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.