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Baton attack on Zehm unnecessary, expert testifies

YAKIMA _ Had the fatal confrontation with Otto Zehm been a mock scenario used in training, Spokane Police Officer Karl F. Thompson Jr. would have failed, a use-of-force expert testified on Monday.

Robert Bragg, who directs use-of-force training for all police recruits at Washington’s police academy, said Thompson violated his training and had no reason to immediately begin striking Otto Zehm with a baton on March 18, 2006.

“Given the lack of reasoning for the use of force, everything that follows doesn’t serve a legitimate law enforcement purpose,” Bragg told U.S. District Court jurors.

As the trial enters its second week, the witness list for today includes Assistant Chief Jim Nicks, who initially insisted officers did nothing wrong but later in interviews with the FBI became the highest-ranking city official to acknowledge apparent use-of-force violations and a faulty police investigation into the confrontation. Nicks testimony, however, may have to be delayed.

According to Spokane Police spokeswoman Officer Jennifer DeRuwe, Nicks recently “experienced a medical event.” DeRuwe would not explain, saying it’s a private matter for Nicks and his family.

Two federal prosecutors said they were unaware of a potential medical problem when asked Monday, and defense attorney Carl Oreskovich said only that he was aware that Nicks was ill. Oreskovich declined to explain further.

Nicks was acting chief on the night of the incident more than five-and-a-half years ago. He publicly stated that Zehm “lunged” and “attacked” Thompson, but told a federal grand jury that Thompson violated department policy. U.S. District Court Judge Fred Van Sickle previously ruled that Nicks cannot testify about that breach of policy.

In the courtroom Monday, other witnesses included Allison Smith, who was one of two young women who made the initial call to police that night that led to the Zehm confrontation. She was only asked about what she saw inside the store and described Thompson running into the store and immediately striking Zehm.

Both Leroy Colvin and Michael Dahl were inside the store that night and they both said they heard Thompson tell Zehm to “Drop the pop.” Colvin could not see what was happening when Thompson gave the command, but Dahl said Zehm was already on his back holding the bottle. “He seemed like he was protecting himself more than anything,” Dahl said.

Colvin said what portions of the confrontation he could see included Thompson taking a “full swing” at Zehm who was holding a bottle “across his face in protection mode.”

Zehm, a 36-year-old janitor with schizophrenia, stopped breathing inside the store after being beaten, shocked with Tasers and hogtied. He died two days later.

Meanwhile, attorneys again sparred over the admission of evidence Monday while outside the presence of the jury.

Sparking the clash was defense attorney Steven Lamberson’s cross examination of Colvin, who was asked whether he knew Thompson was investigating an attempted robbery.

Assistant U.S. Attorney Aine Ahmed objected and told Van Sickle that the defense had opened the door to allowing questions suggesting that Zehm had not committed a crime, which he hadn’t. Van Sickle had previously barred any reference to Zehm’s innocence.

Lamberson “left the impression that dirties up Mr. Zehm as being a robbery suspect,” Ahmed said.

“I think the term robbery has taken us down the wrong path,” Lamberson conceded. “That term will not be used again.”

Van Sickle took it a step further. He agreed with Ahmed’s suggestion to strike from the record any questions or answers regarding lay witness testimony about a possible robbery attempt and wants the attorneys to craft what’s known as a “curative instruction” for the jury to disregard the earlier “robbery” references.

Reporter Meghann Cuniff contributed to this report

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