My January hiatus from teaching (which is not a break from writing, researching, or trial prep) is long over. February turned out to be a good month, albeit a hectic one.
Three classes (Virginia, Alabama, Florida) with well over a hundred students. Managed to sneak in a couple of Glock matches in the latter two states (gssfonline.com), which are serious fun and which you should attend and will almost assuredly enjoy.
On the courthouse side, one deposition taken by plaintiffs’ counsel in a civil lawsuit where I’m speaking for two cops who had to shoot a man who was coming at them with a knife while screaming, “I’ll kill you!” The evidence is on the side for which I’m speaking. And, a couple of good outcomes.
Early in February, I spoke for a Montana defendant in a murder trial, in which he was accused of what is called “Deliberate Homicide” there because he came home to find his door kicked in and, fearing his wife to be in the house and seeing a large and menacing home invader through the window, grabbed a pistol from his glove box and entered the house. When he confronted the man, who had a long criminal record that included guns and violence which the jury was never allowed to know about under the prevailing rules of evidence, he testified that the intruder came toward him snarling, “I’m going to hurt you!” As the homeowner raised his 9mm and fired, the man apparently saw the gun coming up and spun sideways, taking the bullet behind lateral midline. It proved fatal. A prosecutor who had previously testified in the legislature against Castle Doctrine in that state decided he must have shot a helpless fleeing man, ergo the murder charge. A defense team expertly led by a brilliant attorney named Quentin Rhoades showed the reality to the jury, which deadlocked with 10 jurors for acquittal, and two for conviction. I’m told the two who wanted to convict were swayed by a closing argument by the prosecutor that, in entering his own home to defend his long-time spouse from an obviously dangerous intruder, the defendant had become the “initial aggressor.” The case was scheduled for hearing on the 25th of February in regard to re-trial, but a couple of days before, the prosecutor apparently saw the handwriting on the wall and dismissed the case.
I had been scheduled to testify in a Florida case in April involving a senior citizen charged with murder for shooting a much larger and younger man who had previously attacked him and crippled him, and was about to do it again. Last Friday, the defendant allowed the public defender to plead him to a lesser charge in return for a sentence of 13 months. Given that the otherwise-clean defendant had used a “sawed off shotgun” below legal length in the incident, which could have brought heavy time in and of itself, I can’t fault him or the public defender for taking the plea bargain. (Yes, there is a lesson there.)
A bonus on this end is that week of scheduled trial had forced me to postpone a class I had long been wanting to take, Bill Rogers’ Advanced Pistol course, from April into September. Now, it looks as if the Evil Princess and I will be able to do it in April after all.
Thank you Mas, and keep them coming!
I always enjoy reading about your courtroom experiences, but I find it troubling that many prosecutions seem to have been pursued for political/ideological purposes rather than to find justice. It doesn’t always involve guns either (the debacle involving the Duke University La Cross team immediately springs to mind). That people in these positions feel so emboldened to prosecute in the face of more than reasonable doubt disturbs me.
Busy man. Thanks for continuing to fight the good fight.
The senior citizen in Florida should take advantage of his 13 prison sentence and get as much medical treatment as possible – if he needs any, while in the big house. With health care currently so expensive under our Dear Leader’s regime, good citizens incarcerated due to unfortunate circumstances, such as having a short barreled shotgun, which actually makes it less powerful and therefore more humane, should have their health issues taken care of, especially if they’re veterans and have to otherwise rely on the incompetent care of the current Veterans Administration.
I ran across several articles on the Independent Record web site concerning the Montana trial. I read where the intruder was shot in the back and I was wondering how that occurred. However, seeing that you were testifying for the defendant I readily assumed the article was not releasing enough information and the shooting was justified. I think the news reporting was slanted somewhat in favor of the DA.
It’s a shame that the DA forced a trial. I’m sure it cost the defendant a truck full of dough to defend himself. There has got to be a special place in Hell for people like that DA who knowingly (most likely) prosecutes a citizen for simply defending himself. He is most likely one of those DAs that care only about their “win” score to be used in later runs for higher political office. Everyone is just meat for the grinder for those ambitious DAs.
