YAKIMA – For the first time since the trial of Spokane police Officer Karl F. Thompson Jr. began last week, federal prosecutors walked out of the William O. Douglas federal courthouse Wednesday evening with smiles on their faces.
The day began with U.S. District Court Judge Fred Van Sickle – who has sided with the defense in most major evidentiary rulings – allowing the testimony of a Zip Trip employee who is expected to tell jurors he saw Otto Zehm come in almost every day to buy candy bars and Pepsi products.
Next came a revelation by Assistant Chief Jim Nicks that more than a year ago Thompson approached him and tried to say he never claimed Zehm lunged during the confrontation on March 18, 2006.
Immediately after the incident, Nicks, then the acting chief, stated that Zehm had “lunged” and “attacked” Thompson. But Nicks later told a federal grand jury that Thompson had violated department policy in the confrontation with Zehm, an out-of-work janitor with schizophrenia who was buying a bottle of pop in the convenience store.
Zehm died two days after police struck him with batons, shocked him with Taser jolts, hog-tied him and placed a medical mask over his nose and mouth.
But the testimony that could prove most damaging for Thompson’s defense came Wednesday from an eyewitness, an ambulance worker and a medical examiner. All three testified they saw, were told or found evidence suggesting that Thompson struck Zehm in the head with a baton, which would constitute lethal force – something defense attorneys already conceded was not justified during that encounter.
Spokane County Medical Examiner Dr. Sally Aiken narrated a series of autopsy photos, documenting marks from four Taser deployments and dozens of bruises, including wounds over Zehm’s right eye, to his face and to the deep tissues of his neck, and from bleeding under the scalp.
“There are several injuries on the body formed by parallel lines,” Aiken said.
Assistant U.S. Attorney Timothy Durkin asked Aiken why those marks – about the same width apart – were significant.
“I observed a baton, an elongated oval baton,” she said. “That part of the oval was consistent with the lines on the forehead and some of the parallel wounds elsewhere on the body.”
Defense attorney Carl Oreskovich challenged Aiken on many of her conclusions and asked whether an officers’ knee or struggling with several other officers could have produced the bruises.
“What we see are a number of blunt force injuries. You would agree that those bruises and contusions are consistent with a violent struggle with police officers?” Oreskovich asked Aiken.
“They are consistent with a number of things including a violent struggle,” she replied. She later added: “I found injuries I believe are consistent with baton-type injuries.”
At times the exchange between Oreskovich and Aiken got testy. At one point he complained that he asked her a simple yes-or-no question, but she continued to elaborate.
“I’m supposed to tell the whole truth,” Aiken told Oreskovich. “So sometimes I can’t just answer with a yes or no.”
Before she completed her autopsy report on May 22, 2006, Aiken said she reviewed two camera angles of the video narrated by Detective Terry Ferguson. She said Ferguson never mentioned any head blows.
“I mentioned to Detective Ferguson that there must have been eyewitnesses to this event,” Aiken said.
“And no eyewitness reports were provided to you?” asked Durkin, the prosecutor.
Aiken responded, “I’ve never seen any witness statements. Then, later or now.”
But two witnesses later, Assistant U.S. Attorney Aine Ahmed provided one of those witnesses to the jury. Russell Balow testified that he and his wife were outside the Zip Trip, at 1712 N. Division St., that night and watched as Thompson ran up to Zehm.
Balow said he remembers seeing Thompson stop for a brief moment a few feet from Zehm and he saw Thompson’s mouth move before he swung his baton at Zehm.
“The first strike appeared to hit the head and then the shoulder on Mr. Zehm’s right side,” he said. “Before the hit, (Zehm) just kind of shielded himself. He had a two-liter pop bottle.”
Zehm’s forehead wound was on his right side. Oreskovich asked Balow if he saw a baton strike that “grazed his head or face first before it struck his shoulder,” to which Balow said yes.
“All you are saying is what appeared to you some 60 feet away watching an officer swing a baton?” Oreskovich asked. Balow again said yes.
Victor Boutros, a Department of Justice trial attorney, called Michael Stussi, who was working as a paramedic on the ambulance crew that took Zehm from the Zip Trip to Deaconess Medical Center.
Stussi wrote three times in his medical report that Zehm had been “hit in the upper torso, neck and head by a night stick per SPD.”
Defense attorney Steven Lamberson said “that night you have no recollection who provided you that information.”
Stussi replied, “Yes, I do. Officer (Tim) Moses.”
Boutros later played a video clip showing Moses speaking with Stussi as others worked on Zehm, who was not breathing and never regained consciousness.
Lamberson pointed out that Stussi testified to a grand jury, saying he wasn’t sure where he got that information.
“When I reviewed the video I remembered, because that was the only place I could have gotten that information,” Stussi said.
Prosecutors plan to call Moses and Officer Erin Raleigh. Both have been declared hostile witnesses, and Ahmed said he will give Moses a letter of immunity, which will prevent Moses from seeking Fifth Amendment protection against self-incrimination.
Earlier Wednesday, Assistant Chief Jim Nicks testified about an encounter he had with Thompson about a year and a half ago, prior to the original setting of Thompson’s criminal trial for using unreasonable force and lying to investigators.
Thompson “approached me in the hallway of the Public Safety building. He said, ‘I would just like to remind you that sometime after the event happened I tried to correct you on the lunge statement,’ ” Nicks said of that conversation.
Durkin asked Nicks if Thompson earlier had tried to correct Nicks. “I have no such memory of that,” Nicks answered.