Same video analyst (former Vancouver cop) worked on Robert Dziekanski and Spokane Otto Zehm police perjury deaths

Former Vancouver police officer Grant Fredericks has become an “expert” in analysing police videos.

His website description says:

“Grant is a former police officer and coordinator of the Vancouver Police Forensic Video Unit in Canada. He is an adjunct instructor of Forensic Video Analysis at the National Digital Multimedia Evidence Processing Lab at the University of Indianapolis and is a contract instructor at the FBI National Academy in Quantico, VA..”  http://www.forensicvideoexpert.com/

In the Robert Dziekanski case, he was brought in by counsel for  Constable Bentley and testified in the Braidwood case that Dziekanski moved toward the officers. His qualification to make this conclusion was shown to be very weak and although he descibed it as “photogrammetry” he was merely counting pixels. He didn’t come out of the Braidwood testimony well:

http://www.braidwoodinquiry.ca/hearings_transcripts/BraidwoodHearingsMay25-09.pdf

Braidwood’s conclusions are listed in this Georgia Strait article:

http://www.straight.com/article-489316/vancouver/did-police-chief-jim-chu-roll-dice-choosing-former-vancouver-cop-analyze-riot-evidence

Otto Zehm:   Now he is shown under questionable circumstances in Spokane’s Otto Zehm killing in 2006:

http://www.spokesman.com/stories/2012/apr/08/transcripts-reveal-officers-were-given-three-days/

Video expert paid by city, working for feds

More arguments are expected April 16 as attorneys for Thompson continue to press U.S. District Court Judge Fred Van Sickle to grant the decorated former police officer a new trial.

Van Sickle indefinitely postponed Thompson’s Jan. 27 sentencing after the judge was contacted in December by forensic video expert Grant Fredericks, who claimed that federal prosecutors misrepresented the conclusions he would have expressed had he been called to testify at Thompson’s trial.

In response, Assistant U.S. Attorney Aine Ahmed has filed reams of documents and grand jury transcripts that refute Fredericks’ claims. The documents also show Fredericks wasn’t truthful about how he was brought into the investigation.

Fredericks, as late as last month, said under oath that he was first contacted by a county prosecutor to analyze the convenience store’s surveillance video. But emails from 2006 show Fredericks first contacted a Spokane police officer and offered his services in “helping” show that Zehm was using a 2-liter Diet Pepsi bottle as a weapon.

The allegations against Fredericks, who did not immediately return a phone call seeking comment, include providing “patent inaccuracies or inconsistencies” in two previous cases where Fredericks – a former Vancouver, B.C., police officer – provided testimony in defense of other officers’ actions. In one of those cases, four Canadian officers now face perjury charges based on assertions put forth by Fredericks.

The documents also, for the first time, show Fredericks was billing Treppiedi, the assistant city attorney, even after Fredericks completed his work for the city and started meeting with federal officials.

Because of a backlog of cases at the FBI lab in Quantico, Va., federal prosecutors hired Fredericks to do a second video analysis, where he changed many of the assertions he provided the city. Federal prosecutors later found out that much of the work Fredericks did for the FBI was being funneled back to Treppiedi.

Spokane Policeman Convicted in Civil Rights Trial of Killing Unarmed Man

November 3, 2011
Joel Rosenblatt, Bloomberg

A Spokane, Washington, police officer whose March 2006 beating of an unarmed man led to his death was convicted of civil rights and obstruction charges.

Karl F. Thompson Jr., 64, used a Taser on Otto Zehm, 36, and beat him with baton blows to the head, neck and body, the U.S. Department of Justice said yesterday in an e-mailed statement. Zehm was hogtied, stopped breathing, and was taken to the hospital, where he died two days later, according to the government.

Thompson was “given considerable power to enforce the law, but instead he abused his authority when he brutally beat an innocent man,” Assistant U.S. Attorney General Thomas E. Perez said in the statement. The Spokane police officer faces as many as 30 years in prison.

Video at trial showed Zehm shopping at a convenience store, and witnesses testified he appeared to be unaware of Thompson charging with his baton raised, according to the statement. Though Zehm never returned to his feet after the initial blows, Thompson continued beating him, including a final flurry of seven baton strikes in eight seconds captured by security cameras, according to the statement.

Carl Oreskovich, a lawyer representing Thompson, didn’t immediately return a call after business hours yesterday seeking comment. Thompson claimed the beating was justified because he felt threatened by a plastic bottle of soda the victim was holding, the Justice Department said.
Thompson went to the store after two teenagers reported a man standing near them at a teller machine leaving with something that looked like money after they canceled their transaction, according to the statement. Police dispatchers made clear that the teenagers weren’t sure if the man had their money, according to the statement.

In a report Thompson gave after Zehm died, Thompson denied hitting the victim in the head with his baton, according to the statement.

The case is U.S. v. Thompson, 09-cr-00088, U.S. District Court, Eastern District of Washington (Spokane).

Editorial: City leaders mishandled Zehm case

The friend who sent me a link to this editorial asked: "Where have all the heroes gone? Are there really none left?"

One really is left to wonder.

August 14, 2011
The Spokesman-Review

Risk management is all about dollars, but there are times when leaders must peer above the bottom line to protect and defend a community’s values. The Otto Zehm tragedy is a perfect example.

