C. Bradley Chinn - Lawyer Profile C. Bradley Chinn Dist. Ct. Comr.; Spokane Co. Dist. Ct. Pub. Safety Bldg., 1100 W. Mallon Ave. Spokane, Washington (Spokane Co.) Experience & Credentials Practice Areas Divorce Law; Appellate Law University Drake University, B.A. Law School Gonzaga University, J.D. Admitted 1979 ISLN 908406072 Member Name: C. Bradley Chinn WSBA Bar #: 9465 Firm or Employer: Admit Date: 10/30/1979 Address: 1319 W Dean Ave Spokane, WA 99201-2014 United States Status: Active Phone: (509) 327-7000
A 2006 police confrontation that led to the death of a Spokane man with schizophrenia reverberates today in the form of an unsettled civil lawsuit, federal charges against a veteran police officer, the creation of a police ombudsman position and changes to police protocol.
On March 18, 2006, officers responded to a Zip Trip in north Spokane after two young women erroneously reported that a man had tried to rob them at a nearby ATM. At the convenience store, officers confronted Otto Zehm, 36, who was holding a pop bottle.
In March 2009, the Center for Justice filed a federal civil rights suit against the city of Spokane and nine of its police officers on behalf of Zehm’s family. The lawsuit alleged that officers used excessive force and that the police department and its former acting chief, Jim Nicks, engaged in a conspiracy to portray Zehm as the aggressor. That lawsuit remains on hold pending a criminal trial. In June 2009, a federal grand jury handed down two indictments against police Officer Karl Thompson, the first officer to respond to the Zip Trip. The federal charges accuse Thompson of violating Zehm’s civil rights. The trial, scheduled to start June 7, was pushed back at least two months as prosecutors sought an appeal over admissible evidence.
Documents filed in April 2010 raised serious new allegations in the case. In them, federal prosecutors suggest members of the Spokane Police Department tried to cover up their handling of the confrontation with Zehm and that the agency’s investigation clearing officers of wrongdoing was incomplete and inaccurate
Nine days after Otto Zehm died after a scuffle with Spokane police, detectives told a judge they needed to seize the mentally ill man’s medical records because he was under investigation for allegedly assaulting officers.
The judge, District Court Commissioner Brad Chinn, approved four search warrants March 29, according to court records, giving police access to Zehm’s mental, medical and employment records even though it would be impossible to charge him with a crime.
Police said Monday it was simply the quickest way to gather information they deemed necessary as part of their investigation into the March 18 confrontation.
But some legal experts say the move is so unusual it raises more questions than it might answer.
“I’ve got to tell you, I’ve never heard of it,” Jeffry Finer, a criminal defense attorney who also teaches at Gonzaga University, said of the search warrants. “I don’t know how they would have the authority to advance an investigation into a dead person.”
Chinn did not return messages Monday seeking comment.
What caused the 36-year-old janitor’s death remains a mystery.
Acting Spokane Police Chief Jim Nicks insists it wasn’t his officers, even though Zehm was struck with a nightstick and jolted twice with electric Taser probes during the scuffle in a Zip Trip convenience store at 1712 N. Division St. Zehm, who had no criminal record, lapsed into a coma and died two days later.
Although at least part of the fight was captured by a store security camera, authorities are refusing to let the public see the tape. Spokane County Prosecutor Steve Tucker said it will remain under wraps at least until the conclusion of an ongoing investigation.
Last month, Gordon Bopp, president of NAMI-Washington, an advocacy group for people with mental illness, said the investigators should release the videotape of Zehm’s encounter with the police officers.
On Monday, Bopp also questioned how the medical records would shed any light on the scuffle.
“I certainly don’t understand why they would conduct an investigation to include the acquisition of his medical records when he is already deceased,” Bopp said. “This is really taking on the dimension of almost an ex post facto vendetta.”
Spokane Police Lt. Scott Stephens defended the request for the warrants, saying the law only requires detectives to show that a crime probably occurred and that a specific individual committed the offense.
“I think everyone has questions about why Mr. Zehm is deceased,” Stephens said. “We are just trying to answer those questions. Obviously, the search warrants were signed by a judge who didn’t find that request unusual or (he) probably wouldn’t have signed them.”
Finer, who does not represent Zehm’s family, reviewed the affidavit for the search warrant at the request of The Spokesman-Review. Finer said it would be appropriate for police to seek the records to investigate Zehm’s death, but not under the pretense of investigating a crime by Zehm.
