04/04/2006

Associated Press

Police took the unusual action of getting a warrant to seize personal records of a mentally ill man who died after fighting with police officers, leading some lawyers to question the tactic of obtaining the records under the pretense of investigating a crime.

Nine days after Otto Zehm died, detectives told a judge they needed to seize his medical records because he was under investigation for allegedly assaulting officers.

Even though it would be impossible to charge Zehm with a crime, Spokane District Court Commissioner Brad Chinn approved four search warrants March 29, giving police access to Zehm's mental, medical and employment records, court documents show.

Police officials defended the action, saying it was the quickest way to gather information needed for their investigation into the March 18 confrontation involving Zehm, a 36-year-old mentally ill janitor, and as many as seven police officers.

But some legal experts said the move is unusual and raises questions about the police department's motives.

"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."

Terri Sloyer, a lawyer representing Zehm's mother, Ann Zehm, said detectives who spoke with them last Thursday never 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."

Gordon Bopp, president of NAMI-Washington, an advocacy group for people with mental illness, said Zehm's medical records aren't likely to shed light on the cause of his death, which remains under investigation.

"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."

Stephens said autopsy results show police use of force did not cause Zehm's death.

Acting Spokane Police Chief Jim Nicks has said Zehm did not die because of excessive police use of force, even though Zehm was struck with a nightstick and jolted twice with electric Taser probes while being subdued by officers inside a convenience store. Zehm, who had no criminal record, lapsed into a coma and died two days later.

A portion of the fight was captured by a store security camera, but authorities have refused to make the videotape public. Spokane County Prosecutor Steve Tucker said the tape won't be released at least until the investigation concludes.

John Rodgers, the director of the Spokane County Public Defenders Office, said it is possible 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."

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Information from: The Spokesman-Review, http://www.spokesmanreview.com