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Moses, McIntyre face charges for Zehm

Federal obstruction charges are expected to be filed soon against two more Spokane police officers in connection with the city’s handling of the Otto Zehm investigation, which U.S. Department of Justice officials have called an “extensive cover-up.”

  Attorneys representing Officers Sandra McIntyre and Tim Moses both confirmed Thursday that they have entered discussions with federal prosecutors about the potential charges relating to their clients’ testimony during the investigation into Zehm’s death.

Read the rest of Tom Clouse's story here.

Past coverage:

Nov. 17: Tim Moses resigns as police spokesman

Nov. 2: Bugbee: Tim Moses didn't cover anything up

Oct. 21: Tim Moses: Thought I could trust the FBI

Oct. 21: McIntyre described 'intimidation' by feds

Tim Moses resigns as police spokesman

Spokane police Officer Tim Moses has resigned as a public information officer at the advice of his lawyer.

 Moses, who told jurors at Karl Thompson's trial that the FBI intimidated him into giving false incriminating testimony to a grand jury, has been "under a lot of fire" lately, said lawyer Chris Bugbee.

"I'd like to see him keep his head down," Bugbee said. "There's a lot going on right now and I don't think that he needs to be the one that's making official statements for either the police department or the Guild right now."

 Moses, well known by media for his jovial attitude and sense of humor, will remain one of two Guild vice presidents, Bugbee said. He will continue to work as a patrol officer.

"I think he's a great officer," Bugbee said.

Bugbee said he suggested the resignation to Moses on Tuesday after he was quoted in a Spokesman-Review story about Mayor Mary Verner requesting the U.S. Department of Justice investigate the police department.

"I think he realizes the public at this point is looking closely at all of the officers that were involved so he'd like to stand back a little bit and let somebody else take that responsibility," Bugbee said. "The public has strong opinions about him."

Bugbee said Moses is not the subject of a grand jury investigation.

The forewoman of the jury that convicted Thompson told The Spokesman-Review this week that Moses' testimony was pivotal in convincing them the case was a vast police cover-up. Bugbee talked with Moses about resigning as PIO before the article was published.

Moses was given a letter of immunity before testifying at Thompson's trial. He said he gave false statements to the grand jury regarding Thompson saying he hit Otto Zehm in the head and neck with a police baton - which would constitute unlawful lethal force - because the FBI intimidated him.

Thompson's lawyer, Carl Oreskovich, told jurors that the FBI had Moses wrapped around an axle. Bugbee said Moses never meant to mislead anyone.

"I know Tim just got himself in a corner, and he's getting some public criticism over it," Bugbee said.

Moses has long criticized media coverage of the Thompson case, but Bugbee said today that his resignation for a position dedicated to dealing with the media is not fueled by anger.

"He and I discussed it and he was leaning toward continuing to do it, but I pointed out that maybe, out of respect for some of these strong perceptions in the public right now, maybe it would be the best thing to give it up for a while," Bugbee said. "And that really was a driving reason."

"I think he appreciates that the public does have strong feelings, and maybe now he's just become a little too well known in reference to these recent events and it's time to step back," Bugbee continued.

Past coverage:

Nov. 2: Bugbee: Tim Moses didn't cover anything up

Chief: ‘Silent majority needs to stand up’

Spokane police Officer Karl Thompson outside the federal courthouse in Yakima on Nov. 2 with (from left) his lawyer, Carl Oreskvocih, and Spokane Police Guild Vice President John Gately. (SRPhoto/Chris Anderson)

Spokane police Chief Anne Kirkpatrick suggested Monday that no cultural changes will occur within SPD until frontline officers change the leadership of the guild. 

As president, Ernie Wuthrich keeps two vice presidents, Officer John Gately, who attended every day of Karl Thompson’s trial and was by his side outside of trial, and Tim Moses, who required a letter of immunity from the U.S. Department of Justice before he would testify about his previous grand jury testimony incriminating Thompson.

When Moses (pictured right) did testify, he he blamed the FBI for intimidating him into testifying under oath to a grand jury that Thompson had struck Otto Zehm in the head with a baton.

“If you want true culture change, you look to your leaders and see who is being elected,” Kirkpatrick said. “That will be your weather vane of the cultural mindset. The silent majority needs to stand up and take back the voice and leadership of who they really are.”

