This is why you don't chase after the bad guy.

[The Alaskan]

We can only hope that your prejudices become apparent during voire dire and you therefore will never be allowed to sit on a jury in a self defense case.

I agree. But the problem (as I see it) is I can't check my conscience, and what I know to be right, at the door.

If I truly believe that the defendant has committed manslaughter, has needlessly taken a life, how can I acquit, regardless of what the judge says? ESPECIALLY if that decision is based on "what would I have done if I had been in the defendant's position at the time?"

 

[JohnKSa]

Answer the questions during the selection process honestly, and things should take care of themselves.

Neither side wants someone who's made up their mind before the trial starts. The one side because it would hurt their chances of a fair verdict. The other side because if it comes out at some point that there's a juror who made up his/her mind before any evidence was presented and was basically ignoring the evidence--it could result in a mistrial.

 

[Jeff White]

If I truly believe that the defendant has committed manslaughter, has needlessly taken a life, how can I acquit, regardless of what the judge says? ESPECIALLY if that decision is based on "what would I have done if I had been in the defendant's position at the time?"

It's NOT about what YOU would have done. It's about if the defendant's decision to take the action he did was lawful based on what HE knew about the situation at the time he acted.

What you would have done in that situation is completely immaterial. The fact the you personally wouldn't have made the same decision has no bearing on what the law says. It's about the law, not yours or anyone's personal moral code.

 

[fallout mike]

:banghead:

 

[Frank Ettin]

...If I truly believe that the defendant has committed manslaughter, has needlessly taken a life, how can I acquit, regardless of what the judge says?...

As a juror your obligation would be to apply the law as instructed by the judge -- not your personal, idiosyncratic ideas of right and wrong. And as a juror you would be required to swear or affirm same by oath.

So if we're discussing conscience, I guess your conscience is elastic enough to allow you to ignore your oath. And I guess your conscience would also be elastic enough to send a person to prison for an act which offends your personal code even though under the law he would have no criminal liability.

Who are you to send a person to prison, not for violating the law but merely for violating your personal code? Who has anointed you to decide that your standards are superior to the law and that someone who has violated those standards should be punished -- even when the law of the land would exonerate him?

You do not get to decide what is, or is not, manslaughter for the rest of us. That you might believe that certain acts should constitute manslaughter is irrelevant. We may need to conform our conduct to the requirements of the law. But for you to propose to hold us responsible for conforming our conduct to your personal standards on pain of prison is outrageous.

...ESPECIALLY if that decision is based on "what would I have done if I had been in the defendant's position at the time?"

And what you would do is not the legal standard.

 

[fallout mike]

Frank, Im thinking your words do not live up to the Alaska guys personal standards or his conscience.

 

[fallout mike]

I guess his conscience has no problems perjuring himself in court if he decides the law isnt important but only his standards and ideas of what he would have done. Selective conscience?

 

[AStone]

Whoa. Haven't been here in a few days.

This thread .. how you say ... escalated.



I'm standing over here
with Mr. Ettin and Mr. White.

 

[Kleanbore]

Posted by The Alaskan:

If I truly believe that the defendant has committed manslaughter, has needlessly taken a life, how can I acquit, regardless of what the judge says? ESPECIALLY if that decision is based on "what would I have done if I had been in the defendant's position at the time?"

Look: if a defendant is on trial for self defense, he or she has used force, possibly deadly, to harm someone else. Or perhaps only a threat of force has been made.

If it occurred in a duty-to-retreat state such as mine, one question, and only one, would be whether the defendant had been in a position to retreat with perfect safety rather than employ force. As a juror, you would consider evidence relevant to that question, along with all of the other evidence admitted by the judge.

If it occurred in a state in which either the common law or a law enacted by the legislature has established that no duty to retreat exists, the question of whether retreat with perfect safety had been possible would not be relevant. It would most likely not come up. No relevant evidence would have been admitted. As a juror, you would have no basis on which to consider the issue.

Capisci?

Actually, there is a possible exception to that. Assuming that you have read the article by Lisa Steele, you will understand that even in a no-rereat jurisdiction, "as a practical matter it may still be useful to explain to the jury why retreat was not practical or why the client was unaware of an escape route".

That would be up to the defense.

 

[jrdolall]

You do not get to decide what is, or is not, manslaughter for the rest of us. That you might believe that certain acts should constitute manslaughter is irrelevant. We may need to conform our conduct to the requirements of the law. But for you to propose to hold us responsible for conforming our conduct to your personal standards on pain of prison is outrageous.

While this is an absolutely true statement it does not accurately reflect the reality of a jury trial, especially a high profile case. Jurors are people, each with his/her own individual beliefs, prejudices and values. Those are applied in many cases.

I am not saying that is the right way to do it, it most certainly is not, but there are way too many examples of juries coming back with a verdict that was almost certainly based on something other than the evidence presented.

