'Unusual' issues call off WA officer's sentencing

January 5, 2012 - 3:35 PM

SPOKANE, Wash. (AP) — A federal judge on Thursday called off the sentencing for a police officer convicted of using excessive force in a mentally disabled man's death, citing "unusual" circumstances for the move.

The order from U.S. District Court Judge Fred Van Sickle also paved the way for attorneys for police officer Karl F. Thompson to seek a new trial in the 2006 death of janitor Otto Zehm. The judge said a letter from a forensic video analyst that came "out of the blue" prompted the change.

The analyst, who was retained by prosecutors several years ago, decided that prosecutors had not fulfilled their duty to disclose any evidence he generated that showed Thompson was not guilty, the judge wrote.

In his order, the judge said "the analyst decided that, in his opinion, the government's disclosures are incomplete and inaccurate" but he had signed a confidentiality agreement that prevented him from discussing his work with people not associated with the government.

The court on Dec. 20 ordered prosecutors to release the analyst from the confidentiality agreement.

Prosecutors sent the judge a letter rejecting the allegation that they failed to accurately disclose the analysis to Thompson's defense lawyers. They also refused to release the analyst from his confidentiality agreement.

Van Sickle said "the circumstances giving rise to this order are unusual." There are no established procedures for dealing with a case in which an expert witness seeks release from a confidentiality agreement, he wrote.

But "the analyst's allegations raise serious constitutional issues," the judge said. "(Thompson) is entitled to a reasonable opportunity to investigate them."

Thompson's lawyers already have filed a motion for a new trial, claiming judicial error and juror misconduct during November's trial in Yakima, where the case was moved because of extensive publicity. The case badly damaged relations between Spokane police and residents.

In addition to vacating Thompson's scheduled sentencing on Jan. 27, the judge ruled that Thompson's defense team has 30 days to investigate the issues raised by the analyst, and has until Jan. 24 to supplement its motion for a new trial.

Thompson was convicted of violating Zehm's civil rights by using excessive force and then lying about it to investigators. Zehm, 36, died two days after the beating that involved numerous police officers.

Zehm, a schizophrenic, was the subject of a police search after two teenagers reported he might have stolen money at an ATM. It was later reported he had committed no crime. Thompson, the first officer to respond, found Zehm inside a convenience store. Surveillance video showed Thompson rushing up to Zehm with little or no warning, knocking him to the ground and repeatedly striking him with a police baton.

According to investigators, other officers later hogtied and sat on Zehm, who died without regaining consciousness. A medical examiner concluded Zehm died from lack of oxygen to the brain due to heart failure while being restrained on his stomach.

Thompson, who is free pending his sentencing, faces up to 20 years in prison. The 64-year-old Vietnam War veteran has spent 40 years as a law enforcement officer.

Spokane County officials had declined to press charges against him, prompting the federal government to step in. The case sharply divided Spokane residents, with some saying Thompson acted appropriately and others saying it was a clear sign of a police department that was out of control.

The case was a factor in the November defeat of Mayor Mary Verner, the recent resignation of police chief Anne Kirkpatrick and a recall campaign launched against Tucker.