Back in June 2006, the Zehm family sought an apology and retractions from the City of Spokane after the Police Department held a news conference about the fatal confrontation with the mentally disabled janitor. The family and its attorneys had seen the damning convenience store video that the rest of the public would see in July. Assistant City Attorney Rocky Treppiedi replied in a letter that the city stood by its version of events. The city essentially blamed Zehm for the outcome, defended the actions of the officers and chided those who had been “hyper-critical.” The letter includes this line:

“There are many other facts that go into the analysis of the use of force by Officer Thompson, including how and when he used the baton and Taser. In short, Chief Nicks will not, as you request, publicly retract what you characterize as ‘misrepresent- ations’ because they are not misrepresentations.”

Five years later, we learn that Jim Nicks did retract his views when placed under oath in front of a federal grand jury. So, it’s clear that the peddlers of misrepresentations worked for the city. Many still do. To borrow a term from the medical examiner’s report, perhaps they acted in a state of excited delirium when they viewed the video and discovered their initial story was filled with falsehoods.

Whatever the case, nobody in a position of leadership bucked the city’s hyper-defensive stance and stepped forward to represent the truth. Nobody said, “Enough!”

Neither the mayor at the time, Dennis Hession, nor the one who followed, Mary Verner, stood up to the department. Verner even defended Officer Karl Thompson’s actions. Once he got around to watching the damning convenience store video, Spokane County Prosecutor Steve Tucker punted the case to the feds.

Police Chief Anne Kirkpatrick was hired after the incident, but she retained Nicks as second in command, where he remains. “You lie, you die” is her mantra. We shall see. Treppiedi remains in the employ of the city, despite his aggressive actions in this case (and others) to confront anyone who would dare challenge the Police Department.

Five years after Zehm’s death nobody has suffered any consequences. Thompson still might. He faces trial in federal court.

To recap, Zehm did not lunge at Thompson, as the public was told. He reacted defensively to an assault in which baton strikes and Tasering were not warranted, according to the acting police chief at the time. He died after being subdued and tied up.

Rather than apologize and face the consequences, the Police Department and the city embarked on an extended masquerade and then wondered why the public demanded an ombudsman with strong oversight powers. Even today, we don’t have that, because police officers won’t drop their resistance to independent investigations.

In the end, taxpayers will pay for this tragedy. In exchange, they ought to at least get assurances from city leaders that trampling truth and justice is no longer an acceptable risk management strategy.

City reconsiders Zehm strategy

August 10, 2011
Thomas Clouse, The Spokesman-Review

The Spokane Police Department’s second-in-command believes an officer didn’t follow department policy in the fatal 2006 confrontation with Otto Zehm, contradicting his previous statements.

That revelation prompted Spokane Mayor Mary Verner to say Tuesday that the city is re-evaluating its legal strategy.

The disclosure, contained in documents recently filed in federal court, includes admissions from Assistant Police Chief Jim Nicks – then acting chief – that Officer Karl F. Thompson Jr. violated department use-of-force policies and that detectives failed to thoroughly investigate the convenience store beating on March 18, 2006. Zehm died two days later.

“Based on the video, during Officer Thompson’s initial engagement of Otto Zehm, Mr. Zehm appears to be ‘active resistant’ and is not assaultive toward the officer. Therefore Officer Thompson was not authorized to utilize an impact weapon on and strike Zehm,” Nicks said, according to the court records.

The testimony is a reversal of what Nicks said the night Zehm was beaten, Tasered and hogtied. It also contradicts the city’s position that its officers handled the case properly, and that Zehm bore responsibility for the escalation of force by continuing to flail as officers beat him.

Nicks’ 2008 grand jury testimony became a key part of the June 19, 2009, indictment charging Thompson with using unreasonable force and lying to investigators. Indications that Nicks would testify for prosecutors became public in March 2010, but Tuesday was the first time any city official acknowledged a discrepancy in their public portrayals of the event.

In a prepared statement, Verner said, “Assistant Chief Nicks’ affidavit is consistent with what (Assistant) U.S. Attorney (Timothy) Durkin indicated the Assistant Chief would testify to in a legal filing in April 2010. As we did then, we are evaluating this information in light of the case the City is involved in – the separate civil case.”

Attorney Breean Beggs, who along with Jeffry Finer, is representing the mother and estate of the 36-year-old mentally ill janitor, said Nicks’ declaration in the criminal case essentially means that the civil case against Thompson and the city is over.

“Nicks speaks for the city. The only remaining thing left for the civil case is the nature and the extent of the damages,” Beggs said.

The tragedy began after two young women erroneously reported that Zehm stole money from their accounts at a nearby ATM. Thompson responded to the call, approached Zehm inside a Zip Trip convenience store and immediately began beating him with a baton. The confrontation lasted several minutes and several other officers responded. They eventually hogtied Zehm and placed a plastic mask over his face before he stopped breathing.

Court records indicate that officers reviewed videotapes from the convenience store on the night of the incident, passed information onto Nicks, who then described a “very horrific fight. The officers were definitely within the (department) policy. … The officers used the lowest level of force possible.”

After Beggs and Finer filed a $2.9 million civil claim against Spokane, city attorneys responded with a 56-page denial on June 18, 2009. That denial blamed Zehm for his own death.