I agree that this guy went way beyond any definition of SD or Castle, or SYG. The question of whether or not he was justified in following the suspect, in a similar case, would hinge on whether he could convince a jury that his actions were intended to save the lives of his neighbors. I understand the literal definition of "imminent" but the actual definition as applied in a courtroom could be skewed well beyond what you and I consider to be "imminent". Heck, we had a well known guy ask us to define the word "is". If we can't properly define "is" then imminent could be a disaster. I mean, it's four times as long

Discussing legal issues outside of a courtroom is like discussing the College Football Rankings.

 

[blarby]

An interesting take on jury nullification, for certain.

Why laymen choose to argue points of law like babes floundering in bathwater, in a public forum, is still beyond me.

It does make for great morning coffee reading, however.

Could be an interesting case, and I can certainly see both sides of it. I could also easily see "story construction" after the fact as a "cya" move.

Only the jury will tell, in the end.

 

[Kleanbore]

Update

The shooter in the case linked in Post #3 was not injured, but he has now been indicted on a serious charge. Even if he is acquitted, he will incur the costs of his legal defense and whatever he may have had to pay a bail bondsman.

http://www.cleveland.com/akron/index.ssf/2015/10/akron_man_indicted_in_fatal_sh.html

The men involved in that break-in were some pretty bad actors indeed.

Going outside to investigate after a burglary or invasion is extremely risky. Using force against fleeing persons is almost always unlawful.

 

[chipcom]

Yes, hindsight is 20/20, but nonetheless understand clearly that you do not have the final say. You will in fact be judged by others after the fact.

Not in the courtroom.

You might have thought that your use of force was reasonable. But if the jury disagrees, you will be found guilty and go to jail.

But none of that is going to enter into my thought processes...nor should it for anyone else, when you are in harm's way. My point is that when you are the one in the situation, you do what you gotta do to survive without second-guessing yourself and worrying about what them "reasonable" Monday morning quarterbacks might think. This is where the old adage "better to be judged by 12 than carried by 6" comes from.

If you start second-guessing yourself based on discussions like this thread, odds are you are going to end up being carried by 6 and won't have to worry about being judged by 12. Train like you fight, fight like you train, and leave the shoulda/woulda/couldas for after the threat is ended.

 

[Kleanbore]

Posted by chipcom:

Train like you fight, fight like you train, and leave the shoulda/woulda/couldas for after the threat is ended.

So, train to avoid confrontations whenever you can; to not expose yourself to danger at the door or outside; to not display a weapon unless you have to; to not fire unless you have to; to stop shooting when it is safe to do so; to not pursue anyone after the immediate danger has passed; to not shoot at anyone who is fleeing; to be the first to call, if at all possible; and to not have gun in hand when first responders arrive.

None of that involves second guessing, or worrying at the time about what others will do or think.

 

[Spats McGee]

. . . .If you start second-guessing yourself based on discussions like this thread, odds are you are going to end up being carried by 6 and won't have to worry about being judged by 12. Train like you fight, fight like you train, and leave the shoulda/woulda/couldas for after the threat is ended.

Why do the two have to be mutually exclusive? Why can one not learn the law in his jurisdiction and train accordingly?

 

[Frank Ettin]

...you do what you gotta do to survive without second-guessing yourself and worrying about what them "reasonable" Monday morning quarterbacks might think. This is where the old adage "better to be judged by 12 than carried by 6" comes from. ....

It's not necessarily a choice between surviving and not surviving. Bad decisions can put you in prison even when they didn't contribute to your survival.

1. Jerome Ersland successfully used lethal force to defend against an armed robbery. He stopped the threat and was no longer at risk, but then he went too far. He is now serving a life sentence in an Oklahoma prison for first degree murder.
   
   
2. Byron Smith in Minnesota killed two teenagers who broke into his house. He went much further than necessary to defend himself. He is now serving a life sentence for murder. And yes, Minnesota has a Castle Doctrine law.
   
   
3. In Montana, which also has a Castle Doctrine law, Markus Kaarma claimed he was justified in killing an intruder. The jury disagreed. Kaarma was sentenced to 70 years in prison for the killing.

In each of these cases, someone did something which wasn't reasonably necessary for his survival, but which he apparently thought could be legally justified. And in each case his errors cost him dearly.

 

[jrdolall]

In #3 above the clown baited the crooks in, shot the guy, sat in his recliner waiting, and then shot the girl when she came in to see where her BF was. He recorded the entire incident and actually made some comments to the girl about waiting for her to die or some other nonsense.
He is in prison for gross stupidity. If you can't convince a jury in rural Montana that shooting people breaking into your home (and the break in was not really in question) then you are really having a bad day. I was in Montana when this verdict came in and even the most die hard people at our ranch had to agree that this guy went WWWWWWAAAAAY beyond the definition of SD/HD.

 

[Frank Ettin]

You do not get to decide what is, or is not, manslaughter for the rest of us. That you might believe that certain acts should constitute manslaughter is irrelevant. We may need to conform our conduct to the requirements of the law. But for you to propose to hold us responsible for conforming our conduct to your personal standards on pain of prison is outrageous.