But in an e-mail to The Spokesman-Review, Moses said he recalls Kirkpatrick supporting his promotion.

If “you really want to find someone to point the finger at for a lack of direction … deficiency of faith in the police … or issues with public trust … remember, we were under Kirkpatrick's administration and guidance the past 5 years,” he wrote in part. “Put the blame where it belongs.”

Read much more about the expected federal investigation n into the Spokane Police Department here.

Bugbee: Moses didn’t cover anything up

After a press conference in the U.S. Courthouse in Spokane, Otto Zehm's family members, Dale Zehm, center, with his wife, Sandy, thank U.S. Attorney Mike Ormsby, far left, following the jury's conviction of Spokane police Officer Karl Thompson. (SRPhoto/Colin Mulvany)

 Attorney Chris Bugbee, who represents Spokane police Officer Tim Moses, said his reaction to the jury's conviction of Karl Thompson today was "the same reaction as everybody."

"It's shocking to see a police officer who we trust to protect us being convicted of this crime, regardless of how you see the case," Bugbee said. "I'm sad for the community but I'm glad it has been resolved one way or the other."

 Moses, who was granted immunity for his testimony during Thompson's trial, told jurors he was manipulated by the FBI into wrongly telling a grand jury that Thompson had said he'd hit Otto Zehm in the neck, head and upper torso with a police baton. Medics included that information in a report and said Moses told them it came from Thompson.

"I don't think Tim attempted to lie or mislead or participate in a coverup," Bugbee said today.

Bugbee said when Moses watched video of himself at the Zip Trip that night with investigators before his grand jury testimony, "he kind of was misled and said 'well it must have been me if you guys say it was me,'" Bugbee said. "He shouldn't have. he kind of set aside his own thinking and allowed his trust in the FBI to take over."

Bugbee said he doesn't know if the jury's verdict says anything about their view of Moses's credibility.

"I think the video alone was the powerful piece of evidence the government had," Bugbee said. "I can understand the conviction seeing the video."

He said jurors often don't consider witness testimony if there's an issue with credibility.

"They'll just disregard the testimony if there's other evidence they can decide the case on," Bugbee said.

U.S. Attorney Mike Ormsby said at a press conference today that he couldn't confirm or deny if an investigation is ongoing. Though prosecutors said in trial that the Spokane Police Department "whitewashed" the Zehm investigation, Ormsby said Thompson's conviction does not reflect on other officers.

Bugbee said this afternoon that he doesn't expect Moses to face charges. He said prosecutors seemed to understand what had happened when they granted Moses immunity.

He said Moses, as a patrol officer, has little experience with interrogations and reacted as many people do afterward.

 "They feel like they were given a sense of trust that didn't exist and they were taken advantage of" Bugbee said. "Tim felt like he was taken advantage of, and in some sense, he probably was because that's the nature of an interrogation in a felony investigation."

"I think Tim Moses was doing everything he could to be honest and truthful, and I really think he felt like he was getting taken advantage of."

Bugbee said little is known about the government's ongoing obstruction of justice investigation, other than a target letter sent to Officer Sandy McIntyre, who was the first officer to review the surveillance video and see that Zehm never lunged at Thompson as police first alleged.

"I hope they're careful in who they decide to prusue in keeping in midn taht the community also has an interest t in putting this behind us," Bugbee said. "The jury certainly believes that Mr. Zehm's rights were violated, and i hope that the community's satisfied with the conviction of Officer Thompson."

Honorable man or SPD whitewash?

Before closing arguments today in the excessive force trial of Spokane police Officer Karl Thompson, lawyers debated the addition of two crucial jury instructions: one regarding Otto Zehm's right to defend himself against unlawful force and the other regarding the need for Thompson to be acting willfully to be convicted of depriving Zehm of his civil rights.

Both instructions were mentioned in closings arguments.

 Federal prosecutor Victor Boutros said Zehm had the right to kick Thompson in the groin if he wanted to stop the unlawful force, but he chose not to. Instead, he defended himself with a pop bottle simply by placing it over his face to try to protect it from baton strikes.

Boutros said Thompson, 64, (pictured) continued to disgrace his badge by lying about the March 18, 2006, incident.

