Judge denies plea to throw out case

YAKIMA – A defense request to throw out the excessive force case against Spokane police Officer Karl F. Thompson Jr. was denied following a fiery exchange Thursday about the prosecution’s portrayal of Otto Zehm as an average convenience store shopper.

U.S. District Court Judge Fred Van Sickle warned federal prosecutors to be mindful of his order barring jurors from learning that Zehm hadn’t committed a crime when he was beaten by police in 2006. But the judge rejected defense attorney Carl Oreskovich’s argument that Victor Boutros, a U.S. Justice Department trial attorney, repeatedly violated the ban in his opening statements.

“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, countered that since the defense insists on claiming that Zehm was using a plastic soda bottle as a weapon, they can present jurors with information that could be used to help weigh the validity of that assertion.

“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, adding that Van Sickle has blocked any mention that those early reports were incorrect. 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 told investigators 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.”