“Pound Sand”

City blasts back at Justice Department and Center for Justice in response to government’s charges of obstruction and manipulation.

In a bristling response to the Justice Department’s allegations of manipulation and unethical conduct, the City of Spokane is pointing its fingers at federal prosecutors and the Center for Justice.

The city’s response came Tuesday in a barrage of 18 declarations and related documents filed with Judge Lonnie R. Suko. Judge Suko is presiding over the civil suit brought against the city and nine police officers by the estate of Otto Zehm. The Center for Justice represents the Zehm family in this civil case.

The Justice Department allegations against Assistant City Attorney Rocco “Rocky” Treppiedi and Spokane police officials were filed September 15th in support of a motion to stay proceedings in the civil case, while a federal criminal case against Spokane police officer Karl Thompson goes forward to a scheduled trial early next year. In its filing on the 15th, the Justice Department reported it was continuing its criminal investigation of Thompson “and possibly others” for civil rights violations and federal obstruction of justice offenses.

The federal criminal case is before Senior U.S. District Court Judge Fred Van Sickle.

Judge Suko heard oral arguments on the motion to stay the civil case Wednesday morning and decided to delay a final decision until October 21st, with discovery proceeding in the meantime.

Perhaps the most serious accusations in the DOJ’s 9/15 filings were against Treppiedi whom, it alleged, was undermining the DOJ investigation and related grand jury proceedings by preparing and debriefing grand jury witnesses and providing to Thompson “direct access..to the normally confidential investigation activities and proceedings held before the Grand Jury.”

The brief filed by Assistant U.S. Attorney Tim Durkin commended Spokane Police Chief Anne Kirkpatrick for volunteering in October 2008 “to impose a gag order on SPD personnel appearing before the grand jury, in the interest of maintaining the confidentiality and integrity of the DOJ’s on-going investigation” of the Zehm case.

“Mr. Treppiedi acknowledged being aware of his client’s gag order,” Durkin’s brief asserted, “but 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. Mr. Treppiedi further explained that since he continued to represent the criminal target Mr. Thompson that he had an ethical obligation to provide  any and all information that he acquired in his position as the Asst. City Attorney to the SPD to Mr. Thompson and Mr. Thompson’s private counsel.”

In a declaration filed late Tuesday, Treppiedi said all his contacts with witnesses have fallen within his proper duties as either an Assistant City Attorney, a city risk manager, or as a legal adviser to the Spokane Police Department.

“The mere fact that the DOJ is investigating something does not mean that the DOJ has exclusive jurisdiction over everything and everyone,” he wrote.

In response to the charge that his activities defied that gag order issued by Kirkpatrick,  Treppiedi denied that any such order applied to him.

“The first time I heard about any possibility of such a ‘gag order,’” Treppiedi wrote, “was after I had set up a meeting with an officer to discuss the claim for damages [the civil suit filed by the Zehm family], and when the officer contacted me a few days later he indicated that he could not talk to me because of an order from the Chief’s Office. I called Assistant Chief Nicks, who explained that the order the officer referenced did not apply to the City Attorney’s Office. He told me the officer received a subpoena and he instructed the officer not to tell anyone about it. However, Chief Nicks said that obviously did not apply to the lawyers. In fact, officers who have received subpoenas have been directed by the Chief’s Office to contact the City Attorney’s Office. Nevertheless, [Assistant U.S. Attorney, Tim] Durkin has insisted that any such contact is a direct violation of the Chief’s order. The position taken by the U.S. Attorney’s Office on the ‘gag order’ is simply incorrect.”

Nicks, in his declaration, wrote that while “(t)here was initial confusion in 2008 over an order telling officers not to talk to other officers about the grand jury subpoenas; that order did not include legal advisors.”

Treppiedi also directly contested the Justice Department’s argument, to Judge Suko, that Treppiedi’s contact with a DOJ expert witness and consultant was inappropriate. Treppiedi wrote that in investigating the claim brought by the Zehm family, “one of the people I needed to talk to” was “Mr. Bob Bragg, the defensive tactics instructor for the Washington State Criminal Justice Training Commissions.”