“Any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance,” the city’s response states.

Beggs said it’s now clear that city officials already knew, or should have known, about Nicks’ testimony to the grand jury before they wrote that reply.

“I’m waiting for them to explain to us why they thought it was better not to reveal what they knew about the case from the beginning,” Beggs said. “All this information is going to come out. So why not get it out so the public has all the facts and so the case can get resolved?”

Verner indicated she hadn’t read Nicks’ declaration on Monday night when questioned by The Spokesman-Review. “I’m certainly going to review it carefully to see how it affects the city’s position in the civil and criminal case,” she said.

Then on Tuesday morning, Verner issued the statement saying the city must allow the legal process to run its course.

“Ultimately, we, too, are seeking an outcome that is just and fair, based on all the evidence and circumstances. The City of Spokane and I are committed to open and transparent government, and this is part of the process. Our employees must tell the truth as they see it.”

If that’s the goal, Verner and city attorneys stumbled along the way, said local attorney James Sweetser, who served as Spokane County Prosecutor from 1995-’99.

“I think the city officials and the litigators at the city have to realize they represent the citizens,” Sweetser said. “Even if the judgment may be paid by taxpayers’ money, full disclosure and honesty has to take precedence over tricky litigation tactics.”

According to court records filed Friday, Nicks is prepared to testify in Thompson’s upcoming federal trial that major crimes detectives failed to analyze the video of the confrontation and compare it to Thompson’s statement; they never followed up on a report from an ambulance crew that Thompson struck Zehm in the head with a baton; and his own review of the video shows that Thompson violated several policies and procedures by applying unjustified force against the retreating Zehm.

Nicks also said, among a list of concerns, that Thompson did not stop and engage Zehm with verbal commands as the officer – who continues to earn $76,000 a year as the investigation stretches past five years – later described to detectives.

Thompson’s immediate use of a baton on the retreating Zehm “was a level of force higher than that authorized by the Spokane Police Department’s policies and procedures governing the use of force on public citizens.”

And the use of a Taser, when it appeared that Zehm had stopped resisting, was “not authorized” and violated department policies. Nicks also said he expressed all the listed concerns to Chief Anne Kirkpatrick, who along with Nicks declined comment Tuesday through spokeswoman Officer Jennifer DeRuwe.

Carl Oreskovich, who was hired by the city in 2008 to prepare both civil and criminal defenses for Thompson, said he and law partner Steven Lamberson, have filed a motion seeking to exclude Nicks’ testimony. That motion was originally filed June 4, 2010, the day they queried Nicks about the full nature of his grand jury testimony.

“My recollection was he told us during the course of the interview that he didn’t consider himself an expert on use of force,” Oreskovich said. “If he doesn’t qualify as an expert, then his opinion is irrelevant.”

Nicks stated in court records that he has spent the majority of his career reviewing officer reports to determine whether their use of force was justified. Ultimately, U.S. District Court Judge Fred Van Sickle will decide whether Nicks testifies.

Sweetser, the former prosecutor, said the public shouldn’t have to wait until a police official testifies under oath before the full story comes out.

“That’s what the public expects. They don’t expect the city to obfuscate and mislead and try to trick public opinion,” he said. “That ultimately undermines confidence in government.”

Shawn Vestal: Truth about Zehm sure took a while

"All it took was an inside investigation, an outside investigation, a lawsuit, public pressure to hire a police ombudsman, an FBI investigation, five years, 20 weeks and one day to drag the truth out into the light."

August 10, 2011
Shawn Vestal, The Spokesman-Review

It took just five years, 20 weeks and a day.

But finally we’re hearing the truth about Otto Zehm from Jim Nicks.

In a statement filed Friday in the federal case against Officer Karl Thompson, Nicks – who was the acting chief when Thompson and other officers confronted, beat, Tasered and hog-tied Zehm at a Zip Trip on March 18, 2006 – says Thompson’s account of the confrontation is factually wrong, his actions were improper and the subsequent police investigation of the incident was insufficient.

Nicks, stunningly, notes that there are a lot of “glaring inconsistencies” between the statements of Karl Thompson and the evidence.

He didn’t have much to say about the glaring inconsistencies between the statements of Jim Nicks and the statements of Jim Nicks.

The night Zehm went on his ill-fated shopping trip for candy and pop, Nicks rushed to the scene. So did City Attorney Rocky Treppiedi. Such was their dedication to the truth that they came out to a crime scene on a Saturday night, to get right to the bottom of things.

Which they very, very quickly did.

I happened to be on the weekend cops shift that Saturday night. I was at the convenience store, outside the crime-scene tape, trying to get a little information before a fast-approaching deadline. Nicks eventually came out and declared that the officers involved had followed all the department’s policies. And – hey, no contradiction here – he assured citizens that there would be a full investigation.

Even then – before Zehm had died, before much of anything was known about what happened – it was obviously a truth-challenged statement. Jim Nicks may not have known then what he knows now. But he did not know what he said, either.

As has become obvious.

“The officers were definitely within the (department) policy,” he said that night. “The officers used the lowest level of force possible.”

A few months later, Nicks said, “Karl had a lawful right to use the amount of force necessary to gain control of the suspect with the belief that Officer Thompson was about to be pushed, hit or charged. With that in mind, Thompson was within policy and training to use a nightstick and Taser in the manner which he did.”

