When trial courts go stupid on self defense law (aka, know the law)


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lawofselfdefense
March 17, 2013, 12:58 AM
I recently came across a 2011 self defense case in which the prosecution, the defense, and the judge all got the law completely backwards on the reading of a brief and rather straightforward self defense statute.

The result was that the defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 20 years in prison. Somehow, every expertly trained legal professional in the court room managed to make a mistake I wouldn’t have expected from a first year law student. And, of course, it was the defendant who paid the price.

Although this particular case is out of Kentucky, trust me, mistakes like this happen in every state, and far too often. All the more reason why it is essential that all armed citizens have at least a basic working competence in the self defense laws of their jurisdiction (or anywhere they might go). Just because you're paying your defense lawyer a lot of money doesn't mean he's not going to make a stupid mistake--and if he does, it's you who pays the price. Know the law.

If you're interested in more details on how something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: http://bit.ly/WIjqLk .

Andrew

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Bubba613
March 17, 2013, 10:43 AM
Um, what difference does it make if the citizen knows the law? I mean, that's important and all but not germane to your post. And if the judge and prosecutor erred in a matter of law then the case needs to be appealed and reversed on appeal. Why didnt that happen?

ETA. OK read the blog. There was an appeal. All the way to the Supreme Court of KY and it was reversed.
The moral here seems to be, Get a good lawyer who knows the law very well.

JohnBT
March 17, 2013, 10:46 AM
I see your book is 20% off, but it doesn't give the price.

I love your example case. One guy goes to slash another guy's tires, but does the wrong car. So the guy sees him and gets a gun and follows the tire slasher who also has a gun. Of course it doesn't end good.

I say lock them both up. They didn't need better lawyers, they needed anger management training or something.

John

lawofselfdefense
March 17, 2013, 10:55 AM
Bubba613 writes: "Um, what difference does it make if the citizen knows the law? I mean, that's important and all but not germane to your post."

As you note, the verdict was eventually reversed.

But wouldn't it have been more convenient for all involved if the defendant could have given his lawyer a gentle elbow to the ribs, right there in the trial court room, and whispered, "Hey, dummy, the judge is proposing to give an incorrect instruction of the law--object, NOW."

Andrew

Bubba613
March 17, 2013, 11:48 AM
It's not the defendent's job to know every law and every fine part of it. It certainly would have helped but it is kind of unrealistic to expect that level of education from someone who goes around vindictively slashing tires and is too stupid to make sure they are the right ones. It is the defendent's responsibility to hire a good knowledgeable attorney and in that he failed.

lawofselfdefense
March 17, 2013, 12:14 PM
If, as you say, the defendant should be expected to be entirely ignorant of the law, how would he possibly be able to assess whether the attorney he is hiring is competent?

And if you think my advice to "know the law" was intended to benefit punks who slash tires, you're simply mistaken. It's intended to benefit law-abiding armed citizens who might well unintentionally run afoul of the law if they don't know what the law is.

As for whether the defendant has any responsibility for knowing self defense law--I believe in personal responsibility. If my doctor were to recommend a potentially life-threatening medical procedure, you can be darned sure I'd educate myself about the procedure and the illness it was intended to treat. We should all be informed patients.

Similarly, if a decade or two of my life is hanging on a statute, I suggest it would be the foolish armed citizen, indeed, who didn't even take the time to bother reading the statute, and simply placed himself in the gentle care of a criminal defense attorney with whom he almost certainly has no prior personal or professional experience.

Better yet is to know enough of the law beforehand so you can avoid ending up at trial in the first place. To extend the health analogy, it's a lot better to quit smoking than to treat the lung cancer (typed with my formerly nicotine-stained fingers :-) ).

But that's just me.

General Geoff
March 17, 2013, 01:11 PM
It's not the defendent's job to know every law and every fine part of it.

I was under the impression that everyone has a responsibility to know every law. If that were not the case, then ignorance of the law WOULD be an excuse.

Bubba613
March 17, 2013, 01:35 PM
I was under the impression that everyone has a responsibility to know every law. If that were not the case, then ignorance of the law WOULD be an excuse.
______
Do you know every law in your state? Every Federal law? Every Federal regulation? Neither does anyone else.

We hire lawyers for a reason. If I were competent in the knowledge of every law and its application I wouldn't need a lawyer. If I were competent in every aspect of medicine I wouldnt need a doctor.

If, as you say, the defendant should be expected to be entirely ignorant of the law, how would he possibly be able to assess whether the attorney he is hiring is competent?

I do not know where you teased that statement from anything I wrote. It is nothing like the truth.
I have a general knowledge of self defense law and its application but I dont claim to be an expert on the matter. Ditto with tax laws. That is sufficient for the average citizen. I pay for expert advice when I need it.

lawofselfdefense
March 17, 2013, 01:41 PM
Well, in this case the defendant's 10-year manslaughter conviction was based on one mis-applied statute. :what:

If that were me, I'd might be wondering later if it would not have been prudent to take a gander at the one statute myself. :banghead:

Not memorize the entirety of the criminal code and criminal case law. Not go to law school and open a criminal defense practice. Not become a Supreme Court justice.

Just read one simple statute.

Just one guy's opinion.

Andrew

Arkansas Paul
March 17, 2013, 03:21 PM
But wouldn't it have been more convenient for all involved if the defendant could have given his lawyer a gentle elbow to the ribs, right there in the trial court room, and whispered, "Hey, dummy, the judge is proposing to give an incorrect instruction of the law--object, NOW."

