‘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.”