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.


Our conversation had started with me asking “ So who shot you in the throat? ”, a basic conclusion on my part, b ecause on one sid...