Treppiedi wrote that he was unaware that Bragg had already been hired by the DOJ but that, in any event, he rejected Durkin’s view that it was inappropriate for Treppiedi to continue contacting Bragg.

“AUSA Durkin does not believe that Mr. Bragg can be a fact witness if he is his expert witness. AUSA Durkin then sent a series of emails to my office. I reviewed those emails with [Spokane City Attorney, Howard Delaney] Mr. Delaney and other attorneys within the City Attorney’s Office. We concluded that AUSA Durkin’s conclusion was incorrect, but that there was no longer any sense in debating the issue with the U.S. Attorney’s Office.”

Instead, Treppiedi explained, the city is considering issuing a subpoena for Bragg’s testimony “at an appropriate time.”

In response to the broad charge that he has “shadowed” the federal grand jury investigation and otherwise intrusive into the investigations of the March 18, 2006 fatal encounter with Otto Zehm Treppiedi replies that he has only been representing the city’s best interests in a climate in which it was readily apparent, early on, that the city would be sued.

“The City does not, and should not, have to wait for a claim for damages to be filed against it before it can take steps to investigate potential claims,” Treppiedi wrote.

“When interviewing employees,” he continued, “either pre or post filing of a lawsuit, we are careful to describe attorney-client privilege with the employees. This ensures that employees provide full and free information to us as attorneys so that we can properly assess the circumstances and conduct of a proper defense, as well as to allow employees to ask any and all relevant questions about any concerns they may have. All of these communications are protected by the attorney-client privilege and the attorney work product doctrine.”

In his 9/15 filing, Durkin recounts the claim by the Center for Justice that the city violated a protective order agreed to between the Center and the City in May of 2006. The Center alleges that within hours after the order went into effect, then Acting Police Chief Jim Nicks conducted a press conference in which he violated the terms of the protective order when he “disclosed information from the police investigative files in both his prepared statement and in answers to specific questions from the media.”

Treppiedi, in his 9/22 declaration, doesn’t directly dispute the Center’s claim, but he does write that he responded to it in a June 21, 2006 letter to the Center. While Treppiedi, in the 6/21/06 letter to the Center provides explanations for why he believes the city did not violate the 5/30/06 protective order, eight out of the nine pages of his 6/21/06 letter are devoted to defending the actions of Spokane police officers involved in the March 18, 2006 encounter with Otto Zehm.

Durkin and the Justice Department, in DOJ’s 9/15/09 brief, focus on the content and timing of Treppiedi’s 6/21/06 letter which, in DOJ’s words, “exonerates” Thompson and other officers of any wrong-doing at a time when the “SPD’s own investigation” had not yet been completed. According to Durkin, the SPD actually continued its investigation until October of 2006 when it was suspended “pending a charging decision by Spokane County Prosecutor Steve Tucker.”

In his 9/22 declaration, Treppiedi contends the SPD had completed its investigation of the incident at the time he responded to the Center for Justice with his 6/21/06 letter and that he attached Detective Terry Ferguson’s completed report to his letter to the Center.

In his 9/22 declaration, Treppiedi also portrays the Center’s lead attorney, Breean Beggs, as trying to leverage the Justice Department investigation to obtain a payment for the Zehm estate.

“The Center for Justice attempted to negotiate a financial settlement even before they filed the first claim for damages,” Treppiedi wrote. “In discussions with the City Attorney’s Office, the lead counsel for the Center for Justice, Breean Beggs, intimated more than once that the could get the FBI to drop the federal investigation if the City settled their claims. Even as late as approximately December, 2008, Mr. Beggs informed the City Attorney’s Office that he knew the U.S. Attorney’s Office was about to announce an indictment against Officer Thompson, and that Officer Thompson was ready to plead guilty to some criminal charge, but that he could prevent that from happening because the DOJ would drop the investigation upon his word.”

