Federal prosecutors appear to be growing frustrated with the ongoing delays that have kept convicted Spokane police Officer Karl F. Thompson Jr. out of prison.
Eight months have passed since a jury convicted Thompson of using excessive force and lying to investigators in the 2006 fatal confrontation with Otto Zehm, an unarmed janitor erroneously implicated in a possible theft. But court-ordered delays have postponed sentencing indefinitely as he seeks a new trial.
Although prosecutors won’t talk about the case, new court documents filed by the U.S. attorney’s office opposing Thompson’s latest request for another delay raise questions about how long convicted felons should be allowed to remain out of prison while preparing legal appeals.
“To date, the Defense has filed no less than 32 post-conviction motions, 20 separate memorandums …, 12 declarations, and thousands of pages of referenced exhibits … in support of (Thompson’s) various post conviction claims for relief,” Assistant U.S. Attorney Aine Ahmed wrote. “The Court has given the defense more than ample opportunity to provide it with significant briefing. Therefore, the United States submits that a ‘whole another round’ of defense reply briefing must be rejected and must be properly restricted.”
In a case that has now exceeded 1,000 orders, briefings and memorandums, attorneys continue to argue back and forth on paper regarding two basic motions by defense attorney Carl Oreskovich, who is seeking a new trial for Thompson over the fatal confrontation with 36-year-old Zehm. Oreskovich, on behalf of Thompson, is alleging prosecutorial misconduct in the U.S. attorney’s office’s handling of testimony by forensic video expert Grant Fredericks. Also, Oreskovich has sought a new trial based upon alleged juror misconduct.
“Most persons convicted of a crime of violence are in jail, and it doesn’t matter to the community the pace of post-trial motions,” said Breean Beggs, who with Jeffry Finer represents the estate and mother of Otto Zehm. “Since (Thompson) is not (in jail), all the incentives are for his lawyers to continue to file motions because every day there is a delay in sentencing, there is a delay in him serving any time.”
Beggs said he doesn’t fault Thompson’s attorneys for seeking a new trial by all means necessary. “But, it’s upsetting to the community because the perception is that (Thompson) is getting special treatment.”
Oreskovich agreed that the legal arguments after the conviction have created “unique” circumstances. But he said he and his colleagues have obligations to their client to explore any allegations or circumstances that may have affected the jury’s decision and the trial’s outcome.
“The case has taken post-trial twists and turns that no one foresaw,” he said. “And rather than being frustrated, people should be confident in a system and a judge putting forth great efforts to sort out the truth. It’s been frustrating for us as well. But it takes time.”
Immediately after the jury returned the guilty verdict in November, Oreskovich began filing motions seeking either Thompson’s acquittal or a new trial based on evidence allowed during the trial and allegations that federal prosecutors failed to fully disclose the expected testimony of Fredericks, the video expert. There were separate allegations – from an alternate juror – that jurors had made up their minds prior to deliberations.
Oreskovich continues to seek an evidentiary hearing on the Fredericks matter following hearings held in secret in May in which jury forewoman Diane Riley confirmed that she and others were questioned by attorneys in Yakima about the juror misconduct allegations.
A motion to intervene has been filed by The Spokesman-Review’s attorney, Duane Swinton, to unseal records from the Yakima hearings that questioned jurors. Oreskovich declined to comment on whether he sought to close those hearings. He filed a response Monday in court records, however, indicating he does not oppose motions made to unseal those proceedings.
Friday had been set as a deadline for the defense to submit briefs seeking a new trial, but Oreskovich asked for a week to comply. Judge Fred Vansickle reset the deadline to July 16.