May 9, 2012 in City
Zehm officers on ‘Brady list’
Agencies must identify staff with credibility in question
Spokane law enforcement officials for the first time are compiling a list of officers and deputies who have a record of lying or who have been discredited while doing their jobs.
The so-called “Brady list” is part of a legal requirement to notify defense lawyers of any information that could be used to challenge the credibility of investigators.
Currently, only three names appear on the Spokane list, all of whom are tied to the Otto Zehm investigation: former Spokane police Officer Karl F. Thompson Jr. and current Officers Tim Moses and Sandra McIntyre.
Both interim Spokane police Chief Scott Stephens and Spokane County Sheriff Ozzie Knezovich said their staffs are still compiling names to submit to Jack Driscoll, Spokane County’s chief criminal deputy prosecutor, who has been designated to maintain the list.
“There are about four (deputies) that just popped into my head. There are probably going to be more than just the four,” Knezovich said without naming the deputies with credibility issues. Prosecutors “are still defining what qualifies,” he said.
Watch Tom Clouse discuss this story with KHQ’s Dave Cotton
The term “Brady officers” refers to the landmark 1963 U.S. Supreme Court decision in Brady v. Maryland. It essentially requires investigating agencies to turn over to defense attorneys any information regarding government witness credibility and bias.
The local list is a product of a statewide effort to develop guidelines for counties to meet the requirements of the federal case law, Knezovich said. “I know the prosecutors have been working on how they are going to deal with it for a year and a half. They finally have come out with the guidelines,” he said.
For example, Knezovich mentioned the case of Deputy Travis Smith, who returned to his job last November after a state arbitrator reversed his firing. Sheriff’s officials had previously discovered what they called a pattern of misconduct including a criminal charge for plunging a knife into the seat of a truck Smith was searching.
“Eventually, we won’t prosecute cases because he’s the lead officer,” Knezovich said. “That has all kinds of implications to credibility and future cases. It’s not just integrity issues.”
Currently, the only official names on the list came as a result of the federal prosecution of Thompson, who was convicted last November of using excessive force and lying to investigators about his confrontation with mentally ill janitor Otto Zehm in 2006. Thompson is no longer a police officer, although his sentencing has been indefinitely postponed as a federal judge decides whether to grant him a new trial.
As for Moses and McIntyre, neither have been charged in connection with the case, but both have received target letters indicating that federal prosecutors intend to charge them with obstruction of justice. Neither took part in the struggle in a north Spokane convenience store that resulted in Zehm’s death two days later.
But both Moses and McIntyre are close friends of Thompson. Federal prosecutors alleged during Thompson’s trial that McIntyre answered “I don’t recall” to several questions posed to her during grand jury proceedings but later acknowledged that she did have some memory of those aspects of the investigation.
Likewise, Moses told a grand jury that Thompson had admitted to striking Zehm in the head with his baton. During Thompson’s trial, Moses testified that federal prosecutors intimidated him into giving the incriminating testimony to the grand jury. He offered that testimony, however, only after federal prosecutors obtained a waiver preventing him from seeking protection from self-incrimination under the Fifth Amendment to the U.S. Constitution.
“Whichever version is purported to be believed,” Assistant U.S. Attorney Joseph Harrington wrote on March 1, “it is clear that Officer Moses provided untruthful sworn testimony.”
As a result, local federal prosecutors “cannot and will not rely on (Moses or McIntyre) in any future federal trial or any investigation that results in a referral to this office for federal prosecution,” Harrington wrote.
The county’s list and supporting material was obtained by The Spokesman-Review through a public records request.
Stephens, of the Spokane Police Department, said his internal affairs officials are compiling information to be added to the county’s Brady list, although he did not have any tangible idea how many officers or who would be on the list.
“At this point, we are developing who we want to do that,” Stephens said. “If we know there is an officer (with credibility issues) it’s incumbent on us to release that to the prosecutors.”
As for Moses and McIntyre, both “for the time being” remain on their jobs, Stephens said. Moses works on patrol and McIntyre currently is assigned as a neighborhood resource officer.
“Right now I am exploring with (City Attorney) Nancy Isserlis on how we want to proceed,” he said, referring to the two officers. “We are still trying to navigate our way through this and determine the best way to manage it.”
Attorneys representing the officers filed written requests to county attorneys seeking to keep the Brady list secret. Both Rob Cossey, who represents McIntyre, and Chris Bugbee, who represents Moses, indicated they might sue the county to prevent its release, although neither did.
“The allegations against Officer Moses are not even resolved,” Bugbee wrote in part to Driscoll. “There has been no finding … that Officer Moses committed any act that would call into question his future credibility as a witness.”
Likewise, Cossey objected to his client’s inclusion on the list.
“Everyone I have ever spoken to about her has spoken highly of her,” Cossey said.