The forewoman of the jury that convicted former Spokane police Officer Karl F. Thompson Jr. of using excessive force said in a letter to a federal judge that defense attorneys have twisted her words in their effort to force a new trial for the decorated officer.
The documents are contained in files previously sealed by U.S. District Court Judge Fred Van Sickle.
The jury convicted Thompson in November of using excessive force and lying to investigators about his March 18, 2006, deadly confrontation with Otto Zehm, 36, who had not committed a crime.
Thompson’s defense attorneys had requested interviews of three jurors after learning of allegations made by an alternate juror that some of the panelists had discussed the case prior to jury deliberations.
While some of the transcripts of those hearings remain sealed, the court on Tuesday released a letter authored by jury forewoman Diane Riley, who urged the judge to not grant a defense motion seeking a new trial for Thompson based on her post-trial interviews.
“I’m getting frustrated that any real justice is going to come from this,” Riley said in an interview Tuesday. “The reason I am angry is … because it seems like the 13th juror has more influence on this than the 12 jurors who made the decision.”
In her letter, Riley talked about how defense attorney Carl Oreskovich appeared to use the interviews she granted following the trial to undo the verdict.
“I can see now that I completely underestimated how intensely the flurry of media reports would be received by the Spokane community,” Riley wrote in the letter. “Most disturbing, however, is how naïve I have been regarding how my comments might be manipulated by the defense legal team.”
“My well intentioned words were offered in the hope they would spark a more positive dialogue between the SPD and Spokane citizens – but instead they are being misrepresented by Mr. Thompson’s legal team to justify the filing for an acquittal.”
Van Sickle indefinitely postponed Thompson’s sentencing in January and has yet to reschedule it as defense attorneys brought a series of motions seeking a new trial. Federal prosecutors and defense attorneys are scheduled to hold oral arguments on Aug. 31 about those motions.
According to the court file, Van Sickle received Riley’s letter on Dec. 5 but did not disclose it to the attorneys until May 14. The newly released documents include no explanation of why the judge waited six months to disclose it to the attorneys.
In a separate transcript also released Tuesday from a May 9 teleconference, Van Sickle told prosecutors and defense attorneys that he wanted to keep the proceedings secret, even from the family of Otto Zehm.
“I am concerned that … publicity and the like as it relates to this alternate juror would cause some difficulty,” Van Sickle said. “So I would ask that you not indicate this information to others because I think it could have a negative impact on this process, and I would hope that that could be avoided.”
Assistant U.S. Attorney Timothy Durkin then pointed out during that same hearing that federal prosecutors have a legal obligation to keep the Zehm family informed of developments in the case and asked for Van Sickle’s direction about how to do that while abiding by the order to avoid disclosing the inquiry.
“It will be a closed hearing,” Van Sickle said. “So I really don’t know as there’s a necessity to advise, other than to inform the victims that the court … plans to schedule an ex parte hearing in chambers dealing with this case.”
Van Sickle agreed to open the files last month after attorneys representing The Spokesman-Review filed a motion to intervene. Although Van Sickle verbally granted access July 26, the first batch of files only became available this week.
In the letter released Tuesday, Riley noted each of the allegations made by Oreskovich, including a claim that jurors had watched media reports in the Yakima hotel where many of them stayed.
“There was NO indication – subtle or direct – that could lead to the conclusion that any of the jurors in the room had learned from news reports, or any source, that Mr. Zehm had a mental condition,” she wrote.
Van Sickle prohibited any mention during the trial that Zehm was diagnosed with paranoid schizophrenia and was mentally delayed, saying jurors could know only what Thompson could have reasonably known at the time of the encounter.
Nonetheless, jurors sent a note to the judge after seeing security footage of the fatal confrontation asking for more information about Zehm, specifically whether he suffered from mental illness or was high on drugs at the time. Van Sickle told them they could only consider information presented during the trial.
“It is my opinion that whether or not the jurors staying in the Yakima hotel actually saw the news about Mr. Zehm’s mental condition or not is irrelevant; the notion of the victim’s mental illness was not weighed in our decision in finding the verdict,” she wrote. “We agreed unanimously that we COULD NOT use Mr. Zehm’s mental condition as a factor to find Mr. Thompson guilty or not.”
Oreskovich did not reply to an interview request to respond to Riley’s concerns.
In her letter, Riley explained how the jury decided that Thompson had committed a “willful” act “in committing premeditated excessive force” when he confronted Zehm.
“Mr. Thompson was tried and found guilty by a fair, honest and intelligent jury of his peers,” she wrote. “As I tried to express in my public comment, it is indeed a very sad ending to Mr. Thompson’s long career; but the court should not allow counsel to misconstrue the expressions of sympathy for another human being to be the basis for overshadowing the pragmatic process used by jury members to find a verdict.
“Mr. Thompson cannot be allowed to stand above the very law he has taken an oath to uphold.”