A federal appeals court panel has upheld the conviction of former Spokane Police Officer Karl Thompson.
The three judges denied claims by Thompson’s attorneys that courtroom errors following the 2006 beating death of Otto Zehm justified sending the case back for a new trial.
Thompson is serving a four-year sentence at a minimum-security facility in Safford, Arizona, after a jury in Yakima found him guilty in 2011 of using excessive force and attempting to conceal evidence in Zehm’s death.
The fatal beating prompted a lengthy legal review that culminated in the two guilty verdicts. Thompson’s attorneys said they did not receive statements made by a key witness – video forensics expert Grant Fredericks - that movement seen in surveillance video of the beating may have been baton strikes or some other motion.
Zehm, a 36-year-old mentally disabled man, died after a confrontation with Thompson and other police officers inside a north Spokane convenience store on March 18, 2006.
During the trial, witnesses reported seeing Thompson strike Zehm multiple times with a baton, shoot him with a stun gun and hog-tie him after responding to a call of a possible theft near a Spokane Zip Trip store. Zehm was holding a two-liter bottle of cola. After being taken to a hospital, Zehm lost consciousness and died a few days later.
The appeals were based on four issues submitted by Thompson’s attorney Carl Oreskovich: that the trial judge prevented testimony by Fredericks that would have helped Thompson’s case; that testimony about Zehm not fleeing or hiding from police undermined Thompson’s claim that Zehm might have used the soda bottle as a weapon; that the court gave the jury flawed instructions before they started deliberations; and that juror misconduct occurred during the trial that should have led to a mistrial.
In the appeal, Oreskovich said he and others on Thompson’s defense team were misled by pre-trial statements about the conclusions Fredericks would make from a surveillance video of the incident.
Oreskovich said he was led to believe some of Fredericks’ statements were inculpatory (beneficial to prosecutors) “when in fact they were exculpatory (beneficial to Thompson).”
“He (the witness) would have changed the trial strategy,” Oreskovich had told the judges during oral arguments in Seattle earlier this month.
The appeals court panel, however, noted expert witness Fredericks did not testify during the trial.
The ruling said: “Further, the government’s pre-trial disclosures put Thompson on notice of potentially favorable opinions in Fredericks’ reports; Thompson was thus not deprived of the opportunity to develop a defense strategy that utilized those opinions. Finally, the non-disclosure did not impede Thompson’s ability to cross-examine the government’s witnesses.”
On the issue of testimony about Zehm’s behavior disposing the jurors to assume Thompson should have not seen the bottle as a threat, the court said: “The evidence did not raise an undue risk that the jury would impute knowledge of the victim’s innocence to Thompson.”
Oreskovich said he will consider seeking a full review by the Ninth Circuit Court of Appeals.