City's attorneys continue effort for new Ostling trial

Attorneys for the city of Bainbridge Island are continuing to press for a new trial in the Ostling shooting tragedy.

In a filing Friday in the Western District of Washington, U.S. District Court, the city's lawyers continued to stress that Bainbridge Island Police Chief Jon Fehlman's absence during the court case "profoundly affected" the trial.

The city's attorneys also rejected claims made by lawyers for the Ostling family, who have said the chief was well represented during the trial because a video deposition of Fehlman was shown and that the defendants also had two police experts they could have called to testify, but didn't.

The city's attorneys, however, said no one could step in and testify for Fehlman.

A jury in the federal civil rights trial awarded the Ostling family $1 million last month, and found that the city of Bainbridge Island and Fehlman, as chief, had violated the family's constitutional rights because police officers had not been properly trained to deal with the mentally ill. Douglas Ostling was killed by Bainbridge Officer Jeff Benkert after police responded to a 911 call at the mentally ill man's home and shot Ostling after he confronted officers with a double-bladed ax.

Fehlman was hospitalized with pancreatitis the day before the  trial began. The city's attorneys repeatedly asked Judge Ronald Leighton to postpone the trial, but he refused.

On June 14, the city's lawyers asked Leighton to put the jury's decision on hold, and said the jury also made a mistake when it decided in favor of the family. The city's legal team said Fehlman was medically incapacitated during the trial, and had undergone two heart surgeries for a heart anomaly as the court case was unfolding, and was also being treated for life-threatening pancreatic failure. The verdict, they said, would end Fehlman's 27-year career in law enforcement.

Brian Augenthaler, an attorney with Keating, Bucklin & McCormack, Inc., the law firm that defended the city against the Ostling lawsuit, said in last week's court filing that it was essential that Fehlman testify because he was named as a defendant in the lawsuit, and that the Ostlings' attorneys had to prove that Fehlman "was deliberately indifferent to the rights of the mentally ill."

"There was no substitute for Chief of Police Jon Fehlman's presence because his state of mind was on trial," Augenthaler wrote in his June 29 filing with the court.

Augenthaler said the Ostlings' attorneys needed to show "deliberate indifference" by showing that Fehlman or the city knew that the failure to train police officers adequately "made it highly predictable that its police officers would engage in conduce that would deprive persons such as the plaintiffs of their rights."

Lawyers for the Ostling family, Augenthaler said, "had to prove Chief Fehlman made a conscious choice to disregard the consequences of his own omissions, and Chief Fehlman knew his failure to train made it highly predictable the mentally ill would be harmed."

Augenthaler said the witnesses suggested by the opposing lawyers — two of the city's expert witnesses, and two police lieutenants — lacked personal knowledge of the city's overall training program and Fehlman's philosophy for training regarding the mentally ill.

The city had lined up Ellis Amdur, an expert in crisis communication, and Robert Bragg, an expert in police officers' use of force, to testify during the trial. Augenthaler noted that the pair were only generally familiar with law enforcement training and had not helped the city of Bainbridge Island or Fehlman create or implement the city’s police training practices. Neither Amdur nor Bragg were called to testify during the trial.

The two lieutenants, Augenthaler said, did not know about the police department's overall training program, budget and goals, or Fehlman's perspective on police training for dealing with the mentally ill.

"The only person who could speak to Chief Fehlman’s state of mind, without blatant speculation, was Chief Fehlman," Augenthaler said.

"The jury rendered an invalid verdict against the one individual who was not present and could not defend himself. Chief Fehlman was the only person who could have validly

spoken to his mental state for purposes of analyzing 'deliberate indifference,'" Augenthaler added.

In an earlier filing in court, the Ostlings' attorneys asked the judge to reject the request for a new trial, and disputed claims of attorney misconduct. They also pointed to the Bainbridge Island Police Guild's recent vote of "no confidence" in Fehlman as one of the reasons against a new trial.

In the guild's letter of no confidence, the union claimed Fehlman had committed perjury during his deposition when he said an officer had been disciplined in the aftermath of the Ostling shooting.

Augenthaler asked the judge to reject the inclusion of the no-confidence issue — the union vote itself came less than two weeks after the jury's verdict was rendered in the Ostling lawsuit — as it was not part of the court case.

Augenthaler said the Ostlings' attorneys would have used the alleged perjury theory during the trial if it hadn't been deemed unworthy.

"It is doubtful counsel would have bypassed an opportunity to impugn Chief Fehlman if there was perjury," Augenthaler wrote.

The request for a new trial has been placed on the motion calendar for the U.S. District Court, according to a court clerk, but no hearing has been scheduled.


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