SCROLL FOR UPDATE
I’m very surprised that US Attorney McDevitt supported the filing of a criminal civil rights case against Spokane PD Ofc. Thompson in the Otto Zehm case. Of course this was after a grand jury returned an indictment. Impaneling a grand jury* was not something either Spokane County Prosecutor Steve Tucker or the Seattle and Spokane Offices of the US Attorney were willing to do in the RPS bond fraud case or in the Savage manslaughter case.
Having some personal experience in one of these federal civil rights cases involving alleged abusive police practices, it comes down to establishing the specific intent on the part of the officer.
I have not seen the infamous video so perhaps the required intent can be inferred from the video. I would have fired Acting Chief Nix for his stunt with Steve Tucker to conceal this video tape from public scrutiny. Perhaps the alleged false statements made to the investigators had some bearing on the decision to return an indictment. As an aside the fed’s have a “mulligan” when it comes to lying to them. If they can’t make their case in chief on the evidence they can always fall back on the charge of lying to the investigators. This is what happened in the Martha Stewart insider trader case. Gee I wish I had this hammer for every crook that ever lied to me! Either you can make your principal charge by the evidence or not.
The intent required to violate this federal statute is based on the officer’s own frame of reference, mindset, training and experience not what others may ascribed after the fact. I could argue on behalf of the defense from the radio call received of a possible robbery just occurred, a physically large potential suspect not complying with initial commands of the officer (Mind you the officer is 60 years old) there is a justifiable need to achieve immediate control of the situation using reasonable force if necessary. Having dealt with mentally challenged people it takes several officers to gain control without seriously injuring the person if they are resisting. From the point at which control was achieved, however, the possible positional asphyxia issue, the application of a face mask which restricted breathing and not monitoring Otto’s vital signs after a physical struggle makes this a wrongful death case in my mind. The City should have folded at this point, admitted mistakes were made, apologize to the family, paid up without dragging this case out and changed police policy/procedure/training re positional asphyxia and the inappropriate use of face masks et al. The City’s digging in of its heels and lack of action to prevent future incidents precipitated the Center for Justice’s filing of a civil federal case for violating Otto’s civil rights and now federal criminal charges being filed. This lack of honesty and transparency on the part of the City is going to cost yet again the citizens of Spokane more taxpayer money.
From my read of the newspaper accounts there is no question that the officers after Otto was restrained, acted outside the course and scope of what I believe to be accepted police policy and procedure. This is a police policy, procedure, and training issue. Were the officers actions intentional within the meaning of the federal statute remains to be seen. Had Ofc. Thompson been aware of the limitations and history of Otto, this incident probably wouldn’t have happened in the first place. This incident is only symptomatic of much deeper problems involving the responsibility/accountability of City officials and police administration as well as to what lengths they will go to conceal their mistakes from public scrutiny. It’s unfair to target only the officers involved without addressing the underlying issues involving City officials and police management for failure to set policy, procedure and provide adequate training in dealing with these circumstances. In my opinion Spokane government is dysfunctional at the highest levels.
I’m sorry but I find McDevitt’s willingness to a support a criminal indictment in the Otto case hypocritical. McDevitt shielded by his inaction of his office, the Cowles Co’s interests in the RPS bond fraud case. This was subsequently compounded by the US Attorney’s Seattle Office’s refusal to throw McDevitt under the bus for his personal conflicts with the RPS case and to file the bond fraud case. Why wasn’t the evidence* in the RPS bond fraud and/or the Savage manslaughter case ever reviewed by a federal and/or state grand jury respectively. Steve Tucker is riding the fence yet again. These police abuse cases are much easier to prosecute under state law than federal law. If a federal grand jury found sufficient evidence to warrant an indictment, why didn’t Tucker file states charges a long time ago. No local media is hounding Tucker for his equivocation in Otto’s case nor his decision not to file the Savage manslaughter case.
