Archive for May, 2012

The Ostling case was sent to the jury around 2 on Wednesday afternoon, following several hours of closing arguments. In his jury instructions given before closing arguments, Judge Ronald Leighton advised jurors that the commentary and questions by the lawyers during the course of the trial is not evidence and may not be used in arriving at a verdict. The closing statements may be used, however, as a guide to interpreting the testimony and other evidence presented at trial.

Jury Instructions

Before closing arguments, Judge Leighton instructed the jury on the law. He said the plaintiffs have the burden of proof as to each element of the case.  That means plaintiffs must convince the jury by a “preponderance of the evidence” that their version of the facts is “more probable than not.”

Judge Leighton advised the jury that if plaintiffs fail to prove any element of a claim, they must return a verdict for defendants as to that claim. He told them they must judge the defendants’ actions by what they believe a reasonable officer on the same scene would have done, “not with the 20/20 vision of hindsight.” (more…)

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On this tenth day of trial in Ostling v. City of Bainbridge Island, the defense called three witnesses, and then rested. Tomorrow, the judge will instruct the jury, followed by closing arguments from both sides. The jury could begin deliberating before noon.

Two of today’s witnesses were from the Kitsap County Sheriff’s Department, and one was from the Bainbridge Island Police Department.

Sergeant Russell Clithero

First up was Sergeant Russell Clithero, an eighteen-year veteran of the Sheriff’s department. He’s been a member of its SWAT team since 1996, and was the first SWAT officer on the scene after Douglas Ostling was shot by Officer Jeff Benkert.

He testified that the purpose of SWAT teams is to respond to high risk situations that patrol officers are not equipped to handle. SWAT officers have special equipment, training and weapons.

He said a “barricaded subject” is any subject who is behind a closed door, and won’t come out or open the door. There is no requirement of an actual barricade blocking entry. Clithero said that in the Sheriff’s department, when dealing with a barricaded subject, it’s mandatory to call SWAT. While patrol officers might make entry to a barricaded subject under some circumstances, it is not safe because they lack the specialized equipment, training and weapons of the SWAT officers.  (more…)

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Seattle police sergeant Joe Fountain testified Thursday that Officers Jeff Benkert and Dave Portrey acted reasonably the night Doug Ostling was shot and killed. That testimony is important because the standard for determining whether there were constitutional violations is what a reasonable police officer would have done in the same circumstances. The Ostlings have alleged violations of the fourth and fourteenth amendments.

Fountain has been with the Seattle Police Department for more than twenty years. He leads Seattle’s crisis intervention team and has been a lead tactics instructor for six years, training officers from all over the country. He is a trained SWAT officer and has been present during four officer involved shootings. (more…)

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Prior to Joyce Ostling taking the stand this morning, Judge Leighton made a significant, though not unexpected ruling on the admissibility of some of Douglas Ostling’s records. He agreed to admit several medical records, with certain redactions, offered by the defense for the purpose of showing that Douglas Ostling had a history of violence and homicidal feelings.

Richard Jolley’s cross examination of Joyce Ostling resumed. He produced records from Kitsap Mental Health, and read from a 2001 report, when she had contacted that agency seeking help for Douglas. The report said that Douglas was “allegedly delusional and has threatened to kill…his father” and that he was a “possible threat to others.” Joyce said she hadn’t seen the record and didn’t remember the statements it documented. (more…)

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There aren’t many people who can watch a mother weep over the death of her child without being deeply moved. When the court took its mid-morning break on Tuesday, after an hour of powerful testimony by Joyce Ostling, Bill Ostling put his arm around her while she sobbed out loud. Spectators left the courtroom, many with red eyes, wiping their tears.

During her testimony, she was sometimes weepy, sometimes angry and other times utterly bewildered, as she told a story of a family struck by one misfortune after another, pushed to the limits of what they could bear.

She spoke of their daughter Kim, whose disabilities meant doctors’ appointments, medical crises, care-taking, brain surgery and a kidney transplant. She said that in the past four months, her husband has had heart surgery, treatment for colon cancer and something taken out of his lung.

