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.
Peters is a retired King County Sheriff’s detective, with 29 years’ experience in policing. She did three years of patrol in the 1980’s. In 1991, she became a homicide detective. She worked 15-20 homicides a year until she retired. She had a stint on the Green River Task Force with former Bainbridge Island Police Chief Matt Haney, with whom she is friends. She said she considered Haney to be committed to training and sensitive to the mentally ill.
Among her unit’s responsibilities was investigating officer involved shootings. Since retiring a year ago, she’s been a consultant and this trial is the first time she’s acted as a private consultant on a police case. She became involved in the case because knew Ms. Kays (who is a former prosecutor), and Kays asked her to review the Ostling investigation.
She said that based on her investigation, training and experience, it is her opinion that BIPD’s guidelines and practices were not followed the night of the shooting. She said that had the officers followed their own manual that night, Douglas Ostling would be alive today.
She focused her criticism of the officers on two factors: 1.) they had the luxury of time to gather information about Douglas from the family before they went up to his apartment to contact him, yet they did not do so; and 2) they did not obtain medical aid in a timely fashion. She also believed they conducted an unconstitutional, warrantless search by attempting to enter his apartment.
She said she’d never heard of a chief meeting with an officer involved in a shooting before he’d written up his report. Similarly, she’d never heard of an officer waiting two and a half months before making the report, adding that it’s important to write a report within a day or two, while the memory is fresh.
She stated that entry into Douglas’s apartment after the shooting could probably have been safely made with a minimum of four officers on scene, one on the roof looking in the skylight, one watching the front of the residence, and two covering the stairway to his apartment. She thought that if they’d followed proper procedures, they could have gotten aid to him within fifteen minutes. She noted that they were in a residence and the layout was simple and small, which indicated they did not need a SWAT team. Moreover, she didn’t think Douglas should have been characterized as a “barricaded subject.”
She did remark, however, that officers are trained that they should always assume there is a firearm in the house, and they shouldn’t rely on the parents’ statements about it. Nevertheless, the officers should have asked the Ostlings about firearms, she said.
Estes commenced his cross-examination by asking whether she had reviewed the relevant documents and was fairly comfortable with the facts. She answered that she was. He then asked her to confirm the following “undisputed facts”:
-Doug Ostling called 911.
-He was legally intoxicated for purposes of driving the night of the shooting.
-He’d been upset prior to the arrival of the officers and ignored attempts by his parents to communicate.
-He was a mentally ill adult male.
-He was wielding a double-bitted axe.
-No one knows how long he had the axe or what he intended to do with it.
-He ignored the officers’ warnings to drop the axe.
-The officers’ first attempt at non-lethal force was ineffective.
-They were less than five feet away from him when the shots were fired.
She agreed with all of those points, after rephrasing a couple of them to add detail.
She said a manual is “good police practice,” characterizing it as a resource and guide (just as Officer Portrey had testified). She also agreed that police manual policy can set a higher standard than that required by the Constitution and that even if the officers violated their manual, it wouldn’t necessarily mean they violated the Constitution (this is legally important because the plaintiff’s case is based on constitutional claims).
She admitted that inserting a key into a door is not a search.
She conceded that while four officers would have been the minimum required that night to go on the roof, six would have been better. Estes reminded her that she’d testified in her deposition that at “21:27” (9:29 p.m.) it would have been tactically safe to go on the roof and look through the skylight.
She was shown a photo of the upstairs bannister outside of Douglas’s room, which showed Taser wires wrapped on the outside of the rail. She said that indicated the Taser was fired by the front officer and that the lethal cover officer would not have been in front of the Tasing officer. She noted that officers only have five seconds to subdue the subject, so an officer wouldn’t want to fire from behind another officer.
Estes observed that she’d been a patrol officer only three years, and that was twenty-five years ago. She admitted she did not have as much patrol experience as either Portrey or Benkert. She agreed that homicide detectives are investigating a crime that has already occurred and have the “luxury of time” to do their work. She admitted patrol officers usually don’t have that luxury.
She agreed that King County has 800 officers, it is a progressive agency, and is committed to training but that in three decades on the job, the agency provided her with only one four-hour class and some online training on dealing with the mentally ill. She said police had just begun to focus on mental illness training in 2011, or maybe a few years before. King County did not have a Crisis Intervention Team until late 2010.
By 2009, the BIPD had 8 of its officers (38%) trained in crisis intervention, Estes said. Peters did not know any agency in the state with a higher percentage.
Estes reminded her that King County requires its officers to investigate all 911 hang-up calls. Deputies there were disciplined for not going farther than the gate at a residence which was the scene of a multiple homicide, on the word of the neighbors, who said they hadn’t heard any noise.
She said it comes down to the individual officer. Learning on the job is a significant part of training.
On re-direct, Peters reiterated some of her earlier points. Plaintiff’s lawyer showed her a different picture of the upstairs bannister and said it had been taken apart and reassembled the night of the shooting. When the proper number of railings were in a photo, it seemed to her that the Taser was fired from behind the cover officer. She also said, “This call shouldn’t have gone down in five minutes the way that it did.”
Estes rebutted by having her stand five feet from him, in front of the jury box. He pretended to hold the axe as officers testified Douglas did. Then he took a sudden step toward her, and asked if she would have shot. She said she would not have shot.
It’s likely every juror was asking him or herself the same question.
*Housekeeping note: The defense obtained permission for Chief Fehlman to attend trial next week in a wheelchair. They did not provide an update on his condition, or say when he would be in court.