"At that point he thinks Detective (Theresa) Ferguson is going to whitewash this thing and what happens? She does," Boutros said, who also said Officer Tim Moses and Thompson lied to jurors about the alleged discussion of head blows the night of the incident. Boutros questioned why Moses would be fearful of the FBI recording him at an off-site meeting after his grand jury testimony - testimony he refuted at trial - if he was just telling the truth.

Boutros said the defense has tried to focus on the 'lunge' phrase not being used by Thompson (Moses told jurors he 'coined it'), but the real focus should be on the meaning of the word: Thompson said that night that Zehm came at him, and though he told jurors he tried to correct it, he never did so.

 Boutros said Thompson figured no one compared the video to his March 22 statement, which doesn't include anything about the lunge but doesn't mention Zehm taking a "boxing stance." Boutros also questioned why Thompson didn't say anything about the lunge misstatement in that interview if he was so concerned about correcting it.

Boutros essentially took the defense's argument about not applying 20/20 hindsight to Thompson's actions and made it his own by saying the only one who used 20/20 hindsight was Thompson when he lied about what happened to cover his actions.

He said Thompson tried to "hide behind the shelf" of the Zip Trip by saying everything that justified his use of force happened outside of view. But jurors get to peer behind the shelf, Boutros said, through the eye witnesses who say Zehm never got up and took a boxing stance, and only struggled in pain.

"He counted on his police department to whitewash his misconduct, and it did," Boutros said. "But now he is in a room where the law will not be ignored."

"This is a tragic and terrible story, but it is not over yet," Boutros continued, telling the jurors they get to "write the final chapter."

"No one gets special treatment. Not even police officers," Boutros told jurors. "You get the final word, and the final word is guilty."

Oreskovich focused on the "willfull" requirement needed to convict Thompson and said even if jurors think Thompson was mistaken in his use of force, that doesn't mean they can convict.

"The government has to show you that he acted with a bad or evil purpose.." Oreskovich said. "Not that he went in there as a police officer to try to detain someone."

Oreskovich said Thompson "was there to do one thing: Be a police officer."

"When you look at the man you are judging you can stop right there and say 'that is a doubt,'" Oreskovich said. "This is an honorable man. A man who has fought for his country. A man who has been a good police officer for 42 years."

Oreskovich called Thompson "someone who is respected. Someone who is a thinker. Someone who is not rash…someone who understands things and tries to make them better" for both police officers and citizens.

He mentioned Thompson's life-saving award and the petition by his fellow officer for him to be police chief in 2006.

"That's the man they want to say is a liar creating a 'web of lies.'" Oreskovich said.

"Just stop and think for a moment - does this look like the resume of a man who's going to act with bad intent?"

Oreskvoch reminded jurors that Thompson was on a dinner break filling out a report about a gun call to which he'd just responded.

When Thompson heard the call regarding Zehm, "What does our officer do? What does our liar do?" Oreskovich asked. Thompson went to his car and checked the dispatch log for more information.

"Those are the actions of a man who's doing the job that we want him to do," Oreskovich told jurors. "Is it somewhere between the cop shop and the Zip Trip that he gets this bad evil purpose?…You know that didn't happen."

Oreskovich said people who aren't in that situation can question Thompson's action afterward, but, "If those were my children standing at the counter…what I want is this man to go in there."

Oreskovich said Thompson is the only witness whose statement was not tainted by the video. He spoke of a "boxing stance" in the March 22, 2006, because that's how he remembered it happening.
Oreskovich told jurors that Thomspon had "just learned about Otto Zehm's death right before" the interview and reminded them Thompson had told them it had an emotional effect on him and was a profound tragey.
Oreskovich called Thompson"a man who stands for something. Stands for something so much his own employees wanted him to be police chief."
"This man has lived all of his life…to make life better. To save lives," Oreskovich said of Thompson.
You "cannot second guess this type of decision making," Oreskovich told jurors. "This is an innocent man doing his best. We should not be here in a criminal court of law."

In rebuttal, Boutros said he surprised how little was said about what Thompson did during the fatal encounter. He said Zehm never knew why he was hit and we may never know either.

He pointed to how Officer Steve Braun calmly responded to the call as a sign Thompson used excessive force.

