Backup officer takes stand

YAKIMA – Spokane police Officer Steven Braun Jr. gave the jury an image of Otto Zehm as someone who probably had committed a robbery, was trying to flee and then struggled violently against Officer Karl F. Thompson Jr.

Braun provided details of the confrontation not captured on surveillance video from the north Spokane Zip Trip. Braun, the second officer to respond that night, described what he heard from dispatchers on March 18, 2006.

The initial call from Allison Smith and Makenzie Murcar was for a suspicious circumstance around a nearby ATM. The girls erroneously believed that Zehm, who had his paycheck with him, had stolen money out of one of the girls’ accounts.

Defense attorney Carl Oreskovich asked Braun why it was significant when a dispatcher said Zehm had their money.

“I was thinking that a robbery had taken place,” Braun said. “Robbery is taking something through force or fear.”

The trial, in which Thompson faces the charges of using unreasonable force and lying to investigators, continues today with potential witnesses including now-retired Detective Terry Ferguson. Ferguson, the lead investigator, determined that Thompson had committed no crime even though several witnesses said Thompson used head strikes, which would constitute lethal force.

Oreskovich told the jury in his opening statement that Thompson would take the stand. But he was not among the list of 11 witnesses that Oreskovich told U.S. District Court Judge Fred Van Sickle would be called in the next two days. Oreskovich said he expects to wrap up the defense sometime Thursday morning.

Only four witnesses testified Tuesday.

Braun, who is 6-foot-4, 280 pounds, said he found Thompson either kneeling or bent over struggling with Zehm – a 36-year-old janitor with paranoid schizophrenia – in the center aisle of the Zip Trip. He said Zehm was sitting and flailing his arms with closed fists, which he did not see connect with Thompson.

“When I first walk in I could see Mr. Zehm on the floor in a seated postion with arms moving back and forth in a punching motion and Officer Thompson next to him,” Braun said. “I pulled out my side handle baton and delivered three or four power jabs to the left side of Mr. Zehm’s rib cage.”

Braun said he repeatedly told Zehm to stop resisting and shocked Zehm three times with a Taser with no apparent effect. Both officers together were unable to control Zehm, who continued to scream, grunt and growl, Braun said.

“I had my right shin across his left jaw,” Braun said. “He was able to push my body weight off of him.”

Soon, five more officers arrived and were able to hog-tie Zehm before he stopped breathing. He died two days later, without regaining consciousness.

Assistant U.S. Attorney Aine Ahmed cross-examined Braun and asked him about an hourlong pre-interview with Ferguson before he gave his tape-recorded statement.

“I don’t know what happened during that pre-interview,” Braun said. “I don’t recall.”

During the struggle “you saw (Zehm) holding his paycheck in his hand. Correct?” Ahmed asked. Braun replied: “That’s what it later was discovered he was holding.”

Braun also said that he reviewed the surveillance video with Assistant City Attorney Rocky Treppiedi before giving grand jury testimony in 2009.

Braun told the grand jury Zehm looked up and seemed surprised to see another officer. 

But on Tuesday, Braun said Zehm looked at him in the eyes and “when he kicked me, he was acquiring a target.”

Ahmed immediately asked, “Is that the first time you described that?” Braun responded: “I believe so.”

After Braun, Oreskovich called forensic video expert Michael Schott. Although his testimony took most the afternoon, his analysis focused on 49 seconds of video where Zehm could not be seen during the struggle with Thompson.

Earlier Tuesday, defense attorneys called Dr. Dan Davis, a forensic pathologist, who is the second defense expert to testify that he found no evidence of baton strikes to Zehm’s head.

Autopsy photos showing bleeding under Zehm’s scalp probably represents “blunt impact injuries on the head without any evidence of an instrument depression. These are characteristic of someone who bangs their head on the floor or something firm,” Davis said.

Davis also gave an alternative theory for how Zehm suffered those injuries during his struggle with Thompson on March 18, 2006.

“These could also be traction injuries, such as grabbing a handful of hair and pulling very hard. That would not result in any bruising of the scalp.”

Prosecution medical experts both testified they believed Zehm’s head wounds came from baton strikes, which were described by several witnesses. Davis said he disagreed.

Also testifying Tuesday was Pat Conley, an owner of the White Elephant store on North Division.

That store sits about 100 feet away from the Zip Trip where Thompson confronted Zehm. Conley said he and his brother were just locking up the store on March 18, 2006, when he noticed a police car parked at an odd angle at the convenience store.

Conley said he walked over to investigate and saw Thompson struggling with Zehm.

Other officers arrived but Zehm continued to struggle, Conley said.

“I was hearing officers say ‘calm down.’ (Zehm) was spitting and growling,” Conley said.

Ahmed pointed out that no officers ever reported Zehm spitting. “I don’t know why,” Conley responded.