“It again adds another layer of doubt to the family that this is an independent investigation,” Finer said. “It really leaves a very bad taste in one’s mouth.”
John Rodgers, the director of the Spokane County Public Defenders Office, said he believes the search warrants were obtained to seek information for an internal investigation.
“That’s clearly what this is about, making sure the officer was acting correctly,” Rodgers said. “If we are going to be scrutinizing their actions, it’s what the officers knew at the time that matters … not what they uncover later about his treatment and medications.”
Rodgers said he couldn’t remember a case where search warrants were used in this way.
“I can say it’s a novel approach to base it on potential criminal charges when a dead guy can’t be charged,” Rodgers said.
The encounter between Zehm and police started when Officer Karl Thompson responded to the convenience store after receiving a call of an attempted or actual robbery.
According to an affidavit in support of the search warrant, Thompson “approached the suspect in the store and this contact resulted in a physical altercation.” Police officials previously said Zehm “lunged” and “attacked” Thompson. But neither action was described in the search warrant filed Wednesday by Detective Terry Ferguson.
Five more officers joined the scuffle and twice shocked Zehm with Taser probes and used a police baton, finally binding him in arm and leg restraints, according to the affidavit. Nicks, the acting police chief, later said all steps taken during the scuffle were “lawful” procedures to maintain control.
About 10 minutes after detaining Zehm, who was unarmed and did not have a criminal record, the janitor began to have trouble breathing. He was taken to a local hospital, where he died two days later.
Stephens said Monday that the autopsy found no evidence to suggest that police force caused Zehm’s death.
According to court records, Zehm’s behavior had changed noticeably in the weeks prior to the confrontation. Among other things, he stopped coming to work March 7 and had stopped taking his unspecified medication.
Terri Sloyer, a staff attorney at the Center for Justice, is representing Zehm’s mother, Ann Zehm. They spoke Thursday with the detectives but never were asked about Zehm’s medical records.
“It would seem they want to paint a particular picture of Mr. Zehm to justify the actions of the officers,” Sloyer said. “I’m not saying they are, but I have those questions.”
Stephens said Ann Zehm could not have authorized the release of the records from Deaconess Medical Center, Spokane Mental Health Center and Community Health Association of Spokane clinic because Otto Zehm was an adult living alone.
“It’s just easier and cleaner to go to the hospital and say here’s the search warrant,” Stephens said. “The medical examiner could subpoena those records. But it’s usually incumbent on the lead investigator to gather as much information as they can for the medical examiner.”
Finer, the defense attorney, said the search warrants could lead to more headaches for the Police Department.
“If they obtained confidential records using this affidavit, and the affidavit is found to be improper, then the family would have the option of bringing a lawsuit … for violation of privacy,” Finer said. “It begs many, many questions.”
Karl Thompson, a veteran with the Spokane Police Department, was the first officer to arrive at the north Spokane convenience store and confront Otto Zehm on March 18, 2006. Surveillance video shows Thompson using a baton and Taser on Zehm, who was armed with a pop bottle. In June 2009, a federal grand jury handed down two indictments against Thompson. Trial is scheduled for May 2010 + Spokane Police Officer Karl F. Thompson Jr., accused of lying to investigators over the fatal confrontation with Otto Zehm, unsuccessfully sought Tuesday to get the charge dismissed, arguing that he never “swore to tell the truth” during his interview with detectives.
Although his defense lawyer, Carl Oreskovich, later insisted that Thompson told truth during the interview, the distinction was drawn during a hearing in U.S. District Court as part of an effort to get the lying charge thrown out on a legal technicality.
Oreskovich said the charge should be dismissed because Thompson wasn’t sworn to tell the truth in the interview, and that it was someone else who physically prepared a transcript of the taped conversation with detectives.
U.S. District Court Judge Fred Van Sickle, however, didn’t buy it.
“This is part of an investigation that was conducted. It was recorded clearly at the consent of Officer Thompson,” Van Sickle said. “To state this is somehow created by a third party strikes me as putting form over substance.”
The swift rejection Tuesday means Thompson will stand trial June 2 on charges of lying to investigators and using excessive force during the March 18, 2006 encounter with Zehm, a mentally ill janitor beaten and hogtied by police after being mistakenly accused of stealing money.
The argument drew spirited debate.
