Doc 38 1 Appellant s Reply Brief

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Case: 12-30366 01/10/2014 ID: 8934005 DktEntry: 38-1 Page: 1 of 76

No. 12-30366

IN THE UNITED STATES C OURT OF APPEALSFOR THE N INTH C IRCUIT

UNITED STATES OF AMERICA

Plaintiff - Appellee,

v.

K ARL F. T HOMPSON , J R .,

Defendant - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF WASHINGTON

D.C. No. 2:09-cr-00088-FVS-1

The Honorable Fred Van Sickle, Senior United States District Judge.

REPLY BRIEF FOR APPELLANT

CARL J. ORESKOVICH COURTNEY A. GARCEA

STEPHEN M. LAMBERSON

Attorneys for Appellant Karl F. Thompson, Jr. Etter, M cMahon, Lamberson, Clary & Oreskovich, P.C.

618 W. Riverside, Suite 210 Spokane, Washington 99201

(509) 747-9100


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...iii

I. INTRODUCTION .1

II. REPLY FACTS .3

III. ARGUMENT ..18

a. The Government s Argument That Officer Thompson Has Not Established A Violation Under Brady v. Maryland Is Not Supported In Law Or Fact. To The Contrary, A Brady Violation Has Occurred...18

i. Standard Of Review..18

ii. Suppression Of Grant Fredericks Exculpatory Evidence Has Prejudiced Officer Thompson s Constitutional Right to a Fair Trial....20

iii. Bradys Materiality Requirement.21

iv. The District Court Erroneously Based Its Materiality

Assessment On Evidence Other Than Officer Thompson s Approach And First Two Baton Strikes...24

v. Even If The District Court Based Its Materiality Assessment On The First Two Baton Strikes, Overwhelming Evidence Does Not Exist To Maintain Confidence In The Verdicts...34

1. Eye- Witness Testimony......37

2. Medical Experts..39

3. Officer Thompson s Own Statements And/Or Testimony..41

4. Use Of Force Experts.44

vi. Grant Fredericks Evidence Is Not Cumulative....45

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1. Impeachment Of Dr. Gill Would Not Have Been Cumulative Nor Insubstantial ..50

2. Impeachment of Use of Force Experts Would Not Have Been Cumulative Nor Insubstantial..54

3. Impeachment of Lay Witnesses Would Not Have Been Cumulative Nor Insubstantial..56

vii. The Government Knowingly And Intentionally Withheld Grant Fredericks Evidence......57

viii. Officer Thompson Did Not Abandon His Argument That The Indictment Should Be Dismissed..65

IV. CONCLUSION ...66

STATEMENT OF RELATED CASES ..69

CERTIFICATE OF COMPLIANCE .70

CERTIFICATE OF SERVICE ...71

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963).. passim

Cone v. Bell , 556 U.S. 449, 129 S. Ct. 1769 (2009)..50, 53

Giglio v. United States , 405 U.S. 150, 92 S. Ct. 763 (1972).2, 31, 32

Kyles v. Whitley , 514 U.S. 419, 115 S. Ct. 1555 (1995)22, 23, 28, 45

Strickler v. Greene , 527 U.S. 263, 119 S.Ct. 1936 (1999)..22, 23, 45

United States v. Agurs , 427 U.S. 97, 96 S.Ct. 2392 (1976).23

NINTH CIRCUIT COURT OF APPEALS CASES

Benn v. Lambert , 283 F.3d 1040 (9th Cir. 2002).21, 23, 61

Carriger v. Stewart , 132 F.3d 463 (9th Cir.1997).23, 48

Gonzales v. Wong , 667 F.3d 965 (9th Cir. 2011) ... 48

Paradis v. Arave , 240 F.3d 1169 (9th Cir.2001).24

Silva v. Brown , 416 F.3d 980 (9th Cir. 2005) ... 22, 28

U.S. v. Chapman , 524 F.3d 1073 (9th Cir. 2008) ... 19 v. Collins , 551 F.3d 914 (9th Cir. 2009).49 -50v. Kohring , 637 F.3d 895 (9th Cir. 2010). passimv. Olsen , 704 F.3d 1172 (9th Cir. 2013)19, 23v. Price , 566 F.3d 900 (9th Cir. 2009) .19, 22-24, 50, 53v. Sedaghaty , 728 F.3d 885 (9th Cir. 2013). 19v. Stever , 603 F.3d 747 (9th Cir. 2010)...19v. Wilkes , 662 F.2d 524 (9th Cir. 2011) 48-49

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United States v. Jernigan , 492 F.3d 1050 (9th Cir. 2007).22, 23, 39, 44

United States v. Olsen , 737 F.3d 625 (9th Cir. 2013) (Kozinski, J. dissenting).58

UNITED STATES COURT OF APPEALS CASES, OTHER CIRCUITS

United States v. Oruche, 484 F.3d 590 (D.C.Cir.2007).19 -20

U.S. v. Mitchell, 365 F.3d 215, 255 (3d Cir. 200 4).... 64

United States v. Jackson , 780 F.2d 1305, 1311 n. 4 (7th Cir.1986) ...... 64

UNITED STATES DISTRICT COURTS CASES

U.S. v. W.R. Grace , 401 F. Supp.2d 1069 (D. Mont. 2005) .. 48

APPLICABLE CONSTITUTIONAL PROVISIONS

U.S. C ONST . amend. V

U.S. C ONST . amend. VI

APPLICABLE FEDERAL STATUTES

18 U.S.C. 242

18 U.S.C. 1519

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I. INTRODUCTION

The United States prosecution of decorated police officer Karl F.

Thompson, Jr. (Officer Thompson) was built upon a fundamental theme. From

its opening statement, to its closing argument, the lynchpin of the government s

prosecution was centered on its claims that Officer Thompson charged into [a]

convenience store and unleashed baton blows, and that his sudden attack left a

fellow citizen battered and beaten on the floor. ER 614, 2133 -34. The initial

encounter wa s crucial to the government s case. The government alleged that

Officer Thompson stormed upon Mr. Zehm inside the convenience store, and

without giving verbal commands, immediately began striking him with a baton

within seconds of the encounter. The government claimed that the baton strikes

began at 18:26:14 through 18:26:16, making Officer Thompson s claim that he

briefly stopped and issued verbal commands prior to striking Mr. Zehm

impossible. With only two and seconds between the time Officer Thompson

claimed to have given commands and the time he allegedly struck Mr. Zehm, the

government aimed to shatter Officer Thompson s credibility.

The government built its case upon this theme despite its knowledge that the

theme was not supporte d by the evidence. Prior to trial, the government s forensic

video analyst Grant Fredericks, a contract instructor of Forensic Analysis and

Digital Multimedia Evidence Processing for the Federal Bureau of Investigations

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National Academy in Quantico, Virginia, informed the prosecution that the video

does not support its theory regarding the timing and delivery of the initial baton

strikes. The expert repeatedly explained and demonstrated why the video does not

depict baton strikes during the initial encounter. However, rather than accepting its

own expert s opinions, the government angrily rejected his analysis and attempted to

persuade him to change his opinions. Mr. Fredericks refused.

Knowing that Mr. Fredericks analysis would jeopardize its theory of the

case, the government engaged in a systematic effort to manipulate, misrepresent

and conceal the expert s opinions from the defense. The government elected to

withhold this information from the defense despite its affirmative obligation to

disclose exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 83 S. Ct.

1194 (1963) and Giglio v. United States , 405 U.S. 150, 92 S. Ct. 763 (1972).

The action taken by the government in this case represents an alarming

disregard for Officer Thompson s fundamental right to a fair trial and a disturbing

effort by a prosecution to obtain a conviction at all costs. A critical review of the

government s actions, as well as the outstanding questions that it has yet to answer

regarding its conduct, can lead to only one conclusion: The suppression of Grant

Fredericks exculpatory opinions in this cas e was a knowing and intentional effort by

the government to hide evidence favorable to the accused.

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This reply brief will focus exclusively on the government s Brady violation.

Officer Thompson s other bases for appeal are not abandoned but are hereby

submitted upon the Opening Brief.

II. REPLY FACTS

The reply facts set forth below are focused upon the government s Brady

violation. These facts are necessary to reemphasize the government s egregious

conduct in this case and provide a thorough timeline, as supported by the record, of

the intentional actions taken by the government to suppress Grant Fredericks

exculpatory evidence.

