A federal judge today granted a request by the attorney for former Spokane Police Officer Karl F. Thompson Jr. to interview a government expert witness who claims that federal prosecutors mischaracterized his expected testimony.
The move further delays the sentencing of Thompson, who was convicted Nov. 3 of using excessive force and lying to cover up his actions during the March 18, 2006, confrontation with Otto Zehm, who died two days later.
Thompson, 64, currently faces a range of 27 to 33 months in federal prison, although defense attorney Carl Oreskovich has asked Van Sickle in court records to reduce that range even further because he claims Thompson has accepted responsibility for his actions.
Thompson’s sentencing was originally set for Jan. 27, but Van Sickle postponed that hearing indefinitely after receiving a letter from video forensics expert Grant Fredericks, who claimed that federal prosecutors left out information in their summaries to defense that would have helped Thompson.
“We are here to pursue what appear to be very serious Brady violations brought up by the government’s own witness,” Oreskovich said. “These are circumstances … I have not seen in a 30-year legal career. I think there are issues raised regarding Mr. Thompson’s due process rights.”
Oreskovich referred to case law that requires prosecutors to turn over any evidence that may help defendants defend their cases.
However, Assistant U.S. Attorney Timothy Durkin told Van Sickle that Fredericks previously had been hired by Assistant City Attorney Rocky Treppiedi and had given the city exactly the same information – that the video does not show Thompson striking Zehm with a baton for the first minute and 13 seconds of the confrontation – that he now says was withheld from defense.
“Rocky Treppiedi had several interactions with Mr. Fredericks,” Durkin said. “And, he was on their witness list as well. All of these suggestions and inuendos and claims that there are serious violations, the United States strongly contests.”
For more than a year before the trial, Durkin noted in court records that Fredericks had changed his testimony that he provided to the city and was prepared to testify that the video actually did show Thompson striking Zehm with a baton early in the confrontation.
Thompson confirmed in his initial interview with investigators what the video appears to show – which is contrary to Fredericks’ analysis – that he struck Zehm with a baton almost immediately after confronting the 36-year-old mentally-ill Zehm. Thompson later testified to the same thing at trial.
While Fredericks was listed as a witness for both sides, he was not called during the four-week trial in Yakima.
Instead, Oreskovich called a different expert, Michael Schott, who testified essentially to the same thing Fredericks initially told the city – that because the video only recorded just over three frames per second that the video does not technically show the first few baton strikes.
Despite that testimony and appearing at the trial in person for expected testimony, attorneys made no mention during the trial that Fredericks had any concerns with Durkin’s earlier written summaries of his expected testimony. The letter Fredericks wrote to Judge Van Sickle came a month after the conviction and about two months prior to Thompson’s scheduled sentencing.
“I’m concerned about this matter,” Van Sickle said. “I simply feel that given the statement made by Mr. Fredericks and the information provided, that there should be an opportunity to interview Mr. Fredericks with a protected order and that there also be a videotaped deposition.”