The defense says he was just doing his job, but "His job was not to go in and beat an unarmed man who posed no threat."

Boutros said the defense has created hypothetical cause of head injuries by suggesting Zehm hit his head on shelves, but that's not corroborated at all by testimony.

Regarding Thompson's statement to Ferguson, Boutros said he wasn't forgetting things- he was adding them. He wasn't getting things out of order - he was "making stuff up."

"Are people going to jail because statements are as wrong as this one?" Boutros said, questioning what happens in far more serious cases with real deadly weapons.

He told jurors to not "forget what happened to Mr. Zehm" and spoke of the pain and terror he felt while being beaten. 

Boutros also reminded jurors that Zehm's last reported words were "I only wanted a Snickers."

Today would have been Zehm's 42nd birthday. Jurors were not told of that fact.

Tim Moses: Thought I could trust FBI

Spokane police Officer Tim Moses was so rattled after meeting with federal investigators about the Otto Zehm case that he feared an agent might be secretly recording him when he met with him afterward.

Moses knew an FBI agents from hostage negotiation team trainings, in which Karl Thompson also participated.

The agent heard Moses was upset about how he was treated, and the two met at a city gas fill-up area. Moses told defense lawyer Carl Oreskovich that he picked the spot because it was near railroad tracks. He wanted there to be a lot of extra noise in case he was being secretly recorded.

Moses said he doesn't want to use the word "manipulated" because he still respects law enforcement, but he feels the FBI basically forced him to say incriminating things against Thompson that weren't true, such as that Thompson claimed Zehm lunged at him.

"I trusted the FBI to tell me the truth. I didn't know any better." Moses said.

Moses and federal prosecutor Victor Boutros sparred this morning as Moses criticized Boutros for only showing clips of the surveillance video instead of the entire thing.

Moses said he never talked to Thompson about what happened until after Zehm was en route to the hospital, which contradicts testimony from EMTs that Moses said Zehm had been hit in the head and neck with a police baton.

Boutros asked Moses about an alleged statement he made to a witness - that Zehm had gotten the "tar" beat out of him - prompting a swift objection from Oreskovich.

Jurors were instructed to disregard the statement.

Moses said he was taken aback by how the FBI threatened him with obstuction of justice chargs.

"I thought we were all professional law enforcement," Moses said.

Oreskovich ended his questioning with this exchange: "You knew if you were charged with obstruction of justice you wouldn't work in law enforcement again would you?"

Moses replied yes.

"I was raised in a law enforcement family. I know exactly what obstruction of justice means," Moses said.

Read more from Moses' testimony in this play-by-play from the courtroom.

Tim Moses’ testimony to continue today

A doctor who testified in the Rodney King police brutality case in 1992 told jurors the Karl Thompson excessive force trial Thursday that the case are comparable.

 "The Rodney King case had similar elements to the case at hand," said Dr. Harry Lincoln Smith. He said medical evidence clearly shows Otto Zehm was beaten over the head with a baton. Read more from Tom Clouse here.

Smith's testimony began a packed day that ended with contentious testimony from Officer Tim Moses (pictured), who contradicted testimony given to a grand jury in 2009.

It was Moses, prosecutors say, who first revealed to EMTs that Zehm had been hit in the head with a baton.

But Moses said Thursday he doesn't recall his conversations with EMTs that night.

"I frankly don't remember what he asked me…it was 5 1/2 years ago. I wish I could tell ya," he said.

But Moses told a grand jury about strikes to the head, neck and torso. He also said he'd heard Thompson say Zehm lunged at him.

Federal prosecutor Victor Boutros asked Moses if he swore to tell the truth to the grand jury.

"What I knew it to be at the time, yes," Moses replied. "…I don't lie, no."

Moses testified Thursday that he hadn't even been briefed by Thompson before Zehm left an ambulance.

Boutros asked Moses about a private "venting session" Thompson had with him outside the Zip Trip has Thompson was calming down. Moses said Thompson simply pointed out where his police car had been positioned. He said Thompson described baton strikes, but said he didn't hear anything about strikes to the head or neck.

Moses said video that prosecutors say shows him describing the baton strikes to two EMTs does not show that.

"I was not describing baton strikes right there," Moses said.