In the summer of 2006, Forensic Video Analyst Grant Fredericks

(Fredericks) was contracted by the City of Spokane to conduct a comprehensive

forensic analysis of audio recordings and convenience store video related to the

March 18, 2006, confrontation between Spokane Police officers and Otto Zehm

(Mr. Zehm). ER 2863, 3142. Fredericks, a nationally recognized expert in the

field of forensic video analysis, 1 produced a report for the City of Spokane in

1 In addition to being a contract instructor of Forensic Analysis and DigitalMultimedia Evidence Processing for the Federal Bureau of Investigations NationalAcademy in Quantico, Virginia, Fredericks is the Digital Video Advisor to theInternational Association of Chiefs of Police (IACP) for projects funded by theUnited States Department of Justice. ER 2850. Fredericks has also been thePrincipal Instructor for a series of forensic video analysis courses offered by theLaw Enforcement & Emergency Services Video Association (LEVA), a non -

profit organization that has trained more than 2,000 law enforcement videoanalysts throughout the world. ER 2850-51. Fredericks is the Team Leader for

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September 2006. ER 2676, 2850, 2863- 2990. Fredericks comprehensive video

analysis was focused upon the death of Mr. Zehm and analyzed the activities of all

parties who appeared in the video. ER 3124-26 . In his report, Fredericks concluded

that the video recording showed Officer Thompson struggling with Mr. Zehm for a

period of approximately one minute and thirteen seconds before it shows him

striking Mr. Zehm with the baton. ER 2880.

By the fall of 2006, a federal investigation was underway regarding the

March 18, 2006 incident, principally, the actions of Officer Thompson. ER 13.

Assistant United States Attorney (AUSA) Timothy Durkin and Federal Bureau

of Investigations (FBI) Special Agent Lisa Jangaard were leading the federal

investigation. ER 13.

Fredericks was contacted by Special Agent Jangaard for the first time in

February 2007. ER 13, 2682, 3142. On March 8, 2007, Fredericks met with

Special Agent Jangaard and AUSA Durkin at the United States Attorney s Office in

Spokane, Washington, to discuss his report. ER 13, 2683, 3146.

During this meeting, AUSA Durkin aggressively questioned Mr. Fredericks

in a confrontational manner regarding his 2006 report. ER 3121. AUSA Durkin

LEVA s Forensic Video Analysis Certification Program. Id . He also is an adjunct professor at the University of Indianapolis in various disciplines involved in thescience of forensic video analysis. Id . Additionally, Fredericks has served as anexpert in over 1,000 criminal and civil cases and in the past 10 years, has providedtestimony in over 80 court proceedings. ER 2850.

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insisted, consistent with his desired theme of the case, that the video depicted

Officer Thompson delivering baton strikes at 18:26:14 through 18:26:16. Id . When

Fredericks rejected this interpretation and explained the limitations of the video,

AUSA Durkin became angry. Id . 2

The opening seconds of the confrontation between Officer Thompson and

Mr. Zehm was the single most important component of the government s case

against Officer Thompson. ER 612-16, 674-75, 2133-35, 2138, 2140-41, 2144.

The government needed the forensic video analysis to support its theory of the

case, enabling it to illustrate to the jury that Officer Thompson unlawfully used

immediate force against Mr. Zehm; failed to give verbal commands; and later lied

to investigators about the initial contact to justify his use of force. Id . When the

gover nment s theory of the case was rejected by Fredericks, AUSA Durkin did not

take it lightly. ER 2699 (Durkin was aggressive, loud, um, and very insistent. Mr.

2 Nowhere in the government s briefing, or in previous filings in the district court,does it dispute that AUSA Durkin aggressively confronted Fredericks in anaggressive and loud manner about his analysis. The government does not disputethat AUSA Durkin was angry that Fredericks report was inconsistent with thegovernment s primary theory of the case, or that Fredericks explained thelimitations of the video during the March 2007 meeting. In fact, no statement isever made by AUSA Durkin rebutting Fredericks allegations regarding his overlyaggressive and unprofessional conduct. The only statement provided by thegovernment as to AUSA Durkin s behavior is in the form of a self -servingdeclaration offered by Special Agent Jangaard, stating her belief that Durkin s

behavior was not inappropriately confrontational or aggressive. SER 740(emphasis added). Other than this opinion statement, the government never refutesFredericks assertions regarding Durkin s inappropriate and angry conduct.

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Durkin did not appear interested in my opinion.); ER 3144 (The Government

made it clear to me that it will not accept evidence from me that does not support

its case and it has continuously reminded me that I am strictly forbidden from

communicating my concerns.); ER 3131 (I repeatedly refused Mr. Durkin s

overbearing, aggressive and coercive attempts to have me adopt this false opinion

as part of my evidence.).

In the March 2007 meeting, Fredericks explained the limitations of the

digital recordings to AUSA Durkin and Special Agent Jangaard. ER 3122. As the

district court appropriately determined, the government does not deny that

Fredericks explained the presence and significance of compression artifacts and

motion blur at this meeting. ER 35. Additionally, the government does not dispute

that Fredericks described the action at 18:26:14 through 18:26:16 as consistent

with a number of possibilities during his meeting(s) with the government. ER

3131. 3 During this meeting, Fredericks made it absolutely clear to [AUSA]

Durkin that it was not [Fredericks ] opinion that the video showed that Thompson

swung his baton at Zehm at 18:26:14. ER 3131. The government, specifically

AUSA Durkin, has never refuted this point.

3 According to Fredericks, he explained the action as consistent with other possibilities, including a crouch, an aggressive or a defensive posture, etc. ER3131. While the government does not deny Fredericks stated the video could beinterpreted to display a number of potential actions, it nevertheless disputes thatFredericks ever mentioned any specific alternatives. SER 741 (emphasisoriginal).

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Special Agent Jangaard produced an FBI 302 report from the March 2007

meeting with Fredericks. ER 3017-21. Despite being present during the protracted

discussions between Fredericks and AUSA Durkin, Special Agent Jangaard s

report was inaccurate, misleading, and failed to disclose the exculpatory opinions

provided by Fredericks. ER 35. The FBI 302 report later led defense counsel to

believe that Fredericks changed his opinion from his original report and had

adopted the government s interpretation of the video, i.e., that baton strikes

occurred at 18:26:14 through 18:26:16. ER 52, 92, 236, 3019.

4

4 The district court recognized the misleading nature of Special Agent Jangaard s302 report and the government s failure to correct this false information despite itsknowledge that the report was inaccurate. The district court stated, After readingit, an objective person likely would reach a number of conclusions: An image that

is stamped 18:26:14 depicts the defendant holding his baton. Mr. Fredericksinitially, but mistakenly, thought the baton was something other than a baton. Mr.Fredericks agreed with the FBI Special Agent that images which are stamped18:26:14 though 18:26:16 are consistent with baton strikes. Mr. Fredericks agreedthat defendant used his baton in a forward striking motion on at least twooccasions prior to the point in time when Mr. Zehm can be seen on his back.Finally, Mr. Fredericks admitted he had failed to appreciate the significance of anumber of critical images during his initial review of the video. The FBI SpecialAgent s description of Mr. Fredericks anal ysis is devastating. After reading herreport, an objective person would be inclined to doubt Mr. Frederickscompetence. The United States never attempted to correct or clarify the FBISpecial Agent s account of the March 8th meeting. None of the other materials theUnited States disclosed to the defendant prior to trial put him on notice her accountmight be inaccurate. Instead, the United States let stand the FBI Special Agent sreport, even though the United States had reason, after Mr. Fredericks testimonyin New York, to question whether her report was entirely correct. ER 44-45.

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Mr. Fredericks, AUSA Durkin and Special Agent Jangaard met a second time

in August 2007. ER 14, 2708, 3134. Again, AUSA Durkin was aggressive and

confrontational, insisting that Fredericks interpretation of the video was

inaccurate. ER 3114, 3134. AUSA Durkin directed Fredericks to change his report

and told him that if he did not cooperate with the government s investigation, he

would call Fredericks in front of the grand jury. Id .

Despite this threat, Fredericks refused to adopt AUSA Durkin s

interpretation. ER 3134. Fredericks again made clear that he would not change his

opinions in favor of the government s theory of the case regarding the timing of the

initial baton strikes. ER 2717, 3134. During this meeting, Fredericks engaged

AUSA Durkin to participate in a re-enactment so that he could categorically

explain the limitations of the video and the inaccuracies of the government s

interpretation. ER 2715-17, 3123. The government does not dispute that Fredericks

provided reenactments to AUSA Durkin and Special Agent Jangaard to

demonstrate that certain frames depicting [Officer Thompson s] baton can be

interpreted in an exculpatory manner. ER 35.

