A number of requests by the attorney for the family of Russell Smith were rejected Friday (Jan. 3) ahead of scheduling an inquest hearing to determine if Bellevue SWAT members were justified in shooting the 51-year-old Seattle man to death in March 2012. The last-minute inclusion of an attorney for Smith’s family had already pushed back the hearing, which is now tentatively set to start March 3.

Smith was shot inside his Mercedes Benz on the early morning of March 22, 2013, after Bellevue SWAT members approached his vehicle on the 5000 block of 43rd Avenue South in Seattle to serve an arrest warrant and search his property. He was suspected of at least three robberies in Bellevue and two in Seattle going back to November 2012.

The Seattle laborer is alleged to have backed out of his driveway, striking a pickup, before accelerating forward at several SWAT members who fired on him after they reported fearing for their safety. Three officers collectively fired 21 times and Smith was hit eight times, one bullet entering his brain.

King County Executive Dow Constantine ordered an inquest into the shooting back in June. The hearing before a six-member jury was set to start in early December, however, it was pushed back after Smith’s family retained an attorney. Under the law, the family’s attorney, Fred Diamondstone, will be allowed to cross-examine witnesses during the hearing.

Bellevue District Court Judge David A. Steiner listened to arguments for and against a number of requests by Diamondstone, which included adding witnesses at the hearing and modifying directions for the jury on how to deliberate and come up with a decision. Steiner ruled out most of Diamondstone’s requests on Friday as irrelevant to the hearing, but added some witnesses the attorney requested may be added if he can prove they will provide substantive testimony. Smith’s daughter, Akilah Welborn, was allowed to listen to the pre-hearing over the phone on Friday.

Diamondstone told the judge he’d been given no direction by Smith’s family to seek out a civil suit against the city of Bellevue and its police force,  but attorney Andrew Cooley said he would object to any request that would expand the inquest to days before and after the shooting as a representative for the city and police department. He said Diamondstone appears to be looking for proof of negligence in how Bellevue SWAT administered its arrest warrant.

Among the witnesses requested by Diamondstone rejected by Steiner was the medic-in-charge for the Seattle Fire Department, who had been staged away from Smith’s home on Rainier Avenue, to determine if there may have been any delay in a medical response following the shooting. Cooley objected, arguing Diamondstone was trying to make a case that Bellevue officers interfered with Smith receiving life-saving medical attention. He said there is no evidence Harborview Medical Center staff could have saved the Seattle man’s life had he arrived “by magic” immediately following the shooting.

“If they’re allowed, Mr. Diamondstone is going to try to argue that they wanted him to bleed to death right there on the scene,” said Cooley, “and that they intentionally held people up in order to accomplish that. And so we’re well past the method and manner of death, and we’re getting into things like negligence.”

Diamondstone admitted he had not interviewed any of his proposed additional witnesses for fear of being accused of tampering, and requested a King County deputy prosecutor be available when he does. He added he had also been brought into the case late and is working to catch up. As he had no idea what testimony would be provided, Steiner rejected adding any witnesses until Diamondstone can provide that information.

“I’m not going to call a witness who may or may not have relevant information,” he said.

Cooley also objected to Diamondstone’s request to call the medical examiner in charge of Smith’s autopsy to testify as a witness because of the attorney’s desire to determine which of the three Bellevue police officers had fired the fatal head shot that killed Smith.

“What’s really happening is Mr. Diamondstone is once again trying to figure out who he’s going to finger and try to blame for firing the fatal shot,” said Cooley.

Jacob Bement, Casey Hiam and Jacob Childers, all 28, were identified as the shooters responsible for the 21 shots that struck the Mercedes and the eight that struck Smith, all bullets striking him in the left side, except the fatal head shot through his right.

Diamondstone told Steiner it is important to determine who made the fatal shot and whether it was when the car was accelerating toward officers or rolling back after Smith was struck in order to determine if that shot was justified. Steiner said as long its proven officers had a reasonable fear for their safety when they shot at Smith it is irrelevant who fired the shot that ultimately killed him.

Cooley asked the judge to grant the city’s wishes that the hearing begin by the end of January at the latest, but Steiner said the inclusion of Smith’s family’s attorney and further interviews by Diamondstone didn’t make it seem likely. King County Deputy Prosecutor Jill Yamamoto said she too did not want to further delay the hearing. As she is pregnant and due in two months, she added another deputy prosecutor is likely to be reassigned to the inquest case.