“The Nature” of the Business.

The Justice Department’s blistering rebuttal to a misconduct allegation in the Otto Zehm case.

Two and a half years ago, Assistant U.S. Attorney Tim Durkin was methodically walking Spokane Police Officer John McGregor through a line of questioning before a federal grand jury. By then, McGregor had been a Spokane cop for nearly thirty years, most of which on assignment to the department’s special investigations unit where his primary function is that of an audio/visual forensics specialist.

Early in his testimony, McGregor disclosed the existence of a videotape of the March 18, 2006, encounter between Spokane police officer Karl Thompson, Jr., and Otto Zehm. Zehm is the 36 year-old janitor who died from injuries he received that night at the hands of Spokane police officers in a north Spokane Zip Trip store. (The Center for Justice represents the Zehm family in a civil lawsuit seeking damages from the City of Spokane and several police officers involved in Zehm’s death and how that death was portrayed by city officials.)

The videotape was the work of Grant Fredericks. Durkin wanted McGregor to disclose to the grand jury who Fredericks was and how it came to pass that Fredericks provided videotape of the Zip Trip encounter to Spokane police. What McGregor revealed is that Fredericks is a former Canadian police officer turned video specialist who’d called McGregor after viewing a broadcast portion of the Zip Trip surveillance video and “felt that this was going to cause a problem for the investigation.”

During the call, McGregor said, Fredericks offered his services to Spokane police and indicated he wanted to help police advance the case that Otto Zehm, while engaged with Thompson, may have been using a two-liter pop bottle as a weapon. Once McGregor conveyed Fredericks’s offer to his superiors, the Spokane Police Department quickly took him up on it.

Durkin and the Justice Department are now using McGregor’s testimony to fight back against Fredericks. The private videographer has become the lead figure in efforts by Thompson’s defense team to throw out Thompson’s conviction last fall for use of excessive force and lying to investigators. Fredericks is accusing  Durkin and his Justice Department colleagues of prosecutorial misconduct for allegedly misrepresenting his testimony in a summary provided to the jury that convicted Thompson.

In response, the Justice Department has put together a blistering assault on Fredericks’ integrity. It is a counter-attack that begins by alleging that the videographer was not being truthful when he claimed during a March 2007 meeting with DOJ investigators that he first got involved in the Thompson case at the behest of a County prosecutor, rather than by directly contacting the SPD through Officer McGregor.

The gist of the Justice Department’s rebuttal is that Fredericks has a long record of bias in favor of embattled police officers and police departments, and that he regularly shapes his expert testimony accordingly. In the Thompson case, federal prosecutors say he arrived “out of the blue” to lend assistance to the SPD and Thompson. Over the course of the 81-page brief it filed Thursday, the Justice Department not only denies mischaracterizing Fredericks’s testimony but lays out its argument that—when he was subjected to a recent deposition—Fredericks’s own statements show there really is no credible exculpatory evidence that had been withheld from Thompson’s lawyers or the jury.

You can read the brief here: Proffer in Response to Defendant’s Amended Motion for New Trial or Dismissal

But there’s a lot more than that. Just as the Justice Department did in a lengthy September 2009 brief, its latest blast is a deep challenge to the City of Spokane’s integrity as a public institution with a responsibility to do honest police work.

Part of what the new DOJ brief shines a light on is how Fredericks wound up being paid by the City after approaching the SPD to “help” after the Zehm videos emerged.

“In August 2006,” the Justice Department brief reports, “(SPD detective Terry) Ferguson had a phone conversation with Fredericks wherein she noted that Fredericks was almost done with his analysis. She further noted from her conversation with Fredericks and his near completed report that there was ‘100% no liability to the City’” (and Defendant) according to Fredericks’s video interpretation. Not surprisingly, the SPD arranged for pay of Fredericks’s ‘retainer’ through the City’s Risk Management Division, and the further handling of his contract through the City Attorney’s Office (i.e. {Rocky} Treppiedi”)—the Assistant City Attorney not only defending Spokane police but also then serving as the City’s Risk Management officer.

“Notably, SPD Officer and Video Technician McGregor testified in front of the Grand Jury in January 2009 that it was not uncommon for favorable expert consultant work being performed by the SPD in connection with its criminal investigations would (sic) actually end up being paid by the Division of Risk Management because ‘that’s the nature of this sort of business.’ Officer McGregor further explained that Treppiedi is involved in the SPD’s criminal investigations because Treppiedi is ‘the man that makes the decision as to how to protect the police department and what course of action to take.’”

Of course, this isn’t the first time the Justice Department has called into question Rocky Treppiedi’s zealous work to try to protect Spokane police officers. But the brief also can, and should, be read alongside recent reporting by the Spokesman-Review and The Inlander about how the City’s Risk Management department (and the contractor that now handles the City’s risk management exposure) have tried to influence not just the City’s media relations, but the actual conduct of its police investigations.

You can read the recent S-R story by Tom Clouse here.

You can read the recent Inlander story by Daniel Walters, here.

–Tim Connor, for the Center for Justice

Note: this article was edited on April 8th to correct typographical errors and clarify the date on which DOJ investigators first met with Grant Fredericks.

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