Fredericks was then retained as a government expert and agreed to write a

supplemental report for the government. ER 2639, 3022, 3134. He was told by

AUSA Durkin to focus exclusively on Officer Thompson s actions in the first one

and one half minutes of the confrontation. Id . AUSA Durkin also directed

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Fredericks to remove content from his previous report. ER 3134. He was angry that

Fredericks previous report included a reference to Mr. Zehm kicking up at

Officer Thompson and insisted that this finding be removed. ER 3127-28. 5 He also

told Fredericks to remove his observations regarding Mr. Zehm s hands as he held

the Pepsi bottle. ER 3113. Fredericks, however, was able to convince the

government that his findings regarding Mr. Zehm s hands should remain because

they provided a more detailed and accurate analysis of the video images. Id . Lastly,

AUSA Du rkin directed Fredericks to include a description of every image where

[he] could see Thompson s baton in the video, regardless of whether the baton

was static or in motion. ER 3134.

AUSA Durkin and Fredericks also discussed Fredericks anticipa ted

testimony in front of the grand jury during this meeting. ER 3138. Fredericks

agreed that he would state that the depictions at 18:26:14 through 18:26:16 were

consistent with a swinging motion, along with other possible actions. ER 3131,

see also ER 2712-13, 3138. Given his lengthy, tense, and adversarial discussions

5 In a declaration submitted to the district court, Fredericks stated: Mr. Durkin became angry when I showed him the images of Mr. Zehm's feet in the air. Hedemanded that I show him the images that show actual 'contact' where Mr. Zehm'sfeet touch Officer Thompson. Mr. Durkin challenged me to show an image thatMr. Zehm actually struck Thompson with his feet. Mr. Durkin was angry that I hadused the term 'k icking up at' in my reportMr. Durkin insisted that I remove thisreference when I produce my Supplemental Report. Interestingly, OfficerThompson testified that he tased Mr. Zehm because he was kicking at him. ER1004-05.

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with AUSA Durkin regarding these frames, Fredericks believed that AUSA Durkin

did not intend to imply that the video showed Officer Thompson actually striking

Mr. Zehm s body at th at moment with the baton in front of the grand jury. ER

3138. His belief was incorrect.

Fredericks testified before the grand jury on May 13, 2009. ER 3022-3073.

Fredericks testified consistent with his agreement with AUSA Durkin that the

images depicted a t 18:26:14 though 18:26:16 are consistent with a baton strike.

See id .; ER 3138. Fredericks expected that AUSA Durkin would follow up with a

question putting perspective on [his] testimony that it could also be consistent

with other observations, as [th ey] had previously discussed, however, AUSA

Durkin never asked those questions. ER 3022-3073, 3138.

After Fredericks rejected the government s interpretation of the video during

his March and August 2007 meetings, the government knew it needed an expert who

would affirm its theory regarding the initial baton strikes. It hired an expert by the

name of Dr. Richard Gill. ER 15, 3141. Dr. Gill is an expert in human factors

engineering, not forensic video analysis. ER 15. Dr. Gill completed a report in

January 2008 and concluded that the first baton strike occurred at 18:26:14, as

sought by the government. 6 ER 15, 3141.

6 Dr. Gill s opinions concerning the timing of the first baton strike later hadsignificant implications during trial. ER 15. Specifically, Mr. Zehm can be seen onthe video turning around to face Officer Thompson at 18:26:12. Id . According to

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On May 22, 2009, Fredericks testified for the defense United States v.

Wayne Simoes , 08-CR-784-KMK (S.D.N.Y. 2009), an unrelated federal criminal

case tried in the Southern District of New York. ER 3224-3234. After asking

Fredericks relatively few questions about his work in the Simoes case, the New

York AUSA began to cross-examine him regarding his analysis in this case. See

3226- 3230. The AUSA asked Fredericks if he changed [his] mind about what the

video showed? ER 3220. Fredericks responded, No. That s not true at all. Id .

He was then asked In your initial report that you gave to the Spokane Police

Department, that was incorrect, wasn t it? ER 3230. Fredericks responded,

NoNo, not at all. ER 3230.

AUSA Durkin knew that Fredericks testified in Simoes and sought a

transcript of Fredericks testimony. ER 143 -45, 154. When he received a copy of

the transcript, he learned that Fredericks denied changing his exculpatory opinions

in this case. Id . Despite this knowledge, AUSA Durkin never provided the

Officer Thompson, he stopped and issued two commands to Mr. Zehm, which Mr.Zehm defied, prior to the time of the first baton strike. Id . If the first baton strikeoccurred at 18:26:14 as Dr. Gill concluded, only two and seconds elapsed

between the time Officer Thompson issued his verbal commands and the time hefirst struck him with the baton. ER 15-16. Dr. Gill opined that there simply was notenough time to issue two commands, as Officer Thompson claimed to have done,in such a brief period. ER 16. Dr. Gill s opinion that the first baton strike occurredat 18:26:14 was the main theme of the prosecution s case undermined thecredibility of Officer Thompson s description of the opening seconds of theconfrontation. Id .

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transcript to defense counsel. Id . Instead, the government furnished additional

discovery implying, and in some instances explicitly stating, that Fredericks had

changed his opinions in favor of the government and that his 2006 report was not

accurate. See ER 18-20, 2853-62, 2863-2940, 2941-90, 2991-3016, 3017-21, 3022-

73. Remarkably, the government has never commented as to how the AUSA in

New York knew to question Fredericks regarding his alleged change of opinion in

this case. Even more interestingly, at the time that Fredericks testified in Simoes ,

(nine days after his grand jury testimony in this case), Officer Thompson had not

yet been indicted nor had any of Fredericks discovery materials been furnished to

the defense. 7 In other words, Fredericks work in this case was not yet a matter of

public record and the grand jury proceedings remained secret at that time.

Officer Thompson was charged in a two-count indictment on June 18, 2009.

R 1. Count One alleged that Officer Thompson used excessive force during the

course of an investigatory stop in violation of 18 U.S.C. 242. Id . Count Two

alleged that Officer Thompson knowingly made a false entry in a record and

document with the intent to impede, obstruct, or influence an investigation of a

matter within the jurisdiction of the Federal Bureau of Investigation in violation of

18 U.S.C. 1519. Id .

7 The district court noted: The questions that AUSA Skotko asked suggest one oftwo things: either she had a copy of the FBI Special Agent s report concerning theMarch 2007 meeting with Mr. Fredericks, or she had been apprised of the report scontents. ER 37. Otherwise, she would have no basis to ask those questions.

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The government began to provide discovery to defense counsel pursuant to

Federal Rule of Criminal Procedure 16(a) shortly after the Indictment. ER 18. The

government made five disclosures relating to the it expert, Fredericks:

On August 3, 2009, the government disclosed Fredericks 2006 report. ER

2863-2990.

On September 22, 2009, the government disclosed a Rule 16 Disclosure

entitled United States Addendum to First & Second Notice of Initial

Disclosures of Expert Witne sses & Testimony. ER 2853 -62. The disclosure

set forth a summary of Fredericks opinions the government represented he

would testify to at trial. Id . Specifically, the disclosure stated Immediately

after the Zip Trip security video shows Thompson appearing to strike Zehm

with his baton for the first time, dispatch broadcasted that the complainant

was not sure that Zehm had taken any of her money. 8 This dispatch occurred

before Thompson strikes Zehm a second time with another overhand, up and

down, baton strike . ER 2855 (emphasis added). This opinion, among others

attributed to Fredericks in the Fed. R. Crim. P. 16 disclosure, was

specifically rejected by Fredericks during previous meetings with the

government. ER 2690, 3108, 3120-21, 3130, 3135-36, 3138, 3166. The

disclosure led defense counsel to believe that Fredericks changed his opinion

8 The broadcast began at 18:26:12 and ended at 18:26:16.

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that baton strikes did not occur until approximately one minute thirteen

seconds into the confrontation. 9 ER 52, 72, 92, 223.

The third document disclosed was Fredericks revised report, dated

September 13, 2007. ER 2991-3016.

The fourth disclosure provided was Fredericks grand jury testimony,

disclosed on October 2, 2009. ER 3022-3073.

The fifth and final disclosure occurred on March 1, 2010. ER 20. The

government disclosed a copy of Special Agent Jangaard s 302 report,

discussed above. ER 3017-21. This report led defense counsel to believe that

Fredericks admitted error in his 2006 report regarding the initial

confrontation. ER 52, 82, 92-93. Further, it led defense counsel to believe

that Fredericks opinion was that Officer Thompson struck Zehm on at least

two occasions prior to the time Zehm went to the ground, i.e., 18:26:14

though 18:26:16. Id .

