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.
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