TW: While I wouldn’t rule out political ambition on the part of the DA or vicious small town politics, it’s important to remember that there are people who sincerely believe that self defense is, or should be, illegal. In their minds, the husband should have called 911 and been a good witness at the trial of his wife’s murderer. At most, he should have interposed himself between his wife and her murderer so that both of them would die. I’m grateful to live in a part of the country where people have more sense than that.
Horrible to see these. You would think given the overload in the courts, it’s disturbing and disgusting to see time wasted on these, and even with a ‘good’ outcome, it still ruins peoples lives. Damn shame!
Also, it is really good to read these and bring it home – even a good shoot can end up in an expensive court case – no matter how justified. The opposite danger, of course, is death by indecision.
Concerning the gent with the sawed off:
It would be nice to know just how much had been removed. Big difference between 1/4″ and 6″. 1/4″ could be just a mistake in removing a dent. A large chunk being removed would be different altogether. I hope the defendant was granted immunity from the Feds.
Not to devolve this blog into “no shit, there I was…” stories, Mas, but it might be fun to read anew your experiences with the “survivalist” defendant around Y2K. I seem to recall your testimony involving a discussion of a Rhodesian magazine bandolier. 🙂
Mas, I’m not at all sure that it legally makes any difference (since the legitimate use of lethal force to defend oneself and other often turns on reasonable belief) but I’m curious: You say “fearing his wife to be in the house”. Was she actually in the house?
I’m not trying to make a point pro or con here but merely observing that what one can do to defend others is often legally similar to, but not necessarily exactly the same as, what one can do to defend one’s self. In some circumstances you may have expanded rights and in others restricted rights. (And, as I recall (and I may not be remembering this right), the extent of your rights may also turn on who you are defending; you may have more rights, for example, to defend a family member, child, or elderly person than you have to defend other individuals.) Moreover, the case law interpreting the defense statutes may not be nearly so well-developed in defense of others situations since those situations come before the courts far less frequently than the self-defense ones and thus get appealed far less often. (It’s ordinarily the appeals courts who make precedental interpretations, not the trial courts.) I bet Mas can tell us far more about this than I can, however.
Liberal Dave, the wife kept her car in the garage and the garage door was closed, and it was a time of day when she was likely to be at home. It turned out that she wasn’t, but her husband did not know that.
Randy, it was less than 2.5″; he acquired the gun that way from a friend many years before and thought it was legal length.
Jaji, you have a good memory. It was a trial in 2001 or so. Opposing counsel in researching me prior to cross-examination had found my work here at Backwoods Home magazine, where most of us had written articles preparing for Y2K. Trying to make me look like a psycho “apocalypse survivalist,” he asked me about some of those recommendations, and I answered that what I had written that I considered to be the most useful thing to have when the Y2K clock turned was…a Rhodesian Army ammo pouch. The reason was that it’s five pouches for FN/FAL (R-1) magazines were each just the right size for a 12 ounce can of beer, and the reader could hold the last of the six-pack in hand as I would when the clock ticked into 2000 and we celebrated that nothing happened. Cracked up the jury; cross examiner changed the subject; we won the case.
Interestingly, on the night the clock DID click into the year 2000 I couldn’t use it, because I was out in a patrol car as virtually every other officer on my department was. Law enforcement had to take Y2K seriously, and for the most part, did.
Nice photo of Mas testifying in the Montana case here: http://tinyurl.com/zr38rce
Mas, did you really mean 2.5″ (inches), not 2.5′ (feet), for the shotgun? What gauge? If so, was this maybe one of those .45 Derringer-style pistols that could fire either .45 rounds or .410 shotgun shells?
Could the Montana attorney be Quentin Rhoades and not Quentin Reynolds? Can’t be that many Attorneys in MT named Quentin and the Armed Citizens’ Network has an affiliated named Rhoades. Thanks for the great blog, Mas.
Wondering if a BATF stamp can be bought for a 2-inch 12-gauge. Might be the world’s most effective Derringer. Grandfathers should automatically be grandfathered special consideration anyway.
Aarrgghh, once again my readers have to pay the price for me being let out by myself without an editor or adult supervision.
Yes, the attorney in Montana is Quentin Rhoades, and the shotgun was to short by a bit over two inches, not two feet.
Thanks for the sharp eyes, folks!
Wondering if the Florida senior citizen still faces the possibility of federal charges for the possession (and use?) of an illegal sawed-off shotgun, being it is also a federal offense?
No one should have to retreat in their own house. If the bad guy was not there illegally, he would not have been hurt.
Knowledge is power!
I consider myself fortunate to have attended MAG 40; however, for those who go armed and aren’t able to attend such an all inclusive course, I recommend the following reads:
1) Mas Ayoob – Lethal Force
2) Andrew Branca – The Law of Self defense
3) Roy Black – Black’s Law.
For pure pleasure: Jim Cirillo’s Tales of the Stakeout Squad. (Assassination of a milk machine was priceless.)
See you at the Tac Con.
Joe
I’m surprised the home invader incident that took place in Montana progressed that far. Perhaps all those California people that have invaded Montana have had an effect beyond causing property taxes to skyrocket.
The takeaway there is that you can get into tremendous trouble by doing what you think is the right thing, absent your entire local church choir being there as eyewitnesses and testifying on your behalf. And even then, perhaps not.
I believe I’ve mentioned here before that I once watched F. Lee Bailey, as a demonstration, call a lady out of an audience and question her as if she were an eye witness to a crime. It was as if he was holding her steering wheel and directing her to whatever outcome he desired. The poor woman was contradicting herself and backtracking and fumbling in total confusion.
You have to wonder if truth and justice are the desired outcome, or is it a high conviction rate? There was a news item a while back that featured a prosecutor who had zealously pursued a conviction of an accused man who was later (after several years in prison) proven to be innocent. It was revealed the prosecutor withheld evidence that, if presented at trial would have exonerated the accused. The now retired prosecutor was interviewed and he had no remorse about his conduct. He felt the accused was guilty and it was his duty to put him in prison and damn the evidence to the contrary.
Might news of the prosecution of the homeowner defending his property and his family cause some other person in a similar situation to fatally pause when confronted with a similar situation?
@MichaelJT: If you’ll find my post earlier where I link to a photo of Mas and click through, you’ll find an article about the trial in a local newspaper along with a series of additional articles about the trial. There was apparently an issue raised whether or not the burglar was shot while attempting to escape through a window or was shot while advancing on and threatening the homeowner. According to those stories, the autopsy results (bullet track from back to front at an angle said to indicate the burglar was leaning over when shot) and other forensic evidence (no blood at the alleged point of confrontation, one of the homeowner’s bullets found outside that window) were advanced by the prosecution to support the former as a theory, but the homeowner took the stand and testified that it was the latter. The stories weren’t very clear about whether counter-theories were provided by the defense on the autopsy and forensic evidence, but even if they weren’t (and Mas’ statement about the burglar turning away suggests that they were indeed countered) 10/12 of the jury could have simply chosen to believe the homeowner. In some ways this case was, as many self-defense cases are, one of those situations in which there were only two witnesses to the events and only one of those witnesses, the shooter, survived; without forensic evidence which strongly contradicts the shooter’s version of events (or a shooter’s story which itself is highly doubtful or unbelievable), the shooter will more than often win.
@ Dave(the Liberal, non-Uncle one):
Yes, indeed, it is certainly a legal advantage to be the only witness able to talk.
That was one major problem that the prosecution (and news media) had with the Zimmerman case. Zimmerman’s story held together and Martin was not telling anything different!
It reminds me of an incident that occurred in my home county years ago. Two men got into a fight in a bar and one pulled a gun on the other and threatened to shoot him dead. About that time, the sheriff showed up and he tried to talk the shooter (whom he knew) from pulling the trigger.
The sheriff told him to surrender his gun. The man was mad, however, and replied that he was gonna shoot this SOB! Whereupon the sheriff replied, “Don’t do it Jeff. If you shoot him and kill him, I can get you off. However, if you shoot him and only wound him, you’ll have trouble for the rest of your life!”
The man thought it over and said: :” I guess you are right, sheriff” and then he surrendered his gun quietly and without firing a shot.
William: the Florida defendant’s adjudication appears to be complete. It turns out that all of his remaining sentence WAS for having a shotgun a little more than 2″ shorter than Federal law allows. He got probation on the Manslaughter.
Lesson: Let’s all make sure the guns we own and may have to use for self-defense are LEGAL.
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