Moses also said Thompson never used the words "lunge" or "lunged," which contradicts what he told a grand jury.

 "He did not use the word lunge, no. I'm the one who coined that word," Moses said of Thompson. Moses then told Acting Police Chief Jim Nicks, who "went right across the parking lot and put it into a news media microphone."

Moses said he was threatened by the FBI with obstruction of justice charges if he said he did not remember facts, which led to his erroneous grand jury testimony.

"I was shocked that a fellow law enforcement officer would treat me that way," Moses said.

"My family's FBI. I've been a cop my whole life," Moses said. He said he thought they were going to tell truth, but they manipulated him.

Boutros emphasized that Moses is a 22-year officer who thinks he was influenced by FBI to make statements that weren't true. Moses agreed.

Moses' testimony continues today at 8 a.m.

Tom Clouse is providing daily coverage from Yakima. I'm following the live feed from Spokane with minute-by-minute updates on Twitter.

Feds: Moses may contradict own testimony

Spokane police Officer Tim Moses may contradict testimony he gave to a grand jury in 2009 if he testifies as a prosecution witness in the federal trial of Officer Karl Thompson, according to court documents filed this week.

U.S. District Judge Fred Van Sickle issued an order today that requires Moses to testify. His lawyer, Chris Bugbee, has said he expects Moses to be offered immunity.

Bugbee told prosecutors that Moses' testimony "may be inconsistent with sworn testimony that he previously provided in front of the Grand Jury, in and for the Eastern District of Washington on June 16, 2009."

Prosecutors say Moses changed his statement about Thompson hitting Zehm in the head with a baton after talking to Thompson "and having later met with Defendant's counsel while then unrepresented by Mr. Bugbee."

Moses is one of 22 witnesses prosecutors sought to declare as hostile, which allows them more freedom in questioning. Hostile witnesses can be asked leading questions.

In a document explaining the need for the designation, prosecutors described the deep support Thompson has in the Spokane Police Department.

"Many local law enforcement officers and others have come to the defense of Defendant Thompson as they see this prosecution as an unwarranted attack on one of their own and on the Spokane Police Department that employs Defendant," according to a document filed Tuesday.

Moses is expected to testify today. Check here for minute-by-minute updates from the courtroom.

Past coverage:

Oct. 19: Retired SPD cpl. declared hostile witness in Zehm case

Oct. 17: Police use '505' to support Thompson

Oct. 13: Officer may plead 5th in Thompson trial

EMT: Moses told me of Zehm head strikes

Another EMT who responded to the Zip Trip the night of Otto Zehm's fatal confrontation with Officer Karl Thompson told jurors this morning that Officer Tim Moses said Zehm had been struck in the head, neck and upper chest with a police baton.

Aaron Jaramillo, a former EMT with American Medical Response, reiterated what EMT Michael Stussi told jurors Wednesday.

"We needed to know what happened…how he was injured" beyond just the "confrontation" explanation, Jaramillo said. That's when they spoke with Moses, who said Zehm had been hit "up and down" in the head, neck and upper torso with a baton, Jarmillo said.

Federal prosecutor Victor Boutros showed Jaramillo images of the Zip Trip after the confrontation.
Jaramillo identified himself and Stussi as talking to Moses. Moses is seen gesturing up and down with his arm - Jaramillo said he was "trying to describe" how Zehm was hit.

Jaramillo said Moses was the only one who spoke of head strikes that night.

Jaramillo and Stussi wrote in a pre-hospital care report that Zehm was struck in the head. Spokane police employees were present when it was written; none disputed the head strikes claim, Jaramillo told jurors.

But Jaramillo wasn't so sure when he first testified before a grand jury in 2009. Boutros questioned him about getting only one hour of sleep because of a newborn baby and flying to Spokane from Florida. He was much more alert for his testimony the next day.

Defense lawyer Steve Lamberson said Jaramillo has previously said that Moses never mentioned a head strike, rather Jaramillo assumed he was referring to one by the way he was gesturing.

"No, he said head, neck and upper chest," Jaramillo said.

 Lamberson also pointed out that in the first day of testimony before the grand jury, Jaramillo said "right now, I don't remember" when asked if Zehm lunged at Thompson.

He also noted that both Stussi and Jaramillo evaluated Zehm for head injuries but found nothing. Also, a doctor's report said nothing about head injuries or strikes.