And there were years of helplessness, worry and frustration with Douglas. (more…)

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Chief Jon Fehlman was still not in the courthouse this rainy Monday morning and will not be able to attend the proceedings at all. Just before the noon break, defense counsel Richard Jolley asked Judge Leighton to bifurcate the trial, because Fehlman has taken a turn for the worse, and his condition is very serious. He has not been able to eat in a week and has had trouble with his feeding tube.

Fehlman’s testimony is needed to rebut plaintiff’s claim that he and the City of Bainbridge Island failed to properly train their officers. Jolley argued that because the failure-to-train claim will only succeed if the jury finds in favor of the Ostlings on their constitutional claims, the failure-to-train claims should be split off from this case and heard later. Saying Chief Felman’s deposition was available in lieu of his testimony, Judge Leighton declined to bifurcate the case.

Matthew Noedel

Photo courtesy of Connelly Law Offices.

The jury spent the morning listening to the plaintiff’s ballistics expert, Matthew Noedel.  He studied the bullet casings of the three shots fired by Officer Jeff Benkert, as well as the bullet holes in the door, the wounds and position of Douglas Ostling’s body. He also conducted his own tests, based on simulated conditions using a door constructed as a copy of the door to Douglas’s apartment. He was unable to determine which bullets found in Douglas’s body corresponded to the bullet holes in the door.  (more…)

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As Judge Leighton showed increasing impatience with the pace of the questioning, lawyers from both sides picked it up on Friday. Plaintiff’s attorney Nathan Roberts advised the judge that he expected to rest their case on Tuesday, and would be eliminating several witnesses previously scheduled to testify. Lawyers seemed more prepared with their exhibits, and their questions were more focused.

Defense attorney Stewart Estes put on the legal performance of the day, conducting a skilled cross-examination of the plaintiff’s policing expert, Sue Peters. The drooping jury sat up straight and turned from Estes to Peters and back as if they were watching a tennis match. (more…)

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Officer Dave Portrey testified for most of Thursday and half of Friday, as the plaintiff’s case continued. Portrey was on the call with Officer Jeff Benkert on October 26, 2010, the night Officer Benkert shot Douglas Ostling to death.

Under questioning by plaintiff’s attorney Julie Kays, Portrey explained that he is a reserve officer, which is a volunteer position. Reserve officers wear the same uniform and carry the same equipment, including firearm and radio, and undergo the same training as regular commissioned officers. Portrey considers Officer Benkert a close friend in the department.

Just as her colleague had done while examining Officer Benkert, Kays pushed Officer Portrey to admit that his training in dealing with the mentally ill was inadequate and he didn’t follow his department’s manual the night Douglas was killed.

Kays asked multiple questions concerning Portrey’s familiarity with the BIPD’s General Orders Manual (GOM) and had an extended exchange with him about whether the GOM procedures are mandatory or merely guidelines. He said they were guidelines only, though officers must be familiar with them and receive training on them. Kays painstakingly questioned him on the various provisions in the GOM dealing with mental illness, attempting to demonstrate the numerous ways the officers failed to observe their own policies the night Douglas Ostling was shot.  (more…)

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William Ostling, father of Douglas Ostling, testified for all but the last fifteen minutes of trial on Wednesday. His account of the events on the night of the shooting differs significantly from the version given by Officer Jeff Benkert the day before. The credibility of these two men will surely be a key factor in jury deliberations.

Mr. Ostling is a 66-year-old man with white hair and a kindly demeanor. In contrast to Officer Benkert, who maintained a professional and formal tone during his testimony, Mr. Ostling smiled often and shed tears twice, once when describing the medical problems of his daughter, Kimberly, and once when he spoke about the impact Douglas’s death has had on him. When questioned by his attorney Nathan Roberts, he gave detailed answers, often with additional background or stories about his son and his family. Later in the day, when he was cross-examined by the City’s lawyer, Stewart Estes, a steelier and less affable side of his personality emerged. (more…)

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Today was the first full day of testimony. Lawyers wrapped up their examination of David Bailey, a Bainbridge Island Fire Department paramedic, in the first hour. Officer Jeff Benkert, who shot Douglas Ostling in his home on October 26, 2010, testified for the rest of the day.

For nearly five hours, the thirty-two year old Benkert responded to questions from both the plaintiff and the defense. With a somber face and a quiet voice, he described a scene that was full of unknowns, and constrained by the extremely close quarters outside of Douglas Ostling’s apartment above the garage.


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