That doesn't necessarily mean that the judge would have changed his instructions. Many times objections are made with the full knowledge they will be overruled. Objections preserve the record. If you don't object to something in the trial phase, you can't appeal on that issue. A successful appeal was made here, so perhaps an objection was made.

lawofselfdefense
March 17, 2013, 03:29 PM
That doesn't necessarily mean that the judge would have changed his instructions. Many times objections are made with the full knowledge they will be overruled. Objections preserve the record. If you don't object to something in the trial phase, you can't appeal on that issue. A successful appeal was made here, so perhaps an objection was made.

Normally, that would be true, where there was merely some reasonable disagreement in the interpretation or application of the statute. There's two reasonable arguments, and the judge has to pick one, and he is going to stick to his decision even if one of the parties is disappointed (as one of them must be).

But this is not the normal case. In this case there was NO room for reasonable differences in interpretation. The statute explicitly references the intent of the the person PROVOKING the events, and the judge instead instructed the jury to consider the intent of the person RESPONDING to the provocation. Unless it's "opposite day", the judge got the law backwards, and every other legal expert in the room either failed to notice or decided to let it slide--and if the latter, they had to know that the error all but mandated a conviction.

This was not a reasonable difference in interpretation or application of the law, it was a simple, stupid error.

If the obvious error had been pointed out, might the judge have doubled-down and still insisted on giving the obviously wrong instruction? I woud like to think that most judges wouldn't deliberately and knowingly give an incorrect instruction.

But I guess anything's possible.

Andrew

Bubba613
March 17, 2013, 03:55 PM
If that were me, I'd might be wondering later if it would not have been prudent to take a gander at the one statute myself.
In retrospect of course we know which statute that was. At the time there were many and numerous statutes, laws, ordinances and precedents to consider. Which one of those was going to be the key to the case?

lawofselfdefense
March 17, 2013, 04:10 PM
In retrospect of course we know which statute that was. At the time there were many and numerous statutes, laws, ordinances and precedents to consider. Which one of those was going to be the key to the case?

Maybe focus then just on the provocation charge? You know, the one that, if screwed up, would destroy his ability to argue self defense and put him on the hook for (at minimum) manslaughter and perhaps even murder (it was only by the grace of the jury that his conviction was for merely manslaughter).

Surely he must have understood that the killing of another person was a much more serious legal matter than the slashing of some tires, right?

I can understand running out of time and not being able to cover ALL the jury instructions and statutes and so forth, but wouldn't you at least take the time to understand the single most serious of the jury instructions? To invest, what, the minute or two it would take to read the provocation instruction, the one on which the jury would decide how you spend the next 10 or 20 years of your life--as a free man, or servicing Bubba?

But, hey, we can agree to disagree on this. If you feel that taking the time to understand even the single most critical of the jury instructions would have been an overwhelming task, that's OK with me.

It's just not how I would have handled it.

Andrew

Mastiff
March 17, 2013, 05:29 PM
I have to go with Andrew on this one. Self defense requires it, IMHO.

clutch
March 17, 2013, 05:42 PM
The tire slasher was causing a significant amount of property damage while being armed if I read that right. The person that was the victim of the slashing chased after the slasher and the slasher pulled out his gun?

So what is likely a felony due to amount of property damage is done by a guy carrying a firearm in commission and the victim that may have only wished to identify or arrest the slasher is on trial for surviving?

Captains1911
March 17, 2013, 08:17 PM
The tire slasher was causing a significant amount of property damage while being armed if I read that right. The person that was the victim of the slashing chased after the slasher and the slasher pulled out his gun?

So what is likely a felony due to amount of property damage is done by a guy carrying a firearm in commission and the victim that may have only wished to identify or arrest the slasher is on trial for surviving?
No, you've got it wrong. The owner of the slashed tires is dead. The tire slasher was on trial.

lawofselfdefense
March 17, 2013, 08:50 PM
Captains1911 is correct.

I suppose the original link to the blog post with the details might have been buried by now, but you can just go to the top of the thread and find it. Or click on my username and follow that trail to find it. Or just drop me a PM.

Either way.

Andrew

Meta
March 19, 2013, 03:12 PM
Shouldn't come as a surprise, but judges make mistakes. Lawyers make them too. Sometimes judges even make "mistakes" on purpose. The system is far from perfect and sometimes it's so unfair to facts and reason that one could wonder how some judges passed the bar exam. Such a situation cost me seven figures in civil litigation. Imagine the worst and you'd be about half way there. Suffice to say that at least one element that was visited by our appellate court and affirmed runs counter to settled law in every state and will no doubt require resolution in future cases. A toxic mess of incompetence and blind stupidity.

paul
March 20, 2013, 05:06 PM
Reversed by the KySC, Okay then...

Re-try him with correct instructions from the presiding judge.

Now he CAN use self-defense as a, well... defense.:)

Doesn't mean he's not guilty, just means he has use of a better defense to prosecution.

I'd still consider him possibly guilty of manslaughter, based on my limited knowledge of the facts of the case.

p

gym
March 20, 2013, 05:25 PM
Laws are written in wide strokes. You can concievablly go to jail for life, "which has occured" for a minor theft if you have 2 priors of the same type, "the 3 strikes law". What this was designed for was repeat offendors in large rico cases, but it was used indisciminentlly for petty theft. So stealing that pack of gum could get a guy with 2 prior convictions for theft, a life sentence, especially if he was armed at the time, even if he never used the gun during the shoplifting, "theft". It's something that people don't think about. If you take something that you don't pay for "which a lot of people do", and you are carrying a gun when you do it. You are in deep doo doo, should you get caught.
I had a partner who thought that returning things to stores with an old version of what he bought was a smart thing to do, or if something broke, he would go buy the same thing and then place the broken one in the box, and return it for a refund.
Once I saw him do this I never would go to a store with him again. He thought it was a joke. People don't think it's just a fact of life.
There are a lot of bored housewives and old folks who do these things on a regular basis, "ask your local store manager".

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