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New evidence delays Zehm decision

Spokane County Prosecuting Attorney Steve Tucker answers questions during a press conference at the Broadway Center Building in Spokane about his decision to postpone any charging desision in the Otto Zehm case.
 (Dan Pelle / The Spokesman-Review)
Spokane County Prosecuting Attorney Steve Tucker answers questions during a press conference at the Broadway Center Building in Spokane about his decision to postpone any charging desision in the Otto Zehm case. (Dan Pelle / The Spokesman-Review)
Thomas Clouse Staff writer

The FBI has found new evidence in the fatal struggle between mentally ill janitor Otto Zehm and seven Spokane police officers, prompting Spokane County Prosecutor Steve Tucker to again delay a decision on possible charges.

FBI detectives have located and interviewed one witness Spokane police detectives never found. And, the FBI also got differing witness accounts from what local detectives put in their reports about what happened March 18 during the fatal confrontation, Tucker said.

“They feel they might have some more information that will be helpful in making a good decision,” Tucker said of the FBI investigators. “I haven’t seen any of the witness statements. I don’t know how they conflict. So, I’m waiting.”

Tucker’s announcement again delays his charging decision, which now could extend into next year. And the new witness and conflicting statements raise more questions about the thoroughness of the investigation done by Spokane police.

Deputy Chief Al Odenthal praised detectives at a July 13 news conference for their hard work in tracking down all the witnesses that were inside the Zip Trip, at 1712 N. Division St., on the night that two young women erroneously reported that Zehm stole money from their bank account at an ATM.

On Wednesday, Odenthal reiterated his belief that detectives had found all the people inside the store, pointing out that the department made several appeals for the witnesses to come forward.

As for the differing statements from the same witnesses, Odenthal added: “It’s not unusual for stories to change over time.

“If the story was exactly the same (as what they previously told SPD detectives) we’d be concerned,” Odenthal said. “That shows rehearsal.”

Police officials blacked out all the names of the witnesses in the police reports released to the public, and efforts by The Spokesman-Review to contact witnesses have been unsuccessful.

But several people were inside the store March 18 when seven officers responded to the erroneous call. Officer Karl Thompson was the first to arrive and immediately engaged Zehm, 36, who grabbed a 2-liter bottle of soda and retreated down an aisle as Thompson began to strike him with a police baton.

Six more officers arrived and struggled to subdue Zehm. Eventually, the officers were able to bind Zehm’s ankles to his wrists and they mostly kept him on his stomach, which police officials have said violates training because that position restricts breathing.

Then about three minutes after a police officer placed an oxygen non-rebreather mask over Zehm’s mouth and nose, he stopped breathing. Paramedics rushed Zehm to Deaconess Medical Center where he never regained consciousness and died two days later.

Breean Beggs, one of the attorneys at the Center for Justice, again expressed his appreciation that the FBI is doing an independent investigation.

“We are glad that Tucker is cooperating and not going to make any decisions until he sees the results of the independent investigation,” said Beggs, who is helping represent Zehm’s mother. “We hope in the future that we will get to the independent investigation a lot sooner. It doesn’t matter how well-intentioned or how professional you are, it’s difficult to investigate your own team.”

Tucker agreed.

“The federal people have no interest, really, in the local decisions and things. So they are very independent and can go about their own work and do their investigation without any bias whatsoever,” Tucker said. “It’s tough to investigate your own people.”

Despite Spokane Mayor Dennis Hession’s public announcement on July 27 that the FBI had initiated a preliminary review of the Zehm case, Tucker said he didn’t know until two weeks ago that the FBI was investigating.

Frank Harrill, the special agent in charge of the FBI’s Spokane office, called the probe a “comprehensive inquiry” looking to see if Zehm’s civil rights were violated during the struggle with police.

Harrill couldn’t estimate how long the FBI investigation will take, but another source said it likely will be next year before the federal review is complete.

Tim Byrne, 47, said he was good friends with Zehm, who recently had been unemployed from his job as a janitor and had stopped taking medication for his mental illness.

“Otto was a great kid,” Byrne said. “It’s bad it happened. Let’s tell the cops not to let it happen again.”

Tucker called Zehm’s death a “terrible tragedy.”

“Otto Zehm should not be dead. No one should die from a police encounter,” Tucker said. “There is a combination of circumstances that resulted in his death.”

Medical Examiner Sally Aiken previously ruled that Zehm died as a result of homicide, which generally means that he died at the hands of another person. But Tucker said he didn’t have enough evidence to hold any of the officers criminally responsible.

Just last week Tucker obtained an enhanced copy of the surveillance tape from the Zip Trip, which was completed by a forensic video expert. Tucker said he watched the tape, which cost the Police Department about $5,000, on his big-screen television at home.

“From what I had seen at the time, I didn’t feel like there was enough to convince a jury beyond a reasonable doubt and get a conviction for assault,” Tucker said.

Then Tucker met Monday with an assistant U.S. attorney and FBI investigators who told him “there might be more evidence that I haven’t seen,” Tucker said. “It was more of a warning that they are going to do their own video, and kind of a mistrust of the video that was redone here.”

The federal investigators were checking with their protocols to determine what information they can share with Tucker about the “inconsistencies” from the witness statements, Tucker said.

“I’m trying to keep an open mind until I see it all,” Tucker said.

Tucker, who is facing Democrat Bob Caruso in the Nov. 7 general election, said his candidacy had no impact on delaying his decision.

On Tuesday, Caruso said that if he wins the election he would call a grand jury to investigate the Zehm death.

Grand juries haven’t been used in the state in more than 50 years, Tucker said. Most prosecutors don’t use them because they take the decisions out of prosecutors’ hands.

“If it’s a bad decision, then the electorate can vote us out,” Tucker said.

Caruso, 68, who didn’t become an attorney until seven years ago, said that’s exactly what he hopes local voters will do.

“Spokane is too good for this stuff. That’s why I’m running,” Caruso said.

He said he has heard good things about Spokane County Sheriff Ozzie Knezovich, who is facing Democrat James Flavel on Nov. 7, and new Spokane Police Chief Anne Kirkpatrick, who declined to comment on the Zehm case until Tucker makes a decision.

“We could have the finest police chief and sheriff in the whole world,” Caruso said. But “without a prosecutor who is willing to prosecute crime and not waffle on these investigations, we’ve got nothing.”

Staff writers Bill Morlin, Benjamin Shors and Jody Lawrence-Turner contributed to this report.

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