Friday, June 17, 2011

For The Defense: Is self-defense an absolute right?

Earlier this week I received a phone call from a colleague asking if I could assist in a legal defense appeal. The Client is doing life+ with no chance of parole for a double homicide/triple shooting....twenty years ago.

My friend had been interviewing his client in the states maximum security prison and recommended that I be brought on (before I even knew about it, so how's that for trust). He was given the green light and we talked as he was on the drive home. Once fee was discussed and agreed upon I made a trip yesterday to request the court record from archives and, had some time to look over it the thousand plus pages this afternoon.

Here is my question for you, for you to stick in the back of your head should you ever get called into jury duty for such a case...and for you to comment on as well. It is this:

Is lethal self-defense an absolute right?

I believe it is. Regardless of your character and though the law actually reads as such it at least in this case didn't seem to care about that. The same circumstances are often brought up in rape cases and if you were to shift the paradigm slightly of "can a prostitute be raped?" that is where this case is at.

Back in the winter of 1990 the Client is in a neighborhood tavern, he begins chatting it up with a young lady and two guys take issue with this at which time a verbal altercation in the bar begins between the three men, but no physical altercation. Finally the bouncer (in my opinion) makes a fateful decision by throwing all three men out together. The Client begins making a B-Line for his vehicle. No talking smack, no "come on fight me" he's leaving.

At this point B-I-Q #1 and #2 give chase and the three men begin full on fighting. The Client goes around 5'7" and 149lbs while the other two are 6ft-6'1" and between 180-200lbs.

The Client states at one point on the stand that he is becoming physically exhausted and can not keep up against his attackers who show no sign of stopping and at one point B-I-Q #2 grabs his legs and lifts him. The Client pulls a snub-nosed .38 special fires twice into one B-I-Q and once into the other. Killing them both.

In an odd twist of fate a witness is also shot, not by a stray round, but rather due to a shoot through round (I don't know what ammunition was used at this point and time) that connects with him some distance away. He does survive and what I have learned holds no ill will towards the Client saying he was just trying to survive.

Yet the Prosecutor asks him during the trial "why didn't you just fire a warning know to scare them?"

The hullabaloo to the jury was that the fight wasn't fair. The two weren't armed and the Client was. No one on the original defense team felt it was imperative to mention how many people are simply and effectively beaten to death every year.

Self-defense, even in the P.C. rampant 90's, doesn't require the capability to read your attackers mind so that you can gain insight into the lethal/non-lethal intent. And in fact he (the Client) met obligations in trying to flee from the altercation by getting to his car before being jumped and attacked.

The Client would tell you he wasn't exactly an upstanding guy back in the day and one could argue that, that's Karma for you. But Karma isn't law. The law makes no moral exceptions for who has the right to self-defense and who doesn't.

Hence the "can a prostitute be raped" question. Of course she can.

Once years ago I was in a pub with some friends. I had just left protecting my Principal (client) and was carrying my pistol (a Kahr K9 if I remember correctly). One guy in our group (not a friend and high on the a-hole quotient) started talking trash with some other guys in the bar. A moment before it went bad he looked over and said to me "you got my back right?"

"Absolutely" then shook my head no to the other guys. He was a problematic personality and wasn't any friend of mine, and frankly not worthy of waiting next to him for bail. On that note he punches (attacks) a guy in the other group and a fight ensues...for him. We stayed out of it. And we were right to.

Good ol' fashion bar brawl right?


He assaulted someone and at some point in the ass kicking he got had he pulled a gun and shot his aggressors he would have been in the wrong.Even if he was about to lose consciousness. He was the initial aggressor and attacked, they defended.

What? Really?...I mean what about the whole Dark Arts for Good Guys...leave them dead in the street attitude. 

Will Smith has one of my favorite lines of all time in Men In Black that goes "Don't start nothin'. Won't be nothin'."

When he swung first he started it. Words can inflame you, but they can't kill you.

My Client on the other hand weighed in on a heated exchange but tried to avoid a fight which didn't matter because he was pursued and attacked.

No one bothered to ask during the trial what could have happened to him had he NOT had that snub-nose. If they had stomped his head in, broke his back and paralyzed him, or pulled out weapons of their own unseen and unknown of before?

While your character may come under scrutiny during a trial the key element is this regardless of your level of saint or sinner-hood. If you are attacked you have the right to defend yourself by any means necessary to preserve your life. Sadly the court room world thinks we live in the Lone Ranger world where we all have to fight fair. Until someone make an app for reading minds the fighting will remain unfair.

Teddy Roosevelt may have said it best with "Don't hit at all if it is honorably possible to avoid hitting; but never hit soft!"

Needless to say it's going to be an interesting summer.


RobertM said...

From your description of the case it would appear your client was justified in his actions. The only liability was in hitting the bystander and that should be a civil matter.

Peter said...

You pose a very interesting question, but I submit it's one where the answer (at least in the minds of a jury) is conditioned by the accused. It shouldn't be that way, but all too often it is.

I agree that self-defense, up to and including the use of lethal force, is an absolute right. However, like all rights, it can be exercised responsibly or irresponsibly. The judgment as to which it is rests, not with us, but with those judging us - and they'll base their judgment on what they know of us.

If you're squeaky-clean, in the criminal record sense, and were minding your own business, and were attacked . . . you're golden, most of the time.

