Ostling attorneys use police guild's no-confidence vote as reason against new trial
By BRIAN KELLY
Bainbridge Island Review Editor
June 27, 2012 · 6:37 PM
Lawyers for the Ostling family are pointing to the Bainbridge Island Police Guild's recent vote of no confidence in Police Chief Jon Fehlman as one of the reasons why a new trial should not be ordered in the death of Douglas Ostling.
Earlier this month, attorneys for the city of Bainbridge Island asked a federal judge to order a new trial in the police shooting of Ostling, a mentally ill Bainbridge Island man who was killed after police shot him while responding to a 911 call at his family's home. A jury said the Ostlings' civil rights had been violated and awarded the family and his estate $1 million.
The jury found the city's police department had not properly trained its officers, but attorneys for the city said a new trial was warranted because Fehlman had been too sick to testify in his own defense.
The police chief did not appear in court during the 11-day trial, and was hospitalized with pancreatitis just before the trial began. According to court documents, Fehlman also has a heart anomaly and is expected to undergo two invasive heart procedures in the coming weeks and months.
In a court filing June 25, attorneys for the family said the city's lawyers wanted "a second bite at the apple."
"The defendants grossly misstate the record, wrongfully accuse the Ostlings’ counsel of 'misconduct,' and incorrectly claim that they could not possibly have defended this case in the absence of their embattled police chief (who is now being accused of perjury by his own department for the deposition he gave in this case)," the Ostlings lawyers said in court filing that responded to the request for a new trial.
The Ostlings' attorneys said Bainbridge's attorneys could have used expert witnesses to testify about training in the police department, or the city's own officers.
"These defendants are victims only of their own hubris; they gambled on the verdict, and lost," lawyers for the Ostlings told the court.
The attorneys for the family also said the chief was well-represented during the trial, and the lawyers were able to use a videotaped deposition of Fehlman to assist with their defense.
Lawyers for the city said the verdict would mean the end of Fehlman's 27-year career in law enforcement, but attorneys for the Ostling family repeated claims made by the Bainbridge Island Police Guild in the union's no-confidence letter that was given to city officials on June 12.
"The chief claims that this verdict 'likely signals the end' of his law enforcement career, but review of the guild’s 'no confidence' letter shows that it had nothing to do with the outcome of this case," attorneys for the Ostlings said in this week's filing with the court. "Rather, it appears to stem from the lack of leadership and breaches of public trust that have become the apparent hallmarks of the chief’s tenure at [the Bainbridge Island Police Department.]"
The attorneys repeated allegations made in the guild letter, which included claims of a failure of leadership because of a division between the community and the police department; misappropriation of public funds because of Fehlman's use of his police SUV; the unauthorized disclosure of confidential files and leaving firearms unsecured; and a "breach of public trust" and perjury stemming from the Ostling shooting and trial.
The Ostlings' lawyers repeated the allegation made in the guild letter that Fehlman had been untruthful when he said in his deposition that an officer had been reprimanded after the Ostling shooting.
They added: "Chief Fehlman made a number of false statements regarding the Ostling incident, failed to correct those statements, and then wrongfully blamed another officer for supplying him with incorrect information."
The city's attorneys had also faulted the Ostlings' attorneys for misconduct during the trial.
In their response, the attorneys said any errors made by the Ostlings' legal team during the trial were not intentional and were harmless, and that a new trial was not warranted.
Contact Bainbridge Island Review Editor Brian Kelly at email@example.com or 1-206-842-6613.