Between then and now, Nicks has made a slow, gradual journey toward the light, apparently – while sticking up for Thompson and retailing obvious whoppers, such as Zehm’s fictional “lunge” toward Thompson, a tale that was first told that Saturday night outside the Zip Trip.

But then, sometime before Thompson’s June 19, 2009, federal indictment, Nicks apparently managed to take a peek at the store’s videotape. He testified to the contradictions in Thompson’s testimony before a grand jury. In June 2010, he approached Thompson’s defense team and told them about his concerns. On Friday, his statement was filed in federal court.

Better late than never, I guess. The thing is, all this truth-telling remained under wraps while the city continued to play hardball and cover its butt and blame Zehm and issue no-comments. But back when all Nicks had to spread was B.S., nobody seemed to mind.

If you’ve followed the case, reading Nicks’ current statement is breathtaking. Nicks says Zehm did not assault Thompson, lunge at him or try to punch him – Zehm was “retreating” and “non-assaultive.” Nicks now says Thompson should not have Tasered Zehm, or gone after him as quickly as he did with a baton – literally within a couple seconds. Thompson should not have used “vertical” blows to Zehm’s head.

Thompson, Nicks says, said a lot of things that are simply not supported by the evidence, and he points them out one by one. In particular, he notes time and again that Thompson’s testimony contradicts the store’s security video.

Which has only been available to police since … the night of the fight.

Five years, 20 weeks and one day. That’s how long it took for the acting police chief’s truthful account to emerge.

Nicks’ statement includes several eye-openers. When the cops interviewed Thompson about what happened, they gave him a nice, long, off-the-record interview, followed by a lunch break, followed by an on-the-record interview. Which they later allowed him the opportunity to correct.

Then there was this gem: “The SPD Major Crimes Unit also failed to perform a side-by-side analysis and comparison of Officer Thompson’s recorded statement against the objectively recorded Zip Trip store security video.”

And this: “Thompson’s immediate baton strikes to the retreating, non-assaultive Zehm did not serve a legitimate law enforcement purpose … and no reasonable officer would have perceived Zehm’s response to Officer Thompson’s presence as assaultive.”

Well … duh. All it took was an inside investigation, an outside investigation, a lawsuit, public pressure to hire a police ombudsman, an FBI investigation, five years, 20 weeks and one day to drag the truth out into the light.

Nicks is second in command of the Spokane Police Department. First is Anne Kirkpatrick. She likes to talk about the importance of telling the truth. Her supposedly cardinal rule: “If you lie, you die.”

What happened to Otto Zehm in the Zip Trip was appalling. The failures of honesty, accountability and good faith that followed are despicable.

Nicks’ long, strange trip to the truth only makes that more obvious.

Judge won't change date in Zehm case: Officer's trial scheduled to begin early next year

The Spokesman-Review July 17, 2010
By Thomas Clouse, The Spokesman-Review, Spokane, Wash.

July 17--A federal judge has denied a request to move up the March 2011 trial date of Spokane police Officer Karl F. Thompson Jr. for his role in the 2006 confrontation with Otto Zehm.

Jeffry Finer, who represents Zehm's estate, asked U.S. District Court Judge Fred Van Sickle to consider an earlier trial date because of the health of Zehm's mother, Ann Zehm.

But Van Sickle denied the motion and kept the trial at March 7, according to court records.

Thompson's trial was originally set to begin June 7. But with the jury waiting in another room, federal prosecutors informed Van Sickle that they intended to appeal to the 9th U.S. Circuit Court of Appeals his decision barring the presentation of evidence that Zehm had not committed a crime.

Victor Boutros, a trial lawyer with the U.S. Department of Justice, asked Van Sickle to reset the trial in August to give federal appellate judges more incentive to quickly consider the appeal. But Van Sickle instead set the trial for March 7, which is almost five years after Thompson confronted Zehm following a report by two women who had erroneously claimed Zehm had taken their money from a cash machine on March 18, 2006.

Thompson struck Zehm with a baton and shocked him with a Taser, and several other officers hogtied Zehm for about 17 minutes until he stopped breathing. Zehm, a 36-year-old janitor with paranoid schizophrenia, never regained consciousness and died two days later.

In June 2009, a federal grand jury indicted Thompson on felony charges of using excessive force and lying to investigators. As the criminal case proceeds, a civil case against Thompson has been put on hold.

‘Excited delirium’ theory barred from Zehm trial

June 4, 2010
Thomas Clouse, The Spokesman-Review

After years of Spokane Police officials claiming that Otto Zehm suffered from “excited delirium,” a defense attorney said today that he will avoid offering any evidence or expert testimony about the disputed medical condition often cited by police agencies to explain controversial in-custody deaths.

Defense attorney Carl Oreskovich said he could no longer include testimony about excited delirium following rulings by U.S. District Court Judge Fred Van Sickle barring the defense from using medical records showing Zehm suffered from paranoid schizophrenia or that he’d had a physical confrontation with a Spokane County deputy sheriff in 1990.

Oreskovich is representing Officer Karl F. Thompson Jr. in a trial set to begin Monday. Thompson faces the federal felony charges of using excessive force and lying to investigators regarding the March 18, 2006, confrontation with Zehm, who died two days later.