Boutros then emphasized bruising takes time to develop, and that Jaramillo noted in his initial report that Zehm was struck in the head with a baton.

Jaramillo was told that Zehm threw bottle at Thompson, was Tasered but not affected, then lunged at Thompson.

Officer Tim Moses is expected to testify as early as this afternoon.

SPD: Hostile witnesses, immunity letter

A paramedic who wrote a report describing baton blows to Otto Zehm's head by police testified today that he heard about the head strikes from Spokane police Officer Tim Moses.

It was through Michael Stussi's report, prosecutors said in opening statements last week, that the "secret truth" about the level of response Officer Karl Thompson used on Zehm was revealed.

Stussi told jurors today that Moses (pictured left) was the only person who could have provided him the information the night of March 18, 2006. The report states that Zehm became "combative" and was hit in the "upper torso, neck and head" "by a nightstick per SPD." 

Prosecutors introduced scenes of the Zip Trip that night that showed Stussi talking to Moses. Moses is seen moving his arm up and down, which Stussi mimics, indicating that may have been when Moses described the head blows.

On cross examination, defense lawyer Steve Lamberson pointed out that Stussi originally told federal investigators in 2009 that it was an officer or firefighter who told hm about the head strikes.

Stussi said he originally couldn't remember, but that he reviewed the video and realized Moses was the only one who could have told him about the head strikes.

"I don't recall talking to anyone else" other than Moses, Stussi said. That includes Thompson.

Moses is expected to testify Thursday in Yakima, with a live feed of the trial available at the federal courthouse in Spokane. 

Also expected to testify is Officer Erin Raleigh, who also responded to the Zip Trip the night of the fatal confrontation.

Outside the presence of jurors, prosecutors discussed wanting Moses and Raleigh designated as hostile witnesses so they can be asked leading questions.

Defense lawyer Carl Oreskovich questioned why Raleigh (pictured right) needed that designation. Prosecutors say he has alleged coercion by federal agents and is a major supporter of Thompson.

Chris Bugbee, lawyer for both officers, said Wednesday evening that he hadn't heard of the possible designation but doesn't feel it's necessary. Moses had not yet received a letter promising him immunity from prosecution if he testifies, but "I presume he will," Bugbee said.

Bugbee said the immunity regards "not much, just anything that he may testify to on the stand."

"I'm sure Mr. Oreskovich will bring out the full breadth of what it entails," Bugbee said.

Testimony begins today at 9 a.m. Check here for minute-by-minute updates from the courtroom.

Past coverage:

Oct. 19: Retired SPD cpl. declared hostile witness in Zehm case

Oct. 13: Officer may plead 5th in Thompson trial

Jurors hear Thompson’s interview w/ SPD

After the encounter that led to Otto Zehm's death, Spokane police Officer Karl Thompson told an investigator he didn't feel deadly force was needed against the suspect.

In a recorded interview with now-retired Spokane police Detective Terry Ferguson that was played for jurors today, Thompson said his first intent to was strike Zehm in the leg his baton "to be able to buckle his leg and put him on the ground."

"I had deadly force available but i did not perceive this as a deadly threat," Thompson said, adding that he wanted to continue issuing verbal commands.

But, as prosecutors have told jurors, Thompson repeatedly struck Zehm in the head with a baton, which is considered deadly force.

The recording outlines what prosecutors have said was nothing but a lie from Thompson — that Zehm lunged at him and fought with him using a plastic soda bottle.

In the interview with Ferguson, Thompson, who is now on trial in Yakima for allegedly violating Zehm's civil rights and lying to investigators, said Zehm posed a physical threat.

"His whole body suggested that it was tense and prepared to respond either by pushing, throwing or charging me," Thompson said.

Thompson said Zehm was  screaming and groaning like someone with "a high level of commitment to resisting or attacking."

He said Zehm took a "boxing stance" and threw punches, so Thompson hit anywhere he could with the baton, except the head. Thompson claimed Zehm stood up after being shocked with a Taser, which surveillance video disputes.

"He's standing there boxing with both fists, throwing punches," Thompson said.

Ferguson asks: "Did he hit you?"

"Yes. He hit me," Thompson responds.