If you're a hardened criminal (in the criminal record sense), and were in a place where fights are not that uncommon . . . you were asking for trouble, perhaps even looking for it, and you found it. Your bad, your problem, your responsibility.

As I said, that shouldn't happen, but all too often it does, not just with juries, but with cops too. If they respond to an incident, and find out you (one of the participants) has a record, your odds of being arrested and charged just went up tenfold.


Lila said...

I am surprised defense never posed the question of what would have happened to him had he been unarmed. He very likely saved his own life. Twe all are allowed to defend ourselves. He did not strike first. He did not even immediatly pull the gun. He did all he could to avoid lethal response. When he knew he could not fight much longer and had no hope for escape without his gun only then did he use it. Pretty obvious to me that he did nothing but defend himself.

I try very hard to have faith in the law and in justice but cases like these just break my heart and remind me why I have to be responsible for my own safety. The law is just words and crime doesn't care.

Bret said...

I got asked a very pointed question, as I am a 25 yr law enforcement vet. the question was how does one avoid bar fights. My response was don't go to bars. If you want to avoid trouble, then dont go places where drunk, violence prone people tend to gather. And I think your client is innocent and had a bad legal team.

Matthew said...

Interestingly (and suspected) was today reading through the case file where jury selection was, then in process, the prosecutor made notes of who was a member of the NRA or pro-gun and anti-gun.

The final jury pool had two individuals in the file that were noted as "anti-gun" where the two-three pro-gun individuals were dismissed.

Something that I suspected, but didn't actually expect to find written in the file.

Joe Allen said...

Interestingly enough, under Missouri law even the initial agressor is justified in using lethal force if they have tried to break off the encounter.

So, if I were to start a fight with you and then proceed to get my butt kicked, and then throw up my hands and say "that's it! I'm sorry, I quit, UNCLE!" and you continued to whup on me - on paper at least, I would be justified in going for my gun.

I'd hate to try and defend it in court, but the provision is there in the statutes.

Your client got an extremely raw deal.

Matthew said...


If you happen to know where that provision is and can send me a copy or a link I would greatly appreciate it.

email it to:

Arsenius the Hermit said...

Georgia has a "castle law" that says you have no obligation to retreat if attacked. You are permitted to use a weapon in defense of your life, the lives of others, or property. If you meet those parameters you can't be prosecuted. So in this case, where two guys were beating a third and the third had to resort to the use of a weapon in self defense, I don't think he would have a problem. If he were a convicted felon in possession of an illegal weapon, he'd probably get into some trouble over that, but not the shooting itself.

Shy Wolf said...

Seems to me, and I'm no lawyer and have never had jury duty, from what info I have here, the smaller person, who was attacked, beaten and exhausted, was justified purely by the number of aggressors, let alone their stature. Too, even if his past history is paid assassin, it has no bearing whatever on the current problem so truly makes no difference in this instance. My .0002, anyway.

Anonymous said...

Thought you would find this interesting...I was moved by your post on social media/Facebook and how people "attention whore" themselves out. Now anything you post backdated to 7 years can be used against you for employment purposes via a background check.

Anonymous said...

"Interestingly enough, under Missouri law even the initial agressor is justified in using lethal force if they have tried to break off the encounter."

That is the case in NY law as well.

Anonymous said...

I see I’m about a week late to the party but as someone who has done jury duty I can tell you that if my experience is typical, you should be terrified to put your life into the hands of a jury of your peers.
I served on a car accident case years ago where a woman was a passenger in a car that was t-boned by a man who ran a stop sign. The case went to trial because the man had no insurance at the time of the accident.
The facts were never disputed by the defense lawyer. The man was clearly at fault and his lawyer did nothing but try to portray her client as a decent, upstanding and gainfully employed member of the community. The woman had injuries which required immediate medical treatment, physical therapy as well as dental work.
After a day and a half of trial it was time to deliberate with the rest of the jury and much to my surprise, my fellow jurors wanted to give her nothing and go home. Many of the jurors expressed a desire to just get the hell out of there and go home as fast as possible.
Why? No one expressed doubts about her injuries; it was because she was a bit of a flake and they didn’t like her.
I insisted on looking through the evidence and figuring out what her past and future medical bills were worth and finally, late in the afternoon, of the second day, I finally convinced my fellow jurors of the rightness of my position. How? By threatening to continue deliberations into the next day, that’s how. They gave in so they could go home. It was a small payout but she got enough money to cover her medical bills and money to continue her physical therapy for a while. I felt bad for the guy who lost the case but he could have avoided all that trouble by just buying some car insurance.
At the time it seemed that the defendant’s lawyer had barely made an effort to make a case for her client but in retrospect she almost succeeded in getting her client off the hook by subtly portraying her client as the more likeable of the two.
Bottom line and to make a long story even longer; your case may be the most righteous shoot in the history of the republic but based on my experience your jurors are just as likely to be thinking about whether or not they like you and what is the path of least resistance that will get them home as fast as possible as they are to be thinking about the facts of the case. Also, some of my fellow jurors were alarmingly stupid.

Ted N said...

Is there any update on the client's case? I hope his appeal went well.

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thebronze said...

Any updates on this case? I'm interested in knowing if he's getting a new trial (I hope so).

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