Former Spokane Police Officer Karl F. Thompson Jr.’s attorneys argued today that a judge should not force Thompson to pay restitution stemming from his criminal conviction for using excessive force against Otto Zehm.
Defense attorney Carl Oreskovich filed a 19-page response to federal prosecutors’ request, filed last month, seeking to have U.S. District Judge Fred Van Sickle order Thompson to pay $824,163 in restitution to cover lost wages, medical bills and attorney’s fees stemming from the case.
Oreskovich argues that most, if not all, of those expenses have already been resolved as part of a $1.67 million judgment with the City of Spokane to settle a companion civil suit against the officers who joined Thompson in confronting Zehm in 2006.
Zehm’s estate “has fully recovered Mr. Zehm’s medical expenses, therefore no further restitution should be ordered,” Oreskovich wrote. Assuming, however, that some additional restitution is due, “some of the injuries sustained by Mr. Zehm were not a result of Defendant Thompson’s underlying offense conduct, or conduct that formed the basis of his conviction,” Oreskovich wrote.
Van Sickle sentenced Thompson Nov. 15 to serve just over four years in prison after a jury convicted him in November 2011 of using excessive force and lying to investigators about his violent confrontation with Zehm. The 36-year-old developmentally delayed janitor, who had not committed a crime, died two days after the confrontation with Thompson and other officers.
As the final part of sentencing, Assistant U.S. Attorney Timothy Durkin asked Van Sickle last month to order Thompson to pay back the $37,410 in medical bills from Zehm’s treatment at Deaconess Medical Center; the estimated $208,635 worth of wages Zehm was expected to have earned had he survived; and the $578,118 paid to Ann Zehm’s attorneys as part of the $1.67 million civil settlement with the city.
If awarded, the attorney’s fees would go to Zehm’s mother and estate. The amounts for lost wages and medical bills would go to the city because it technically already paid those amounts as part of the civil settlement. But Ann Zehm and the estate would be paid first, according to court records.
In his argument, Oreskovich said that Thompson only had contact with Zehm for about 90 seconds during which he struck Zehm some 13 times with a baton and shocked him with a Taser. But Oreskovich noted the confrontation lasted for another 15 minutes as other officers struggled to subdue Zehm.
At the end of the struggle, Officer Erin Raleigh placed a mask over Zehm’s face. He stopped breathing about three minutes later and never regained consciousness.
“The injuries sustained by Mr. Zehm were complex and cannot be attributed to Defendant Thompson in their entirety,” Oreskovich wrote. “Other responding officers had forcible contact with Mr. Zehm, and Mr. Zehm continuously resisted their attempts to restrain him in a violent manner. Thompson should not be ordered to pay restitution for an injury that occurred as a result of another person’s actions.”
Oreskovich also took issue with $208,635 estimate of wages that Zehm could have earned if he had lived and worked to age 65.
Oreskovich noted that Zehm’s employers had noticed “unusually erratic and disturbing behavior” including confusion, disorientation and verbal aggression from Zehm, who apparently had stopped taking medication to treat paranoid schizophrenia.
“As a result of this dramatic change in behavior, Mr. Zehm was no longer capable of working until he received a psychological evaluation,” Oreskovich wrote. “Whether or not Mr. Zehm would return to work and when is unknown; therefore the calculations are based on speculation.”
Finally, Oreskovich argued that Thompson will be nearly 70 years old when he is released. A check of federal records shows that Thompson is currently being held at the Federal Correctional Facility in Safford, Ariz.
“Finding employment after incarceration will be difficult,” Oreskovich wrote. “Any future ability to pay for restitution is nominal.”