Tuesday, July 6, 2010

For the Defense: Phoning it in

In the moments immediately following a lethal self-defense fight there is an existence of perverse intimacy.

No firearms instructors ever talk about it. That is the reality of being in the same room, the same parking garage, the same empty backwoods trail as your attacker dies and bleeds out because you have done this to him. His life having either left him or is leaving him as he struggles, kicks, moans and dies. It is a dark moment on anyone's life. You may be alone, you maybe with your loved ones, or a completely innocent by-stander, either way, there you are.

There are conventional rules of engagement for the good guys, though they are for the most part unwritten. The first is that you call 9-1-1 and that you stay where you are.

Once while working a kidnapping case in a very rough borough in mid-western city my local contact advised me to make one of two choices should I find myself in a gunfight. The first was to have all my brass wiped clean of fingerprints and get out of the city as fast as possible. Kidnapped victim or no Kidnapped victim. The second was to call the police tell them I was involved in a shooting and that I was driving myself to the hospital due to chest pains. I was advised not to stand pat because the local drug lord owned all the cops that would be responding and, my life expectancy would be precisely: zero

In the end I resolved the situation without a round fired and lived to tell the tale, never having to use my pre-laid decision.

Conventional dictum, rattled off very fast and passed over far too quickly goes something like: "shoot-to-neutralize, reload, threat assess, call 9-1-1 and wait for the Calvary to come pick up the trash".

The problem can lie with the Calvary. And while I may ruffle a few feathers understand it is not my intent, nor is it to make nefarious accusations. Don't read it as such. When officers respond to the scene of a shooting they bring with them some predisposed items. Some is training, some is life, regardless when the first couple of Cops arrive they have to contend with the fact that:
  • everyone with a gun is a bad guy until verified otherwise
  • things are probably not as they are claimed
  • their personal safety is at risk since they know at least one person has willingly pulled the trigger.
  • their partner's safety
  • regret over eating that thing they ate they wished that they hadn't
  • unanswered questions at the scene that revolve around a very violent situation
  • insert life here
The point is this while you are looking at the dead man in the hallway whose chest just stopped rising and falling forever your life as well is forever changed. And the only "for better" part is that you are still alive.

For the first responder it's another day on the job (at best). And when they arrive maintaining the integrity of the crime scene is not as important as making sure any threat is dealt with. The honest cop will tell you that there are more than a couple of idiots on the force that they they have to contend with. The know-it-all, the over-eager, the unprofessional lazy tool, the anti-gun, anti self-defense jerk that the rest of them hate working with.

You may now be working with him as well.

I know of one case where the Cops responded to a father shooting his daughter's abusive ex-boyfriend in the front yard. The Ex-BF showed up drunk with a gallon of gasoline and began dousing the front yard. They also found later that he had several guns in the car and it was thought he planned on shooting everyone as they came out.

Dad responded to the arsonist by killing him via several well placed 9mm rounds to the chest. Everyone saw it as a clear cut case of self-defense.

The local Prosecutor however was bothered by the fact that the shooting took place outside the home, coupled with the fact that two shell casings were missing. In his infinite wisdom the Prosecutor decided that the father must have picked up two of the casings for one reason or another. Charges were filed against him for tampering with a crime scene.

The reality was, a Rookie wanted a souvenir from his first "crime scene" and took two of the spent rounds. Fortunately he fessed up.

What if he hadn't.

There also exists another problem. Should the Bad-Guy-in-Question not be dead the Paramedics are surely going to arrive and try to save him. In doing so a crime scene may get changed. Blood smeared, brass kicked, couches moved, cars made to be backed out of the way.

All well intentioned, but changed. Changes that may, and to be fair, may not hamper your plea of self-defense.

I once witnessed this personally. Walking down the street late in the evening of the Urban environment I lived in when I was single I witnessed two males come out of a club in a bloody fist fight. All was not what it seemed. One was empty handed and the other had a busted bottle and was attempting to slash him, and succeeded pretty well in doing so. When the sirens began wailing he dropped the bottle in the street near the curb. Surprisingly it didn't bust. That is until the ambulance arrived and pulled on top of it. Evidence was crushed. Literally.

