nothing about this case.
Ron_the_Cop on October 05 at 2:55 p.m.
The US Atty has filed a motion to reconsider. Costs chaos w wits fam et al. Finer of cfj has filed in support too. Jury picked in yak and brought here. I will post more later. Excuse fat fingers typing ;-)
brianrbreen on October 05 at 3:17 p.m.
@Ron_the_Cop
Come on, that’s normal. It ain’t going to happen.. Van Sickle will say , nope we will try it in Judge Suko’s Court Room., and there is nothing to appeal here.
Dazzeetrader11 on October 05 at 3:42 p.m.
Play with the pigs, you will get dirty.
lewis8457 on October 06 at 6:13 a.m.
Thompson will walk that is for sure, when was the last time a cop in Spokane was found guilty of murder……….NEVER!
Ron_the_Cop on October 06 at 11:30 a.m.
For those still reading here and haven’t read the subsequent reports by Clouse see my new post:
Fed Judge just ruled trial will begin in Yakima on Wed July 12th. Video will be streamed to open Federal Courtroom in Spokane.
See my blog post:
BREAKING - Zehm/Ofc Thomson case to start the 12th in Yakima with video feed to Spokane Fed Courtroom
http://tinyurl.com/3n5muem
Ron_the_Cop on October 06 at 12:07 p.m.
Sorry my blog post is correct but in error here - me bad Oct 12th.