The gover nment never disclosed a copy of Fredericks exculpatory 2009

testimony in United States v. Wayne Simoes despite its knowledge of it. 10 ER 145,

154.

9 In a later deposition of Fredericks, he stated that he fought very hard against what is credited to him so [the Rule 16 disclosure] wasn t just a misrepresentation, it wasa manufacture. ER 2690-91. He also called the government s disclosure of his opinions completely inaccurate and fabricated. ER 2788.

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On March 11, 2010, seven months after he was retained by the government,

Fredericks signed the government s Expert Witness Statement of Work

agreement which included a confidentiality clause. ER 2662-2666.

Trial proceeded on October 12, 2011 in Yakima, Washington. ER 21. The

government s primary theory of the case was based on Officer Thompson s

premature use of the baton against Mr. Zehm without giving verbal commands and

later lying about the initial confrontation to investigators. ER 612-616, 674-75,

2133-35, 2138, 2140-41, 2144.

Fredericks travelled to Yakima to testify, but was informed by AUSA

Durkin that he would not take the stand. 11 ER 21, 2732. Fredericks told AUSA

10 During oral argument addressing the government s Brady violation, AUSADurkin admitted to the Court that the government failed to disclose the Simoes

transcript. He stated: Now, the question is, should we have disclose d it? Inhindsight, probably should have. Absolutely. ER 145. AUSA Durkinacknowledged again, So would we have liked to have disclosed it? Absolutely. Didwe fail to disclose it? Absolutely. ER 154.

11 On October 13, 2011, during oral argument on the government s motion toexclude the testimony of Mike Schott, AUSA Durkin assured the court thatFredericks would testify the following day. ER 21. He told the court that thegovernment would be prejudice d by Schott s testimony because [m]y, myexpert, Mr. Fredericks, has not even had the opportunity to review this. He's intown today for the first time. I'm going to go meet with him in a couple hours hereto review it for the first time. That's in addition to the presentation of his othertestimony that we hope to complete tomorrow. And he leaves the country for twoweeks at noon tomorrow. ER 21.

Not only did Fredericks not testify, but during Fredericks deposition, it wasdiscovered that AUSA D urkins representation to the district court regardingFredericks ability to review Schott s report was false . Fredericks testified that he

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Durkin, I m not surprised, I didn t think I was going to be helpful to your case. ER

2731-32. Fredericks stated that AUSA Durkin smiled, shook his head and said,

probably not. Id .

The government admitted Fredericks work through other witnesses

including Special Agent Jangaard and Dr. Gill, further perpetuating the

mischaracterization of his opinions. 12 As discussed at length in Appellant s

Opening Brief, the government introduced an exhibit called Baton/Taser Motion

Refer ence Grid which was based upon Fredericks work product. ER 230, 3105,

3074-3106. However, Fredericks created the underlying exhibit to prevent the

viewer from inaccurately interpreting the baton motions as baton strikes. ER

3110. Contrary to this purpose, the government introduced the Baton/Taser

Motion Reference Grid exhibit through Dr. Gill who used it to establish that the

video portrayed actual baton strikes at 18:26:14 through 18:26:16. ER 22, ER

1632-33. ER 21-22, 1632-33, 3105-06.

reviewed Mr. Schott s report before he went to Yakima (about a month beforetrial) and asked the government if he should prepare a rebuttal report or do anexamination . ER 2728- 30. He was told not to bother . Id . Fredericks had toldDurkin that Schott had got a lot right. ER 2729.

12 Defense counsel did object to the admission of Fredericks work product throughother witnesses: This is an exhibit that was created by a forensic expert that thegovernment is trying to now get in the back door through the FBI agent instead ofcalling that expert. And the proper foundation, in my view, is to put the expert on thewitness stand to testify for this jury as to what the expert did in terms of

preparing the document, not to have this witness, who collected it, and in thecourse of some examination testify to it. ER 2076.

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Officer Thompson moved the court to dismiss the indictment with prejudice, or

alternatively, grant a new trial based upon the government s intentional

suppression of F redericks exculpatory evidence pursuant to Brady v. Maryland , 373

U.S. 83, 83 S. Ct. 1194 (1963). ER 435-64. On August 31, 2012, the court heard

oral argument on both Officer Thompson s Motion to Dismiss the Indictment

with Prejudice; or Alterna tively, Motion for a New Trial and Motion for New

Trial over the course of a day -long hearing. ER 67-179.

On September 18, 2012, the court issued its rulings denying Officer

Thompson s motions. ER 8 -53, 54-64. The court found that exculpatory evidence

had been suppressed, but it was not material. ER 8-53. Officer Thompson now

appeals the district court s determinations.

III. ARGUMENT he Governments Argument That Officer Thompson Has Notablished A Violation Under Brady v. Maryland Is Notported In Law Or Fact. To The Contrary, A Brady Violation Occurred.

i. Standard of Review.

The government agrees that a district court s denial of a new trial motion

based on an alleged Brady violation is reviewed de novo. (Resp. Br. 58). However,

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the government erroneously claims that factual findings underlying a Brady

analysis are reviewed for clear error. Id . This argument is not supported in law. 13

The government erroneously cites U.S. v. Chapman , 524 F.3d 1073, 1084 (9th

Cir. 2008) to advance its claim that factual determinations underpinning a Brady

analysis should be reviewed for clear error. Chapman does not support this

argument. In Chapman , the standard of review utilized related to findings of fact

underlying the dismissal of an indictment under a trial court s supervisory

powers. Id . Contrary to the government s argument in this case, it is well

established that whether a district court erred in denying a motion for new trial

based on an alleged Brady violation is subject to de novo review. U.S. v. Olsen , 704

F.3d 1172, 1178 (9th Cir. 2013), U.S. v. Kohring , 637 F.3d 895, 901 (9th Cir. 2010),

U.S. v. Stever , 603 F.3d 747, 752 (9th Cir. 2010), U.S. v. Price , 566 F.3d 900, 907 n.

6 (9th Cir. 2009). Specifically, whether a defendant suffered prejudice as a result of

the suppression of exculpatory evidence is reviewed de novo. Price, 566 F.3d 900,

907 n. 6 (The questionof materiality[] is a legal matter that we review de

novo.); U.S. v. Sedaghaty , 728 F.3d 885, 899-900 (9th Cir. 2013)

13 The Ninth Circuit has noted that [w]hile it is clear that the legal questions atissue in a Brady claim are reviewed de novo, this circuit has not yet had theopportunity to consider what, if any, deference should be afforded to a districtcourt s factual findings[,] however, the question whether a defendant suffered

prejudice, also known in the Brady context as the question of materiality, is alegal matter U.S. v. Price , 566 F.3d 900, 907 n. 6 (9th Cir. 2009) (internalcitations omitted).

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(citing United States v. Oruche, 484 F.3d 590, 595- 96 (D.C.Cir.2007) ([O]nce the

existence and content of undisclosed evidence has been established, the assessment of

the materiality of this evidence under Brady is a question of law.)).

The usual remedy for a Brady violation is a new trial. Kohring , 637 F.3d

895, 913. However, this Court may determine that sufficient evidence exists

demonstrating that the prosecution acted flagrantly, willfully, or in bad faith, and

dismiss the Indictment under its supervisory authority. Id . at 912-13. Likewise, this

Court may dismiss the Indictment if it determines that the Brady violation was the

result of outrageous governmental conduct amounting to a due process violation.

Id . at 913. Officer Thompson urges this Court to find that ample evidence exists

demonstrating that the government acted willfully or in bad faith and to dismiss the

Indictment.

Suppression Of Grant Fredericks Exculpatory Evidence Hasjudiced Of ficer Thompsons Constitutional Right to a Fairal.

