Larry Hickey: Defending A Disparity Of Force Shooting In Court

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Fred Fuller

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A short booklet from the ACLDN, this one is definitely worth reading. We've mentioned the Larry Hickey case several times here in ST&T but there's never been this much detail available before that I've seen.

lpl
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http://www.armedcitizensnetwork.org/images/stories/Hickey Booklet.pdf

The Three Headed Monster: Defending A Disparity Of Force Shooting
by Gila Hayes

Western states such as Arizona are generally friendly to ideas of fire-
arms and self defense, but we may forget that any state can harbor a city in
which the population leans toward liberal social politics and buys in to the
flawed theory of gun control for public safety. Anti-self defense attitudes,
cloaked in good intentions, can intrude when a self-defense shooting en-
tails factors that are not always clear cut, such as when one man shoots
several unarmed assailants and must argue disparity of force as justifica-
tion for his actions. This is at the heart of an ordeal that ran from late No-
vember 2008 through May 2010, in Tucson, Arizona.
===snip===
 
As a nascent public defender myself, I was glad that Messmer and his legal team were portrayed in a positive light compared with the district attorney. Not often do publications make the public defender look better than the prosecutor, though citizens are convicted with flimsy evidence and half-cooked arguments all the time. I am amazed that the witnesses' continued misrepresentation of the evidence did not completely vindicate Hickey on its own, but the limits of logic and reason are, sadly, not a bar to a cross-section of egotistical, overzealous prosecutors intent on raising their conviction rate at all costs.
 
Thanks for posting that Lee. This story is scarier than anything Stephen King ever wrote.
 
This story about Larry Hickey's ordeal well illustrates that mounting a defense against charges after shooting someone who is not armed can be an uphill battle, as discussed here; this is also from Marty Hayes' Armed Citizen's Legal Defense Network. It too is a good read. Here is the most relevant excerpt from the section on the important subject of Ability, Opportunity, and Jeopardy:

Ability means that the attacker possessed a weapon capable of causing death or grievous bodily harm. ... Generally speaking, charges brought against someone for defending themselves or another innocent person rarely center on whether or not the attacker possessed the ability to cause death or serious injury, with a couple of glaring exceptions.

The first exception is when the attacker you shoot does not have a weapon or an object capable of being used to inflict serious bodily injury, but you thought he did. ....

The second exception, and the one that lands people in jail time and time again, crops up when the defender uses deadly force against an unarmed attacker, or even to fend off multiple unarmed attackers. This happens with surprising frequency, and more often than not, the defender ends up paying a high price legally. The issue involved is called “disparity of force,” and it is a critical one.

When a legitimate self-defense shooting ends up in court, many times the civil litigation or criminal prosecution hinges on the question of disparity of force. After all, if a prosecutor knows the attacker had a deadly weapon and was in fact attacking, he is likely not going to prosecute the self-defense shooter. But what happens when the defender is being stomped to death, choked to death, or otherwise believes a deadly force attack is imminent or underway? And, what if that defender shoots one or more of his assailants, but they claim that they were only beating him up, not trying to severely injure or kill him?

... Under these circumstances, the defendant will need to show the jury, or a judge if the case is heard at a bench trial, that they had a reasonable belief that the attackers possessed the ability to cause death or serious physical injury. [Emphais added]
Click to expand...

Those who would opt to use deadly force because, and base their defense on the undeniable fact that, a single punch can kill would do well to reflect upon the above.

The Hickey case has also been cited in the context of discussions about whether Hickey said the right things to the police at the time of the incident; we have a sticky on that subject here.

This incident should also make it crystal clear that a "good shoot" will be defined as a "good shoot" only on the basis of the evidence and testimony that can be obtained after the fact.

I keep putting off joining the ACLDN. Not a good idea. The story in the link that Lee Lapin provided above should make that clear, too.
 
What disturbs me the most about this matter is that, similar to the O.J. trial, it seems that trials are won or lost during jury selection, when both sides appeal to the prejudices of the jurors. Justice be darned, it seems that each side wants a juror that is biased in their favor; so regardless of the weight of the evidence, or the strengths of the arguments, the final verdict is rendered by a body biased laypeople. Call me naive, but the law seems to have little to do with justice, but rather, who's going to pay.

Sometimes even when you win you lose.
 
What disturbs me the most ... is that, ..., it seems that trials are won or lost during jury selection, when both sides appeal to the prejudices of the jurors. Justice be darned, it seems that each side wants a juror that is biased in their favor; so regardless of the weight of the evidence, or the strengths of the arguments, the final verdict is rendered by a body biased laypeople...
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I'm sorry, but this is a gross mis-characterization of how things work.