“I don’t know how I can offer excited delirium without getting into issues of mental health or medications,” said Oreskovich. “I will not offer excited delirium evidence.”

What wasn’t clear is how attorneys will handle the autopsy by Spokane County Medical Examiner Dr. Sally Aiken who included a reference to “excited delirium” in her findings that Zehm died as a result of homicide caused essentially by a lack of oxygen to his brain.

Thompson and other officers struggled with Zehm, hit him with police batons, shocked him with Tasers and hogtied him for about 17 minutes before he stopped breathing. He was erroneously accused of taking money from a nearby cash machine.

Van Sickle pointed out that Thompson will be judged on what he knew at the time he confronted Zehm. Therefore, any prior mental illness, medications and the confrontation with a deputy that didn’t lead to charges in 1990 would all be excluded at trial.

However, Victor Boutros — a U.S. Department of Justice trial attorney based in Washington D.C. — argued that prosecutors should be allowed to provide the jury evidence that showed Zehm was innocent on the night of the fatal police confrontation.

Van Sickle initially ruled that Thompson could not have known Zehm was innocent, and therefore, that information would be excluded.

But Boutros argued Thompson has claimed all along that Zehm saw him coming, took an aggressive stance, picked up a 2-liter soda bottle and held it in a way where it could be used as a “significant weapon” against him.

“The conduct of Zehm has become central to the case,” Boutros said. Without evidence of Zehm’s innocence, the jury may get the “perception that (Zehm) was ambushing (Thompson) when he had no information that the officer would be coming at all.”

Van Sickle cited a ruling in an unrelated case of a police shooting where attorneys were allowed to bring in evidence that the suspect had committed previous crimes because it may have shown that the police’s version of events was more believable.

Boutros said that ruling should apply to information explaining Zehm’s reactions.

“The ruling goes both ways. (Zehm) had no reason … to target Officer Thompson,” he said.

Stephen Lamberson, who works in the same firm as Oreskovich and also has been appointed to defend Thompson at taxpayer expense, argued that rulings in other federal courts clearly show that any evidence of guilt or innocence that was learned after the fact is inadmissible.

Van Sickle said he would study the issue and rule on that and several other issues prior to jury selection on Monday.

In other rulings, the judge barred any reference to Thompson’s divorce, which prosecutors alleged in court records was a fraudulent transfer of assets. The judge also ruled to exclude the 911 recording of two young women who reported they saw Zehm at an ATM machine, because Thompson acknowledged that he never heard most of what was recorded.

Along that same line, Van Sickle said the testimony of Makenzie Murcar and Alison Smith — who made the 911 call that night — would be limited to what they saw of the confrontation between Thompson and Zehm.

Van Sickle said he will allow the government to show the jury a 3-dimensional, computer-generated video showing the confrontation between Zehm and Thompson.

The jury pool will be called from the entire Eastern District of Washington, which essentially includes all of the state east of the Cascade Mountains. Van Sickle said he expects the jury will be seated by Monday afternoon and opening arguments to begin on Tuesday.

“Is there any potential resolution without a trial in this case?” Van Sickle asked.

“There have not been discussions of that nature for some time,” said Assistant U.S. Attorney Timothy Durkin. “So it appears no.”

Charge stands in Zehm case

April 21, 2010
Thomas Clouse, The Spokesman Review

Spokane police Officer Karl F. Thompson Jr., accused of lying to investigators over the fatal confrontation with Otto Zehm, unsuccessfully sought to get the charge dismissed Tuesday, arguing that he never “swore to tell the truth” during his interview with detectives.

Although his defense lawyer, Carl Oreskovich, later insisted that Thompson told the truth during the interview, the distinction was drawn during a hearing in U.S. District Court as part of an effort to get the lying charge thrown out on a legal technicality.

Oreskovich said the charge should be dismissed because Thompson didn’t swear to tell the truth in the recorded interview, and that it was someone else who prepared a transcript of the conversation with detectives.

U.S. District Court Judge Fred Van Sickle, however, didn’t buy it.

“This is part of an investigation that was conducted. It was recorded clearly at the consent of Officer Thompson,” Van Sickle said. “To state this is somehow created by a third party strikes me as putting form over substance.”

The swift rejection Tuesday means Thompson will stand trial June 2 on charges of lying to investigators and using excessive force during the March 18, 2006, encounter with Zehm, a mentally ill janitor beaten and hogtied by police after being mistakenly accused of stealing money.

The argument drew spirited debate.

Thompson “doesn’t say ‘I certify the accuracy of the document,’ ” Oreskovich said in court. “There is no affirmation … that suggests the transcript was in any way affirmed or adopted by him.”

However, Oreskovich acknowledged that Thompson consented to allow Spokane police Detective Terry Ferguson to record an interview on March 22, 2006, following an off-the-record interview that was not recorded. Five days later, Thompson signed a copy of the transcript of that taped interview under the heading “reviewed by.”

Federal prosecutors contend that Thompson’s statement embellished the threat posed by Zehm and contradicted the statements of eyewitnesses and video from surveillance cameras that captured the confrontation with Zehm. Thompson beat Zehm with a baton and jolted him with a Taser after two young women erroneously reported that Zehm stole their money out of an ATM.

Oreskovich asked for the dismissal under the premise that Thompson did not create a false record or alter an existing record.

