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. Clithero said Douglas Ostling met the definition of a barricaded subject because he was behind a closed door.
He then described the events of the night of the shooting, from his point of view. He arrived at the Ostling home at 9:22 p.m., twenty-three minutes after the “shots fired” call. Lieutenant Jensen and Officer Berg, Officer Portrey and Officer Benkert were already on the scene. Bainbridge Police Chief Jon Fehlman arrived shortly thereafter. Clithero said they were “pretty sure” the suspect had been hit and Chief Fehlman asked him to use the SWAT team as soon as possible.
He explained that once SWAT accepts an assignment, they’re in charge of the scene. He obtained approval to use the SWAT team from his superiors, and then relieved Officers Portrey and Benkert of duty and replaced them with Sheriff’s deputies. He estimated it took about twenty minutes for all members of his SWAT team to arrive. Dispatch records indicate the team was on the scene at 9:42 p.m.
Clithero said officers always assume a subject has a firearm, and would have done so even if the Ostling parents said that Douglas did not have one.
He described the risks of attempting to climb a ladder to the skylight. SWAT teams train “all the time” for such ascents, which require an officer to have a drawn weapon while climbing, along with the skill and equipment to deal with a slippery roof. That night, Deputy Scott Dickson climbed to the skylight in the front of the house, but couldn’t see well enough, so he went to the back side of the roof to get a better view. Through a skylight there, he was able to see Ostling’s legs, and one of his hands, as well as a large amount of blood.
In all, about thirty minutes elapsed from when SWAT began planning their strategy, to when Dickson said officers could make entry. At 10:19:07, officers radioed from inside Ostling’s room that he was unresponsive.
On cross, Julie Kays established that the ladder was already out prior to Clithero’s arrival and that officers had a set of keys to Douglas’s apartment in hand. He admitted that no special training is needed to use a key in a door, or climb a ladder. He also said no one in the Ostling family impeded entry to his room. She also made the point that whether an officer is patrol or SWAT, the way to do the job is to “ask questions.” He agreed.
Officer Carla Sias
Officer Carla Sias, a patrol officer with the BIPD, was next to testify. She was headed home after her shift when she heard Officer Portrey’s voice on the radio, sounding “very stressed.” Although she couldn’t understand the specifics of the dispatch, she knew she needed to respond. On the way, she learned that shots had been fired, and that there’d been a man with an axe.
When she arrived, she was asked to set up flares to guide officers from other agencies. Returning to the garage area, she and Officer Berg placed the Ostlings’ ladder against the house and she climbed up, attempting to see through the skylight. She was a “little uneasy,” because it was dark, the roof was wet, and there was a hayloft door accessible from Douglas’s room. When she reached the eaves she realized she’d have to climb onto the roof to see inside the skylight. Not knowing what Douglas was doing inside or whether he had a weapon, and needing both hands to climb the ladder, she was worried about being a target. She could also see that Officer Berg, who was steadying the ladder below her, was communicating with other officers and not paying close attention to her. She decided it was not a “good, reasonable, safe decision” for her to climb onto the roof and look through the skylight.
After she climbed down, she went into the residence and told the Ostling family that SWAT could not enter the house until all of them had been evacuated. At the time, Kimberly Ostling was in the bathtub. Sias said it took a long time for them to get ready to leave, and she kept encouraging them to move a little faster. When they left the house with her, they walked down the driveway to a patrol car.
On cross, Ms. Kays established that Sias arrived at the scene within eleven minutes. She noted that in Sias’s deposition, she gave as her only reason for not continuing to the skylight that the roof was steep and slippery.
Detective Lori Blankenship
Detective Lori Blankenship is a detective in the major crimes division of the Sheriff’s Department. She is a former SWAT member, has been a firearms instructor, and is experienced in crime scene investigation. She was the lead investigator on the Ostling shooting, along with Detective Birkenfeld. Their report is a several-hundred page document. Her responsibility was interviewing witnesses.
She was on the scene the night of the shooting, when she had brief contact with the Ostling parents to obtain permission to go into their residence. The next day she got a call from Bill Ostling saying the family was available for an interview. She conducted the interview at their home, in the presence of Joyce, Bill and Tamara Ostling, Tamara’s boyfriend, and the family pastor and his wife. She took notes at the interview and later transcribed them herself. After that, she shredded them. She said that is her standard procedure.
During the interview, she learned about Doug’s arrest on Britney Spears’ property, where he wanted to be hired as a security guard. She also heard about Doug’s use of alcohol, which had increased in the last year. Joyce told her that he’d been upset earlier on the night of the shooting, perhaps because the family didn’t include him in their dinner. Bill Ostling said that the “officer at the top of the stairs” fired the Taser.
During cross, attorney Nathan Roberts created a calendar to illustrate how much time occurred between interviews with the various witnesses. Blankenship said Officer Benkert was given an opportunity to provide a statement to the investigators the night of the shooting (October 26). Benkert declined. Roberts said that Portrey was not interviewed either, but submitted a written statement instead. Blankenship disagreed, saying an interview was conducted in the Silverdale Sheriff’s office on October 28.
Roberts noted that Blankenship waited a week to write her report, signing it on November 3. Then she destroyed her notes. He pointed out that the report contained an incorrect address for Tamara Ostling’s boyfriend, and pressed her to admit that there could be errors elsewhere in the report. He suggested that a tape recording with a formal transcription would have been the most reliable method to document the interviews, followed by a written statement signed by the witness. The method she used was a paraphrase of the witness statements, and there was room for more error in that method.
He also challenged her on the joint press release issued by the Sheriff’s office and the BIPD. He reviewed several factual errors. She said she had not prepared the release.
He reminded her that she did not interview any of the eyewitnesses to the shooting, because Douglas Ostling was dead and Benkert refused to be interviewed. Portrey did not witness the shooting, because he had fallen and was looking up at the ceiling when shots were fired.
On re-direct, Stewart Estes read a portion of the joint press release that said the investigation was in the early stages. He asked whether it was common to get things wrong at that point of any investigation. Blankenship answered that it was.
He also pointed out that she had been conducting a criminal investigation. Because Officer Benkert was a suspect in a homicide at the time, he had a Fifth Amendment right against self-incrimination. His constitutional right overrides BIPD policy on giving statements within twenty-four hours of an incident.
Chief Fehlman has not been present for any of the trial. Last week, an edited version of his videotaped deposition was played by the plaintiff. That deposition covered subjects from the General Orders Manual, and various training policies. The defense was not allowed to submit a written declaration from him because the plaintiffs could not cross-examine him.
Also last week, the defense presented Dr. Seth Izenberg, an Oregon surgeon with an extensive resume in trauma and critical care. He calculated that because Douglas Ostling’s femoral artery was perforated (rather than transected), he would have been dead ten to twelve minutes after the shots were fired. The plaintiff’s medical expert, Dr. Richard Cummins from the University of Washington, had earlier testified that he would have lived twenty-five minutes after the shooting.
Court will resume at 9 a.m., when Judge Leighton will give his instructions to the jury. Closing statements are expected to take about an hour for each side. The jury will begin deliberations after that.