October 17, 2011 in News, City

Baton attack on Zehm unnecessary, expert testifies

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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

10 comments on this story so far. Add yours!

• 

  DickAdams on October 17 at 8:56 p.m.

  Pretend you didn`t hear the defense say “robbery”, members of the jury?? Its a cheap stunt in court used by ambulance chasing attorneys knowing all along it would not be admissible, but juries heard the word and its planted in their memory bank.

• 

  Charlie on October 17 at 9:01 p.m.

  Asst. Chief Nicks “experienced a medical event.” Maybe the Feds told Nicks he might become a soprano if he didn’t tell the truth.

• 

  PlanB on October 17 at 11:00 p.m.

  Since robbery has now been mentioned, the prosecution should now be able to point out that no crime had been committed.

• 

  Ed Byrnes on October 17 at 11:06 p.m.

  @PlanB, that is very astute.

  Ed

• 

  Slightlyworried on October 17 at 11:09 p.m.

  @PlanB

  You would think so, but this judge seems to bending over backwards for Thompson.

  And I agree with Dick Adams. Once the jury has heard the words “robbery suspect” is next to impossible for the jury to ignor it regardless of whether the judge tells them to ignor it or not.

  I just can’t get the images of Thompson standing over Otto as he layed on his back in isle, Thompson repeatedly beating him with his baton while Otto tries to hold the Pepsi bottle in front of his face to protect his head from further blows.

• 

  SpokyDaBear on October 17 at 11:54 p.m.

  Otto Zehm was robbed of his life…

• 

  hersfeld on October 18 at 7:17 a.m.

  “A jury consists of twelve persons chosen to decide who has the better lawyer.” Robert Frost

• 

  PlanB on October 18 at 8:58 a.m.

  One would hope that the prosecution will be able to essentially say no crime was committed by emphasizing what was known at the time Thompson responded - a call was received about someone acting odd.

• 

  Squid on October 18 at 9:36 a.m.

  Anyone who is giving testimony can ask the defense if Otto robbed anyone, and a lack of an answer, or admonishing from the judge would be pretty clear to the jury that he didn’t rob anyone. If the defense was smart, they would engineer that, and it wouldn’t be a violation.

• 

  misjustice on October 18 at 12:41 p.m.

  ^ huh? That doesn’t even remotely make sense.

  Witnesses do not pose questions, they answer them. And even if a witness could pose question why would the Defense want to engineer something that would indicate that Thompson beat down an innocent man? How would that further their case?

  Did you mean the Prosecutor/Plaintiff, instead of the Defense?