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.