The government does not challenge the district court s determination that

Fredericks evidence was exculpatory or that it was suppressed. The sole issue

before this Court, as it relates to Officer Thompson s Brady claim, is whether the

suppression of the exculpatory evidence prejudiced Officer Thompson s right to a

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fair trial. 14 The government claims that Fredericks evidence is not material

because it was cumulative, or alternatively, that overwhelming evidence was

offered at the time of trial to support Officer Thompson s convictions based upon

the first two baton strikes. In asserting these arguments, the government fails to

recognize the significance of Fredericks evidence and how it could have been

used to rebut the central theme of its case against Officer Thompson, i.e., the

unreasonableness of the initial encounter. Likewise, the government overstates the

evidence presented against Officer Thompson at trial and wholly discounts the

cross-examination of government witnesses and the evidence offered by the

defense. Furthermore, it disre gards the district court s determination that evidence

supporting Count I was not overwhelming. ER 56. The government also ignores

its own calculated steps to conceal Fredericks exculpatory evidence from the

defense and the manner in which these deceptive actions deprived Officer

Thompson of his right to a fair trial. Lastly, the government neglects to appreciate

the well-developed law as it relates Bradys materiality requirement, in particular,

this Court s decision in U.S. v. Kohring .

iii. Bradys Materiality Requirement

Under Brady , [t]he touchstone of [the prejudice analysis] is whether

admission of the suppressed evidence would have created a reasonable probability

14 For purposes of a Brady analysis, the terms material and prejudicial have thesame meaning. Benn v. Lambert , 283 F.3d 1040, 1053 (9th Cir. 2002).

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reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict. Strickler , 527 U.S. at 290, 119 S. Ct. 1936 (quoting

Kyles , 514 U.S. at 435, 115 S. Ct. 1555).

In considering whether the suppression of exculpatory evidence undermines

confidence in the outcome, the Court must undertake a careful, balanced

evaluation of the nature and strength of both the evidence the defense was

prevented from presenting and the evidence each side presented at trial. Jernigan ,

492 F.3d 1050, 1054 (internal citations omitted). In other words, the withheld

evidence must be analyzed in the context of the entire record. Id . (citing Benn,

283 F.3d at 1053 (quoting United States v. Agurs , 427 U.S. 97, 110, 112, 96 S.Ct.

2392 (1976)).

When suppressed evidence is merely cumulative, the failure to disclose

does not necessarily amount to a Brady violation. Kohring , 637 F.3d at 902.

However, evidence is not needlessly cumulative when it is of a different character

or source than evidence already known to the defense or if the evidence adds a new

dimension to already known information. Id . at 904, 912. Evidence that is capable

of being used to impeach a government witness may be deemed material under

Brady even if it is not independently admissible. Olsen , 704 F.3d at 1184 (citing

Carriger v. Stewart , 132 F.3d 463, 481 (9th Cir.1997) (en banc); Price , 566 F.3d at

911- 12). Inadmissible evidence that could have led to the discovery of admissible

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evidence also may qualify as material under Brady , although [the Ninth Circuit] has

not conclusively resolved the issue. Id . (citing Price, 566 F.3d at 911-12; Paradis

v. Arave , 240 F.3d 1169, 1178-79 (9th Cir. 2001)).

iv. The District Court Erroneously Based Its Materiality Assessment on Evidence Other Than Officer Thompsons Approach and First Two Baton Strikes.

The government argues that the district court based its materiality finding on

Officer Thompson s approach and initial baton strikes. In making this argument, the

government fails to appreciate the plain language of the court s opinion.

In reaching its materiality determination, the district court explicitly stated

that:

The problem is this: The jury was not asked to specifywhich of the act(s) it relied upon to find the defendantguilty of Count One, nor was the jury asked to specifywhich statement(s) it relied upon to find the defendantguilty of Count Two. Thus, the Court must assume to

jury agreed the defendant administered all of the strikesidentified by Dr. Gill, and the Court must assume the juryagreed each strike was unlawful.

ER 46 (emphasis added). The district court recognized that the use of general

verdict forms was a problem in resolving the materiality issue; however, it

erroneously determined that because a general verdict form was used, it was

required to assume that the jury agreed each baton strike was unlawful and each

statement made by Officer Thompson to investigators was false. The court went on

to explain that Fredericks evidence would have been essential to rebut the

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government s theory regarding the timing of the initial baton strikes (ER 48, 51),

however, other evidence presented by the government was sufficient to convict

Officer Thompson based upon his actions throughout the confrontation. ER 50-

51.15

Importantly, the district court explained why Fredericks evidence regarding

the timing of the initial baton strikes was essential to a successful defense by

explaining that [t]he defendant s principal means of negating the impression

created by the video was to persuade jurors the video does not tell the whole story.

This was the precise point Mr. Fredericks repeatedly tried to make about the video,

and there was external support for his contention. ER 48.16

15 Notably, in the order denying Officer Thompson s Motion for a New Trial, the

district court found that the evidence supporting Count I was not overwhelming, particularly as it relates to the willfulness element of the crime. ER 56. Inmaking this determination, the district court acknowledged evidence indicatingOfficer Thompson s actions served a legitimate law enforcement purpose;Fredericks analysis of the video recordings of the opening seconds of theconfrontation is inconsistent with, and undermines Dr. Richard Gill s analysis;limitations of the video recordings; evidence regarding baton strikes to the headwas unreliable; and the lack of evidence that Officer Thompson gratuitouslyemployed force against Mr. Zehm. Id .

16 The limitations of the video were critical to Officer Thompson s defense. OfficerThompson himself did not watch the video prior to giving his statement toinvestigators because he did not want it to influence his memory. From hisrecollection, he described events that were not visible in the video. Establishingthat the video did not tell the whole story was crucial to defend OfficerThompson s alleged excessive force allegation (Count I) and later recollection ofevents (Count II).

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The court further discussed the external support for Fredericks

interpretation of the video via eye-witness testimony which could have been used

to establish that the opening seconds of the confrontation between the defendant

and Mr. Zehm were more complex than the video seems to suggest. ER 48 -49.

This evidence would have supported Officer Thompson s claim that he paused and

issued verbal commands to Mr. Zehm prior to delivering any baton strike.

In particular, the district court mentioned the testimony of Mr. Russell

Balow and Ms. Carrie Coyle-Balow, who both stated that Officer Thompson

paused as he approached Mr. Zehm and appeared to give commands prior to

striking him. ER 48. Additionally, the court drew special attention to percipient

witness Michael Dahl who initially told investigators that he did hear Officer

Thompson give commands prior to striking Mr. Zehm. ER 48. As the court

explained, the government took Mr. Dahl aside and showed him images of the

opening seconds of the confrontation. The United States provided a partisan

interpretation of those images [despite its own forensic video expert s

interpretatio n of the video]; convincing him he had not seen the first baton strike.

ER 49. Defense counsel was not invited to participate in these meetings, and by the

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time Mr. Dahl testified at trial, he had changed his testimony in favor of the

government s proffered theory of the case. ER 49. 17

While the district court found that the United States interaction with Mr.

Dahl and its failure to disclose Mr. Fre dericks favorable opinions unfairly

disadvantaged Officer Thompson, it found that the government s actions were not

unfairly prejudicial. ER 49-50. In assessing the level of prejudice suffered by

Officer Tho mpson as a result of the government s actions, the court determined

that the likelihood of a different outcome was remote due to the weight of the other

evidence presented by the United States in relation to the entire encounter. ER 50-

51. Essentially, the district court engaged in a sufficiency of the evidence test

despite the fact that it recognized that, with proper disclosure of Fredericks

17

Dahl s previous statements to investigators corroborated Officer Thompson srecollection of the encounter. Mr. Dahl told Special Agent Jangaard on numerousoccasions that prior to the first baton strike, he looked over to Officer Thompsonand Mr. Zehm, heard Officer Thompson instruct Zehm to drop the pop, andwhen Mr. Zehm refused to comply, Officer Thompson struck him in the leg withthe baton. ER 1698. During the government s meetings with Dahl, it used theinterpretation of the video rejected by Fredericks to represent that the video depictsthe first baton strikes at 18:26:14 through 18:26:16. By representing thisinterpretation of the video as fact, the government was able to persuade Dahl into

believing that he did not see the first two baton strikes and, therefore, did not hearcommands prior to Officer Thompson s use of force. In short, the governmentutilized the exact interpretation of the video that had been rejected by its onlyvideo expert to dissuade a witness from offering exculpatory evidence. Thegovernment then hid the exculpatory opinion evidence that could have been usedto establish that Dahl s first version of events was indeed accurate andcorroborated Officer Thompson s description.

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evidence, [i]t is possible the verdicts would have been different. ER 51. Cf.Kyles,

514 U.S. at 434, 115 S. Ct. 1555 (The materiality analysis is not a sufficiency of

evidence test.); Silva , 416 F.3d at 986.

In addressing the weight of the other evidence presented, the district court

specifically noted the testimony of police-practice experts who were critical not

only of the decisions made in the opening seconds of the confrontation, 18 but of

the decisions [Officer Thompson] made throughout his struggle with Mr. Zehm.

