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.”