Thompson said he was finally able to use his radio and knew Spokane police Officer Steve Braun was close by. But Zehm was still kicking, Thompson said. So when Braun arrived  "I told him, 'use your baton. Start hitting him.'"

Braun shocked Zehm with a Taser, but it had no effect, so Thompson directed his fellow officer to deploy the Taser on Zehm's neck.

Thompson looked around the store for his baton before realizing it was on his holster, he said in the recording. He said Zehm was still "resisting extremely forcefully" as police responded. Soon, he heard an officer say, "He's not breathing."

Thompson again told Ferguson that he had no reason to shoot Zehm.

 "Had he tried to get my gun that clearly would have been a a deadly force issue to me…but he did not," Thompson said. Thompson said it was important to detain Zehm for questioning.

 "We had at the very least a felony of assault on an officer," Thompson said.

Officer may plead 5th in Thompson trial

Spokane police Officer Tim Moses may invoke his Fifth Amendment right against self-incrimination if he's subpoened to testify in the excessive force trial of Officer Karl Thompson, who is charged in connection with the death of Otto Zehm.

 Federal prosecutor Victor Boutros told U.S. District Judge Fred Van Sickle before opening statements today that Moses may use the 5th Amendment protection in refusing to answer some questions. Van Sickle said they'll deal with how to present him as a witness when he's called to testify later in the trial.

Boutros soon introduced Moses (pictured) to jurors in his opening statement. It was Moses, he said, who heard the "secret truth" from Thompson outside the Zip Trip that night: that, despite what he'd said in his initial statement, he had struck Zehm in the head and neck with his baton.

"What the defendant didn't know is that a series of events had taken place that would unravel the 'no strikes' lie," Boutros said.

Thompson didn't think it would ever come out, Boutros told jurors, but it did - in a report sent with EMTs who rushed Zehm, already unconscious, to a hospital, where he died two days later.

It was what ultimately revealed to federal investigators Thompson's "web of lies," Boutros said. (That report never made it to county prosecutors, who ruled Thompson's use of force justified, but an autopsy also showed evidence of baton strikes to Zehm's head.)

Jurors weren't told of Moses' possible intentions to plead the fifth.

Boutros' description of the "secret truth" came in an opening statement that kicked off what's expected to be a five-week trial.

Boutros began by telling jurors: "This is a case about a police officer who chose to strike first and ask questions later."

He continued by describing Zehm as a man who always went to the Zip Trip to simply get a bottle of soda, prompting a swift objection from defense lawyer Carl Oreskovich, who said the statement violated a ruling that barred mention of the fact that Zehm was innocent of the alleged theft that prompted the police call.

The issue arose again twice in Boutros' statement, prompting Oreskovich to ask Van Sickle for a mistrial, which was denied. Read more about that in Yakima-based reporter Tom Clouse's story here.

Boutros told jurors that Thompson continued "to disgrace the badge" by lying about what happened. He said Thompson is not charged with causing Zehm's death, but that when he "brutally beat" him he broke the law.

Boutros said the suspicious circumstance call regarding Zehm was a "very common, low-priority type call that rarely results in arrest" and there was no reason for Thompson to believe Zehm posed a threat.

"Even the defendant admitted that, based on the call, he didn't have any reason to believe that the man at the ATM had committed any crime," Boutros said. Boutros told jurors that a 7-year-old girl covers her ears as Zehm scream in pain from a Taser shock. Five years later, witnesses, including the girl who made the 911 call about Zehm, are haunted by police beating hm like that and will testify, Boutros said.

After the encounter, Thompson crafted a lie about Zehm lunging at him, and, at the end of the night "the defendant's lie about the lunge was in an email circulated to everyone" in the Spokane Police Department, Boutros said. Soon, Acting Police Chief Jim Nicks was on scene "unwittingly spreading the defendant's lies to the public."

Soon, Thompson's close friend and fellow officer Sandra McIntyre (pictured) arrived at the Zip Trip.

She viewed the surveillance video and exclaimed out loud that Zehm never lunged, Boutros told jurors. She conferenced with Thompson outside, who Boutros said had four additional days to craft a new story for his official interview. He was even given a practice interview.

(Unbeknownst to jurors, McEntire is facing a grand jury investigation for her role in the case.)