In a bombshell of a motion, the Justice Department discloses an ongoing criminal investigation into obstruction of justice in the Zehm case, and requests a stay in the civil case to protect its investigation from the city’s defense tactics.
U.S. Attorney James McDevitt today filed a motion in the U.S. District Court for the Eastern District of Washington to temporarily stop civil proceedings against Karl Thompson, Assistant Police Chief Jim Nicks and six other Spokane police officers.
The motion has one declared purpose: to prevent attorneys representing Thompson and the City of Spokane from using discovery proceedings in the civil case in ways that could “adversely affect the government’s position in any future related criminal proceedings against Defendant Thompson and possibly others.”
But the 27-page memo in support of the motion offers what amounts to a stunning allegation of behind the scenes manipulation by city officials working to clear the Spokane police officers involved in the death of Otto Zehm three and a half years ago.
McDevitt’s new brief clearly indicates that other Spokane police officials may face criminal indictment in the case for obstructing justice. It also raises serious questions about the tactics
and ethics of Assistant City Attorney Rocky Treppiedi. Treppiedi has worked closely with Spokane police officials for years and is well known for his aggressive legal tactics in defense of the department and its officers.
“The United States has demonstrated that it has a continuing investigation about other possible federal obstruction offenses and that this investigation conceivably includes one or more of the other Defendants named in this (Zehm v. Thompson, et al.) civil suit,” the motion states. “In light of the compelling government and public interests, and the preference for the speedy resolution of the criminal case trial, as well as the conclusion of the ongoing and continuing obstruction investigation, the United States respectfully submits that a global stay of the civil action and discovery processes is warranted.”
The U.S. Attorney’s filing contends that City Assistant Attorney Rocky Treppiedi not only violated the police chief’s gag order but then “explained that since he was not an SPD employee that he was not bound by his client’s gag order nor by Chief Kirkpatrick’s express intention to help maintain the confidentiality of the DOJ’s investigation.”
The Center for Justice represents Otto Zehm’s mother Anne and the estate of Otto Zehm in the federal civil case that the motion asks Federal District Court Judge Lonnie Suko to suspend. Otto Zehm was a mentally disabled janitor who was violently seized in a north Spokane convenience store on March 18, 2006 after he was mistakenly reported to have stolen money from a young woman outside a nearby bank. He died two days later from the injuries. The Center filed its civil suit against Thompson, Nicks and the other six officers last March, alleging the named defendants violated his civil rights both in causing his death and in “falsely portrayed” him as the instigator of the violence that caused his death.
At its core, the government’s new brief takes aim at Treppiedi and registers deep frustration with his statements and practices. It chronicles the Assistant City Attorney’s activities from the night of the deadly encounter with Zehm into the spring and summer of this year when, the brief alleges, Treppiedi knowingly defied a “gag order” by relaying “normally confidential grand jury information to the target [SPD officer Karl Thompson] of the Department of Justice investigation.”
“On information and belief and based on a review of the Criminal Chiefs in the U.S. Attorney’s Office in the Eastern District of Washington for the past approximate 25 years,” the government’s brief states, “this is the first time that the target of a federal criminal and grand jury investigation has been provided direct access, through a fellow law enforcement agency’s ‘civil legal counsel,’ to the normally confidential investigation activities and proceedings held before the Grand Jury.”
Although the brief registers other complaints about Treppiedi’s conduct, this episode is clearly the most troubling to the Justice Department. The “gag order,” the brief notes, was issued in the fall of 2008 by “Treppiedi’s primary client, SPD Chief [Anne] Kirkpatrick” for the purpose of maintaining the “confidentiality and integrity of the DOJ’s investigation.”
The brief contends that Treppiedi not only violated the gag order but then “explained that since he was not an SPD employee that he was not bound by his client’s gag order nor by Chief Kirkpatrick’s express intention to help maintain the confidentiality of the DOJ’s investigation.”
If, as McDevitt’s filing submits, Chief Kirkpatrick was and is Treppiedi’s “primary client,” it would be hard to square an admitted violation of the police chief’s gag order with the Washington State Supreme Court’s rules of professional conduct which (RPC 1.2) state that “a lawyer shall abide by a client’s decisions concerning the objectives of representation.”
In making the motion to Judge Suko, McDevitt argues that the Justice’s Department’s criminal investigation and prosecution is being constantly undermined by a lack of cooperation by the City of Spokane and attorneys representing Thompson.