ER 51. Additionally, the district court noted that apart from the timing of the initial

baton strikes, medical evidence was presented at trial demonstrating that Mr. Zehm

was struck in the head with the baton, amounting to an unlawful use of force. 19 ER

50. The district court also relied upon Officer Thompson s own admissions,

including that he admitted to intentionally and repeatedly striking Mr. Zehm at

18 As argued later in this brief, Officer Thompson contends that if he had beenaware of Fredericks interpretation of the video; he would have been able to cross - examine the government s use of force experts regarding their interpretation of thevideo and the limitations inherent in the media for which those experts have noexpertise. Officer Thompson would have been able to highlight their lack ofexpertise and misunderstanding of the video s images as compared to thegovernment s own forensic video analyst s interpretation of what the imagesactually depict and thereby challenge the basis for their opinion evidence. See infra

pp.53-55.

19 Whether Mr. Zehm was intentionally struck in the head with a baton wasstrenuously contested at trial. See infra pp. 36-41.

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later points in the confrontation. 20 ER 51. Lastly, the district court relied upon the

testimony of percipient witnesses who observed the struggle between the

defendant and Mr. Zehm. ER 50. The district court s discussion of witness

testimony was not in relation to the government s alleged timing of the initial

baton strikes, but regarding the confrontation in its totality. ER 50.

In other words, the district court made its materiality determination on the

assumption that the jury s convictions were based upon Officer Thompson s

actions after the first two alleged baton strikes, and concluded that there was

sufficient evidence to convict based upon those subsequent actions. 21 The problem,

however, as articulated by the court, is that because a general verdict form was

used, it is impossible to know which action(s) the jury unanimously agreed upon to

support the convictions. 22 Despite the fact that the district court expressly

20 Officer Thompson admitted to utilizing his baton and taser to control Mr. Zehm,who violently resisted Officer Thompson s attempt to restrain him. At no time hasOfficer Thompson admitted that his use of force was unlawful. To the contrary,Officer Thompson has consistently maintained that his use of force was necessary toaccomplish a legitimate law enforcement purpose.

21 The Court did not find that the evidence was overwhelming in regards to Count I. As mentioned in footnote 15, in the district court s order denying OfficerThompson s Motion for a New Trial it stated the jury could have found otherwise

based upon the evidence that was presented to it. ER 56.

22 Importantly, the jury was instructed as to Count I, The government alleges anumber of the defendant s acts of force were unlawful. In order for you to find thedefendant guilty of Count 1, you must unanimously agree upon at least one of the

specific acts of force alleged by the government, and you must unanimously agree

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court reasoned that the non-disclosure of exculpatory evidence did not rise to the

level of a Brady/Giglio violation because the newly disclosed evidence did not cast

any doubt on evidence supporting one of the acts alleged by the government.

Kohring , 637 F.3d 895, 901. The district court assumed [the single act] supported

the convictions on all three counts. Id . Thus, the district court concluded, the

withheld evidence, which tended to cast doubt on the remaining [acts] was

immaterial. Id . On appeal, the government unsuccessfully argued that the newly-

disclosed information was irrelevant because it cast no doubt on one of the alleged

wrongful acts, which alone was sufficient to support the convictions on all three

counts. Id . at 902.

This Court rejected the government s argument, finding that there was no

way to determine what act the jury based its determination on because it was given

only a general verdict form. Id . The Court went on to conduct a detailed analysis

of the newly-disclosed information and found that the newly-disclosed evidence

was material to the other acts which could have formed the basis for the

convictions, therefore, confidence could not be had in the verdicts. Id. at 901-913.

In other words, despite the existence of sufficient evidence to support all three

convictions which the newly-disclosed evidence did not rebut, there was no way to

conclusively determine which of the alleged acts the jury actually based its verdicts

on because only a general verdict form was used. See id . at 901. Because the

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newly-disclosed information was material to at least some of the acts in which the

verdict may have been based, this Court determined that a violation of

Brady/Giglio had occurred. Id .

The government argues against the applicability of Kohring to this case by

asserting that this Court did not hold that withheld evidence regarding actions that

may be the basis of a general verdict is automatically deemed material. (Resp. Br.

63). The government misconstrues the point. Kohring makes clear that in situations

where multiple acts could have accounted for a single conviction, yet no special

verdict form is used; newly- disclosed evidence that is material to a defendant s

ability to negate one of the alleged acts undermines confidence in the verdict as a

whole. That is the precise situation present here.

As the district court aptly noted, Fredericks e xculpatory evidence negating

the timing of the initial baton strikes was essential to a successful defense. ER

48. In its order denying Officer Thompson s Motion to Dismiss the Indictment, or,

in the alternative, Grant a New Trial, the district court stated that Fredericks

exculpatory opinions would put the first baton strike at least two seconds later than

alleged by the government. ER 42. The district court recognized the importance of

this information, stating that [t]wo seconds may not seem like much, but in this

case, two seconds is significant. Id . Why was this information so significant?

Because the government s central theme of its case, permeating the entire trial, was

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that Officer Thompson abruptly and prematurely used unjustified force against Mr.

Zehm without issuing verbal commands and later lied about it to investigators. 23

From its opening statement through its closing argument, the government told

the jury that the case was about the first baton strikes. ER 614, 2133-34. The

government specifically invited the jury to convict Officer Thompson of Count I on

the sole basis of either baton strike one or two was unlawful. ER 639-45.

Likewise, the government also invited the jury to convict Officer Thompson of

Count II on the sole basis that his statements to investigators regarding the initial

confrontation were knowingly false. ER 672-76. As the district court explained, the

video is very powerful and appears to demonstrate to a lay viewer Officer

Thompson abruptly striking Mr. Zehm. ER 48. Any evidence negating the

impression created by the video and persuading the jury that it does not tell the

23 The government opened its case with the following statement: This is a caseabout a police officer who chose to strike first and ask questions later. It s a caseabout a fellow citizen who walked into a convenience store to buy soda popButfollowing a sudden attack by the defendant, this man was left battered and beaten inthe center aisle. It s a case about a police officer, the defendant, who walked into thatconvenience store and unleashed blows ER 2133 -34.

The government began its closing statement utilizing the same theme: We beganthis process a couple of weeks ago, I told you that this case is about a police officerwho chose to strike first and ask ques tions later. It s a case about a fellow citizenwho walked into a convenience store to buy soda pop, but after a sudden attack by thedefendant, was left battered and beaten in the center aisle. It s a case about a policeofficer, the defendant, who charged into that convenience store and unleashed

baton blows ER 614.

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whole story was paramount to Officer Thompson s defense in rebutting the initial

encounter. Id .

Like in Kohring , Fredericks evidence is material to some of the acts that

could have formed the basis of Officer Thompson s convictions. Because multiple

acts or statements could have accounted for the convictions, yet no special verdict

form was used, it remains unknown which of the acts the jury relied upon in

reaching its verdict. Evidence negating even one of the acts that could have formed

the basis of the convictions undermines confidence in the verdicts as a whole. The

district court itself recognized, [i]t is possible the verdicts were based, in whole,

or in part, upontestimony concerning the first two baton strikes. ER 30.

Fredericks exculpatory evidence speaks directly to two of the acts the jury might

have relied upon in reaching its verdicts. Therefore, because it remains unknown as

to which of the alleged uses of force the jury determined was unreasonable, and

which statement the jury determined was false, evidence contradicting the initial

encounter undermines confidence in the outcome of trial.

Even If The District Court Based Its Materiality Assessment One First Two Baton Strikes, Overwhelming Evidence Does Notst To Maintain Confidence In The Verdicts.

The government argues that overwhelming evidence was presented at trial

supporting the jury s determination that Officer Thompson willfully used

excessive force in his first two baton strikes against Mr. Zehm; therefore, the

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convictions should be upheld. In making this argument, the government disregards

the district court s finding in its Order Denying the Defendant s Motion for New

Trial (ER 54 -64) that evidence supporting Count One was not overwhelming.

ER 56. In particular, the district court found that evidence indicating that Officer

Thompson acted willfully was not substantial and that [t]he jury could have found

otherwis e based upon the evidence that was presented to it. Id . The district court

acknowledged evidence demonstrating that Officer Thompson s actions served a

legitimate law enforcement purpose; the importance of Fredericks video analysis

undermining Dr. Ric hard Gill s analysis during the opening seconds of the

confrontation; limitations inherent in the video recordings; the unreliability of

evidence regarding baton strikes to the head; and the lack of evidence that Officer

Thompson gratuitously employed force against Mr. Zehm. Id.

