Baton use quick, jury told

Two Spokane women who were teenagers when they saw Spokane police Officer Karl Thompson confront Otto Zehm at a convenience store told jurors in Thompson’s excessive force trial Friday that the officer immediately hit Zehm with his baton after entering the convenience store in 2006.

Their testimony disputed what Thompson said in a recorded interview played for jurors earlier Thursday, the second day of testimony in U.S. District Court in Yakima.

Zehm, a 36-year-old schizophrenic janitor, entered the store “like any other person,” but Thompson rushed in “very quickly, very frantically,” said 19-year-old Britni Brashers, who was 13 when she and her then-7-year-old sister went to the Zip Trip at 1712 N. Division St. on March 18, 2006.

“He just approached him without saying anything and just swung back and hit him,” Brashers said. She said she saw Thompson hit Zehm “about seven to 10 times” and heard the sound of Taser shocks.

Brashers told jurors what 22-year-old Carissa Dougherty, who was in the Zip Trip parking lot, also testified to: She never heard Thompson say anything to Zehm before striking him.

The testimony came after jurors listened to Thompson, in an interview recorded days after the encounter, describe to now-retired Spokane police Detective Terry Ferguson how Zehm refused his orders to drop a plastic soda bottle, then stood up and took a boxing stance after being hit with a baton and shocked with a Taser.

“Did he hit you?” asked Ferguson, who is expected to be called as a witness for the prosecution.

“Yes, he hit me,” Thompson replied. Thompson told Ferguson that his first intent was to hit Zehm in the leg with his baton, to “put him on the ground.”

“I had deadly force available but I did not perceive this as a deadly threat,” Thompson said, adding that he wanted to continue issuing verbal commands. But prosecutors argue that Thompson, who is accused of violating Zehm’s civil rights and lying about the incident to investigators, used deadly force by repeatedly striking Zehm in the head with his baton; they contend he admitted this to Officer Tim Moses outside the Zip Trip that night.

Robert Bragg, a use-of-force expert for the Washington State Criminal Justice Training Commission, described situations that call for different levels of force. Baton strikes, even nonlethal ones, are reserved for when a threat is imminent, Bragg told jurors.

Brashers told jurors that she saw Zehm holding a soda bottle while he was lying on his stomach but never saw him threaten police with it. Nor did Zehm ever take a “boxing stance” or get off the ground after the first Taser shock, she testified.

Zehm, she said, “was just screaming in agony … just moaning and groaning in pain.”

Defense lawyer Stephen Lamberson, who is handling the case with Carl Oreskovich, used a model of the Zip Trip store to show jurors that Brashers had a limited view of the encounter and couldn’t see whether Zehm was resisting or struggling with Thompson when he was on the ground.

He asked Brashers why other witnesses reported hearing verbal commands when she said she heard none.

Brashers said that surprises her, “Because I didn’t hear anything and I was paying good attention to it.”

Lamberson asked: “But you don’t know where those baton strikes landed?” to which Brashers responded: “I know it was in the upper body.”

Lamberson emphasized that the sounds Brashers heard Zehm make may have been out of anger and resistance, not pain. He said Brashers’ statements changed to emphasize the pain aspect after she talked to the FBI, and that she first told investigators that Zehm was “fighting” with police.

Brashers appeared on a local TV news station after hearing police claim that Zehm had lunged at police.

“When I watched the news that night it was different from what I saw, so I had my mom call and I told them that wasn’t what I’d seen,” Brashers said.

Dougherty, who was 16 in March 2006, told jurors she was in the parking lot when she saw Thompson enter the store.

“He had his hand on his baton when he ran past me” and immediately struck Zehm with the baton after approaching him in the store, Dougherty said.

Dougherty said she was never interviewed by Spokane police detectives about the case, only by federal investigators.

“And they did know I was there,” Dougherty said.

She said Thompson never said anything to Zehm before he attacked, but Lamberson emphasized that she saw the encounter from outside, through the store window. Dougherty said it would have been obvious if Thompson had said anything to Zehm.

“Ma’am, I don’t mean to sound facetious, but are you a police officer? Have you had any training as a police officer?” Lamberson asked. Dougherty said no.

Trial resumes Monday at 9 a.m. in Yakima.