Karl Thompson seeks new trial in Otto Zehm case

Former Spokane police Officer Karl F. Thompson Jr. wants a new trial because an expert witness now claims a federal prosecutor bullied him, and he alleges for the first time that jurors improperly discussed evidence prior to the end of the trial.

Defense attorney Carl Oreskovich filed arguments late Friday alleging that Assistant U.S. Attorney Timothy Durkin and FBI special agent Lisa Jangaard knew through prior questioning of video expert Grant Fredericks that Fredericks believed a surveillance video of Thompson’s actions was open to a number of interpretations.

Thompson was the first officer on scene at a North Spokane convenience store after mentally ill janitor Otto Zehm was mistakenly reported as having stolen money from an ATM. Zehm died two days after a violent confrontation with Thompson and other police officers.

But Oreskovich alleges that the prosecution concealed Fredericks’ conclusion from the defense, and during the 2009 grand jury Durkin “crafted his questions in a careful manner which deprived Mr. Fredericks the ability to give a full answer to the question.”

Wrote Oreskovich, “Mr. Durkin’s questioning did not give Mr. Fredericks the opportunity to tell the jury that the images are consistent with a number of different actions … other than a baton swinging motion (i.e. ducking, crouching, tackling, defensive posture, attack posture).”

Fredericks, a former Vancouver, B.C., police officer who had been hired by the city of Spokane to enhance the Zip Trip video, testified to a grand jury in 2009 that the video showed Thompson’s actions were “consistent” with baton strikes within seconds of Thompson confronting Zehm.

A jury convicted Thompson on Nov. 3 of using excessive force and lying to prosecutors in an investigation the U.S. Department of Justice later called an “extensive cover-up” and “violent abuse of power.”

U.S. District Judge Fred Van Sickle indefinitely postponed sentencing to explore the allegations from Fredericks, who has testified in numerous trials.

Thompson told investigators and later testified at trial that he struck Zehm during the disputed portion of the video. Oreskovich argues in the new filing, however, that Durkin “undertook alternative measures to keep the information concealed.”

Oreskovich alleges the “verbally abusive conduct by Mr. Durkin” tainted the case in a way that he could not overcome at trial.

Durkin said he could not comment about any aspect of the case. The U.S. attorney’s office, however, has insisted in earlier hearings that nothing was withheld from defense lawyers, though its specific response to Oreskovich’s latest filing likely won’t be filed until next Monday.

In addition, Oreskovich claims in court records filed Friday that an alternate juror overheard two female jurors discussing the case prior to deliberations, in violation of the judge’s order.

That information came from an unnamed federal court security officer, who said he ran into the juror at a gun show on Feb. 12, according to Oreskovich’s filing.

The alternate juror, whose name is redacted from the court record, said he overheard two female jurors discussing the case prior to deliberations.

The court security officer called Van Sickle on March 1.

“I spent a long time in law enforcement,” the security officer told the judge, according to court records. “The whole incident did not settle well with me. And I guess I just felt that it was necessary for me to contact the court.”

Oreskovich said the security officer’s call raises enough questions to hold a hearing to interview the alternate juror, and possibly the two female jurors if he can identify them.

“These concerns are extremely serious because if the jurors reached a conclusion as to Karl Thompson’s guilt prior to deliberations, his right to a fair trial by an impartial jury has been unjustly prejudiced warranting a new trial,” Oreskovich wrote. “Moreover, the source of the information regarding juror misconduct is extremely reliable, as he is an employee of the federal court and is very familiar with the judicial system.”