The government s attempt to prove willfulness at trial was predicated on

its ability to prove that Officer Thompson s version of the opening seconds of the

confrontation was false. 24 Specifically, the government alleged that Officer

Thompson ran into the convenience store, failed to give verbal commands, and

immediately began striking Mr. Zehm (including baton strikes to the head). ER

639- 45. The government argued that this sudden attack demonstrated Officer

24 Additionally, the government s theory regarding Count II was that OfficerThompson lied about the initial encounter.

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Thompson s willfulness and intent to deprive Mr. Zehm of his right to be free from

unreasonable force. ER 614, 2133-34.

Given the fact that the government s primary way of proving willfulness

hinged on its ability to argue that Officer Thompson failed to give verbal

commands and struck Mr. Zehm too quickly during the initial encounter, any

evidence negating when the first baton strikes occurred was vital to his defense. As the

district court no ted, even a few seconds, which may not seem like much, in this

case were significant. ER 42. By putting the baton strikes even a few seconds

later in time, Officer Thompson s account of the encounter, including his claim that

he briefly stopped and issued two verbal commands, would have been more

plausible to the jury. 25 Said differently, if Officer Thompson did actually have time

to pause, issue verbal commands and assess Mr. Zehm s response, it tends to prove

that he acted out of a legitimate law enforcement purpose rather than the willful

intent to deprive Mr. Zehm of his rights.

While the government asserts that overwhelming evidence exists supporting

the timing of the first two baton strikes, the government s factual assertions are

inaccurate. An accurate review of the record proves that the government s evidence

presented at trial was far from overwhelming.

25 This account was supported by eyewitness Dahl before the governmentdissuaded his testimony with a manipulative use of the video.

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1. Eye-Witness Testimony

The government argues that there was ample eye witness testimony to

establish that Officer Thompson hit Mr. Zehm in the head with his baton during the

first two baton strikes. (Resp. Br. 7, 75.) To the contrary, only two of the nine eye-

witnesses who could have witnessed the initial encounter claimed to have seen the

baton strikes hit Mr. Zehm s head. ER 1475, SER 181. One of those two witnesses

only saw the baton graze the side of Mr. Zehm s head and land on his shoulder,

negating the claim that such a baton strike was intentional. ER 1475.

Interestingly, in the government s response brief, it cites testimony from

Greg Likarish to support its contention that witnesses observed that defendant s

first two baton strikes hit Zehm in the headER 1343, 1363 -1364. (Resp. Br. 7).

The government makes this claim despite its later admission in the briefing that

Mr. Likarish was impeached on cross-examination on this very point. The

government admits that defendant s counsel showed Mr. Likarish the video and

highlighted that he appeared to be facing the cash register and not looking directly

at the defendant and Zehm during the first strikesER 1357 -1361. (Resp. Br. 73 -

74.) The g overnment uses Mr. Likarish s testimony as a sword in trying to

establish that independent evidence exists supporting the unreasonableness of the

first two baton strikes, yet as a shield when it argues that Fredericks evidence

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would not have been helpful during the cross-examination because some of the

witnesses credibility had already been impeached.

At trial, other witnesses testified that they saw where the first baton strikes

landed, but testified to locations other than the head. 26 Three of those witnesses

claimed to have seen the initial baton strikes land on Mr. Zehm s shoulder or upper

body. ER 1494, 1919, 2023. Witnesses who observed most of the encounter also

testified that they did not see any baton strikes hit Mr. Zehm s head at any point

during the confrontation. ER 1506, 1747. Other witnesses stated that the initial

baton strikes hit Mr. Zehm s leg. ER 1494, 1698. In fact, prior to the time the

government met with Mr. Dahl and used its self-serving interpretation of the video

(despite knowledge of Fredericks contrary views) to change his testimony, Mr.

Dahl s statement to the FBI was strikingly corroborative of Officer Thompson s

account of the initial encounter. Mr. Dahl had told the investigating FBI agent that

he looked over to Officer Thompson and Mr. Zehm, heard Officer Thompson

instruct Zehm to drop the pop, and when Zehm failed to comply, [Officer

Thompson] used his baton and hit Zehm s leg. ER 1698.

It should also be noted that throughout the government s discussion of eye

witness testimony, it fails to mention that almost every witness testified that they

heard Officer Thompson give verbal commands to Mr. Zehm and that Mr. Zehm

26 Other witnesses testified that they did not see where the initial baton strikeslanded. ER 1457-58, 1747.

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violently refused to comply with Officer Thompson s attempt to restrain him. See ER

1391, 1512-13, 1693, 1698, 1746-49, 2030.

2. Medical Experts

The government also contends that there was overwhelming medical

evidence presented at trial indicating that Mr. Zehm was struck in the head with the

baton. This assertion misrepresents the testimony offered at trial. An examination

of testimony presented by both sides at trial demonstrates that the medical

evidence supporting baton strikes to the head was highly contested and rebutted by

the defense. See Jernigan , 492 F.3d 1050, 1054 (The Court must undertake a

careful, balanced evaluation of the nature and strength of both the evidence the

defense was prevented from presenting and the evidence each side presented at

trial when evaluating the materiality.).

In this case, the government offered the testimony of Dr. Harry Smith who

opined t hat injuries to Mr. Zehm s head and scalp were attributable to Officer

Thompson s baton. SER 658, 688. Dr. Sally Aiken, the Spokane County Medical

Examiner who performed the autopsy on Mr. Zehm, provided testimony that was

much more equivoca l. She testified that Mr. Zehm s injuries to the head and scalp

may be consistent with a baton, but that there were a number of potential things

that could have caused the injuries and that there may be other explanations. SER

406-7, 416.

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Officer Thompson also presented two expert medical witnesses who opined

regarding the mechanism(s) of injuries to Mr. Zehm s head and scalp. Dr. Daniel

Davis, a forensic pathologist who works as the Lane County Medical Examiner in

Eugene, Oregon, testified that there was no medical evidence supporting the

government s contention that Mr. Zehm was struck in the head with a baton. SER

3422. Dr. Davis testified [t]o a reasonable degree of medical certainty there s no

evidence that [Mr. Zehm] was struck in the head with a baton. Id . Dr. Davis stated

that the subgaleal injuries identified at autopsy likely represent blunt force injuries

as a result of impact wit h a flat, bland surface or were the result of a traction

injury. SER 3431. Furthermore, Dr. Davis opined that the injury over Mr.

Zehm s eyebrow was not the result of a baton strike. SER 3432. His reasoning

was based upon the fact that the injury was not a tram track injury which would

have occurred if it was the result of a baton strike. Instead, he opined that it was

two separate injuries, one a scrape and the other a bruise. SER 3438-39.

Officer Thompson also offered the testimony of Dr. James Nania, an

Emergency Physician who served as the Emergency Room Medical Director at

Deaconess Hospital in Spokane, Washington at the time Mr. Zehm was treated

after the incident. Dr. Nania opined that he could find no place [in the] medical

evidence [supporting] that [Mr. Zehm] was struck in the head with the baton. SER

3329. Dr. Nania stated that during Mr. Zehm s evaluation at the hospital, including

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a CT scan, there was no sign of acute head or facial trauma. SER 3337.

Furthermore, Dr. Nania testified that the types of injuries present were inconsistent

with a baton strike, and that if a baton strike actually occurred, the injuries would

have had a different appearance. SER 3353-54, 3366, 3390.

Certainly, the medical evidence presented by the government was far from

overwhelming. In fact, the medical testimony provided by the government was

critically cross-examined and rebutted by Officer Thom pson s experts. Neither the

eye-witness testimony nor the medical evidence presented by the government

overwhelmingly established that Mr. Zehm was struck in the head with the baton.

This further illustrates the importance of Fredericks evidence in rebut ting the

initial baton strikes because it would have aided Officer Thompson s ability to

show the jury that the original encounter was reasonable.

3. Officer Thompson s Own Statements and/or Testimony

The government also misrepresents Officer Thompson s own trial testimony

regarding the timing of the initial baton strikes. It argues that the suppression of

Fredericks exculpatory evidence is not material because Officer Thompson

admitted, both in his recorded statement and at trial, to striking Mr. Zehm during the

time frames proffered by the government. This argument is a blatant distortion of

Officer Thompson s statement and testimony.

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When Officer Thompson gave his statement to investigators on March 22,

2006, he declined the opportunity to watch the video recording of the confrontation

prior to giving his statement. ER 10-11. He did not want the video to distort his

independent memory. ER 987. The statements he gave during that interview were

not given in the context of any video timeframe.

