Carl Oreskovich argued Friday that former Spokane police Officer Karl F. Thompson Jr. should receive a new trial because federal prosecutors hid information from the defense that could have won his acquittal.
However, several assistant U.S. attorneys disputed the assertions, countering that they had done everything required, and instead called into question the credibility of a forensic video expert who alleged prosecutorial impropriety.
At stake is the Nov. 2 jury verdict convicting Thompson of excessive force and lying to investigators in the violent 2006 confrontation with Otto Zehm, a mentally ill janitor mistakenly identified as a possible thief. Zehm died two days after being beaten, tasered and hog-tied by police in a Spokane convenience store.
U.S. District Court Judge Fred Van Sickle listened to more than three hours of oral arguments Friday but adjourned without ruling.
“I’m going to devote more time to this. So, my ruling will be forthcoming,” Van Sickle said. “And, it will be done when I’m convinced and satisfied … that it’s the correct ruling.”
The oral arguments dealt mostly with issues raised by defense attorneys, who are seeking a new trial for Thompson, a decorated officer fired following the conviction.
The legal posturing has delayed sentencing originally set for Jan. 27, more than seven months ago. In the meantime, Thompson has remained free despite being a convicted felon.
Oreskovich made no mention Friday of his allegations of juror misconduct that prompted Van Sickle to hold secret hearings in Yakima to query jurors about whether they considered outside influences during deliberations.
He instead focused primarily on allegations by videographer Grant Fredericks, hired by the Justice Department to review convenience store security footage of the fatal confrontation. Fredericks says prosecutors improperly withheld favorable information to the defense.
“We came a long way, all of us, years and years now,” Oreskovich said. “We all fought hard to root out the truth here. The problem was we were handicapped. The government was in possession of facts that would have helped us. In the end, judge, we have a record that we can’t be confident in.”
The allegations surround interviews of Fredericks conducted by FBI special agent Lisa Jangaard and Assistant U.S. Attorney Timothy Durkin.
The city of Spokane initially hired Fredericks in 2006 to analyze the video from the Zip Trip that captured the March 18, 2006, Zehm confrontation.
In his first report, Fredericks said the video did not show any baton strikes for the first minute and 13 seconds of the confrontation. He was later questioned and hired by the FBI to do the same analysis. Fredericks then wrote a second report, and later testified under oath to a grand jury, that the video actually showed baton motions that were consistent with baton strikes within seconds of Thompson confronting Zehm.
Fredericks was not called as a witness by either side during the trial.
After Thompson’s conviction, Fredericks – who once worked in law enforcement – contacted Van Sickle with concerns that federal prosecutors had mischaracterized his opinions.
“In the context of the entire case … the video itself supports the expert’s opinions,” Assistant U.S. Attorney Joseph Harrington said. “The video corroborated the eyewitness testimony that there was no justification for the use of force. If Mr. Zehm did not present a credible threat … no force is justified.”