Jury foreman recounts debate over Ostling verdict
By BRIAN KELLY
Bainbridge Island Review Editor
June 30, 2012 · Updated 1:00 PM
Bainbridge Police officers put themselves in a life-or-death situation by moving too quickly to confront Douglas Ostling and not taking time to talk to his family about his mental illness, the jury foreman in the federal civil rights trial said Wednesday.
Galen Conrad, a senior pastor at Calvary Community Church in Longview, was the foreman for the eight-member jury that awarded the Ostling family and Ostling’s estate $1 million after the close of an 11-day trial earlier this month.
The jury in the trial, prompted by a lawsuit the family filed against the city of Bainbridge Island after police shot and killed Ostling while responding to a 911 call at the family’s home, found the city had not properly trained its officers to deal with the mentally ill.
The jury also said the deadly shooting was justified, and did not find fault with Bainbridge Police Officer Jeff Benkert for firing the fatal shot. They also said that police did not unlawfully delay medical aid to Ostling as he lay bleeding to death from gunshot wounds behind his locked apartment door.
After finding much evidence to support their view that Bainbridge police had not been properly trained to deal with the mentally ill and had not followed the policies set out in their department’s manual, the jury struggled long and hard to decide how much money the family should get, Conrad said.
“That was really difficult. We had two very extreme views,” he said.
At one end, Conrad declined to be specific, was a damage award well beyond what the jury eventually settled on.
“Let’s say millions,” Conrad said.
At the other end: “Maybe $100,000 or less.”
It took a long time to reach agreement, he said, with one side wanting a low amount of damages, and the other side, wanting more.
“That took an awful large part of our deliberations. We talked and re-talked. We looked at it from the Ostlings’ perspective. We looked at the fact that we hadn’t charged the officer,” he said.
The wording on the fourth question of the verdict form, where jurors were asked if Police Chief Jon Fehlman and the city violated Ostling’s constitutional rights because they had failed to train their officers, was pivotal, he said.
With the wording of “officers” in the question, it took the jury’s attention off Benkert, Conrad said.
“It gave us an opportunity to say the evidence was there that there was no training except for what the state does for all officers,” he said.
Conrad recalled the closing argument from the city’s defense attorney, who asked the jury to not try to send a message to the city of Bainbridge with its verdict.
“Some felt that we needed to make a statement. Some felt that we needed to give the Ostlings something for sure.
“But we tried to base it on the evidence. We decided it was not our job to make the message. And yet, I think there is a message in that [verdict].
“The rights of the mentally ill need to be honored, and they do need to be handled differently,” Conrad said.
Conrad said he tried to make everyone feel that the damage award was not too extreme, but one that recognized the family’s loss and that the treatment of Ostling by police showed a disregard for the mentally ill.
“We had people who were dug into their positions at the beginning. We just had to keep coming back to it,” he said. “We had to keep talking and listening. We talked about different amounts, we talked about different ideologies.”
It wasn’t easy, he said.
“We had to stair-step down to where we all felt comfortable; that we were being honest with the situation and gave as much in most directions as we could to still keep our own consciences,” he said.
The pivot point
Conrad said the basis for the jury’s verdict was that the officers just moved too quickly when they got to the Ostling home after the 911 call, sped too fast past the father who said his son was mentally ill, and walked up that narrow stairway to where they found Douglas Ostling.
A crucial issue, Conrad said, was their police manual that said to take time to calm situations involving the mentally ill.
The pivot point: “The speed at which they entered and it was tragically ended,” he said.
“If they would have slowed down when they heard ‘mental illness’ and when they heard from him inside the room,” Conrad said. “They put themselves where lethal force was necessary because the tightness of the outlay of the apartment and the stairs.”
During the trial, the city’s lawyers had contended that the officers wouldn’t have gotten much, if any, useful information about Ostling’s condition from his parents.
They suggested the Ostlings might have minimized their son’s mental health, leaving out any hints of a violent past or threats that had been made, if the officers had stopped to talk to family members before going to talk to the man who called 911.
“We wrestled through that,” Conrad said.
Such a delay, though, before the officers ascended that narrow stairway, would have helped, Conrad added. Slowing things down would have let the officers see they were going into a situation where they would be boxed in.
The jury also struggled with the search-and-seizure issue, he said.
Conrad recalled the testimony that an officer had the key and was ready to unlock the door of Ostlings’ apartment.
“They had the key; their intent seemed to be that they were going to go in,” he said.
“Officer Portrey said they had put the key in the door but had not turned it,” Conrad said.
Portrey and Benkert said it was Ostling, though, who opened the door.
And investigators said earlier that the two officers were perched outside Ostling’s door in the narrow stairway above the garage when Ostling flung the door open, clutching a double-bladed ax, and refused to put it down, even after being tasered by one of the officers. Ostling was shot by Benkert as he moved toward the door, just a few feet from the two policemen.
The jury found nothing there to dispute.
