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Appeal delays Karl F. Thompson Jr.’s trial

Review in Zehm case could last two months

With a jury pool waiting in another room, a federal judge Monday postponed the criminal trial against Karl F. Thompson Jr. after prosecutors announced their intention to appeal his ruling that barred evidence showing Otto Zehm had not committed a crime before Thompson confronted him.

U.S. District Court Judge Fred Van Sickle ruled that attorneys for both sides could not introduce evidence about Zehm’s mental illness, items found in Zehm’s pockets, or essentially anything that Thompson didn’t know before the confrontation on March 18, 2006.

“Evidence considering matters not known (by Thompson) may not be admitted in the government’s case in chief,” Van Sickle said.

But Victor Boutros, a Department of Justice trial attorney, objected and requested a short delay. The attorneys returned after lunch and Boutros announced that his superiors in Washington, D.C., approved a request to appeal Van Sickle’s ruling to the 9th U.S. Circuit Court of Appeals. That review will delay the Thompson trial for at least two months.

“The government believes this evidence is so significant … that it needs to seek review,” Boutros said.

Before the announcement, Van Sickle said he would allow other Spokane police officers to testify about what they observed just after the initial confrontation between Zehm and Thompson, who hit Zehm with his police baton and shocked him with a Taser before other officers helped hogtie him.

Zehm, 36, stopped breathing after one of the officers placed a plastic mask on his face and he never regained consciousness. He died two days later.

“It seems to me … evidence presented by observers immediately after … would be relevant to corroborate the factual dispute involved,” Van Sickle said.

But Assistant U.S. Attorney Timothy Durkin in written arguments and Boutros in court testimony both argued that they should be allowed to counter those officers’ expected observations that Zehm was unresponsive to commands and continued to fight with evidence showing that Zehm was mentally ill and had been erroneously accused of stealing money from a nearby cash machine.

“He has no reason to attack a police officer if he hadn’t committed a crime. We argue those (details) were relevant … for the purpose of challenging the credibility of the defendant’s claimed justification for his initial use of force,” Boutros said.

Attorneys could not say when appellate judges would take up the case. But Boutros suggested that Van Sickle set a new trial date in 60 days to expedite the review.

Van Sickle said he would issue an order soon setting the new date for the trial, in which Thompson faces the felony charges of using excessive force and lying to investigators.

Thompson’s attorney, Carl Oreskovich, said he was disappointed with the turn of events.

“We worked hard to get ready to go to trial,” Oreskovich said. “Anything that helps it get resolved sooner rather than later we are in favor of.”

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