Here's how it does work:

Under the Constitution (the 6th Amendment), one is entitled to an impartial jury.

In the jury selection process, each side gets a set number of peremptory challenges and can thereby excuse a limited number of prospective jurors without stating a cause. A lawyer owes an absolute duty of loyalty to his client. He is required to exercise his professional judgment in the best interests of his client. So he will use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be least receptive to his client, his client's position, the witnesses his client might be offering and/or his client's legal arguments. At the same time he will need to use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be most receptive to his client's opponent's position, etc.

But he has only a limited number of peremptory challenges. And the other side will be doing exactly the same thing.

So the result is that if each side has, say, ten peremptory challenges, the lawyer on each side will excuse without cause the ten possible jurors he has decided will be least desirable from his particular perspective. If there are 50 jurors in the jury pool, the jury will then consist of persons from the remaining group of 30, unless one side or the other can convince the judge of actual bias.

The result of the process is probably going to be the most impartial jury available out of that jury pool of 50 people.
 
Fiddletown, that might be what they taught you at law school (your post reads like something out of my trial practice manual), but the real world doesn't work that way.

If you talk to trial lawyers, they will tell you that trials are often won or lost on jury selection. This selection process is so critical that they often spend thousands on consultants and investigators checking each juror out and debating on whether the outcome would be favorable to their side or not. The end result is often a very biased jury and that's especially true in the criminal system where the public defenders are often new, inexperienced lawyers.

This post is a really good example of how little 'justice' there is in our criminal justice system. Once the system gets its hooks on you, you are in real trouble without a very good lawyer working for you. I have a law degree (not currently licensed or practicing) and I've had two friends within the last 18 months wind up in the clutches of the system. I've seen judges give instructions that are counter to both written code and case law; I've seen cops give testimony on the stand that contradicts prior written and oral testimony; I've seen prosecutors lie about the consequences of a deal....it's just not a good place to find yourself.

Here, even the gun classes that Larry Hickey took so that he would be a more responsible gun owner/carrier were turned around and used against him. Some seemed surprised that this could happen in Arizona, but remember that the upper levels of our society (where prosecutors often come from) are solidly anti-gun. Nothing you do will ever make them think good of you. You are a gun owner, a gun carrier, a violence prone individual with delusional behavior who is not to be trusted---that's where they are coming from.
 
loneviking said:
...If you talk to trial lawyers, they will tell you that trials are often won or lost on jury selection. This selection process is so critical that they often spend thousands on consultants and investigators checking each juror out and debating on whether the outcome would be favorable to their side or not....
Click to expand...
I've talked with many trial lawyers. I practiced law for over thirty years. While I was not a trial lawyer, I hired them, worked with them, managed them, and managed considerable complex litigation.

And yes, jury selection is very important. But the bottom line is that one starts with the jury pool he has. And then it's not so much a matter of affirmatively picking the jurors you want. It's a matter of eliminating those who will be the worst for you. You don't pick the jurors; you challenge that ones you want the least. And if there's someone on the panel who you think is the "dream" juror for your case, there's a good chance the other side will knock him off right away.

At the end of the day, the jury is what both sides can live with.

loneviking said:
...This post is a really good example of how little 'justice' there is in our criminal justice system. Once the system gets its hooks on you, you are in real trouble without a very good lawyer working for you....
Click to expand...
That's very true. Getting caught up in the legal system is not likely to be a good experience. That is why some of us continually point out the importance of learning about and understanding how the system actually works and laying as good a foundation as you can in case someday you may need to defend yourself in a violent encounter.

loneviking said:
...Some seemed surprised that this could happen in Arizona,...
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And many of us have consistently pointed out that just being in a "gun friendly" State is no guarantee.
 
It's true about the criminal justice system being unfair, but it is not just unfair to gun owners exercising a 2nd Amendment right. My own clients are often treated poorly by the system, but they generally come from the fringes of society. If someone like Hickey could be treated so poorly, it seems that prosecutors have no way of judging true guilt from manufactured guilt. Everyone is surely guilty of something, because we have more laws than we need, and prosecutors seem to latch onto this. Basically, if the cops arrested you, you're guilty, or they wouldn't have arrested you--to say nothing of the fact that defendants are presumed innocent until proven guilty, that just doesn't matter as much as the implications of the accusation itself.
 
After serving on a jury at time or two, I'm scared to death of our justice system, and don't care to experience it from the perspective of either innocence or guilt. This is one of the primary reasons I choose not to carry.

