Karl Thompson appeal argued in court

Attorneys for imprisoned former Spokane police Officer Karl Thompson argued Monday that prosecutors did not turn over important evidence before trial.

Defense attorney Carl Oreskovich told the 9th U.S. Circuit Court of Appeals in Seattle that the evidence could have been used to attack conclusions drawn by use-of-force witnesses in the 2006 death of Otto Zehm.

Thompson is serving a four-year sentence at a minimum-security facility in Safford, Arizona, after a jury in Yakima found him guilty in 2011 of using excessive force and attempting to conceal evidence in Zehm’s death. The fatal beating prompted a lengthy legal review that culminated in the two guilty verdicts, but Thompson’s attorneys said they did not receive statements made by a key witness that movement seen in surveillance video of the beating may have been baton strikes or some other motion.

“He would have changed the trial strategy,” Oreskovich told a trio of judges, referring to Grant Fredericks’ testimony to a grand jury that what he saw in footage was consistent with baton strikes from Thompson, but also could have been other actions.

Had prosecutors made the defense aware of this statement prior to trial, Oreskovich said, they could have questioned the conclusions of all witnesses called to testify about Thompson’s excessive force. Witnesses reported seeing Thompson strike Zehm multiple times with a baton, shoot him with a stun gun and hog-tie him after responding to a call of a potential theft. Zehm was holding a two-liter bottle of cola.

Zehm lost consciousness and died a few days later.

Circuit Judge Paul Watford asked Oreskovich whether he was interpreting Fredericks’ statement that the video may have shown something other than baton strikes with more certainty than was intended.

“It’s not as though he says, ‘Absolutely not, there’s no way that video evidence can be seen as consistent with a strike,’ ” Watford said.

The surveillance video made up only a portion of the prosecution’s case, attorney Jennifer Eichhorn with the Department of Justice’s Civil Division said. All other evidence presented by U.S. Assistant Attorney Tim Durkin at trial rebutted Thompson’s version of events, she said, negating any prejudice the jury may have experienced from not hearing all of Fredericks’ thought process.

“None of the eyewitnesses corroborate (Thompson’s) version of what Mr. Zehm’s actions were,” Eichhorn said.

But circuit Judge Margaret McKeown said turning over all of Fredericks’ statements about the case would have undoubtedly affected the trial strategy of Thompson’s defense.

“It’s hard to see how that wouldn’t have impacted how they constructed their case,” she said.

The attorneys also discussed the perceived threat Zehm posed to Thompson. Circuit Court Judge Ronald Whyte told Oreskovich “holding a two-liter plastic pop bottle doesn’t strike me as much of a threat.”

“They’re hard as a rock, judge,” Oreskovich replied.

Oreskovich filed the appeal just days after Thompson’s sentencing in November 2012. Under the U.S. Supreme Court’s decision in Brady v. Maryland, prosecutors must turn over any evidence to defense attorneys that could clear their client of guilt. By withholding some of the statements made by Fredericks and misrepresenting others in materials handed over before trial, Thompson claims the government violated his constitutional rights and a new trial should be ordered.

Thompson, 66, is due to be released from federal custody on July 24, 2016, according to the federal Bureau of Prisons. The city of Spokane and its insurance company paid Zehm’s family $1.67 million in a civil settlement.