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Zehm family feeling ‘shut out,’ lawyer says

Thu., Oct. 6, 2011

Yakima decision challenged

A federal judge will hold another hearing this morning after attorneys objected to moving the upcoming criminal trial of Spokane police Officer Karl F. Thompson Jr. to Yakima.

U.S. District Judge Fred Van Sickle said he would hold a 10 a.m. video conference after Assistant U.S. Attorney Timothy Durkin and an attorney representing the family of the victim raised concerns both about logistics and the family’s ability to attend a trial some 200 miles away.

Jeffry Finer, who along with Breean Beggs represents the estate and mother of Otto Zehm, said family members don’t have the means to travel to Yakima for a trial they’d hoped to attend daily.

“There is no way for them to go,” Finer said. “It’s very distressing to them. The phrase I heard is, ‘We are shut out.’ ”

The trial is scheduled to start Tuesday. Thompson faces the felony charges of using unreasonable force and lying to investigators following his confrontation with Zehm on March 18, 2006.

On Tuesday, Van Sickle decided to move the case to Yakima after defense attorney Carl Oreskovich argued that his client could not get a fair trial in Spokane because of media coverage over the past five years and because it had become a political issue in the mayoral race.

Durkin asked Van Sickle to reconsider, outlining the difficulties of moving more than 100 witnesses more than 200 miles for a trial he predicted would last five to six weeks.

“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.”

Durkin indicated that prosecutors intend to call about 60 witnesses and the defense has already subpoenaed 57 witnesses.

Durkin noted 90 percent of the witnesses live in Spokane. “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.”

But Oreskovich responded to Durkin’s motion, saying, essentially, he’s good with Yakima.

“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,” Oreskovich wrote.

Thompson was the first to respond to an erroneous report that Zehm had stolen money from an 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 schizophrenic janitor, stopped breathing after he was hog-tied and a mask was placed over his face. He died two days later.

As an alternative to moving proceedings to Yakima, Durkin suggested that a jury be selected from a pool that does not include Spokane County residents and transported to Spokane for the trial. Durkin suggested jury selection under that scenario begin on Tuesday.

Durkin requested that, at the very least, the trial be delayed a couple of days, saying he had conferred with defense attorneys who indicated they want extra time to move their personnel and case material to Yakima.

“In sum, there are not utilities gained from the Court’s venue decision” on Tuesday, 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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