Equally obnoxious is that I simply cannot afford a defense if I ever needed one, making too much money for a free public defender, yet not enough to avoid selling what little I own. I defended myself pro se in traffic-related lawsuit many years ago and prevailed, despite a hostile judge and prosecuting attorneys that were unscrupulous to say the least. True, I had a fool for an attorney, but sometimes a fool speaking simple truths can prevail---especially if one does their homework. I was 18 at the time. But a traffic accident and a "justified" shooting are at opposite ends of the legal spectrum. To retain competent legal counsel and prevail in a case involving a shooting, for me anyway, would be a Pyrrhic victory indeed.
 
Posted by SleazyRider: After serving on a jury at time or two, I'm scared to death of our justice system, and don't care to experience it from the perspective of either innocence or guilt. This is one of the primary reasons I choose not to carry.
Click to expand...
If one may carry lawfully, does so only in places in which it is permitted, and follows all of the other relevant laws (such as disclosure, if required, or impairment), carrying a weapon will not put one at risk in the justice system.

One's potential legal risks start when one displays one's weapon (if concealment is required) or when one draws it, or perhaps if one talks about it improperly.

If you draw your firearm only when it is immediately necessary (that is, when you have no other choice) it will be because you are facing a very severe threat at the time.

It would be interesting to ask those who do find themselves in very serious danger at the hands of violent criminal actors and who have elected to not carry a weapon if they feel that they made the right decision!
 
Twain weighs in ...

We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read. ---Mark Twain
 
The thing that kinda killed me in reading this is that the prosecutor wasn't interested in the MAJOR failings of the investigators to gather his side of the story, or even to interview his wife, or to interview and CORRELATE the stories of the three 'victims' to the physical evidence.

It seems that if the first officer had relayed what he said, or if he had stood up and yelled "I'm the victim of their attack" it all might have been avoided.
 
The DA needs to be Disbarred! The man got ran through the Mill just defending himself and his family. This case has made me lose a lot of Respect I had for the State of AZ and their legal system.
 
One of the lessons here seems to be that sometimes flapping your yap like the criminals did can work in your favor--rather than incriminating themselves like most of us are so afraid of doing, they incriminated the victim! :uhoh: Notice how Hickey told the police that he wouldn't say more without a lawyer, and then the police later threw it back in his face when he asked about pressing charges, telling him to ask his lawyer. :mad: Although the charges were eventually dismissed (after a year-and-a-half of torture), thankfully, the criminals still won by receiving a hefty financial reward and completely avoiding all of the charges that should have been brought against them. :fire:

While this seems to go against the current mindset of saying very little without an attorney present, I think it's akin to being the first to call 911--proactively defending yourself by putting the other side on the defensive. Evidently, it can work even when you're totally guilty and the other guy is totally innocent. :rolleyes: Don't rely solely on evidence because judges can and regularly do exclude evidence, and prosecutors will hide any evidence that could be used to acquit--their job is to find somebody they can convict and then convict that person, and your job should be to point your finger at somebody else as vehemently as they're pointing their finger at you. Once you're on the defensive, then the battle is all uphill, regardless of innocence or evidence, and you will lose a little or more likely a lot, while the other side will win. It's not always this bad, mind you, but it could be.
 
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After serving on a jury at time or two, I'm scared to death of our justice system, and don't care to experience it from the perspective of either innocence or guilt. This is one of the primary reasons I choose not to carry.
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I've been there too. I was not selected, but the process disgusted me. I won't degrade the people who were selected as jurors, but in no way was it a representative sample of my "peers". It's further proof that anything can happen in a court room. There's too many consequences attributed to firearms, I've also given up carrying. The situations are lose-lose. Recent events such as Mr. Hickey and Jerome bolsters my decision. The bias is so strong against guns and the expectations so unreasonable, that it will always be against you.

I can't believe the neighbors are not being convicted of assault. It seems the public opinion waves off unarmed combat like child's play. I would certainly use this to my advantage in the future.
 
quatin said:
...I won't degrade the people who were selected as jurors, but in no way was it a representative sample of my "peers"....
Click to expand...
[1] I hope you understand that nothing in the law of the United States entitles you to a jury of your peers, i. e., people belonging to the same societal group, especially based on age or status, as you. You are entitled to an impartial jury (Sixth Amendment to the Constitution of the United States). The notion of a "jury of one's peers" comes from Magna Carta and was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank. (And indeed until relatively recently, a British noble charged with a crime was entitled to be tried in the House of Lords. The last trial in the House of Lords was in 1935, and the trial jurisdiction of the House of Lords was abolished in 1948.)

[2] It's fashionable to denigrate the jury system and process wthout really understanding it.