Thompson “doesn’t say ‘I certify the accuracy of the document,’ ” Oreskovich said in court. “There is no affirmation … that suggests the transcript was in any way affirmed or adopted by him.”
However, Oreskovich acknowledged that Thompson consented to allow Spokane Police Detective Terry Ferguson to record the interview on March 22, 2006, following an off-the-record interview that was not recorded. Five days later, Thompson signed a copy of the transcript of that taped interview under the heading “reviewed by.”
Federal prosecutors contend that Thompson’s statement embellished the threat posed by Zehm and contradicted the statements of eye witnesses and video from surveillance cameras that captured the confrontation with Zehm. Thompson beat Zehm with a baton and jolted him with a Taser after two young women erroneously reported that Zehm stole their money out of an ATM.
Oreskovich asked for the dismissal under the premise that Thompson did not create a false record or alter an existing record.
“Our position is he did not create a record. It was created by a third party,” Oreskovich said. “He consented to the interview. But when we get to the … transcription, there is no evidence that he did anything other than review it.”
But Victor Boutros, a U.S. Department of Justice trial attorney who flew in for the hearing from Washington, D.C., said Oreskovich can’t avoid the law by arguing that Thompson didn’t actively record or transcribe his interview.
“Who made the false statement?” Boutros asked. “Because it was a taped interview does not mean it doesn’t fall under the law.”
Boutros said under Oreskovich’s argument any officer “who made a false statement can avoid it by simply dictating their false statements and have them transcribed … by someone else.”
Van Sickle said it is not disputed that Thompson signed a transcript of his statement.
Asked by a reporter after the court hearing whether his client told the truth during the interview with Ferguson, Oreskovich replied: “Absolutely. It just wasn’t a sworn statement.”
During the hearing, Oreskovich made mention of the ongoing grand jury investigation seeking to determine whether other Spokane police officers obstructed the Zehm investigation.
Last week, Assistant U.S. Attorney Tim Durkin filed court documents indicating that Ferguson and Detective Mark Burbridge either omitted statements or used only those statements that appeared more favorable to Thompson. Ferguson also acknowleged that her report was “inaccurate” when she wrote Spokane County prosecutors that she didn’t find any evidence of excessive force by Thompson.
Assistant Chief Jim Nicks, who for months claimed Zehm provoked the confrontation when he lunged or attacked Thompson, is now prepared to testify that Thompson’s statement to Ferguson was “materially inaccurate” when compared to the surveillance tape.
Mayor Mary Verner said last Friday that she has not been contacted by federal authorities and has no reason to question the actions of Nicks or city attorneys handling the case.
“All I know is what I read in the newspaper,” she said. “In this instance, I am pretty much a citizen and it’s inappropriate for a citizen to try to insert oneself into a federal determination or an indictment or a grand jury proceeding.”
“I think that when all of that is done and there are rulings that come out of the courts, that would be a basis for me to make decisions,” she said.
With one week until Spokane is required to open its new independent Municipal Court, opposition on the City Council has forced Mayor Mary Verner to withdraw her most experienced pick to serve as a judge.
Spokane County District Court Commissioner Brad Chinn was one of three people Verner selected last weekend to serve as the court’s new judges.
Some council members, who have the final say on Verner’s choices, questioned his appointment because of his fight against the construction of an office tower near his home, which is near the County Courthouse. Council President Joe Shogan said the council is concerned about conflict of interest issues regarding his appeal of the project.
Chinn has been a court commissioner for more than a decade, and is the only pick that has served behind the bench on a full-time, permanent basis.
“It’s very uncomfortable to be acting on an appointment by a person who is at the same time a party to a land-use appeal before City Council,” Shogan said.
Verner said she informed Chinn of her decision to withdraw his name on Wednesday, after it became clear that she couldn’t garner the votes to ensure his selection. She selected Assistant City Attorney Shelley Szambelan for Chinn’s spot.
“We expect we’ll have a functioning and fair judicial system on Jan. 2,” Verner said.
Spokane County District Court Presiding Judge Richard White said he is disappointed that Chinn will not serve on the city’s new court.
“He brings the experience to the bench that they desperately need,” he said. “He has demonstrated an extraordinary work ethic and great legal judgment.”
At the end of the year, the city’s current municipal court, which operates as a branch of the Spokane County District Court, will be dissolved. The City Council voted to make the switch to an independent Municipal Court earlier this month in an attempt to abide by a court ruling that said the city must have judges that are elected only by voters within city limits.
