Defense to seek new trial

A federal judge delayed a decision whether to take convicted Spokane police Officer Karl F. Thompson Jr. into custody after his defense attorney said Thursday that he will seek a new trial based on allegations of juror misconduct.

Carl Oreskovich, Thompson’s attorney, said he witnessed jurors watching TV reports of the trial while it was under way.

The trial concluded Wednesday in Yakima with Thompson’s convictions on charges of using excessive force against Otto Zehm and lying to cover up his actions in the March 18, 2006, beating from which Zehm died two days later.

U.S. Magistrate Judge James Hutton said he will rule at 10 a.m. today. Federal prosecutors had sought in a hearing Thursday to take Thompson into custody following his Wednesday conviction for a violent crime – the baton attack on Zehm.

Oreskovich said the allegation of jury misconduct will become a part of a motion to seek a new trial from U.S. District Court Judge Fred Van Sickle, who presided over the just-concluded trial.

Thompson declined comment.

Thompson, defense attorneys and even Van Sickle all stayed in the Oxford Suites hotel in Yakima, along with five of the 12 jurors selected from the south-central portion of the state. At certain times, members of all those groups mingled for morning breakfast in a common area that had at least two televisions showing various news updates on Northwest Cable News.

“We believe, based on our own observations, that jurors were exposed to inflammatory information” from television coverage of the trial, Oreskovich said. Trial coverage was “frequently piped in, including information from the trial of Officer Thompson and the beating death of a mentally-ill janitor.”

Prior to closing arguments, the jurors sent Van Sickle a note seeking to know more information about Zehm’s job status, how he was viewed in the community, whether he used drugs, if he had mental illness and whether he had a criminal history. All of that information was barred from disclosure during the trial by Van Sickle through previous rulings, and he told the jury that some information was withheld based on legal decisions.

Victor Boutros, a trial attorney with the U.S. Department of Justice, said the note from jurors is evidence that they did not glean any incriminating information even if they did see news reports.

“I see no reason why this was not raised before the court immediately,” Boutros said of Oreskovich’s allegation. “I’m troubled that this comes out after the conviction.”

Attorneys, as officers of the court, are bound to report violations of rules, including juror misconduct such as watching news coverage of a trial if they’ve been ordered not to. On Thursday, Oreskovich declined to comment on that aspect of his duties. “I’m not going to deal with that,” he said.

As for detaining Thompson, Boutros said case law was established in the 1992 Los Angeles police beating trial of Rodney King. Officers in that case were convicted in federal court and sought to remain out of jail until sentencing, but the judge ordered them detained, Boutros said.

“There is no special pleading for law enforcement officers” convicted of violent crimes, Boutros said. “They are not above the law.”

But Oreskovich said nothing precludes a judge from using his or her discretion to determine whether someone can remain free.

“This conviction was in fact an aberration in a whole lifetime dedicated to serving and protecting the public,” Oreskovich said. “It is abundantly clear … that Officer Thompson does not pose any danger to flee. He has conducted himself as a law-abiding, peaceful person.”

Jeffry Finer, who is representing Zehm’s family in the companion civil case, said Zehm’s mother, Ann Zehm, has sought from the beginning to seek accountability for her son’s assault and death.

“The larger concern of the family is that no one has accepted responsibility at this point,” Finer said. “Whatever good acts (Thompson) did in the past … he gave way to an impulse. They ask that the court detain the defendant.”