[3] Imagine that you are a lawyer representing one side at a jury trial. You have an obligation under the rules of professional responsibility of absolute loyalty to your client and to zealously, within the rules, represent his interests; and you have the duty to use your best professional judgment and skill to achieve the best result you can, within the rules, for your client. Now, who are you going to want to excuse from the jury (hint: if you're a good lawyer, it really depends on what the case is, what the evidence is and what your arguments, and those of the other side, will be)?

[4] And there's also a lawyer on the other side with exactly the same set of obligations to his (or her) client.

[5] And if you're ever on trial, would you expect less from your lawyer?

quatin said:
...The bias is so strong against guns...
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Yes it is. And that should have us all asking ourselves what we can do in our daily lives to counteract that bias. How can each of us avoid perpetuating the negative stereotypes of gun owners, and instead be good ambassadors for gun ownership?
 
Sounds like he almost got a raw deal. Still, I wish the article had given a little more context as to what created all this bad blood between the two neighbors in the first place. They touched on it briefly, but never quite said what the argument was all about.
 
[3] Imagine that you are a lawyer representing one side at a jury trial. You have an obligation under the rules of professional responsibility of absolute loyalty to your client and to zealously, within the rules, represent his interests; and you have the duty to use your best professional judgment and skill to achieve the best result you can, within the rules, for your client. Now, who are you going to want to excuse from the jury (hint: if you're a good lawyer, it really depends on what the case is, what the evidence is and what your arguments, and those of the other side, will be)?

[4] And there's also a lawyer on the other side with exactly the same set of obligations to his (or her) client.

[5] And if you're ever on trial, would you expect less from your lawyer?
Click to expand...

If you're asking me on what I would change in the jury selection process. There should be a competency/bias test BEFORE people are entered into the jury pool, not after everyone has been selected. Furthermore, there should be no efforts to force people to serve on a jury if they obviously do not want to. This creates lackluster juries with minimal deliberation just to "get it over with." Trial lengths also should no revolve around the 3/5 (can't remember) days before the court has to pay you. There's too much cherry picking going on in the jury pool that trials are won and lost before they begin.
 
quatin said:
...There should be a competency/bias test BEFORE people are entered into the jury pool,...
Click to expand...
And exactly what would those tests be, who should administer them, on what bases would someone be found competent and unbiased enough to serve, and what if one or both parties didn't agree with some authorities conclusion that a given juror was competent and unbiased?

If you're a criminal defendant, say on trial for an assault in which you claim you were justified in using force to defend yourself, would you be happy to have some third party, say some agency of the same government that had charged you with a crime, decide who was competent to be one of your jurors?

quatin said:
...There's too much cherry picking going on in the jury pool ...
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And exactly what "cherry picking" is that and how is it done? As I outlined in post 8:
fiddletown said:
...In the jury selection process, each side gets a set number of peremptory challenges and can thereby excuse a limited number of prospective jurors without stating a cause. A lawyer owes an absolute duty of loyalty to his client. He is required to exercise his professional judgment in the best interests of his client. So he will use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be least receptive to his client, his client's position, the witnesses his client might be offering and/or his client's legal arguments. At the same time he will need to use his peremptory challenges to exclude those people from the jury who he, in the exercise of his professional judgment, believes will be most receptive to his client's opponent's position, etc.

But he has only a limited number of peremptory challenges. And the other side will be doing exactly the same thing.

So the result is that if each side has, say, ten peremptory challenges, the lawyer on each side will excuse without cause the ten possible jurors he has decided will be least desirable from his particular perspective. If there are 50 jurors in the jury pool, the jury will then consist of persons from the remaining group of 30, unless one side or the other can convince the judge of actual bias.

The result of the process is probably going to be the most impartial jury available out of that jury pool of 50 people.
Click to expand...
 
And exactly what would those tests be, who should administer them, on what bases would someone be found competent and unbiased enough to serve, and what if one or both parties didn't agree with some authorities conclusion that a given juror was competent and unbiased?

If you're a criminal defendant, say on trial for an assault in which you claim you were justified in using force to defend yourself, would you be happy to have some third party, say some agency of the same government that had charged you with a crime, decide who was competent to be one of your jurors?
Click to expand...

The exact same test we take after we get selected from the jury pool.

And exactly what "cherry picking" is that and how is it done? As I outlined in post 8:
Click to expand...

You outlined the challenges process. That's how the cherry picking is done.
I disagree that they are searching for unbiased jurors. The questions they ask are to gauge how malleable and impressionable you can be.