If Verner’s new nominations are approved by City Council, all three judges will have a background that includes employment as an attorney working for Spokane.
Szambelan will join Tracy Staab, a federal public defender and a former public defender for the city, and Mary C. Logan, a city public defender.
Verner and an interview panel that included District Court Judge John Cooney, Superior Court Judge Maryann Moreno, and Breean Beggs, executive director of the Center for Justice, interviewed nine candidates after the city received about 20 applications.
Chinn originally was not on Verner’s list of eight finalists, but the mayor requested to interview him after the panel asked that he be considered.
Beggs said all the selections, including Chinn and Szambelan, were considered qualified.
“All of the top candidates brought unique advantages to the positions based on their talents and experiences,” Beggs said. “(Chinn’s) experience as a court commissioner was one of the advantages that he brought.”
Chinn has opposed construction of a 10-story office building near the Courthouse. The project’s developer, Dr. Marcus DeWood, requested that the property be rezoned so he could build the 150-foot-tall structure. Previously, structures were limited to a height of 35 feet on the land.
After a series of appeals, the City Council is scheduled to consider the matter again in February. The matter also is part of case in Spokane County Superior Court.
DeWood has accused Chinn of using court time and his court computer to work on the case, but has failed to produce any evidence to support his claim. Earlier this year, he filed a records request, which was denied by the county, to gain access to all the files on his computer.
Asked if he had any proof that Chinn has or is using his office computer to work on the case, DeWood said: “I don’t. But how do I know he isn’t?”
Asked if it’s possible that Chinn used a home computer to work on the case, DeWood said: “I just don’t think he has one. That’s just my opinion.”
Shogan said DeWood’s allegation was another concern he had about Chinn’s appointment. But he said he didn’t have any other evidence except what he was told by DeWood when Shogan contacted him about it on Friday.
White said he’s confident that Chinn has done nothing wrong. His computer files weren’t released because files from a judicial officer’s computer are exempt from public disclosure, he said.
“I interviewed Brad, and he explained that all of the legal research and work he was doing on his own case was done on his own time,” White said.
It remains possible that Chinn could be selected by the city’s three new judges to serve as one of the court’s two court commissioners. Verner said she recommended that the new judges consult city council members to see if they had opposition to him serving in that capacity.
“I am very hopeful that the new judges will not let this unfair cloud over Commissioner Chinn influence his application (to be a city court commissioner),” White said.
Although he disagrees with the decision to withdraw Chinn’s name, White stressed that he believes Szambelan is qualified.
“She is a very well-regarded lawyer who possesses all the skills and personalities that will make her a great judge,” he said.
But Councilman Bob Apple said he opposes Szambelan’s nomination because she is married to assistant City Attorney Tim Szambelan.
“You want a judge who is not at the beck and call of City Hall,” said Apple, who said he was OK with Chinn’s nomination.
Apple also questions Staab as a city judge because she does not live within city limits.
Verner said the law allows Municipal Court judges to live outside city borders. As far as Szambelan, her husband works on civil matters that wouldn’t be considered by the new municipal court, she said.
Ultimately, Verner said, the voters will have the final say on the matter in November.
“It’s certainly something that will work out in the upcoming elections,” she said.
I, Mary Verner ... will faithfully and impartially perform and discharge the duties of the office of the mayor according to law to the best of my ability.'' Those words proclaimed Verner as mayor of Spokane, the first mayor with Native ancestry in this city bordering the river and ancestral homeland for the Spokane Tribe.
Verner, who has Muskogee ancestry, defeated the incumbent mayor and was sworn in Nov. 27 during a ceremony that reflected her Native ties.
Verner was introduced to the several hundred in attendance by Spokane Tribe Chairman Richard Sherwood. ''It's a great honor for me and as a member of the Spokane Tribe,'' he said. ''She's done a lot for Indian people since coming to the Northwest. She worked for the Spokane Tribe in our Natural Resources Department and did wonders. The effects of her being there are still felt today in a very positive way.''
The Lotmip drum group from the Spokane Reservation was introduced and sang an Honor Song, ''a song held in high esteem by the tribe in memory of an incident that occurred in the mid-1800s,'' Conrad Pascal commented, a Spokane elder and member of the drum group. That was followed by a ''happy dance.'' The final song was a Prayer Song, all sung in honor and respect for Verner. Verner was also offered a seat at the drum which she accepted. "
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