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Vestal: Nothing is clear-cut in Thompson sentencing

Sat., Nov. 3, 2012

How much time should Karl Thompson spend in prison?

How much would be “sufficient but not greater than necessary,” as the law requires?

Eleven years? Nine years? Four years? Two and a half years?

No years?

Prosecutors and defense attorneys are filing a flurry of arguments in federal court, and the outcome of those arguments, now set for Nov. 15, will determine whether Thompson spends any time in prison for using excessive force and lying to investigators in the beating of Otto Zehm.

A presentence report recommends that he be locked up for 27 to 33 months, under the mandatory sentencing guidelines. His attorneys say he’s been punished enough and should go free. Prosecutors say his crimes are so egregious that he should get a harsher-than-usual sentence – between 108 and 135 months.

But hang on – aren’t we supposed to be moving forward? Getting over it? Don’t we have Zehm fatigue? The sense of this in some quarters is strong – new police Chief Frank Straub suggested something along these lines when talking to the press a couple weeks back about the potluck for Thompson that was scheduled by Spokane Police Department officers, then canceled when the news of it became public.

The “over-ness” of the Zehm case is a wishful exaggeration. Otto’s memorial was dedicated Wednesday. A new proposal for police oversight was put forth by community members Thursday. The upcoming sentencing is a major piece of this picture: Thompson is guilty of two felonies in the case, so what price does he pay?

The defense team says Thompson has shown outstanding character, and that his crime was an aberration. The prosecution says Thompson has failed to accept responsibility for his two felony convictions, and that his defense team continues to lean on the very lies that got him convicted in the first place – the tale of Otto the aggressor. The defense team says prosecutors have constructed an “exaggerated version of the facts.” Prosecutors say defense attorneys have written a piece of “revisionist, historical fiction.”

The defense says Thompson did not intend to cause Zehm any bodily harm when he hit him with his baton over and over again. The prosecution says a baton is by definition a deadly weapon intended to cause bodily harm and that Thompson was responsible for 19 “insults” to Zehm’s body. The defense says there is a “complete lack of evidence” that Otto’s injuries were serious enough to warrant a harsh sentence. The prosecution says there is overwhelming evidence that Thompson hit Zehm in the head with his baton – an act that in and of itself is considered deadly force.

The prosecution says that more than two dozen statements Thompson made to investigators about that night were false, and that he failed to correct significant public misstatements by others. The defense calls Thompson’s statements “allegedly false,” and says Thompson’s conviction by a jury for lying to investigators does not allow us to identify which were false and which true.

The prosecution says Thompson’s beating of Zehm set in motion a chain of events that led to Zehm’s death. The defense says Thompson bears no responsibility for the death, in part because Zehm continuously refused to obey Thompson’s continuous commands to submit.

Defense attorneys say Thompson has paid a high enough price already, particularly due to his villainization at the hands of the media. Prosecutors point out Thompson drew a paycheck for five and a half years after he committed his felony crimes. Defense attorneys say Thompson’s character is proven. Prosecutors have questioned Thompson’s character.

One of the ways they do that is by pointing at credibility problems contained in Thompson’s “alleged divorce.” Prosecutors say that Thompson, whose defense is being covered by taxpayers, has continued to live with his ex-wife in the home that was supposed to be sold under a court order years ago, has continued to license and insure cars jointly with her, and has co-mingled bank accounts with her. The defense says the account co-mingling has to do with alimony payments and denies the divorce is a sham.

Prosecutors also say that Thompson had an earlier, though much less deadly, encounter at a Spokane gas station that bears on his character. They say Thompson “kicked and assaulted a homeless person after that person begged for money from his wife.”

Defense says the prosecution mischaracterized the gas-station kicking. Thompson related during a 1996 interview for a background check at the SPD that his last physical altercation had been at a Union 76 gas station on Division in 1984, when an inebriated person described as “homeless or wino” approached him in a threatening manner asking for money. The man kept coming at Thompson, even though Thompson told him to go away, and when he continued to approach Thompson threateningly, and came within arm’s length, Thompson kicked him, and he left.

The jury said guilty and guilty again. The defense says probation. The prosecution says nine years, at least. A great sea of alternatives now lies before Judge Fred Van Sickle. What will he say?

Shawn Vestal can be reached at (509) 459-5431 or Follow him on Twitter at @vestal13.

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