“Our position is he did not create a record. It was created by a third party,” Oreskovich said. “He consented to the interview. But when we get to the … transcription, there is no evidence that he did anything other than review it.”

But Victor Boutros, a U.S. Department of Justice trial attorney from Washington, D.C., said Oreskovich can’t avoid the law by arguing that Thompson didn’t actively record or transcribe his interview.

“Who made the false statement?” Boutros asked. “Because it was a taped interview does not mean it doesn’t fall under the law.”

Boutros said that under Oreskovich’s argument, any officer “who made a false statement can avoid it by simply dictating their false statements and have them transcribed … by someone else.”

Van Sickle said it is not disputed that Thompson signed a transcript of his statement.

Asked after the hearing whether his client told the truth during the interview with Ferguson, Oreskovich replied: “Absolutely. It just wasn’t a sworn statement.”

During the hearing, Oreskovich made mention of the ongoing grand jury investigation seeking to determine whether other Spokane police officers obstructed the Zehm investigation.

Last week, Assistant U.S. Attorney Tim Durkin filed court documents indicating that Ferguson and Detective Mark Burbridge either omitted statements or used only those statements that appeared more favorable to Thompson. Ferguson also acknowledged that her report was “inaccurate” when she wrote Spokane County prosecutors that she didn’t find any evidence of excessive force by Thompson.

Assistant Chief Jim Nicks, who for months claimed Zehm provoked the confrontation when he lunged or attacked Thompson, is now prepared to testify that Thompson’s statement to Ferguson was “materially inaccurate” when compared with the surveillance tape.

Mayor Mary Verner said Friday that she has not been contacted by federal authorities and has no reason to question the actions of Nicks or city attorneys handling the case.

“All I know is what I read in the newspaper,” she said. “In this instance, I am pretty much a citizen and it’s inappropriate for a citizen to try to insert oneself into a federal determination or an indictment or a grand jury proceeding.”

“I think that when all of that is done and there are rulings that come out of the courts, that would be a basis for me to make decisions,” she said.

Otto Zehm grand jury to hear evidence police changed testimony

April 15, 2010
Thomas Clouse, The Spokesman-Review

Feds: Accounts of fatal encounter altered

Allegations of a cover-up by Spokane police officers over their handling of the fatal Otto Zehm confrontation and the department’s 2006 investigation of the case are being presented to a federal grand jury.

In the ongoing obstruction-of-justice probe by the U.S. attorney’s office and the FBI, indications are that some Spokane police officers, including Assistant Chief Jim Nicks and lead detective Terry Ferguson, now acknowledge that the city’s earlier characterizations of the fatal encounter were wrong and that its investigation clearing officers of wrongdoing was incomplete and inaccurate. Federal documents filed this week in U.S. District Court also suggest Spokane police altered witness statements to appear more favorable to the first responding officers.

“The United States … anticipates Det. Ferguson will testify that there were many glaring missteps and omissions during the course of the SPD’s ‘independent investigation,’ ” Assistant U.S. Attorney Tim Durkin wrote in a 74-page filing Tuesday.

The document does not name any officers but indicates that “one or more” of those named in the $2.9 million civil suit are being investigated for potentially obstructing justice. That list includes Nicks, Ferguson, and Officers Steven Braun, Zack Dahle, Erin Raleigh, Dan Torok, Ron Voeller and Jason Uberuaga.

Currently, only Officer Karl Thompson faces felony charges of using excessive force and lying to investigators following the March 18, 2006, confrontation with Zehm, who was struck with a police baton multiple times and jolted with a Taser. The 36-year-old mentally ill janitor, who was mistakenly identified as a crime suspect, stopped breathing while he was hog-tied with a mask on his face. He died two days later.

Police Chief Anne Kirkpatrick, who has issued a departmentwide gag order regarding the Zehm investigation, said she was unaware of the depth of Durkin’s allegations.

“This is the first I have heard of this kind of detail,” Kirkpatrick said. “I don’t know what to say. At this point, they are allegations and that’s why it has to be aired in a court of law for putting facts in context. That’s where issues of truth will hopefully be determined.”

The disclosures indicate that Nicks, who served as interim chief before Kirkpatrick was hired in September 2006, now believes Thompson’s handling of the Zehm confrontation was improper.

That’s substantially different from what Nicks publicly stated for months after the confrontation. He claimed repeatedly that Thompson did nothing wrong and blamed Zehm for lunging at Thompson as he responded to an erroneous report that Zehm had stolen money from a nearby ATM.

Durkin wrote in court documents that Nicks now has told a different story to federal investigators and is expected to testify in the criminal trial, set for June 2, that Thompson used excessive force and that Thompson’s statements to investigators were “materially inaccurate.” Convenience store video also shows that Zehm never lunged at the officer.

In addition, Durkin wrote that Ferguson, who led the investigation into Zehm’s death, has acknowledged that her investigation was “inaccurate” when she wrote to Spokane County prosecutors that she didn’t find “any evidence” of excessive force by Thompson.

The court records also describe how Ferguson and Detective Mark Burbridge either changed or omitted statements by witnesses that indicated that Thompson struck Zehm’s head with a police baton, which would have constituted illegal lethal force.

