Government identifies expert witnesses expected to provide testimony in the criminal trial that head injuries sustained by Otto Zehm were from baton blows.
In a brief filed in the Zehm federal criminal case, the Justice Department identifies four expert witnesses who are expected to testify about the evidence that Otto Zehm was struck in the head with a police baton as he was subdued by indicted Spokane police office Karl F. Thompson, Jr.
Both the City and lawyers for Officer Thompson’s lawyers have denied the officer struck Zehm in the head when Thompson attempted to physically restrain the 36-year-old janitor in a north Spokane convenience store on March 18, 2006. Otto Zehm died of his injuries two days later.
Prior to Monday’s filing, DOJ said it intended to prove Zehm was subjected to both lethal and 
non-lethal force in violation of his civil rights. Monday’s filing is the clearest declaration to date as to how the government will attempt to prove the use of force charges, including the “lethal” force application of the baton strikes to the head.
On Tuesday DOJ filed an “addendum” in the criminal case that shows how it will try to supplement the forensic medical evidence with expert reviews of the Zip Trip store’s surveillance video. According to the addendum, the government’s experts are expected to testify that, among other things, the video shows that from the time Thompson entered the store to the time he landed the first baton strike on Zehm, that Zehm was always moving away from the officer and Thompson always moving rapidly toward Zehm. The filing also discloses that DOJ expects at least one of its expert witnesses to testify that, even though the video does not show where Thompson’s first swing impacted Zehm’s body, the visible video evidence of the baton swing indicates it “most likely impacted Zehm’s head, shoulder, or upper torso, not Zehm’s left thigh as Officer Thompson claims.”
The brief on the medical and forensic evidence involving the baton strikes, and the addendum on the video evidence, was accompanied by a brief identifying the police practices experts DOJ intends to call.
The police practices experts, according to DOJ, are expected to testify that officer’s Thompson’s use of physical force, including deadly force, was “objectively unreasonable” given the video evidence showing that Otto Zehm “was not engaged in actively resisting arrest or attempting to evade flight at the moment the initial force was applied.”
Although Zehm’s death two days after his arrest was attributed to cardiac arrest caused by the way in which police officers restrained him, the question of whether he was struck in the head by a baton is clearly a key issue in the case. According to the government’s brief and contemporary police practices adopted by the Spokane Police Department (SPD), baton blows to the head are considered to be a use of deadly force. Although the SPD criminal defense insists Otto Zehm resisted the officer’s instructions, no one has yet suggested that the use of lethal force, including baton strikes to his head, was necessary to subdue Zehm or to protect police officers or members of the public.
The briefs filed Monday by DOJ and the addendum filed Tuesday are in the federal criminal case against Thompson. The Center for Justice represents the Zehm family in a pending federal civil lawsuit in which Thompson is one of the named defendants.
In the criminal case, Thompson is being charged with depriving Zehm of a constitutional right under color of law, and of falsifying a record in order to impede an investigation.
The DOJ’s briefs were filed in response to a September 4th ruling by federal district court judge Fred Van Sickle, ordering the government to provide “a written summary of the expert testimony the government intends to present during its case-in-chief.”
The four medical experts identified in the DOJ filing Monday are:
1) Dr. Sally Aiken, forensic pathologist and Spokane County Medical Examiner. Dr. Aiken performed the autopsy on Otto Zehm.
According to the filing, DOJ “anticipates that Dr. Aiken will opine that Mr. Zehm sustained blunt force trauma to his head during the early evening of March 18, 2006, as a result of Officer Karl Thompson’s use of force.” Further, the filing notes, it is “Dr. Aiken’s opinion that the blunt force trauma and insult to Mr. Zehm’s head is considered a serious medical injury” even though it “did not cause or contribute” to his death. The filing says that Dr. Aiken may testify that “there is forensic pathological evidence of a baton strike to Mr. Zehm’s left upper forehead and a tram track injury that matches the straight baton that is reported to have been used by Officer Thompson on the night of the incident.”
2) Dr. Harry Smith, PhD, M.D., Biodynamic Research Corporation, San Antonio, Texas, who “is a nationally recognized injury causation expert.”
According to the filing, Dr. Smith, is expected to testify that “there are at least three identifiable blunt force impacts to Mr. Zehm’s calvarium (upper skull) that are consistent with baton strikes;” that the impacts are “serious medical injuries,” and that “the impacts found on Mr. Zehm’s head were delivered by Officer Karl Thompson’s baton.”
3) Dr. Scott Edminster, the Director of the City of Spokane Fire Department’s Medical Department.
According to the filing, Dr. Edminister is expected to testify that during efforts to resuscitate Otto Zehm he “learned of and observed multiple contusions consistent with baton strikes to Mr. Zehm’s body,” and that after ordering computed tomography (CT) scans the emergency room physician observed “an injury to Mr. Zehm’s upper right forehead, which caused the ER physician concern that Mr. Zehm sustained blunt force trauma to his head.”
4) Dr. Timothy Bax, Spokane Trauma Surgeon.
According to the filing, Dr. Bax “may testify that certain CT findings as well as forensic pathological findings on Mr. Zehm are consistent with blunt force (baton) trauma to Mr. Zehm’s head.”
The filing also reports that DOJ intends to call Spokane pulmonary specialist Dr. Richard Lambert and Littleton, Colorado, forensic pathologist Dr. Michael Dobberson and may also call “one or more” of Otto Zehm’s health care providers, and other attending health care providers who were involved in efforts to save his life.
–CFJ