As explained by the district court, every second of the initial encounter is

significant. ER 42. By adding an additional two seconds prior to the initial baton

strike, it potentially changes the dynamic of the encounter. Therefore, the

government s attempt to argue that he admitted to striking Mr. Zehm at 18:26:14 -

16 during his recorded interview is extremely unfair and misrepresents the nature

and context in which the statement was made.

The government also states that Officer Thompson admitted at trial that the

video depicts the delivery and impact of his first baton strike at 18:26:15. (Resp.

Br. 17). This statement is not correct. In the district court s Order Denying

Defendant s Motion to Dismiss the Indictment, Or, In the Alternative, Grant a New

Trial, the court s observation demonstrates this misstatement by the government.

The court stated:

Frame 71 [18:26:15] played a significant role in theUnited States cross examination of the defendant. AnAUSA attempted to get him to concede the first strikewas completed in frame 70. He refused to make thatconcession. The AUSA then turned to frame 71. This isthe one in which the defendant can be seen holding his

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baton in front of him at a 45 angle. Initially, thedefendant said this frame depicted the delivery [of] hisfirst baton strike; then he said it depicted the impact ofthe first strike; and then, when he reexamined the frameand realized it depicts him holding his baton in an upright

position, he said he was unsure whether it depicted thefirst strike.

ER 42.

The district court then went on to explain how Fredericks evidence could

have been significant in understanding Officer Thompson s confusion regarding

what the video shows. The court explained:

Mr. Fredericks would have explained why it was notunreasonable for the defendant to reject the UnitedStates interpretation of frames 70 and 71. Mr. Frederickscould have physically demonstrated to the jury whyframe 71 may indicate the defendant was movingforward while holding his baton at a 45 angle rather thanswinging at Mr. Zehm. If that s what frame 71 depicts,then its possible the first baton strike did not occur untilafter frame 75.

ER 42.

There is no tenable argument suppor ting the government s assertion that

Officer Thompson s own testimony overwhelmingly establishes the occurrence of

baton strikes at 18:26:14 through 18:26:16. To the contrary, Officer Thompson has

denied the government s inte rpretation of the video. His uncertainty regarding

what the video actually depicts illustrates the importance of Frederick s evidence

and the prejudice suffered by him as a result of the government s suppression.

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4. Use Of Force Experts

The government also argues that there was overwhelming evidence offered

by its use of force experts demonstrating that Officer Thompson acted unlawfully

during the initial encounter with Mr. Zehm. (Resp. Br. 76-77.) Again, the

government fails to acknowledge this Court s obligation to review the entire record

and analyze the evidence presented by the defense. Jernigan , 492 F.3d 1050, 1054.

Officer Thompson offered the testimony of two police use of force experts:

Terrance Preuninger and Larry Bowman. Terry Preuninger, the Spokane Police

Department s Training Officer and Patrol Procedures Instructor with the

Washington State Criminal Justice Training Commission, testified that Officer

Thompson s actions were lawful. SER 3557. Specifically, Preuninger testified that

Officer Thompson s risk assessment was accurate based upon the information

known over radio dispatch and that his rapid advance was a good choice tactically

and served a legitimate law enforcement purpose. SER 3596 -97. Preuninger also

testified that Officer Thompson s use of the baton was a good choice to subdue the

threat posed by Mr. Zehm. SER 3597, 3603.

Additionally, Officer Thompson offered the testimony of expert Larry

Bowman, a Spokane Police Detective and Firearms Instructor who was previously

the lead defensive tactics instructor for the Montana Law Enforcement Academy.

SER 3487. Upon moving to Spokane, Mr. Bowman became a master instructor for

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the side-handle and straight baton at the Washington State Criminal Justice

Training Commission s Regional Training Center in Spokane, Washington. SER

3488-89. Mr. Bowman instructed Officer Thompson at the training center

regarding use of a straight baton. SER 3490. Mr. Bowman testified that police

officers are trained to basically take action first. SER 3522. After reviewing the

evidence in this case, Mr. Bowman concluded that Officer Thompson s actions

were appropriate and that they were consistent with his training. SER 3524.

vi. Grant Fredericks Evidence is Not Cumulative

While the district court did recognize the importance of Fredericks

exculpatory opinions to rebut the government s theory regarding the timing of the

initial baton strikes, 27 it nonetheless failed to appreciate the scope in which the

exculpatory evidence could have been utilized at trial and the resulting prejudice

suffered by the nondisclosure. Evidence from the government s very own

forensic video analyst rebutting its primary trial theme undoubtedly would have

put the case in such a different light as to undermine confidence in the verdicts.

Strickler , 527 U.S. at 290, 119 S. Ct. 1936; Kyles , 514 U.S. at 435, 115 S. Ct.

1555. Specifically, Officer Thompson was deprived the ability to cross-examine

witnesses regarding Fredericks interpretation of the video and develop the fact

that the government had knowledge, which it chose to conceal, that the video did

27 The distr ict court stated, [u]ndoubtedly, Mr. Fredericks would have helped thedefendant. It is possible the verdicts would have been different. ER 51.

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not support its theory of the case. Undoubtedly, Officer Thompson s ability to

cross- examine the government s key witnesses and to unwind Dahl s change in

testimony based on Fredericks video interpretation would have added a much

stronger component to his defense.

The government attempts to lessen the impact of its suppression by arguing

that Officer Thompson was not prejudiced because of comparable testimony by his

own expert, Michael Schott. While Michael Schott did have many opinions similar

to Fredericks, it cannot be overstated that there is a significant difference between

the ability of a defendant to cross-examine a key government witness with

contradictory opinions of another government witness rather than simply relying

on the opinions of a paid defense expert. 28 In particular, Officer Thompson was

deprived the ability to have the government s own expert, an instructor of Forensic

Analysis and Digital Multimedia Evidence Processing for the Federal Bureau of

Investigations National Academy, 29 undermine the government s theme of the

case. ER 2676, 2850. The use of this evidence would have added an entirely new

dimension to Officer Thompson s defense that likely would have had a

substantial impact on the jury s assessment of the government s case against him.

28 The jury heard testimony that Michael Schott was paid $250/hour for his work forthe defense. ER 1207.

29 It must be highlighted that Fredericks is an authority in the field of forensicvideo analysis that is relied upon by the federal government to train its agents.

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Kohring , 637 F.3d at 905, 912 (Impeachment evidence, even if similar in nature to

that already known to the defense, is material when it would have added an entirely

new dimension to the credibility of a witness.). Additionally, Fredericks

materials would have allowed Officer Thompson to introduce exculpatory

evidence that the government developed in its investigation, a strongly persuasive

factor when examined in light of reasonable doubt.

The government also fails to acknowledge that the nature of Fredericks

evidence was not identical to Mr. Schott s,30

and in some instances, the experts

utilized different methodology to reach their conclusions. Significantly, Fredericks

provided demonstrations and/or reenactments to the government which enabled the

lay viewer to understand the limitations of the video. ER 35. Mr. Schott did not

provide similar demonstrations. Fredericks also provided the government with

alternative explanations for Officer Thompson s movements suggesting certain

frames depicting the [] baton may be interpreted in an exculpatory manner. Id . He

told the government that Officer Thompson s actions at 18:26:14 through 18:26:16

30 Confusingly, the government attempts to state in its brief that Mr. Schottasserted that Officer Thompson s first baton strike was consistent with Dr. Gill sopinion that a baton strike is visible in Frames 74-75. (Resp. Br. 65). However, in thevery next sentence the government states that Schott s evidence was consistent withFredericks , including the opinion that the video does not demonstrate a baton strikeuntil 18:26:37. Compare id. , with SER 155.

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could be interpreted as a crouch, an aggressive or defensive posture, etc. ER

3131, see also ER 2712-13. 31

The government cites a number of cases to support its contention that

impeachment evidence is not material when considered to be cumulative. Each of

the cases cited in support of this claim are markedly different than the situation

present here. In U.S. v. Wilkes , 662 F.2d 524 (9th Cir. 2011), a government witness

was granted immunity after months of decision making based upon proffers. Id . at

535. The defendant was given FBI interviews of the witness but not the proffer

sessions. Id . The jury knew that the witness had immunity and also aware of the

witness involvement in the crime. Id . The Ninth Circuit determined that because

the witness was not critical to the government and the grounds for impeachment

was known to the jury, the nondisclosure of the proffer sessions was not material.

Id . at 536. Here, the jury did not know that the foundation used to shape the

testimony of almost every government witnesses was based upon an incorrect

31 While the government denies that Fredericks ever mentioned specificalternatives to Officer Thom

Documents

Doc 38 1 Appellant s Reply Brief