In one case, the detectives attempted to “discredit” one witness who gave a television interview describing how she saw Thompson strike Zehm in the head with the baton – something Thompson has repeatedly denied.

“They decided, before the interview, that they would try to discredit her,” Durkin wrote of Ferguson and Burbridge. “The Detectives felt that the witness had an anti-law enforcement bias.”

But the detectives proceeded differently with those witnesses “that are felt to be law enforcement friendly,” Durkin wrote. When federal investigators showed the witnesses how detectives summarized their accounts of the confrontation, most said information was left out and that the summaries should be changed to more accurately reflect what they saw.

“The revisions are more incriminating of defendant Officer Thompson’s use of force than is contained in Burbridge’s summaries,” Durkin wrote.

When federal investigators asked Burbridge for the notes from his witness interviews, he told them they had been destroyed.

Federal agents also interviewed Uberuaga, who is a certified defensive tactics instructor and one of the seven officers who responded to the convenience store that night.

Uberuaga gave federal agents two signed or recorded statements that Thompson’s “use of force was unreasonable and excessive.”

Uberuaga wanted to change his statements “upon further reflection and consultation” with Assistant City Attorney Rocky Treppiedi. But Uberuaga is expected to testify that Thompson’s recorded statement describing Zehm as aggressive and threatening with a pop bottle “was inaccurate in comparison to the security store video.”

Testimony before the grand jury will continue next week. Gary Graham, editor of The Spokesman-Review, received a federal subpoena requesting any information identifying a reader who posted two comments on the newspaper’s Web site in March about the Zehm case.

The postings, made under the name “CharlesBillford,” detailed an alleged encounter between Sgt. Torok and his attorney, who was “yelling at (Torok) for lying to the grand jury.” Torok’s attorney, Rob Cossey, did not return a message seeking comment Wednesday.

The newspaper requires only e-mail addresses from readers who leave comments on its Web site. That information, along with the user’s Internet Protocol address, was turned over to federal authorities.

Spokesman-Review attorney Duane Swinton said that the newspaper Web site policy clearly indicates that the company “may have to divulge the IP addresses and other identity information upon receipt of legal process.”

Multiple efforts to reach Thompson’s attorney, Carl Oreskovich, were unsuccessful Wednesday.

Doug Clark: Glimpse of justice rises from great travesty

June 22, 2009
Doug Clark, The Spokesman-Review

Well, hallelujah!

Turns out a brute with a badge can’t just get away with thumping and shocking the hell out of an innocent, mentally ill janitor in this town.

I know. Suspects are innocent until proven guilty.

Let Spokane police Officer Karl F. Thompson Jr. have his day in court for his violent encounter with Otto Zehm.

For the moment, however, I’m savoring the sweet sounds of U.S. Attorney James McDevitt handing down two indictments against Thompson.

Count One: Thompson “struck and repeatedly struck Otto Zehm with a baton and tasered him …”

Count Two: Thompson knowingly lied to investigators.

Monday’s trip to the federal building made me proud I’m still a journalist.

Thompson faces up to 30 years in the joint, although we all know that sort of sentence will never happen.

I don’t want to jinx things. But given the fickle nature of juries, Thompson might very well skate out of this SPDisaster just like ol’ Shonto-shooting Jay Olsen.

But seeing anything come Otto’s way at this point is powerful medicine.

McDevitt’s words put a lump in my throat while I sat taking notes in a drab conference room.

What happened to this 36-year-old special-needs citizen on March 18, 2006, is such a stain on our community.

By now you all know the story – how Otto went into a North Side Zip Trip to buy a plastic jug of Diet Pepsi and a Snickers bar.

What he didn’t know was that some nitwit had previously dialed 911. She reported that Otto had been behaving suspiciously while near an ATM.

That set the wheels in motion.

Along came Thompson. The mayhem soon followed. Otto was beaten, shocked with a Taser and hogtied. A plastic oxygen mask was placed on his face yet never hooked up to oxygen.

No wonder the man suffered a heart attack and died en route to the hospital.

Speaking of travesties, did you see that front-page headline in Saturday’s newspaper?

“Zehm to blame for fight with officers, city says.”

I about spit up my coffee. My mood got worse reading the adjoining story.

“Otto Zehm knew or should have known that he was being detained by a peace officer and had the duty to refrain from force to resist such detention,” stated part of the city’s 56-page response to a civil rights lawsuit filed by Otto’s mom, Ann.

It must be liberating to work in the city attorney’s office and not be encumbered by trivialities like, oh, shame.

Yes, I’m thrilled about Monday’s indictments. But this should never have reached the federal stage.

Charges should have been filed against Thompson long ago. They would have, too, if our county prosecutor, Steve Tucker, was packing anything besides golf balls.

US Feds Indict Spokane, Washington officer - he’ll be tried on civil rights, ‘false statement’ charges

June 23, 2009
Thomas Clouse, The Spokesman-Review

A Spokane police officer should stand trial on charges of violating the civil rights of mentally ill janitor Otto Zehm and lying about the confrontation that resulted in Zehm’s death, a grand jury has decided.

U.S. Attorney James McDevitt announced Monday that a federal grand jury handed down two indictments against veteran Officer Karl F. Thompson Jr., who was the first of several officers to confront Zehm, a 36-year-old Spokane man who had schizophrenia.

