In a wide-ranging memorandum filed in US District Court Friday, Karl Thompson's defense attorney, Carl Oreskovich, has asked the court to vacate the ex-Spokane police officer's verdict and asked for a new trial.
The request for a new trial comes just five days after Judge Fred Van Sickle denied Oreskovich's motion for an acquittal.
The crux of Oreskovich's argument for a re-trial for Thompson is contained in five primary points, alleging concerns he had with the conduct of the trial including confusing jury instructions to prosecutorial misconduct, which he laid out in the 34-page document filed with the US District Court for the Eastern District of Washington Friday.
In his first point, Oreskovich claims that the jury's verdict, which found that both Thompson used excessive force against Otto Zehm and that he also subsequently lied to investigators, "is not supported by the weight of the evidence." Oreskovich says that the weight of the evidence supporting the defense's contention that Thompson did not use excessive force tips the scales in their favor, and called the evidence that Thompson "knowingly lied" to investigators "was insufficient to sustain the verdict."
Oreskovich also claims, in his second point, that evidence presented at the trial prejudiced Thompson's right to a fair trial by Judge Van Sickle allowing into evidence eyewitness testimony, like for example Officer Erin Raleigh overhearing Zehm's last words, "All I wanted was a Snickers bar" as well as testimony from witnesses who said that Zehm often bought pop at the Zip Trip convenience store.
He added that Judge Van Sickle, through his rulings on evidence and witness testimony, also allowed prosecutors to make continued references to Zehm's innocence throughout the trial.
Comments made by Jury Forewoman Diane Riley to the media after the trial are the basis for his third point for a new trial, saying that Riley's comments showed that the jury "considered inappropriate extraneous information in making its determination as to Karl Thompson?s guilt." Oreskovich said that her comments indicate the jury "misunderstood" the jury instructions regarding willfulness and Zehm's cause of death and because of their misconduct, he claims it deprived Thompson's right to a fair trial.
In his fourth point, Oreskovich said that the jury instructions given, over defense objections he added, "unfairly prejudiced" Thompson in that instructions regarding self-defense were inappropriate and that the instruction regarding willfulness was confusing to the jury. He added that the jury instruction led them to believe they didn't have to find bad or evil intent in order to find Thompson guilty.
Earlier this week, after hearing arguments from both prosecutors and defense attorneys in relation to a defense motion for acquital, Judge Fred Van Sickle ruled that for Thompson to act willfully means he had intended to deprive Otto Zehm of his constitutional rights. That's what the jury found when they convicted Thompson and he said a reasonable jury could reach that conclusion with the evidence presented and denied the motion for acquittal.
Finally, Oreskovich alleges prosecutorial misconduct throughout the course of the trial, adding that from the beginning of the case with their opening arguments prosecutors "made inappropriate references to Mr. Zehm's innocence" and that federal prosecutors "blatantly misrepresented the facts during trial" through the "mischaracterization of evidence" which included evidence regarding Zehm's innocence, which was not known by Thompson or any of the responding officers the night of March 18, 2006.
Citing his compliance with the laws throughout the trial, and not considering him a flight risk, Judge Van Sickle allowed Thompson to be free from pre-sentencing custody. He faces between six and eight years in federal prison when he is sentenced on January 27.