April 8, 2012 in City

Transcripts reveal officers were given three days to file Zehm report

By The Spokesman-Review
 
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Background and the latest updates

Newly released documents show Spokane police officers involved in the deadly altercation with Otto Zehm were given three days to think about the incident before writing reports detailing the 2006 encounter, and when they were asked to file reports, did so in a group with the aid of an attorney hired by their union.

The transcripts of grand jury testimony that remained secret for three years provide previously undisclosed details of how the Spokane Police Department managed the criminal investigation into the deadly confrontation with the 36-year-old, mentally ill janitor – an investigation that one high-ranking U.S. Justice Department official has said amounted to a cover-up.

The new documents show that at least four of the officers who helped subdue Zehm were taken into a room together away from the police department and were able to consult with a Seattle attorney as they wrote out their incident reports.

The union attorney read at least one of the officers’ reports before it was turned in to his superiors, the documents say.

Zehm died two days after the March 18, 2006, encounter in a north Spokane convenience store after being mistakenly suspected of having stolen money from an ATM. He was beaten, shocked with a Taser and hogtied by police. The first officer on the scene, Karl F. Thompson Jr., was convicted in November in federal court of using excessive force and lying to investigators.

After Thompson’s conviction, Assistant U.S. Attorney General Thomas Perez called the case an “extensive cover-up” and a “violent abuse of power.”

Spokane attorney Jeffry Finer said Friday, “I’m looking at these records, and I’m stunned.” Finer, along with Breean Beggs, represents the mother and estate of Otto Zehm in a pending civil lawsuit against the city. “The appearance of malfeasance is so strong. Why did no one in the government say this is wrong, that this is not proper investigation?”

Beggs also called for the department and city officials to explain why the information had not been previously disclosed.

“Somebody at the city, either in the police department or legal department, authorized that,” Beggs said. “What the citizens need to know is who that person was.”

Interim police Chief Scott Stephens could not be reached for comment Friday afternoon.

The documents released this week also reveal more about the controversial role assistant city attorney Rocky Treppiedi played in the subsequent investigation and about a video expert who has become a key figure in the case.

‘Almost suspects … right away’

Information about the officers’ report-writing was revealed by Spokane police Officer Jason Uberuaga in his 2009 grand jury testimony.

Under questioning, Uberuaga told Assistant U.S. Attorney Timothy Durkin how he and other officers were called to the Monroe Court building, which is next to police headquarters, and were asked to write out their reports several days after their encounter with Zehm. Typically, police officers file incident reports at their earliest opportunity.

“How was it that the Guild’s attorney was present for consultation in preparation of an investigative report?” Durkin asked Uberuaga.

“That’s something I have no idea. I got a phone call the night before saying she would be there with us,” the officer replied.

Victor Boutros, a trial attorney for the U.S. Department of Justice, asked Uberuaga if the other officers, who included Officer Erin Raleigh, asked for the union attorney to be present.

“You know what, let me back up,” Uberuaga said. “As a group, I do believe that we requested that, as a matter of fact.”

Uberuaga said he consulted the attorney as he wrote his report, but she did not suggest any changes after he finished and allowed her to read it. He explained that only the officers who refused to give oral interviews on the night of the incident were called in after three days to write their reports.

“We didn’t like – personally we didn’t really like the way we were maybe treated by the detectives initially reviewing the case,” he said. “It was my gut feeling that we were almost suspects in this incident right away.”

Video expert paid by city, working for feds

More arguments are expected April 16 as attorneys for Thompson continue to press U.S. District Court Judge Fred Van Sickle to grant the decorated former police officer a new trial.

Van Sickle indefinitely postponed Thompson’s Jan. 27 sentencing after the judge was contacted in December by forensic video expert Grant Fredericks, who claimed that federal prosecutors misrepresented the conclusions he would have expressed had he been called to testify at Thompson’s trial.

In response, Assistant U.S. Attorney Aine Ahmed has filed reams of documents and grand jury transcripts that refute Fredericks’ claims. The documents also show Fredericks wasn’t truthful about how he was brought into the investigation.

Fredericks, as late as last month, said under oath that he was first contacted by a county prosecutor to analyze the convenience store’s surveillance video. But emails from 2006 show Fredericks first contacted a Spokane police officer and offered his services in “helping” show that Zehm was using a 2-liter Diet Pepsi bottle as a weapon.

The allegations against Fredericks, who did not immediately return a phone call seeking comment, include providing “patent inaccuracies or inconsistencies” in two previous cases where Fredericks – a former Vancouver, B.C., police officer – provided testimony in defense of other officers’ actions. In one of those cases, four Canadian officers now face perjury charges based on assertions put forth by Fredericks.

The documents also, for the first time, show Fredericks was billing Treppiedi, the assistant city attorney, even after Fredericks completed his work for the city and started meeting with federal officials.

Because of a backlog of cases at the FBI lab in Quantico, Va., federal prosecutors hired Fredericks to do a second video analysis, where he changed many of the assertions he provided the city. Federal prosecutors later found out that much of the work Fredericks did for the FBI was being funneled back to Treppiedi.

Testimony clarified after meeting with Treppiedi

In his grand jury testimony, Officer Uberuaga said he twice met with Treppiedi and Thompson’s defense attorney Carl Oreskovich before his grand jury appearance in January 2009. Within days of that testimony, which he promised under oath to keep confidential, Uberuaga asked to “clarify” his comments after meeting another two times with Treppiedi.

Durkin, the assistant U.S. attorney, had raised concerns in previous court filings about how Treppiedi met with officers prior to their grand jury testimony.

Durkin asked Uberuaga, “So the bottom line is, at the time you last testified, if I recall correctly, you said based on your review of the video and based on my questioning you agreed that you felt that the initial use of force by Officer Thompson was unreasonable?” Durkin said. “And what you’re, I guess, suggesting … is that you’ve changed your opinion?”

“That’s correct, yes …” Uberuaga said.

“Did Mr. Treppiedi coach you in any way as to the testimony that you’re going to clarify today?” Durkin said.

“Absolutely not,” Uberuaga said. “Rocky Treppiedi had zero bearing on why I’m here and what I’m saying. This is entirely my personal feelings.”

Spokane Mayor David Condon said this week that he remains troubled by new developments in the Zehm investigation and said new City Attorney Nancy Isserlis has already spent hours reviewing the city’s legal cases and how it has defended itself.

“The whole thing is on the table,” Condon said. Isserlis “has my full and complete confidence.”

As for Treppiedi, Condon said, “I think it’s fundamentally flawed when one person dispensed advice and then defends that advice.”

Condon had indicated during his campaign that he would fire Treppiedi if he were elected. Asked how he would react if Isserlis retains Treppiedi, Condon replied, “I’ll cross that bridge if she does.”

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