IE. One guy on the jury was asked "Do you trust a police officers words more than a common citizen?" He answered yes. The attorney argued with him and changed his mind. When I was asked the same question, I presented a counter argument and the same guy changed his mind back again. He was later picked. I noticed this exact same pattern for the rest of the day.

There were several people who were obviously biased against the case, but were picked. The case dealt with sexual assault. One of the women in the jury pool admitted to being sexually assaulted previously. She was still picked as a juror. However, she was also impressionable and was easily persuaded to change her answers after arguments.

If the purpose of jury selection was solely to find an unbiased jury, then there would be no need to have the jury present to answer questions. We can answer these questions online or by mail. The real purpose of jury selection I suspect is to find easily impressionable people, who are more willing to submit to an authoritative figure. That is why we must be present, so they can present arguments and try to change our minds. This, is why common sense is often absent from the court room.
 
quatin said:
The exact same test we take after we get selected from the jury pool.
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And that is the voire dire examination conducted by the lawyers for the parties to the litigation. So your suggesting that this process be done exactly when?

quatin said:
...You outlined the challenges process. That's how the cherry picking is done....
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That's not a matter of picking, that's a matter of excluding. And since each side is doing it equally, one side is probably rejecting the potential jurors the other side would most want; and the other side is doing exactly the same thing.

quatin said:
...I disagree that they are searching for unbiased jurors. The questions they ask are to gauge how malleable and impressionable you can be....
Click to expand...
If I'm doing that, I'm not doing my job very well. A malleable juror may be just as easily swayed by my opponent as by me. What I want, as a competent lawyer, is to remove those potential jurors I have reason to conclude are most likely to not be receptive to my client, my evidence, my witnesses and my theories; and of course, the other side will be doing exactly the same thing. What we wind up with will be a jury we can both best live with.

Since I won't be able to be assured of getting the jurors I would most like (because my opponent will be knocking them off), and my opponent can't either (because I will be knocking them off), the jury both of us could best live with will be the most impartial jury possible from the pool we have.

quatin said:
...The attorney argued with him and changed his mind. When I was asked the same question, I presented a counter argument and the same guy changed his mind back again. He was later picked. I noticed this exact same pattern for the rest of the day....
Click to expand...
But since you are not a lawyer and have no experience in trial advocacy and have no idea what the lawyer was thinking or trying to do, you're just guessing.
 
And that is the voire dire examination conducted by the lawyers for the parties to the litigation. So your suggesting that this process be done exactly when?
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Before the jury pool is built.

That's not a matter of picking, that's a matter of excluding. And since each side is doing it equally, one side is probably rejecting the potential jurors the other side would most want; and the other side is doing exactly the same thing.
Click to expand...

It's still an end goal of picking the right jurors. Besides, I doubt that's the whole process. I was in a jury pool of roughly 25ish. Yet, only 8 people were selected out of that pool and a second jury pool had to be called out. I "suspect" that the lawyers were able to exclude several jurors without using their challenges, as they asked to approach the bench to discuss several times. Otherwise, each lawyer had up to 9 challenges each, which would be ridiculous for a pool of 25 and might as well be picking.

If I'm doing that, I'm not doing my job very well. A malleable juror may be just as easily swayed by my opponent as by me. What I want, as a competent lawyer, is to remove those potential jurors I have reason to conclude are most likely to not be receptive to my client, my evidence, my witnesses and my theories; and of course, the other side will be doing exactly the same thing. What we wind up with will be a jury we can both best live with.
Click to expand...

I called it like I saw it. That's my impression of the jury selection process that I went to. I've discussed this with a few people I know who have been through the same thing and they tend to agree. I guess this would be what you consider "hearsay", but that's the only evidence I have.

Since I won't be able to be assured of getting the jurors I would most like (because my opponent will be knocking them off), and my opponent can't either (because I will be knocking them off), the jury both of us could best live with will be the most impartial jury possible from the pool we have.
Click to expand...

That sounds good, but only with a normal random sample of the populace. The pool is a random draw of people, who are then segregated by a bias/personality test. Then they are further segregated with appeals to the judge to be exempt from jury duty. What you are left with is a predictable set of characteristics of a typical juror. I gathered from my jury selection experience, that the jurors tend to be mostly older folks especially if retired and people with low intensity jobs. We can go on about the typical bias this group would have. The lawyers get to pick from that group, not from a random population sample.

Quote:
Originally Posted by quatin
...The attorney argued with him and changed his mind. When I was asked the same question, I presented a counter argument and the same guy changed his mind back again. He was later picked. I noticed this exact same pattern for the rest of the day....
But since you are not a lawyer and have no experience in trial advocacy and have no idea what the lawyer was thinking or trying to do, you're just guessing.
 
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