CCW Safe

In Self Defense - Episode 54: Enemy at the Gates Part 1: A Shot in the Dark

 

Don West and Shawn Vincent explore cases where homeowners defend against intruders. A Shot in the Dark focuses on the case of 72-year-old James Meyer who caught an intruder breaking into his shed. While the initial shooting may have been justified, his actions after the fact put him in a difficult legal position.

CCW SAFE PODCAST- EPISODE 53: INTERVIEW WITH DON WEST NATIONAL TRIAL COUNSEL

 

This week Mike and Stan sit down with CCW Safe National Trial Counsel Don West to discuss the Amber Guyger case and what are some of the things that make a defense attorneys job harder in a self defense case.

Video version and transcript available at ccwsafe.com/news

CCW Safe Podcast- Episode 52: Interview with Bill Patten OKCPD Officer

 

This week Mike and Stan interview long time OKCPD Officer Bill Patten about the importance of situational awareness. Mike and Bill were partners back in the day and tell some stories of their time working the streets in Oklahoma City. 

 

Transcript in process.

CCW Safe Podcast- Episode 51: Interview with Rob High OKCPD

 

This week Stan and Mike interview Rob High of the Oklahoma City Police Department. Rob is a Use of Force expert and long time trainer for OKCPD. He discusses use of force examples, the importance of situational awareness, the 21 foot rule and other topics of interest to concealed carriers and armed professionals. 

CCW Safe Podcast- Episode 50: Jacob Paulsen

 

Mike and Stan are back from Vegas and talking about SHOT Show 2020 then interviewing Jacob Pauslen the founder of ConcealdCarry.com. Jacob talks about their new free series of medical videos for concealed carriers and how people can watch them.

Video version of the podcast: https://youtu.be/o6YsCcyh7n0

Transcript of the podcast is being processed and will be posted when it is available. 

In Self Defense - Episode 53: The Amber Guyger Case

 

Don West and Shawn Vincent discuss the extraordinary Amber Guyger case in which an off duty police officer mistakenly enters the wrong apartments and shoots the occupant thinking he was an intruder in her own home. The case tests the absolute limits of the Castle Doctrine and serves as a warning for concealed carriers to check their assumptions when making decisions in potentially threatening situations.

 

TRANSCRIPT:

 

Shawn Vincent: Don West. How are you doing?

Don West: Hey Shawn. As always nice to talk with you.

Shawn Vincent: Yeah. So when we're recording this right now, we're about a week and a half away from my 43rd birthday.

Don West: It doesn't sound like such a big deal to me since-

Shawn Vincent: Yeah. You're a little past 43, right?

Don West: Yeah, but at the same time, I'm thinking back to those days where I was in my life and my family and my career. And you are, I guess probably about halfway through by now, don't you think?

Shawn Vincent: Yeah. I think judging by my diet, I think I'm a little over halfway through for sure.

Don West: You once described yourself as mid-life. I guess if we do the math, 86 would be a pretty good life. I think if I make 86, I probably [crosstalk 00:01:17].

Shawn Vincent: You can say you did it. When I met you, I was nice mid 30s. I think at 43 should become mid 40s. I'm early forties now. One more year. I'm mid 40. Someone the other day told me that I looked spry today, which I think is-

Don West: Well, that drips with something, doesn't it?

Shawn Vincent: No one ever tells someone in middle school, "You’re looking spry." That doesn't happen so.

Don West: Well. I once heard a lawyer talk about other lawyers in terms of experience, whether if they had 20 years experience, they had 20 years experience or whether they had one year of experience repeated 20 times.

Shawn Vincent: Sure. I like that.

Don West: I have to think, knowing you, as long as I've known you, that you have continued to build on that life experience and provided a positive and grateful environment for your children and developed a nice little niche career where you're doing good things for people in bad situations. And from my perspective it looks like it's all coming together.

Shawn Vincent: Well, I like that a hell of a lot better than I like spry, so thanks for that. Well, can we say seasoned? Let's go with seasoned.

Don West: Yeah, I'll go with seasoned. I think that's euphemistic enough.

Shawn Vincent: Perfect. Well, hey, we have a case that I've been dying to talk to you about and it happened out where you've been spending some of your time in the Dallas-Fort Worth area.

Don West: Yeah, that's right. It was all the news for quite a while. It's the almost infamous case of Amber Guyger, the police officer who shot and killed a young man by the name of Botham Jean.

Shawn Vincent: Sure. She was an off-duty police officer, right?

Don West: She was. This day that this happened, I believe around August, September of 2018, I think it was just about a year before the trial. And not only was she off-duty, but she had worked I think a double that day. At the time she went home at the end of her shifts, she was in full uniform, equipment belt and all of that stuff.

