The same week Spokane city officials and the family of Otto Zehm celebrated the settlement of a civil suit stemming from his death, a federal judge held a rare private hearing in Yakima where he allowed defense attorneys to question the jurors who convicted former Spokane police Officer Karl F. Thompson Jr. of using excessive force on Zehm.
According to interviews and court records, U.S. District Court Judge Fred Van Sickle provided no public notice of his decision or reasoning behind holding the hearings.
Thompson’s defense attorney, Carl Oreskovich, has alleged that there was juror misconduct in Thompson’s October trial and has requested a new trial. According to Oreskovich, a court security officer informed him of a discussion with an alternate juror who claimed that he’d overheard other jurors talking as if they’d already made up their minds on the case prior to jury deliberations.
Jury forewoman Diane Riley, of Ellensburg, confirmed that she and “others” had been called into the hearing, which was closed to the public. However, she declined further comment, saying she did not want to make any statements that could be used in “strategic moves” to stall the case. Thompson remains out of jail pending sentencing.
“I really want Mr. Thompson to be sentenced fairly and without further delay,” Riley said.
Oreskovich did not respond to requests for comment, and U.S. Attorney Mike Ormsby refused to talk about the case because it has not yet been resolved.
The jury convicted Thompson of using excessive force and lying to investigators following a four-week trial that Van Sickle moved to Yakima over concerns about the extensive media coverage of the Zehm case.
The 36-year-old janitor died two days after Thompson confronted him in a convenience store and repeatedly struck him with a baton and shocked him with a Taser. Thompson had responded to an erroneous call that Zehm had stolen money from a nearby ATM. Several other officers joined the struggle on March 18, 2006, in which they hog-tied Zehm and placed him on his stomach for several minutes before he stopped breathing.
Roger Peven, the former executive director of Federal Defenders of Eastern Washington and Idaho, said he would have made the same request as Oreskovich if he had questions about whether the jury used outside information during its deliberation.
“Rarely there are allegations where the court has to make an inquiry,” Peven said. But “the deliberative process is private. If you are inquiring into it, you want to keep that private to the best of your ability.”
Jeffry Finer and Breean Beggs, who represent the mother and estate of Otto Zehm in the civil case, said they received notice of a May 8 hearing by Van Sickle to discuss the request to interview jurors. The criminal docket shows several sealed filings and a sealed transcript during the same week Finer and Beggs settled the $1.67 million civil suit against the city.
“The defense said there was juror misconduct. … The government says no. So, the judge is doing a preliminary investigation to see if there is any smoke before he determines if there is fire,” Beggs said. “If he was having secret hearings about police misconduct, that would be different.”
Beggs said he understands why Van Sickle would try to protect jurors from the controversy.
“But I’ve got to believe that if one of them said something in that hearing that the judge uses to vacate the conviction, it seems like that’s got to be public,” he said.
Leslie Downey, the chief deputy clerk for U.S. District Court, said she could only speak to what is displayed on the public docket but acknowledged that no notice was given regarding the closed hearing.
Such advance notice provides the opportunity for other parties to argue for access to the hearing.
Late last year, for example, U.S. District Court Judge Justin Quackenbush provided notice of his intention to close hearings in the criminal case of domestic terrorist Kevin W. Harpham, who received 32 years in prison for leaving a bomb along the planned route of the 2011 Martin Luther King Jr. Unity March in downtown Spokane.
And U.S. District Court Judge Lonny Suko in 2009 considered a media request to unseal a hearing transcript in the case of a drug conviction. While Suko denied the motion, he said case law generally supports a “history of access and public policies favoring disclosure.”
Downey noted that “Each judge has the discretion … (to) handle their cases differently.”
Finer said the public has a right to a speedy trial, but the public’s right to open court proceedings is secondary to the right of a defendant to receive a fair trial.
“I have to rely on the Department of Justice and Carl Oreskovich … that these are legitimate problems that need to be handled,” Finer said. “There has been a lot of delay post-trial that … has been very hard on the Zehm family. But it’s not a problem with the system.”