While attorneys got few final answers Thursday, they outlined the parameters that will determine the legal battleground for the Spokane police officer charged in the fatal confrontation with Otto Zehm.
The attorney defending Spokane police Officer Karl F. Thompson Jr. acknowledged that federal prosecutors have a “slew of evidence” purportedly showing that his client used improper levels of force against Zehm.
Defense attorney Carl Oreskovich made those comments as he argued to exclude evidence showing that Zehm, a 36-year-old schizophrenic janitor, was innocent at the time Thompson confronted him on March 18, 2006, in a convenience store on North Division Street.
“They have a ton of evidence other than this innocence evidence,” Oreskovich said, referring to the prosecution’s case.
U.S. District Court Judge Fred Van Sickle said he intends to hold firm to the Oct. 11 start of the trial, but did not rule on several pretrial motions argued before him Thursday. But he said he anticipates ruling on several motions – including whether to bring in a jury from the West Side – by early next week.
Thompson faces felony charges of using unreasonable force and lying to investigators following the confrontation with Zehm. Some of the most heated debate Thursday centered on the fact that Zehm committed no crime, which caused a delay in the case as federal prosecutors appealed Van Sickle’s previous decision to exclude that evidence.
Oreskovich said federal prosecutors have testimony from eyewitnesses, Spokane County Medical Examiner Dr. Sally Aiken, other health care professionals and even a neuroradiologist who will testify “about head and neck strikes” that would constitute illegal use of lethal force.
“The point about all of this is that the government argues the necessity of the innocence evidence when they have a slew of evidence they can utilize,” Oreskovich said. “The jury is going to look at that type of evidence and say, ‘What’s the urgency? The man was innocent.’ ”
Victor Boutros, a trial attorney with the U.S. Department of Justice, said the innocence evidence is necessary to explain why Zehm reacted the way he did. The video shows that Zehm retreated when confronted by the baton-wielding Thompson, who immediately began striking Zehm.
But Thompson told investigators that Zehm refused verbal commands and held the 2-liter soda bottle in a way that he could use it as a significant weapon against him.
“An ambush is not possible if you didn’t know an officer is coming for you,” Boutros said. “That’s why the evidence is so probative.” Otherwise, the jury may believe that Zehm “was not only a criminal, but one who would choose to stay rather than flee.”