My lingering thought was this. What if that had been me and I had been forced to shoot him. I could then only rely on my claim that he had a weapon and witnesses that surely would have included his friends. What then?

The Point.

There is nothing illegal about you taking pictures of the crime scene. Period. The Defense (you) has a legal right to collect and maintain evidence as long as the evidence is not in and of itself illegal (think: unlicensed automatic weapons, illegal drugs, etc).

Therefore your new best friend maybe that little phone in your pocket with the camera.

Unusual, unorthodox yes it is. Some may question that this shows a disturbed state of mind to willingly take pictures of the deceased, but you have to realize that pictures are going to be taken. If its out on the street or in a public location you can rest assured the new media in a chopper somewhere is going to have aerial photographs (which you may also want your lawyer to subpoena). They just generally don't show it on the evening news out of decency these days.

I would point out if I were retained as an Expert Witness that the defendant was extremely sober minded and was very well educated in the matters of self-defense and had read case after case of over zealous Prosecutors going after "Victims".

If your pictures correlate that of the police then it reinforces your position.

However, should you find yourself at the mercy of a Prosecutor who cries murder you have the very first photos of the crime scene when it was you and the attacker prior to anyone else showing up and possibly altering the crime scene, unintentional or otherwise.

This establishes doubt against the the Prosecution's case in both the Judge and Jury's mind. Doubt is what wins in court.

It is generally accepted in court that the Defense is not required to provide Inculpatory (points to guilt) Evidence or Exculpatory (points to innocence) Evidence. The burden is on the Prosecutor, or in the case of a wrongful death suit the Plaintiff's attorney.

If you find yourself in an altercation that has not gone physically violent, but is escalating, take the Perps picture of him screaming threatening, etc. If you can, turn on your phones "voice memo" recorder and get a sound bite of his threats, his ranting, etc. Should you be forced to enter into a lethal encounter against the B-I-Q photos prior to it demonstrate that you were going to call the Police and give them the criminal's photograph of him for future use in his apprehension. What we all essentially know in the world of defense is that you are going to defend yourself far more in life with words that you ever will with a weapon. Having a sound bite and/or a photo that you are trying to de-escalate the situation or at least not the aggressor in the circumstance is a feather in your cap.

You want as many feathers as you can get.

Use your intellect that God gave you. And think about this long before you find yourself there. Training of any type starts in the brain first and having a plan (Rule 13) will help you implement it when the deal goes down.
  • Call 9-1-1 and report it, THEN take the photos. You don't want your Attorney to present them as evidence and the other side point out that the time stamp on the photos is three minutes earlier than your call to the LEOs. It makes you look creepy and perverse.
  • Don't take five thousand photos (again points to creepy) take five maybe a dozen if time allows for it. This will greatly depend on the response time of the Cops. I would advise taking pictures from where YOU were when the feces hits the impeller. Also known as POV (Point of View). As horrendously morbid as it sounds I would take a picture of the attacker especially if he is not dead. Your goal is to maintain integrity of the crime scene that paramedics could potentially disturb. It simply is what it is.
  • Take whatever your photos you can or need before the Police arrive. At the sight of the first flashing light. Stop....stop taking pictures. You don't want an Officer on the stand later saying "when I walked in the Defendant was taking photos of the scene. Remember me mentioning the creepy factor, it's worth mentioning again.
  • Don't play amateur detective if there is some extraordinary amount of time between your 9-1-1 call and the arrival of Law Enforcement. Leave everything alone. If the perp is alive, Don't Talk with Him.
  • Don't.
  • Don't move, touch, disturb or breath hard on anything you NEVER alter the crime scene to make it more favorable to you. This is the very reason you are taking your own photos. You don't lie to defend your integrity.
In the end. Keep your mouth shut about taking pictures. This is to be shared with your attorney and your attorney alone. No one else. Don't saddle up along side the responding Officers and say "yeah I got some pictures as well." Because at that point your phone just became evidence in whatever way the Governing powers see fit to use them.

The justice system here in the United States is an adversarial one. In theory at least, and the defense is supposed to meet the Prosecution on equal ground. Resource against resource, argument against argument and strength against strength. It is what ensures that the system works properly. Your Defense attorney (and your bank account) has an overwhelming fight against the broad and powerful resources of the State.
You are simply trying to close that gap.


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