“Notably, the Defendant Thompson has not disclosed a single document of criminal and/or civil discovery to date,” McDevitt notes. “In stark contrast, during the past three years the Zehm family attorneys have provided the City Attorney’s Office with access to witnesses, employers, and health care providers. They also have not interfered with nor ‘shadowed’ the DOJ’s and/or Grand Jury’s investigation.
There’s a reason for that, says CFJ attorney Jeffry Finer, who is the lead attorney at the Center in representing the Zehm family.
“Once we learned in mid-2006 that the FBI was doing an investigation,” Finer says, “we made the decision to assist the authorities and to stay out of the way. That meant helping the Justice Department with access to witnesses but not getting in front of the investigation. The last thing we would want is to give the impression of tainting people’s recollections.
“We also gave access to the City when it wanted to interview Mr. Zehm’s medical providers and employers,” Finer added. “This is basic fairness and we think it was the responsible way to proceed.”
Finer says that if the stay is granted by Judge Suko, “the delay should not be indefinite” and should only last until after the month-long criminal trial begins in early February of next year, unless the criminal case is continued for a longer period.
“On information and belief and based on a review of the Criminal Chiefs in the U.S. Attorney’s Office in the Eastern District of Washington for the past approximate 25 years, this is the first time that the target of a federal criminal and grand jury investigation has been provided direct access, through a fellow law enforcement agency’s ‘civil legal counsel,’ to the normally confidential investigation activities and proceedings held before the Grand Jury.”–U.S. Attorney James McDevitt in today’s filing.
There are several noteworthy new allegations and revelations in McDevitt’s memo. Among them:
*In June of this year, the Justice Department learned that Treppiedi had “contacted and attempted to interview one of the DOJ’s expert witnesses and consultants” Robert Bragg, a defensive tactics expert. Assistant U.S. Attorney Tim Durkin “contacted Mr. Treppiedi and requested that he cease and desist all further contact with the DOJ’s expert. Mr. Treppiedi refused this request and expressed a belief that even though Mr. Bragg had no involvement in [the March 18th encounter with Otto Zehm] that he felt Mr. Bragg could still be a ‘fact witness’ that he could directly contact.”
*”The DOJ’s investigation has revealed that Asst. Chief Oldenthal (retired) spliced off two (#3 and #4) of the four camera angles” from the convenience store on March 23, 2006. Then-Acting Police Chief Nicks “and administrators” only learn “for the first time” of the other two video angles on or about August 2, 2006. “Asst. City Attorney Treppiedi reportedly advises that the missing two cameras ‘show nothing of value’ but, the memo notes, the two heretofore missing camera angles “show clearer footage of Zehm using the plastic diet Pepsi bottle to shield his head and face from Defendant Thompson.”
*By late March of 2006, the memo alleges, SPD Detective Terry Ferguson “no longer follows the SPD’s ‘Critical Incident Protocols’ and begins conducting her investigative contacts and interviews without any Spokane County Detective being present” [as called for in the protocols].
*On June 21, 2006 Treppiedi “issues a nine page letter to the Center for Justice denying any violations of state law, the terms of the parties’ protective order, and goes on further to exonerate Defendant Thompson [and other officers] from any excessive use of force allegations.” But, “notably, on June 21, 2006, the SPD’s own investigation was not complete at the time that Mr. Treppiedi exonerated Defendant Thompson.”
*”In July 2006, the U.S. Attorney’s Office requests a complete copy of Det. Ferguson’s investigative file materials. This request would be repeated on several occasions over the next 2.5 years and notwithstanding, the DOJ would not actually receive a ‘complete’ copy of Det. Ferguson’s and the SPD’s Major Crimes Unit investigative file materials until a grand jury subpoena is issued in the spring of 2009.”
*The memo also describes a conflicted and confused relationship between federal investigators and Treppiedi over the use of video forensic technician Grant Fredericks. In late September 2006, the memo notes, Fredericks finished a report in which he stated he could not confirm Thompson’s use of his baton against Zehm “during the first 1.13 seconds of Defendant Thompson’s attack on Otto Zehm. This conclusion, however, is contradicted by Defendant Thompson’s own statement of immediate ‘preemptive’ strikes to Zehm’s body. Mr. Fredericks’s conclusion also conflicts with eye witness accounts of vertical baton strikes” to Zehm’s head and upper torso.
In the spring of 2007, the memo reports, the Justice Department learned that Frederick’s $5,400 bill was coordinated with Treppiedi and paid not by the police department but by the city’s risk management division. For reasons not explained in the memo, the Justice Department then sought to have Fredericks “perform some additional forensic work” on the convenience store video images. “[I]t was the DOJ’s expectations that the still photographs prepared by Mr. Fredericks would be provided exclusively to the DOJ on a confidential basis.” Yet, the memo reports, when the still photos were provided by Fredericks, “the DOJ was very surprised to learn that a copy of the stills and work performed by Mr. Fredericks on behalf of the DOJ was provided to Assistant City Attorney Rocky Treppiedi.