Beggs strongly disputes Treppiedi’s statements and said he will be responding, formally, at a later date.

The city’s complaints against the Justice Department and the Center for Justice go well beyond Treppiedi’s declaration.

“The plaintiffs [the Zehm Estate, represented by the Center] have made spurious public allegations against me since 2006,” says Assistant Police Chief Jim Nicks, “but waited until 2009 to file suit against me. I am fully poised to defend those allegations. I do not believe the U.S. Attorney’s office should be allowed to interfere with the lawsuit against me, the City, or anyone else.”

Nicks, who was the interim acting Police Chief at the time of Otto Zehm’s death, also disclosed in his declaration that he does remember being told, and relaying to the news media, that Zehm had “lunged” at Officer Thompson. But, he states, “I do not recall which officer(s) gave me that particular information.”

“As the investigation progress,” Nicks added. “it was determined that Mr. Zehm had not ‘lunged’ at officer Thompson. The fact that a ‘lunge’ did not occur was clarified and made public upon completion of the investigation.”

Perhaps the most withering declarations, in terms of its criticisms of Durkin and the Justice Department, came from Spokane Police Detective Mark Burbridge who states that he was told by attorney Carl Oreskovich (who represents officer Karl Thompson and has been hired by the City to represent all its employees in the Zehm case) that Durkin believed Burbridge had filed false reports about the incident on March 18, 2006.

Burbridge asserts that Durkin treated him rudely when Burbridge responded to a subpoena to testify before a grand jury in June of this year. Prior to his testimony, Burbridge says Durkin, in a room with three other federal agents, told Burbridge that if he went before the grand jury “and testified to the accuracy of my reports [on the Zehm case], there was ‘a high likelihood you will be indicted for perjury’ and sent to prison for ten years. I told everyone present to ‘pound sand’ and I would be testifying to the accuracy of my reports.”

In its 9/15 filing, the Justice Department had criticized Spokane Police Detective Theresa Ferguson for not following the SPD’s “Critical Incidents Protocols” during her investigation of Zehm’s death and for not providing federal investigators with a “complete” copy of her investigation report for 2 1/2 years.

According the the Critical Incidents Protocol, the DOJ contends, Ferguson should have been accompanied by a Spokane County sheriff office deputy throughout her investigation because it involved the death of a suspect during an encounter with one or more SPD officers.

Ferguson responded by saying that she had been accompanied by a SCSO detective during her interviews with Thompson, a second SPD officer involved in the 3/18/06 event, and a civilian witness.

“Resources were limited as this investigation continued,” she stated, “therefore I conducted activities without a ‘shadow,’ however my activities were conducted with the knowledge of my supervisor and that of the Spokane County Major Crimes Supervisor as indicated by their review of my reports. At no time was I instructed to involve another detective in these activities, many of which were follow-up contacts with individuals who had already completed reports.”

In her 9/22/09 declaration Ferguson also expresses frustration at Durkin for prying into her discussions with Treppiedi.

“My only discussion with Rocco Treppiedi referencing the Grand Jury was to learn about the process,” she stated. “There was no briefing or preparation for my testimony and, in fact, Mr. Treppiedi advised me to review my reports, answer questions as fully as possible and to tell the truth. The ‘debriefing’ that occurred involved my disappointment with the conduct of the U.S. Attorney Timothy Durkin and frustration with the adversarial, biased nature of this experience. It as my impressions that the Grand Jury questions asked and comments made by the prosecutors were not a search for the truth.”

In her statement, Ferguson also denies the accusation that she knowingly withheld portions of her investigative report on the Zehm case from federal agents.

“I have no recollection of any follow up call from the FBI or the U.S. Attorney’s Office as to NOT receiving requested items or clarifying items which had been requested,” Ferguson says in her 9/22/09 declaration. “Nothing was withheld from either government agency and I made every effort to comply with government requests as timely as humanly possible.”

–CFJ