Zehm died March 20, 2006, two days after he was beaten with a baton, shocked multiple times with a Taser and hogtied. The case sparked a cry for more citizen oversight of law enforcement.

Police officials believe Thompson’s indictment is the first to be brought against a Spokane officer.

Police officials initially said Zehm attacked Thompson, but they recanted that claim months later when surveillance video clearly showed Zehm retreating, holding a 2-liter plastic soda bottle in front of his face while Thompson struck him with a baton.

“These are not matters that we do with any sort of glee,” said McDevitt, while also criticizing local media’s coverage of law enforcement. “But where there is no local action, or where the results of the state or local proceedings are insufficient to vindicate the federal interest, a federal prosecution may be sought.”

If convicted, Thompson, 61, faces a maximum of 10 years in prison and a $250,000 fine for the charge of violating Zehm’s civil rights. He faces a maximum of 20 years and a similar fine for the second indictment, which accused Thompson of “making a false statement in an interview” with police Detective Terry Ferguson.

McDevitt said he could not talk about the evidence that produced the charges, saying only that Thompson “used unreasonable force in violation of federal law.”

Thompson is scheduled to be arraigned at 1:30 p.m. July 9, said his attorney Carl Oreskovich, who is also being paid by the city to represent Thompson in a civil lawsuit stemming from the encounter with Zehm at the Zip Trip on North Division Street. That federal action was filed on behalf of Zehm’s mother, Ann Zehm, by the public-interest law firm Center for Justice.

“We are very disappointed in the fact that an indictment was returned,” Oreskovich said. “Karl Thompson is a really kind, decent, reasoned man. We are confident … when Karl is ultimately given his day in court and the full story comes out, that he will be exonerated. Frankly, the community ought to be proud in terms of his service to the community.”

But Breean Beggs, who is representing Otto Zehm’s mother in the civil suit, said the indictment was a step forward for police accountability.

“I spoke with his mother just before the press conference,” Beggs said. “Her words were, ‘The hurt never goes away.’ But she’s hopeful in the end that things will be improved in Spokane. The family is most concerned that there not be another dead citizen like Otto at the hands of police.”

McDevitt said the grand jury came to their decision Friday, the day city officials said Zehm was responsible for the events that led to his death. The city’s 56-page response to the civil lawsuit said in part that “any injury or damage suffered by Mr. Zehm was caused solely by reason of his conduct and willful resistance.”

Beggs pointed out that Zehm, who had been off his medications, had not committed any crimes before Thompson’s actions.

“The medical examiner ruled that the police killed Otto,” Beggs said. “To blame him … it is remarkable that anyone would even make that allegation.”

Police Chief Anne Kirkpatrick said Thompson – who makes $72,203 a year – has been placed on paid administrative leave. A committee will meet to make recommendations to City Administrator Ted Danek, who will decide whether to keep Thompson on the payroll or place him on unpaid layoff status until the criminal trial is complete.

“This is the type of case that creates heartache for everyone,” Kirkpatrick said. “I have not lost sight of Mrs. Zehm in all of this. I’m a woman who feels deeply when (people) are hurting, and I see a lot of hurt.”

But the chief would not go so far as to blame Thompson, who was hired in 1997. “Open wounds never heal, so there must be closure,” said Kirkpatrick. “I’m going to lead us through this storm internally and in this city. I’m going to walk alongside anyone who will let me and say, ‘Let’s go this way, y’all.’ ”

The incident began March 18, 2006, when two young women erroneously reported to police that Zehm had stolen their money out of an ATM near Ruby Street and Indiana Avenue, according to police reports.

Zehm, who did his banking at that branch, was acting erratically as he approached the ATM, according to surveillance tapes.

The women called 911, following Zehm, and gave updates as he walked toward the Zip Trip, according to police records.

Thompson was the first to respond and found Zehm in the store. Surveillance video shows that Thompson immediately engaged Zehm from behind.

Thompson began striking Zehm with his police baton and shocked him with his Taser as Zehm held the soda bottle in front of his face. The struggle continued and eventually included six more officers who arrived to help Thompson restrain Zehm.

Zehm stopped breathing about three minutes after one of the officers obtained a plastic mask from a paramedic and placed it on Zehm’s face. The mask was never attached to the oxygen tank for which it was designed, according to police reports. At the time, Zehm was lying on his stomach while officers kept his ankles and wrists bound with nylon straps.

After Zehm stopped breathing, paramedics rushed him to Deaconess Medical Center. He never regained consciousness, and he died two days later.

On May 30, 2006, Medical Examiner Dr. Sally Aiken ruled that Zehm died as a result of homicide.

She listed the official cause of death as “hypoxic encephalopathy due to cardiopulmonary arrest while restrained in a prone position for excited delirium.” Zehm died from lack of oxygen to the brain caused by heart failure while being restrained on his stomach.

Spokane County Prosecutor Steve Tucker announced in October 2006 that he would not charge any of the seven officers – including Thompson – unless new information was revealed by the federal investigation. He said Monday his position hasn’t changed.

“All I had was the information from the Spokane Police Department,” Tucker said. “It wasn’t because I failed to act. I never got a referral to charge.”

Tucker said he did inquire Monday about what evidence the Federal Bureau of Investigation had used to gain the indictments against Thompson.

“They said the information was sealed,” Tucker said.