April 12, 2012 in City, News

Police chief acknowleges mistakes in Zehm investigation

By The Spokesman-Review
 

Spokane police Officer Erin Raleigh, left, and Officer Jason Uberuaga are shown in photographs taken by investigators after the March 18, 2006, fatal confrontation with Otto Zehm.
(Full-size photo)

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For the first time, a high-ranking Spokane police official has publicly acknowledged that the department made troubling mistakes while investigating the 2006 confrontation that killed Otto Zehm.

In his most candid interview yet, interim Chief Scott Stephens also expressed “concern” that Assistant City Attorney Rocky Treppiedi had greater access to the investigation than Stephens did, even though, at the time, Stephens supervised the detectives who investigated the Zehm confrontation. Stephens further said that that Mayor David Condon’s administration has put an end to city attorneys having unfettered access to criminal investigations.

“I definitely think there were mistakes made that certainly caused a lack of confidence in the way the Spokane Police Department managed the entire incident,” he said. “I think we have to own the mistakes we’ve made, acknowledge that and take measures that they don’t repeat.”

Stephens would not go as far as Assistant U.S. Attorney General Thomas Perez, who called the department’s investigation an “extensive cover-up” and “violent abuse of power.” But the interim chief did promise to openly discuss what investigators got wrong or did well once the city completes its settlement of a civil lawsuit filed by Zehm’s mother and estate.

“I think it’s important … so the public has confidence in what we are doing,” he said. “I’m more than happy to share what those lessons were and what changes were made when it is appropriate. My desired outcome is that we restore the public trust and confidence in their department.”

Attorney Breean Beggs, who represents Zehm’s mother in a civil suit against the city, welcomed Stephens’ comments, saying the Zehm’s family has waited six years to hear them.

“Mrs. Zehm will be very pleased to hear that, both to acknowledge what she and her family have gone through and, most importantly, to reduce the risk that that would happen to any other family,” Beggs said.

Zehm, a 36-year-old mentally-ill janitor, 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.

Thompson’s sentencing has been placed on hold as U.S. District Court Judge Fred Van Sickle considers a request by defense attorneys who are seeking a new trial for the decorated former officer.

As part of that extended legal fight, Assistant U.S. Attorney Aine Ahmed last week filed grand jury transcripts showing that Officer Jason Uberuaga and at least three other officers were afforded three days before they were asked to write incident reports about their role in the violent, 22-minute confrontation with Zehm. He never regained consciousness and died two days later.

Uberuaga told the grand jury that he and the other officers, including Officer Erin Raleigh, did not want to give an oral statement on the night of the incident, because they felt like a detective was treating them like suspects. The group of officers asked to have Police Guild attorney Hillary McClure present when they wrote their reports. Uberuaga said he was allowed to consult with McClure, who read his report before it was turned in to his superiors.

The release of Uberuaga’s testimony sparked strong reaction from the attorneys representing Zehm’s family in the civil suit. Both Breean Beggs and Jeffry Finer called for police officials to immediately say who authorized the officers to write reports as a group and with help from an attorney.

Stephens delayed the granting of an interview for three days so he could research who made that call. That effort came up empty.

“Six years ago if you asked me, I could tell you,” Stephens said. “I’ve talked to several people. They don’t recall.”

Stephens further explained that at the time several attorneys on the West Coast were telling officers involved in critical incidents to refuse to allow police interviews and were advising officers to force their departments to grant what’s known as “Garrity” interviews. Under that scenario, an officer is compelled to answer questions but he or she can’t be held criminally responsible for anything said.

“Garrity was a huge issue,” Stephens said. “Up until that time, we never had an issue where an officer wanted an attorney before they made a statement.”

Uberuaga’s testimony indicated that he was given three days as part of department protocol that allows involved officers a couple sleep cycles in an effort to improve memory.

But Uberuaga and Raleigh never were mentioned as the targets of any criminal investigation even though a paid defense expert, Dr. Daniel Davis, filed documents prior to Thompson’s trial indicating that it was clear to him that Zehm stopped breathing only after officers Raleigh and Uberuaga put their weight on Zehm as he lay hogtied on his stomach.

Stephens said in 2006 it would have been an accepted practice to allow a guild attorney to consult with officers as they wrote incident reports. “But it’s not accepted today,” he said. “Incident reports would not be treated that way.”

And while officers are allowed to have an attorney present during questioning following a critical incident – which is the same right afforded to civilians – Stephens said policy would prohibit more than one officer in the room during the interview.

Stephens said it was clear that the detectives in the case, identified in court records as Mark Burbridge and Terry Ferguson, arranged to have Uberuaga, Raleigh and the two other officers gather to write their reports on March 21, 2006.

Stephens said he interviewed Sgt. Joe Peterson, who handled the day-to-day supervision of the detectives, and Peterson said he was aware that Uberuaga and the others wanted to provide a written statement. “And the guild wanted the attorney to be there,” Stephens said. “The earliest they could make those pieces fit was” three days following the confrontation.

“They probably should have been more properly labeled as an involved officer versus providing an incident report,” Stephens said. “What those reports should have been is a reflection of their perceptions and actions. I can understand the perception and the concerns. You … want to avoid even the appearance of impropriety.”

Stephens also commented on the role of Treppiedi, who at the time served the dual role of police adviser and risk manager — whose job is to protect the city from lawsuits. According to court records, Treppiedi was aware that investigators had four camera angles from the Zip Trip when he prepared a public release in July 2006 showing only two camera angles.

Notes written by then-Acting Chief Jim Nicks indicate that neither he nor Stephens were aware of all four camera angles until days later when Treppiedi informed them just as media outlets were pushing for their release.

“Did it cause me concern that people had information I didn’t have access to? Yeah it did. I was troubled by that,” Stephens said. “My recollection was that he was working directly with the investigation. It wouldn’t be uncommon for Rocky to have access to investigations at that time.”

But that practice has since come to a halt under Mayor David Condon as the new administration re-evaluates how the city as a self-insured organization manages its legal risks, Stephens said.

Department spokeswoman Officer Jennifer DeRuwe said the city has avoided similar controversies with the last several officer-involved incidents, which are now mostly investigated by the Spokane County Sheriff’s Office.

“We have learned our lessons,” DeRuwe said. “What happened six years ago is not going to happen today.”

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