If the citizens of Spokane are so enraged re the facts and circumstances surrounding the death of Otto Zehm, they should be so similarly enraged about the death of Jo Ellen Savage in the RPS parking garage. Where is the hue and cry for justice in Savages’ death? Perhaps all of the facts and circumstances surrounding her death have not been revealed to them by the our local media as in Otto’s case.
I ask why not? My faith in our criminal justice system is being sorely tried [re] its impartiality.
*Until someone provides me with evidence to the contrary I don’t believe a federal grand jury ever reviewed the evidence in the RPS bond fraud case as it has been reported in media accounts. We know Tucker did not impanel a state grand jury to review the facts and circumstances surrounding the death of Jo Savage in the RPS parking garage.
From my letter to Sheriff Knezovich and Chief Kirkpatrick:
Sheriff Knezovich recently on the Mike Fitzsimmons Radio Show (KXLY Spokane, WA) you said that a federal grand jury reviewed the evidence surrounding the Savage death. I believe you are mistaken. Sheriff Knezovich, I strongly recommend that you contact Mr. Westinghouse for a clarification. Mr. Westinghouse was parsing his words carefully.
From Mr. Westinghouse’s press release:
After the fact there was a great deal of debate over the assumptions made in the bond proposal. But after examining thousand of records from the civil case and using the tools available to the grand jury we determined there was no criminal case of wrongdoing, . . .
My interpretation of what Mr. Westinghouse said is that they used the subpoena power of a federal grand jury to secure documents. I don’t believe there was any review of the evidence in either the RPS bond fraud case or the Savage death by a federal grand jury. I believe the documents referred to include the Safeco Insurance Company’s investigative file (the RPS garage owners’ insurer) that David Savage, the former husband of Ms. Savage, released to them. My sources indicate that there is very damning information in the Safeco investigative file. This information shows the specific criminal intent of the garage owners. They knowingly failed to do critical repairs of the RPS parking garage as strongly recommended by several engineering reports over many years before the tragic death of Ms. Savage. . .
UPDATE: [Note slightly edited to clean up typos]
OK I’ve looked at the videos on the S-R server. Perhaps someone can direct me to a video that shows more detail. The initial contact between Ofc. Thompson and Otto is difficult to see. Yes I can see several baton strikes by Ofc. Thompson. At one point it appears Ofc. Thompson is holding his taser and I’m assuming he just tasered Otto. It appears the struggle between Ofc. Thompson and Otto continued from one aisle around the corner into the adjoining aisle where another camera shows Ofc. Thompson delivering several more baton strikes. From then on there are a number of officers present kneeling over Otto. I’m assuming this was when Otto was handcuffed and hog tied. From then on there are a number of officers milling around but no further baton strikes to Otto are apparent. It’s unclear from the video I watched that Otto was positioned on his stomach although I’ve since read he was. It’s not clear from the video by whom and when the face mask was applied. Without a clearer video of the initial contact with Otto it’s difficult for me to have an opinion whether the initial baton strikes were justified. It is apparent the two moved from he first asile to the next. Now whether Ofc. Thompson was dragging Otto or Otto was moving along the floor is unclear. Ofc. Thompson clearly delivers several more baton strikes in the next aisle. Assuming Ofc. Thompson’s state of mind was that he was responding to a possible robbery and this subject was the suspect as described in the call, I do not find Ofc. Thompson’s action shocking in attempting to gain control of the potential suspect even though it was later determined a robbery had not occurred. Unfortunately the circumstances turned horribly tragic. I can understand on hindsight that Otto may have not responded as a normal person would to the officer’s commands. Further the officer apparently was not aware of Otto’s mental disability. This is an unfortunate set of circumstances. Once Otto was restrained the officers present had a duty and responsibility to ensure the safety of Otto. If it’s true that Otto was hog tied and positioned on his stomach and further a face mask was applied that restricted his breathing this more than likely was the proximate cause of Otto’s death. Hence my earlier opinion that this was definitely a wrongful death but whether this rises to the level of a federal criminal civil rights violation remains to be determined by a jury.