Lawyers for the Ostling family had said Bainbridge police opened the apartment door and sparked the confrontation between Ostling and police, however.
Just two witnesses
Conrad said the jury decided only the officers could say what happened for sure.
“They are the only ones who know,” he said. “Bill [Ostling, the victim’s father] was at the bottom and couldn’t see,” he said.
Conrad said the jury thought that even if the officers wanted the door open, their intent wasn’t enough to find them at fault.
Conrad said the shooting was justified because Ostling was moving toward the officers with an ax while he was shot. Ostling’s apartment door, with holes from two bullets, was displayed in front of the jury box during the trial.
Conrad said the evidence showed the door was open when the first shot was fired, and that three shots were fired rapidly. Ostling probably closed the door with his leg, Conrad said.
“It was the moving forward with the ax and not dropping it and the close proximity was one of the reasons that we could not charge Officer Benkert,” he said.
Conrad also cited the 21-foot rule used by the defense, that officers don’t have enough time to draw a gun and fire in the time it takes someone with a bladed weapon to close the distance.
Though it didn’t look like there was space for Ostling to swing the ax over his head, he was still a threat with the ax, Conrad added.
“He still could have inflicted significant pain,” he said.
The fatal timeline
During the trial, both sides offered experts to say how quickly medics would have needed to reach Ostling to save his life. Given the severity of the wound, a gunshot that perforated a femoral artery in Ostling’s leg, the defense had said medical aid was needed in 10 to 12 minutes.
An expert from the University of Washington extended the timeline by nearly double.
Conrad said the jury found his testimony more credible.
Jury discussions settled on the 20-minute mark, but noted that the officers on the scene were called off and told to wait for a SWAT team after 15 minutes had gone by.
And officers did make some attempts in those early moments to check on Ostling, including going partially up a ladder before deciding the roof was too dangerous to crawl out on and look through a skylight window at Ostling.
Attorneys for the Ostlings had long said that authorities had denied medical aid, and stressed the long delay before a paramedic had made it to Ostling’s side.
Lawyers for both the city and the family tried to minimize the testimony of experts from the other side, and pointed out the high fees that the witnesses were being paid.
Those jabs weren’t lost on the jury.
“We all decided we would like to be witnesses for federal cases,” Conrad said.
Even so, he said it didn’t influence whether the jurists thought the experts were credible.
Fehlman did not testify during the trial, and the city’s attorneys have since asked for a new trial because the chief was not able to defend himself in court or offer testimony on the training that officers undergo.
“We realized he was sick and couldn’t come. Would that have swayed our decision? I really don’t believe it would have,” Conrad said.
He also noted that the chief’s testimony before the trial did not add to the city’s defense.
“I would say his deposition did not help him at all or the city,” Conrad said.
Ostling’s father, mother and sister took the stand during the trial, and the highly emotional testimony took a visual toll on those in the audience.
“One could not help but be impacted by the pain and the love they had for their son,” Conrad said. “That he was in the safety of his own apartment and the anger, the hurt and the frustration couldn’t help but touch your heart.”
Still, the jury tried to keep any emotion out of their deliberations, and instead they concentrated on the evidence.
“But one could certainly feel the pain, a very genuine pain,” Conrad said.
The press conference
The jury foreman also said city officials should have corrected false information that was given to the media the day after the shooting. And someone should have apologized for the death, he said, despite any legal concerns.
“It haunts me still that the Ostlings have not seen a reversal or an admittance of the error,” he said.
“I personally would have more accepting of the situation if they had told the truth.
“They were already grieving from the loss. And to have something extremely untrue stated,” he said, “I think was a disservice to the community. I think it’s a disservice to the Ostling family.”
Conrad said he also didn’t expect to be picked to serve on the jury. This case was the first time that he had been asked to serve.
During the seating of the jury, Conrad had said he had counseled police officers and their families in his church.
“I thought this being an officer shooting, and having police officers in my church, would probably get me back to church to do my thing.”
It didn’t. During the questioning of potential jurors, Julie Kays, an attorney for the Ostling family, asked Conrad if he could still be fair, given his background. Conrad then recounted how he had helped families with members who were mentally ill.
Conrad said his fellow jurists picked him as jury foreman when he left the deliberation room to go the bathroom.
“Next time, I’m not going to leave,” he laughed.
He praised his fellow jurors as “good people.”
“The ladies on the jury were amazing in their note-taking; we were able to use that to supplement the written material,” he said.
“I was really impressed with the jury. They took it very serious,” he said, adding that deliberations did not begin until the end, after all the evidence had been presented.
Courtroom observers, the press included, privately noted how skilled the jury’s poker-face skills during breaks in the trial.
Conrad said their blank expressions were indeed intentional.
He said the jurors did not want to make any expressions that would cause despair, or give the family false hope.
“The hardest part was the Ostlings, and not looking them in the eye,” he said.Contact Bainbridge Island Review Editor Brian Kelly at firstname.lastname@example.org or 1-206-842-6613.