Why the Justice Department continued working with Fredericks from that point on is not explained. But the memo reports that another conflict arose in August of 2007 when, according to the memo, Fredericks declined to “perform any confidential forensic services” for FBI-DOJ because he believed that he was “still under contract” with the City. On August 8, 2007, the memo notes, then City Attorney James Craven released Fredericks from any further legal obligation to the City.
Much of McDevitt’s memo goes through the timeline of the frustration the U.S. Attorneys say they’ve experienced with the city and its lawyers in the Zehm case. Here’s a chronology of some of the highlights:
*Beginning in March of 2006, the memo alleges, “Asst. City Attorney Rocky Treppiedi and others within the City Attorney’s Office actively pursued a pre-suit and pre-indictment investigation on behalf of Defendant Karl Thompson and other named defendants in the civil (sic) civil rights action.”
*In mid-October 2008, federal investigators preparing a criminal target letter for Officer Thompson asked Treppiedi if Thompson had enlisted a private attorney to defend him in a criminal action. “Mr. Treppiedi indicated that Mr. Thompson did not have separate criminal counsel but that since he represented Mr. Thompson’s interests civilly, he would [be] happy to accept the DOJ’s intended letter to Mr. Thompson. This offer was politely declined.”
*Days later, the City Attorney’s office submitted a resolution to the Spokane City Council approving the retention of a private defense attorney, Carl Oreskovich “to represent and defend ‘the City’ in connection with the Zehm Estate’s” pending civil claim. The council approved the resolution and authorized up to $45,000 in public funds for Oreskovich
*November 17, 2008: When FBI Special Agent Lisa Jangaard and Assistant U.S. Attorney Tim Durkin meet with Oreskovich to discuss the government’s offer to allow Officer Thompson to testify before the grand jury they learn from Oreskovich that he “exclusively” represents Thompson and does not, in any sense, represent the city.
*At the same time, Oreskovich discloses to Jangaard and Durkin that “defense experts retained and paid for by the City would be made available to help criminally defend Mr. Thompson.”
*Between October 2008 and June 2009 “it became apparent that Asst. City Attorney Rocky Treppiedi has been briefing and/or preparing most of the Spokane Police Department and/or the City of Spokane witnesses called to testify before the Grand Jury.” Moreover, the DOJ says they learned that Treppiedi has been conducting his own investigation and that he has “substantially ‘shadowed’ the investigative activities of the Grand Jury.”
*During the same period, “DOJ also learned, based on conversations and exchanges of correspondence with Mr. Treppiedi and Mr. Oreskovich that notwithstanding Mr. Oreskovich’s earlier statement that ‘he and he alone’ represented Mr. Thompson’s civil and criminal interests, that Mr. Treppiedi was now asserting that (and notwithstanding the City’s retention of private counsel (Mr. Oreskovich) at public expense) the City Attorney’s Office continued to represent Mr. Thompson’s ‘interests’ relative to the Zehm use of force incident.”
*”During the course of the United States and the Grand Jury’s investigation, the United States expressed concerns to Mr. Treppiedi and City Attorney Howard Delaney relative to ‘conflicts’ that it believed constituted ‘obvious’ and ‘apparent’ conflicts with the City Attorney Office’s representation of ‘the SPD and all SPD employees’ relative to the Otto Zehm incident…Mr. Treppiedi and the City Attorney’s Office responded that they did not perceive ‘any’ conflicts in and between the representation” of the City of Spokane, the Police Department, the police chief, and the SPD officers named in the civil suit filed by the Center for Justice on behalf of the Zehm estate.
This timeline leads toward McDevitt’s central argument to Judge Suko, which is that:
“[A]llowing the civil discovery process to continue in this action will continue to:
1) Disrupt and unfairly prejudice the interests of the United States in its prosecution of the criminal case” by allowing Thompson’s lawyers to use civil discovery rules to among other things “take depositions of government witnesses and agents.”
2) Place Officer Thompson “and other SPD employees who may still be under investigation in the posture of having to make decisions with concerns relative to asserting their fifth amendment privilege in the civil case at a time when criminal charges are pending against one or more of them.”
3) Cause “unnecessary consumption” of time and resources on matters “that may largely be resolved by the outcome of the criminal case.”
4) “Prove unnecessarily burdensome to the witnesses and other non parties for the same reason.”
–Tim Connor