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Judge denies motion to dismiss Zehm trial

A defense request to throw out the excessive force case against Spokane police Officer Karl F. Thompson Jr. was denied following a fiery exchange today about prosecution portrayals of Otto Zehm as a regular shopper at a convenience store.

Defense attorney Carl Oreskovich accused federal prosecutors of misconduct for repeated references during opening statements to jurors that Zehm was shopping for soda and candy at the Zip Trip store where he he was violently confronted by Thompson. Although accurate and true, Oreskovich contends Assistant U.S. Attorney Victor Boutros violated Judge Fred Van Sickle’s order prohibiting jurors from being told that Zehm hadn’t committed any crimes when he was beaten by police.

“At least three different times, Mr. Boutros said … it is a case about a fella who went into a convenience store to buy a soda,” Oreskovich argued outside the jury’s presence. “The court ruled that evidence of innocence was inadmissible. After a year-and-a-half of fighting over this, (Boutros) disregarded this court’s ruling and got it in anyhow. This is blatant, willful prosecutorial misconduct.”

Prosecutors, however, argued that they’ve fully complied with the judge’s rulings, but added that since the defense is describing Zehm as using a soda bottle as a weapon, they can present jurors with information that would call the validity of those claims into question.

“We have allegations that (Zehm) stole money, but he didn’t. The jury gets that taint based on the (dispatch) report and radio traffic,” Assistant U.S. Attorney Aine Ahmed said. The jury has “a taint that he’s a thief and on drugs and he isn’t. At some point, with all due respect, we have to have a way to question Officer Thompson’s statement.”

Thompson said Zehm was holding the soda bottle in a way that it could be used as a “significant weapon,” Ahmed told the judge. “We have to be able to prove that as nonsense. I would submit, if (Zehm) was alive, he could come in here and say I didn’t use drugs … I didn’t steal anything. But I can’t do that without him here.”

Drawing much of the defense ire were descriptions in the prosecution’s opening statement such as this one: “It’s a case about a police officer who walked into a convenience store who unleashed blows on a citizen who posed no threat,” Boutros told jurors. “He used his badge as a license to beat the victim with a police baton over and over and over.”

Van Sickle denied the defense request to throw out the charges despite warning Boutros several times that his opening statement had ventured into arguments that are not allowed.

Oreskovich told jurors his 64-year-old client was a decorated officer and former police chief candidate who was simply trying to protect the public with his split-second decision.

Oreskovich said Thompson will testify in his own defense and that he turned down an offer by Spokane police investigators to review the tape of the incident prior to his statement.

“Unfortunately, he got some things out of order” in his story, Oreskovich said of Thompson. “Now he gets called a liar.

“This will be a long trial. I think in the end, the evidence will show this police officer was not acting in a bad purpose, but with the purpose he was charged with: to investigate and protect citizens. This honorable man is innocent of these crimes.”

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