Shawn Vincent: Right.

Don West: Going home after a long day.

Shawn Vincent: Right. So she lived on the fourth floor of this apartment building and it's got an attached parking garage. And Botham John, he lived in the same apartment that she lived in one floor up. So-

Don West: Yeah, I think that's right. It doesn't matter which floor exactly but that's exactly what happened. She went to the wrong floor thinking she was going to her apartment.

Shawn Vincent: I've been in parking garages where unless there's the big number written on the wall in the right spot, you don't necessarily know what level you're on. They all look about the same floor to floor and I've been in a hotel where you get off on the wrong floor and it takes a little bit before you realize that you're not in the right spot. So I can imagine an apartment building where if it came in from the garage on floor five, it looks a lot like it does on floor four.

Don West: Oh, sure. I think everyone's probably had that experience. I have a tendency to do that with cars. Walk up to the wrong car, especially if it's a rental car. I wind up being distracted because of whatever it was that took me there and walk up right to the car sometimes lift the handle to get in, only to realize that I'm off a row or two. And I just, without thinking walked up to somebody else's car and from their perspective, especially if they had been sitting inside, would have thought I was trying to break in the car.

Shawn Vincent: Yeah. And I rent cars enough to where sometimes I've literally forgotten what car I rented and if it weren't for the little fob that will click to make it blink, I'd have no idea what car to get into. So we've all made mistakes concerning orientation. Where you are and being confused about that. And in this case, Amber Guyger came in the wrong floor, she goes to the wrong apartment. It's the one above where she lives. It's in the right spot it's just one floor up too far. She doesn't notice that the floor mat out front is different. There's something wrong with Botham Jean's door to where it didn't clasp properly. So she was able to open it without a key.

Don West: Yeah. I think the way these doors worked... The sense of it I had was it was a magnetic key like a hotel room key.

Shawn Vincent: Okay.

Don West: In fact people testified in the trial that the doors didn't always close completely. So it was entirely possible that from the inside you'd think your door was closed but unless you pushed it that last half inch, it would be sitting there slightly ajar. And from the outside, I don't know if there was a light or what might tell you like there is hotel rooms, but in fact in this case there was testimony that she knew that the door was unlocked. So it wasn't that she was able to get in the wrong door using her key it was that the door wasn't latched completely so that effectively it could just be pushed open. So that was one of the facts that the prosecutor used in the case to explain why she should have known something was up, or at least that she was in the wrong place because of that. The floor mat you're talking about became significant in that it was symbolic. It was bright red. So people attending the trial that were sympathetic to Botham Jean wore bright red clothing and other paraphernalia and such to indicate their support and also to reinforce the idea that in their mind it was a ridiculous claim that she didn't know she was in the wrong place because she didn't have a bright red door mat, and he did, and she was standing right there on it and crossed it when she went in the apartment.

Shawn Vincent: Right. So she goes in the apartment and, if we believe her, she thinks she's walking into her apartment, and there's this guy there. From the accounts that I read he was apparently eating ice cream and watching football but she doesn't necessarily see it that way.

Don West: I don't know exactly what she said she thought was going on other than she was convinced she was entering her own apartment and she never wavered from that. And I think that ultimately that was accepted, that she had made a mistake and that she had gone into his apartment fully believing that she was going into her own. After that, it becomes pretty confusing because the layout in terms of furniture isn't the same. I'm assuming that she would have known whether she left the TV on or not when she went to work that day. I think a lot of people said, "Why would she go in, even if it's her own apartment, if the door isn't latched, doesn't that tell anyone much less a trained police officer that there's something different?"

Shawn Vincent: Something's wrong here.

Don West: Yeah. And of course the idea that being a trained police officer and having her equipment and tools of the trade, including weapons and such, but having the tactical training and experience in these encounters on the street, why would she make the decision to go in at all rather than recognizing something was amiss but not even knowing what it was, assuming it was her own apartment why wouldn't she call for backup? Why wouldn't she maintain her position of relative safety until she had some people with her that could figure it all out.

Shawn Vincent: Because instead what happens is Botham Jean gets up and comes towards her, right? She testifies that she was giving voice commands, "Put your hands up, what are you doing here?" That sort of thing.

Don West: Yeah. And it's obviously impossible to know whether he was confused or could even hear her, but her testimony was that he came in her direction and from her perspective, he wasn't obeying her commands.

Shawn Vincent: Right.

Don West: And of course the distance closed rapidly. He must've been incredibly confused and wondering who that person was and of course why were they in his apartment and what was their intention. Whether he perceived it as a threat, who knows?

Shawn Vincent: Yeah, we'll never know.

Don West: There had been a neighbor over there earlier and maybe the door was even left open on purpose. I don't know any of that stuff, but it must've been incredibly confusing for him. And now we're looking at his perception and how that affects his behavior and then how his behavior affects the perception of Amber Guyger and then of course her response, which tragically was to point her gun at him and fire twice. One I think missed, but the other penetrated his chest, I think pierced his heart and an immediately-

Shawn Vincent: And then that's it.

Don West: Mortal wound.

Shawn Vincent: Right. Then what happens immediately afterwards becomes a point at trial as well. There's video of her freaking out while there's first responders there, there was some hay made that she never seemed to try to render any aid to the guy that she had just shot. She obviously quickly realized that she was in the wrong apartment and that this was a horrific mistake.

Don West: Well that's an interesting observation because that has nothing to do with the lawfulness of her act of shooting him. We'll talk about how all of that plays out. Whether or not she immediately rendered aid has to do, I think with the way the prosecutor could paint her maybe as being callous or uncaring about what she had done combined with some of the things she said on the call about losing her job and all that stuff seemed to suggest she was more worried about herself than she was-

Shawn Vincent: Sure. Well, often-

Don West: Than the guy that she shot.

Shawn Vincent: Often a second degree murder charge -- especially in Florida where we've worked on some cases together -- the second-degree murder charge implies a reckless disregard for human life and if there's any chance to provide aid to resuscitate somebody and you don't do that, that helps paint a picture of someone who has disregard for that life.

Don West: We've come across a couple of cases where the prosecutor exploited the idea that no aid was rendered and tried to impute some meaning to that.

Shawn Vincent: Sure.

Don West: And-

Shawn Vincent: We just talked about the Drejka case and instead of trying to help the guy or express concern for him, he was wandering around letting people coming up at the store, letting them know he had just shot somebody. A weird reaction that was.

Don West: We know being involved in something like that may make you act in a different way than you would even if you were thinking it through. But certainly the perception others have of you becomes pretty important and frankly, I've seen cases where the response to the shooting was so immediate and so positive in an attempt to get aid that the prosecutor commented on that in making their charging decision, that they thought that the person did everything right afterwards and it impressed them about the way they viewed the case

Shawn Vincent: We talked about Zach Peters and he didn't necessarily render aid but indicated on this 911 call that they were still alive and that you better get here quick. The implication being that he had some concern for whether or not they'd be able to survive that episode.

Don West: Our advice has been, even though it may be the last thing you want to do to help the person that you firmly believe just tried to kill you but for your use of deadly force would have been dead, the last thing you want to do is reach out and try to provide medical assistance. But we have specific examples we can talk about plus the idea of being able to show that your conduct was not rooted in anger and malice but rather was a response to the threat and that once the threat is over, you will, as any human being should try to mitigate the situation.

Shawn Vincent: Right. Because the point-

Don West: Your goal is not to kill the person. Your goal is to neutralize the threat. Stop the threat.

Shawn Vincent: That's right. And that should be the attitude from the beginning to the end. And all the actions that you take should indicate that respect for life. Otherwise-

Don West: In a case that we're talking about like that when the prosecutor is looking for any opportunity to look for evidence that will support their theory. Now their theory could be any number of things but in this case the theory was that what she did was not reasonable and that even though the law may have favored her, notwithstanding the fact that she made a mistake, her conduct should be viewed by the jury as being unreasonable and then set about explaining why and how at different points in time throughout the entire scenario and the fact that she seemed more focused on herself and the fact that she would lose her job than trying to render immediate aid was just one thing that piled on a lot of other things that happened long before the trigger was pulled.

Shawn Vincent: That's the cherry on top of the pie here, the meat is this whole thing that... And we've never encountered a case like this where someone... She essentially broke into someone else's house and then shot them and is claiming self-defense. It wasn't breaking and entering, but she went in uninvited to somebody's house and shot them in their living room and then makes a self-defense claim. That sounds crazy.

Don West: It does sound crazy in the sense that most people that don't truly understand self-defense law and what it is that become the critical turning points in a self-defense case would think that all you really needed to know was that she went into the wrong house and shot an otherwise law-abiding citizen and that nothing else really matters. Well, in fact, that's not the case. That notwithstanding some of the things that we'll talk about that help shed some light on whether her actions ultimately were reasonable. Legally, you are allowed to make mistakes. It's really the perception of the threat more than the actual threat that becomes the critical issue.

Shawn Vincent: Right. So if the jury-

Don West: So the fact-

Shawn Vincent: If the jury really believes that you've made that mistake in perception, then they're supposed to accept that as the reality or the perceived reality. And then under that set of realities then decide whether it was reasonable. So under your misperception, was your action reasonable? Even if you're wrong about that first assumption.

Don West: That's exactly right. The threat doesn't... And the jury instructions say this, the threat doesn't have to be actual, it's the perception of the threat. So the prosecutor had to go much further than just showing the jury that in fact she had made a mistake, they had to show that the way this thing played out, her mistake was unreasonable and that there were lots of places along the way where she should have realized her mistake and you put all that stuff together overall the actions were unreasonable. And once the-

Shawn Vincent: So let me-

Don West: Go ahead.

Shawn Vincent: Let me ask you about that. So if we're going to operate with the assumption that she thought it was her house and that the jury has to, if they believe that's true, judge her based on that, then let's make a more controversial scenario. You come home from a double shift, you're distracted, you're tired, it's dark, you walk in your front door and then there's a stranger there who gets up and starts moving towards you. You're a concealed carrier, you're in your own home, someone's obviously entered without your permission, are you justified in shooting them then?

Don West: It may take a few more facts but the general sense is yes. Especially if you know there's no way they got in there by consent.

Shawn Vincent: It's not potentially like a friend of your son's or it's not the bug guy.

Don West: Well, I can tell you there are lots of cases. Tragic cases. You'll read about them regularly if you just pay attention -- about people being home asleep, hearing a noise, getting out of bed, taking a gun into the living room or to the kitchen and finding somebody and shooting that person dead, only to realize after the fact that it was a kid coming home from college or a relative that came into the house. So they were clearly no actual threat, but the fact that they entered, from your perspective without consent, essentially a breaking and entering idea, especially in your home, there are presumptions that if somebody enters the house without permission, there's a presumption that they're there and a threat.

Shawn Vincent: Right. So she's got that on her side.

Don West: The law is on her side, even if she's making a mistake. And I think that was somewhat controversial in this case because I think the judge ultimately agreed that she was entitled to the Castle Doctrine defense, even though she wasn't in her own apartment and obviously she was the in the wrong spot. So that was controversial and I think a lot of people were afraid the jury might use that as a technicality of some sort and acquit her, notwithstanding the clear indication that she was making a big mistake about the whole thing from beginning to end.

Shawn Vincent: Right. So if the Castle Doctrine could have or should have applied to her in that case, then now I want to connect the dots about how she gets a guilty verdict because she was found guilty of murder in that case from shooting an intruder in her, quote on quote, her house. What she perceived to be her house. So one thing I look at is even though the law often allows you to assume that someone who is in your house uninvited is a threat, whether or not they actually are a threat from a perception point of view, still makes a difference. And we've talked recently about the idea... We were talking about Marissa Alexander. She left a confrontation in her house and went into her garage. She was not followed but she got a gun and then she went back into her house and re-engaged and that was a problem in her case. So if you walk in your front door and you have the option of turning around and leaving or going further into your house and confronting somebody who's there uninvited, does that change the scenario when you're looking at the Castle Doctrine and the duty to retreat that's waived by the Castle Doctrine?

Don West: Well, I think the focus shifts that notwithstanding the legal right to take certain steps that the law would protect because of the Castle Doctrine, no legal duty to retreat. And in many jurisdictions, the presumption that someone who has entered the home uninvited is a threat and that your fear would be reasonable, that's not the end of the inquiry. And in this case, the prosecution focused on all of the little things that in combination and when put together the so-called totality of the circumstances test that we've talked about before, whether overall her actions were reasonable. And you can break that down into mistakes of fact and maybe mistakes that shouldn't have been made and why she didn't know where she was. Then you talk about the tactics or the strategy of the decision making and why she did what she did under those circumstances. And when you start stacking that one-on-one on top of it and then you compound that of course by the fact that she was wrong, that she shot an innocent person, I think the jury had a different perspective than you would have had it been in your own home where you made an innocent but tragic mistake shooting somebody that wasn't in fact there to harm you like a relative or a drunk neighbor that wandered in.

Shawn Vincent: Sure. And you've coined the term forgivable subjectivity for situations like this. When it's your home or you're perceived to be in your home, or if you have the protection of the Castle Doctrine, the law affords you a few mistakes, even if you don't do everything perfect. There's this forgivable subjectivity. There were the deciders of fact can lean in your favor pretty easily, but I think the fact that it wasn't her house, even if legally the standard is Castle Doctrine applies, she's lost a whole bunch of that forgivable subjectivity, right? She's got a long road to claw back at and then you throw in the fact that he was unarmed, that she had an opportunity to just walk back out the door that she had just come in, the fact that she didn't attempt to render any raid after-the-fact; those are little things that push this forgivable subjectivity back to the point of no return.

Don West: Yeah. Let's talk a little bit about some of the specifics that formed the basis of the prosecution argument that made her, in their view, the conduct unreasonable, which meant that she really shouldn't be given the benefit of the doubt. I think that's what we're talking about.

Shawn Vincent: Right.

Don West: To some degree the forgivable subjectivity notion is that if you do most things right and you do them in good faith and you do them consistent with the law, even if you are wrong about some things you'll get the benefit of that, especially if it's in your own home. So setting the stage just a little bit more, I think we had talked earlier that she had worked a double shift, that she was in uniform, she was coming home, there was a different color mat in front of her door. It's certainly and I guess a different apartment number, but it's certainly explainable. I'm satisfied that you could miss that stuff but-

Shawn Vincent: I don't even know what our door mat looks like.

Don West: Sure.

Shawn Vincent: Don't tell my wife, but-

Don West: But then the door is unlatched. So that should've been a real big clue. And I would think someone would want to look around a little bit more than not necessarily even thinking you're in the wrong place but looking for what else might be out of the ordinary or amiss.

Shawn Vincent: So you come home and your door is open, you're going to look around like, "What's going on here?" You're going to be extra perceptive is what you're saying.

Don West: I would think you'd be very vigilant at that point because now this is something that jolts you awake. Now, in your end of the day automaton response. How many times have you driven home and you certainly can't remember the route you took or those things.

Shawn Vincent: So whatever is distracting you, now you're shocked out of that and now you're in the moment because your door's open.

Don West: I would think so. I think that's a reasonable interpretation.

Shawn Vincent: Especially if you're a cop. Yeah.

Don West: So there were a couple of other things going on, too, as I remember some of the testimony and I watched quite a bit of it that first of all, she'd only been there a couple of months so she's not going to be as familiar with the layout as people that lived there a long time, but it was my understanding that she had a dog and that the dog was boarded or being kept somewhere because maintenance was supposed to come through at some point in time. I don't know if it was that day, but if you put your dog up, you would know two things. One, you would know your dog wasn't there, so the dog wasn't at any risk if that's what you were concerned about. And then the fact that you boarded the dog because maintenance was going to have to do some stuff, then you would maybe not be quite as surprised that the door was unlocked or open, but you would react to that, I would think.

Shawn Vincent: Sure.

Don West: Rather than think. So that would have been another opportunity to think that maybe if somebody is inside, they're specifically there to do harm or even to steal things. And the idea that... Well let me characterize it this way. She is trained and prepared to deal with threats and violence. At the same time she's also prepared and trained how to not do that without incurring greater risk and you call for backup. If you're in a situation that's not urgent, that you don't have to take immediate action and you don't know what's going on or how big the risk or the threat is, you call for help. So the prosecutor really harped on that. Why not just call for backup? The police station was only a few blocks away. You stay outside where you're safe, you call for people and then you go in and deal with it. So while it wasn't specifically said, what struck me about that is why would you go in there when there's nothing really to protect? It's just your stuff, there's no people in there, whoever it is that's in there is not there specifically to attack you because you're on the outside. So why specifically go inside knowing you have to confront whatever it is rather than just waiting outside and-

Shawn Vincent: You're going from a place of relative safety to uncertain danger.

Don West: Yeah. And how many times have we seen that? So she goes inside with the expectation of confronting whoever it is and she may not have known or even really suspected that it was an intruder at that point. I don't know what she really thought that wasn't clear, but she did make the decision to go on in. And I think the prosecutor pretty reasonably said how unreasonable that decision was.

Shawn Vincent: We've talked over and over again in these cases that the decision to pull the trigger by definition has to be imminent fear, right? And if it's imminent, there's no time to think twice about that decision. It has to be done right now. Imminent means right now, you told me once, right? So we have this conversation that we've had a few times about the choice before the choice and almost all the cases we've found there's been escalation and the shooter makes some choices before that critical moment where they pull the trigger where they could have gone a different way. And in Guyger's case, that's clearly her decision to continue into the apartment after she knew that something was wrong. That was where she really had the most discretion to change how the scenario went.

Don West: Yes, exactly right. So she would then, by making the decision to go in and confront whatever it was that was inside, cross that line where she had to do it. Now I'm not saying she had to shoot somebody but once she made that decision to go inside, she had basically decided she will handle whatever it is.

Shawn Vincent: Yeah.

Don West: And when she didn't really have to do that, she had lots of other options there.

Shawn Vincent: So that decision was unreasonable from the deciders of fact point of view.

Don West: I think so. You couple it with all of the other little things where the prosecutor reinforced the notion that she should have known she wasn't in her place. There are too many things going on for her not to have realized it. If she hadn't been distracted with text messaging, if she hadn't been tired,  perhaps -- but nonetheless the prosecutor exploited everything that they could to show that she wasn't focusing, that she was distracted, that she really wasn't paying attention, that any reasonable person would have given these situations. And then I suppose from my perspective, the decision to go in and confront is a one-way street at that point. You go in and you have to deal with it. Now, I think what's interesting maybe for our listeners is we have, excuse me, no doubt lots of listeners that if they hear a noise in their backyard are going to get their gun and go out and figure out what it is. And just like when Amber Guyger went into what she believed be her apartment with her gun, with the expectation that she would confront whatever it was that was inside, she wasn't breaking any law. She was completely allowed to do that as a citizen and certainly as an off-duty police officer. So it's not that she made a critical illegal decision. She simply made, I think in hindsight, what was a critically bad decision. A decision that she didn't have to make that had the risk of increasing her own danger but more or less, as we've talked about before, when you talk about the choice before the choice, you make the choice that forces your hand and you hope it's going to turn out okay, you hope that you're going to come up on the winning side of it but nonetheless, you make a choice that forces a hard choice. And in this case how much more wrong could it have gone? Her life is effectively ruined, Botham Jean is dead, a promising, universally loved young man, a young professional who had a loving family and peers, it's just-

Shawn Vincent: Just the ultimate tragedy.

Don West: Yep, sure is.

Shawn Vincent: So there were other things that we got brought up in trial that yeah, if we're going to push this forgivable subjectivity, the prosecutor tried to make her look like a bad person. They tried to make her look like a racist. She was white, Botham Jean was black.

Don West: I think that the prosecutor, knowing how delicate a balance all of this is in terms of the jury's perception of what happened, were taking the opportunities that they had to exploit the weaknesses in the character, weaknesses in the history, in the background, taking events in Ms. Guyger's life and, rightfully or wrongfully, I don't know enough about it to suggest that there was any real evidentiary value to this other than what seemed to be a pretty clear attempt to dirty her up. I don't think anybody could credibly claim that race played a part in this, even though the media focus was oftentimes race-based and only because another unarmed black man is killed at the hands of a police officer. So that's a narrative which percolates throughout the news these days.

Shawn Vincent: That definitely grabs national headlines.

Don West: Yeah. It's a round peg, square hole scenario. I don't know anybody would truly suggest race played a part of it, but it was an aspect of this that was exploited by the lawyers on behalf of the family and certainly the prosecutor appreciated whatever value some inference of that might have and took full advantage of it to the extent they could. Whatever lesson there is, there only is what we've said on and on and that is that whatever you have out there in your past, whether it's social media, or text messages, or off-color jokes that are offensive, can and -- if there's any way for it to come back to haunt you -- it will. By all accounts, Amber Guyger was a decent person who had done a good job as a police officer, who had done good works in the community, was well-liked and well-respected but through this sequence of poor judgment, bad decisions, maybe being a little bit too gung-ho, dealing with whatever it was on her own, instead of getting the backup, set the stage for this tragedy.

Shawn Vincent: Yeah. So she was convicted of murder, right? One of the options that the jury had along with acquittal would've been manslaughter. Were you surprised when you heard the murder conviction?

Don West: I was a little surprised. Well, there was one other aspect about this case that the prosecution took full advantage of. And when I say taking full advantage of something, I'm not suggesting it's unethical or somehow even inappropriate, although I think there's some arguments to be made that the prosecutor is always supposed to take the high road and that their goal is serving justice not just getting a conviction, but I can tell you after many trials and lots of years of doing this, it's an adversarial process. There are egos on the line, everybody wants to win and if you see a chance, unless there's a clear prohibition against it, you're going to take it with a prosecutor or a defense lawyer. And they saw a chance and they took full advantage of it when during examination, Amber Guyger was asked about what was happening at the time that she shot Botham Jean. As we mentioned before, there were two shots, one that missed, one that went through his chest. And I believe it was cross-examination the prosecutor asked whether she was trying to kill him. And I believe she was nervous, being on the stand, no matter how seasoned you are is an imposing, intimidating thing and it's pretty easy to get rattled.

Shawn Vincent: Yeah.

Don West: So my guess is her answer was more a product of that than in fact what she was thinking but it might've been regardless when she was asked whether she was trying to kill him, she said yes. So the prosecutor had that little nugget when they wanted to argue about her state of mind and what she was really doing all along that she was there trying to kill him and shot him through the heart.

Shawn Vincent: The right answer is she was trying to eliminate the immediate threat. That's the legal answer.

Don West: Well, that's the true answer, I hope because that's the answer that her training would have been. There's no police department that I've ever heard of including a recent tour of an NYPD training facility where the officers are taught to kill in the face of a threat. Certainly death may be a consequence and it may be the only consequence if you truly have to incapacitate somebody, but it's never the goal. And the goal is exactly as you said, is to stop the threat. To neutralize the threat. And I think a lot of times these fatal wounds aren't by design. No reason to think that she was shooting Botham Jean in the heart for the purpose of killing him. The training would be to shoot in the larger mass of the torso and unfortunately that's where the heart and other vital organs are that often result in death but also fortunately, if you have to stop the threat and incapacitate someone, that's a pretty good place to hit him other than shooting somebody in the head, which from a training perspective is pretty hard to do. I don't claim to understand that fully but you shoot where you think you can hit somebody that's the threat and then you go from there.

Shawn Vincent: Well, it's like the Sundance Kid says, aim for the middle and that way, in case you miss, you still hit something,

Don West: So when she said, “I intended to kill him,” I think she misspoke. That was something that was one of those oh, oh, moments because it resonated in such an ugly way in the case. But I really questioned whether that was simply more misspeaking than that was, in fact, her intention.

Shawn Vincent: But if you're a juror and you have to decide between murder and manslaughter, “I meant to kill him” is a tough obstacle to overcome.

Don West: Hard for me to imagine. She had good lawyers, experienced lawyers. It's hard for me to imagine that they wouldn't have been through that with her in some way in the pre-trial preparation. But I don't know what statements she may have made before that she got locked in on something like that. But it came as a surprise to me. I think it probably came as a surprise to everybody that she answered that way and I think that was simply unfortunate. It doesn't really change anything except the observation you just now had.

Shawn Vincent: Sure. But then you take a step further, now you have the guilty verdict and you talk about in Texas it's relatively unusual where that same jury gets to come up with the sentencing. And in this case for the murder conviction, it could've been anywhere between five and 99 years. I understand. And they chose-

Don West: Yeah. Unusual in the sense that it doesn't happen very many places outside of Texas. Yes. It's common in Texas, that's how they do things.

Shawn Vincent: Sure. In Florida, the judge is going to give you the sentence and-

Don West: Exactly right.

Shawn Vincent: And this jury, the same jury that convicted her of murder, went way low on that sentencing range. They gave her 10 years.

Don West: Well, the trial and the sentencing are two distinct phases with different rules and different objectives. Of course it becomes pretty clear in a place like Texas, where the jury is actively involved in the sentencing, where there's actually a separate evidentiary proceeding. Typically in other jurisdictions, the jury will decide guilt or innocence and then there'll be a separate hearing but only with the judge or they hear additional evidence and aggravation to support a higher sentence based upon perhaps the background and character prior record, those things that would influence a judge and sentencing guidelines, calculations, that stuff. And much is the same in Texas but with the jury, witnesses testify, It's a much more formal process and then the jury retires to deliberate again and come up with a sentencing.

Shawn Vincent: So what does it mean to hear that they come up with this 10 years instead of 99 years --  instead of 20 years?

Don West: A sentencing hearing from a defendant's perspective is going to focus largely on mitigation. That's really the first time in most cases where the jury or the judge, depending on who the sentencer is, gets to hear about the person. There may be some stuff in the trial itself that comes out but how the person conducted themselves in the past, who their friends were, character references, employers, friends, that stuff is highly relevant. We have in the United States individualized sentencing. So there's virtually, unless it's a mandatory minimum, which I think is why there's so much condemnation of these mandatory minimum sentences and especially the high ones and for certain crimes is it takes the individuality away from the person being sentenced and also removes the discretion of the judge.

Shawn Vincent: Sure. Every crime's committed within a very specific context and that context matters when it comes to punishment.

Don West: And I think this case showed that dramatically, too. And while the jury sent a clear message that what she did was a crime and a serious crime, that there is value to her life, that as a public servant, as a police officer there's value to that. I think that... Of course, I don't know what they said in the jury room, but they obviously took it very seriously and after making a tough decision on guilt and innocence probably made even a tougher decision on sentencing because they had to decide basically whether to lock her up for the rest of her life or give her a chance at life.

Shawn Vincent: Sure. Because she's a young woman, in 10 years, she still has life to live.

Don West: Shawn, it's interesting about this case now that we've talked about the charge. If I'm not mistaken, she was first charged with manslaughter and then the case was taken to the grand jury. By charge I think probably the prosecutor's office was able to make that charge taken to the grand jury and the grand jury upped it to murder.

Shawn Vincent: Okay.

Don West: So then the trial jury instead of reducing it to manslaughter, as many thought it would if there was a conviction actually maintained the main charge, the murder charge . . .

Shawn Vincent: But gave her a more “manslaughter” sentence for it.

Don West: Yeah. As I understand it, a 10 year sentence, the one that she got there's going to be parole eligibility in about five years. It may not result in parole but I think that would be the earliest possible date that she could be released. The next five years are going to be pretty tough for her, not to focus so much on her as opposed to the suffering of Botham Jean's family and the tragic loss of his life. That's what's interesting about murder cases though, is that every murder case starts with someone that's been killed in some way. The starting point, not the ending point so it's really moving past that to how the system works with the focus on the accused. So the victim doesn't get lost along the way but from a jurisprudence standpoint, it's not about the victim.

Shawn Vincent: So that's definitely just one of the remarkable parts of this case. And that is when the family of Botham Jean had an opportunity to give an impact statement, Botham's brother basically said he forgave Amber and didn't wish her any ill will and in fact asked the judge for permission to give her a hug. And there was a very dramatic moment where she goes and embraces him and she's in tears.

Don West: I think that was so extraordinary in the normal course of affairs that everybody did a double take when he made that request and the judge hesitated. The knee jerk-reaction would be to say, "No, that's not permitted." And say, "Well, for security reasons or what have you." But this judge was very contemplative and very humanistic at the end especially. And she said yes. And Mr. Jean's brother got off the stand and walked toward counsel table where Ms. Guyger was seated and she stood up and they met in the middle of the courtroom and hugged. It was incredibly powerful and caught me completely by surprise. I hadn't seen such a thing.

Shawn Vincent: I can’t pretend to think that this is actually true or know it in any way, but I got the impression that after this was all done and she got her sentence that she was ready to serve it. I felt that she was genuinely devastated and truly remorseful for what happened and you could see the pain of it on her face. And I think having the opportunity to pay for it, but still have a life afterwards was a good result for her.

Don West: There may very well have been some relief. You're not allowed to show that thing during the process. The process is very rigid and formal and obviously adversarial as we've talked about. Can you imagine the uncertainty of not knowing whether you would receive a sentence that would allow you to have some life left or whether you would effectively be serving the rest of your life in prison. And she certainly has a sense of fairness and justice. She was a cop for a long time and she certainly wouldn't welcome spending 10 years in prison but I have to think knowing how badly she knows that she screwed up that she has to understand there's a sense of fairness in all of that.

Shawn Vincent: I think that's right.

Don West: Some of the evidence in sentencing was presented in court to the jury and then the jury went back to deliberate on the sentence and then there was an additional opportunity for family members or others, I suppose to speak more directly to the defendant. So there was a separate proceeding where family members, while they were in court and they were on the stand, the judge was in the courtroom, they were really talking more to Ms. Guyger. And that was the moment that Botham Jean's brother Brandt talked about forgiveness and the hug and that was outside the presence of the jury. So notwithstanding that the jury still gave-

Shawn Vincent: Still went easy on her essentially. Well, we talked about looking for the lessons for concealed carriers so that they don't repeat those lessons. And in this case, I think the real takeaway for me is what we talk a little bit about at the beginning -- is just that very often in a stressful situation your perceptions about what's going on can be wrong. In this case, it's extraordinary unusual that she mistook someone else's home for her home. But what's not as uncommon is for someone to mistake an intruder for the wrong person. If someone that they know or someone who belongs there as an intruder or even more commonly to mistake someone who's unarmed for someone who's armed, right? We saw Drejka mistake someone who's intoxicated for someone who's making rational decisions. To me this just as a case that really underscores that when you get into these difficult decisions that you might not be right about your understanding of all the details. And while that doesn't necessarily matter if you're facing that imminent threat of death or great bodily harm, it should inform all those choices before the choice that you make. And sometimes we always emphasize avoiding the situation if you can at all, even if that means sometimes the bad guy gets away. But that's all in the service of making sure that you don't make mistakes that could cost you your freedom and the rest of your life.

Don West: That's exactly on point. And it makes my mind start to turn again about this case. What was she thinking? Could she possibly have been going in to protect her stuff? Texas is one of the few States in the country that allows deadly force in some scenarios to protect property. I hope that's not what she was thinking. I hope she knew better than that just because legally you might be allowed to do something does not in any way make it a smart choice and certainly not a reasonable choice depending on the other circumstances. