YAKIMA – Enough evidence of excessive force against Otto Zehm has been presented to let the case proceed, Judge Fred Van Sickle ruled today, rejecting defense arguments that one of the charges against Spokane police Officer Karl F. Thompson Jr. should be dropped.
Defense attorney Carl Oreskovich asked Van Sickle to dismiss the felony charge of using unreasonable force against Thompson because the government had failed to show it was a willful act or that Thompson used force with malice.
“It is clear that Mr. Zehm was resisting. It’s clear he was assaulting. It’s clear he wasn’t compliant,” Oreskovich said. “Even if there were head strikes … there is no indication that these injuries were delivered intentionally or with bad purpose.”
But Victor Boutros, trial attorney with the U.S. Justice Department, said the government has provided several witnesses who showed that Thompson used more force than necessary when he confronted Otto Zehm on March 18, 2006.
“The defendant’s admission (to Officer Tim Moses) that night of head strikes … shows he knew that night that he used deadly force,” Boutros said. “There is ample evidence that the defendant violated his training and lied afterwards to justify what he had done.”
Today for the first time, attorneys disclosed that Zehm had a water pistol in his jacket during the confrontation from which he later died. Since no witnesses ever saw the water pistol, the jury will not be told of its presence, the judge ruled.
The day started with notice by Assistant U.S. Attorney Aine Ahmed that the U.S. Marshals Service had arrested witness Angela Wiggins last week in California on a material witness warrant after she missed two flights to attend the trial in Yakima.
Ahmed said the trial progressed faster than expected. As a result, she was asked to come Oct. 19, which was an emotional day for Wiggins who previously lost a child on that day. Wiggins missed a second flight Thursday.
Wiggins was working for Zip Trip at the time of the incident. It was she who showed the video tape to Officer Sandy McIntyre and later to Sgt. Joe Walker.
Wiggins said McIntyre – who testified as a hostile witness on Friday and is facing her own investigation of obstruction of justice related to this case – changed her demeanor as she watched the initial meeting between Thompson and Zehm.
“She made the comment, ‘He didn’t lunge,’” Wiggins testified. “I remember that clearly because I didn’t understand what she was talking about.”
Boutros said in opening arguments that McIntyre spoke with Thompson after viewing the video and Thompson never again told investigators that Zehm lunged.
Oreskovich asked Wiggins why in three meetings with FBI prior to her grand jury testimony did she not remember that exchange. Wiggins said the FBI never asked her about the lunged statement.
Ahmed also asked Van Sickle to bar Spokane police witnesses from using the term robbery. And, he also asked to bar any reference to a statement that Officer Steven Braun Jr. gave investigators about Zehm acting like he was on methamphetamines.
“My concern is someone wanting to blurt that out,” Ahmed said. “If that comes out not pursuant to a question, I would ask the judge to consider that the door is open.”
Van Sickle previously ruled that Zehm’s innocence and toxicology report – which was clean – be barred from the trial. The judge said he would consider any unsolicited comments about Zehm being on drugs to “open that door.”
Ahmed also asked to be able to query police witnesses if they say they believe they were responding to an attempted robbery “there was nothing” about a robbery on 911 transcripts or computer dispatch. The call came out only as a suspicious circumstance.
Oreskovich said the dispatch indicated Zehm was “taking money, scaring girls, running. (Officers) will say yes, in our minds, we are investigating something more serious,” he said.
Van Sickle said he will not prohibit the mention of the word robbery “but it allows that to be open to cross examination,” he said. “That doesn’t go to innocence, that goes to the fact pattern of what occurred around the ATM machine.”