While this is an absolutely true statement it does not accurately reflect the reality of a jury trial, especially a high profile case. Jurors are people, each with his/her own individual beliefs, prejudices and values....

Yes, a juror comes into the jury box as a person with his own beliefs, prejudices, and values. That is a strength of the jury system.

...Jurors are people, each with his/her own individual beliefs, prejudices and values. Those are applied in many cases....

But that is not really true. Experience, and post-verdict interviews with jurors, show that, in general, jurors try to be thoughtful and conscientiously (1) pay attention to, and base their decisions on, the evidence presented; and (2) pay attention to and try to apply the law as they were instructed by the judge.

...In #3 above the clown baited the crooks in,...

You're confusing Byron Smith with Kaarma. In the Montana case there was only one intruder.

In any case, the point is that in each of the cases the actor's understanding of the law was so deficient that they believed that their actions could be justified. They each learned how wrong they were.

 

[The Alaskan]

An interesting take on jury nullification, for certain.

Why laymen choose to argue points of law like babes floundering in bathwater, in a public forum, is still beyond me.

It does make for great morning coffee reading, however.

Could be an interesting case, and I can certainly see both sides of it. I could also easily see "story construction" after the fact as a "cya" move.

Only the jury will tell, in the end.

Yeah. Normally, it's the pro drug use advocates who advocate for jury nullification.

 

[The Alaskan]

You know, the other thing that comes to mind is if you do everything right, then you won't ever face a jury-especially in a stand your ground state. In fact, I dare say that, if you find yourself facing a jury, it's too late-you done messed up.

Better think twice before pulling the trigger I guess.

 

[Frank Ettin]

You know, the other thing that comes to mind is if you do everything right, then you won't ever face a jury-especially in a stand your ground state. In fact, I dare say that, if you find yourself facing a jury, it's too late-you done messed up....

More ignorance.

It all depends on exactly what happened and how it happened. Most cases of self defense are resolves fairly quickly, but one can never count on it.

• This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.
  
  
• Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.
  
  
• Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.
  
  
• Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.
  
  
• Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.
  
  
• Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.
  
  
• And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

Now let's look at the basic legal reality of the use of force in self defense.

1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.
   
   
   • However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.
     
     
   • Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.
     
     
   • Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.
   
   
2. The amount of force an actor may justifiably use in self defense will depend on the level of the threat.
   
   
   • Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --
     
     
     • Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;
       
       
     • Opportunity, i. e., the assailant was capable of immediately deploying such force; and
       
       
     • put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.
     
     
   • "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."
     
     
   • "Opportunity" could be established by showing proximity, lack of barriers or the like.
     
     
   • "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.
     
     
   • And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.
   
   
3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.
   
   
   • Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.
     
     
   • If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.
     
     
   • Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.
     
     
     • Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?
       
       
     • In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.
       
       
     • It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
       
       
     • It could also be another matter if you left the safety of your house to confront someone on your property.
   
   
4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

 

[jrdolall]

You're confusing Byron Smith with Kaarma.

You are probably correct. I don't live there so didn't recall the name and only remember it because the verdict was on the news while I was there.

I think everyone can agree that following someone and shooting them is a BAD idea (ask Zimmerman). Are there reasons that might be justifiable? Of course, but, as has been discussed, ANY use of deadly force will probably cause great emotional and financial distress. Three months of legal fees alone will put most people in the poor house and I sort of doubt that, even if the DA eventually drops all charges due to lack of evidence, your attorney will refund your fees.

 

[Kleanbore]

Posted by The Alaskan:

You know, the other thing that comes to mind is if you do everything right, then you won't ever face a jury-especially in a stand your ground state. In fact, I dare say that, if you find yourself facing a jury, it's too late-you done messed up.

That's preposterous in the extreme.

Suppose you are putting stuff in your car. A violent criminal actor comes around his car suddenly in the dark and attacks you, and you are forced to defend yourself.

That's what happened. But the incident was not recorded on a sound stage. The only evidence about what happened are his wounds, your account, his account, and possibly what a witness who didn't even start looking until you fired thinks he saw in the dark.

Did you"mess up", or did you "do everything right"? Are you convinced that you will not and up "facing" a jury? Why?

The only distinction that would apply in what is sometimes colloquially called a "stand your ground" state is that the prosecution would not have a reason to examine evidence regarding the ability of the defendant to have retreated with perfect safety.

Better think twice before pulling the trigger I guess.

If you have been forced to draw a firearm, you will have very little time indeed, if any at all, to "think twice".

The time for thinking comes before that.

 

[boom boom]

Honorable Frank Ettin,
Your masterful and concise summation of self defense doctrine just listed above is so good that it ought to be a sticky.

 

[alsaqr]

Honorable Frank Ettin,
Your masterful and concise summation of self defense doctrine just listed above is so good that it ought to be a sticky.

Exactly.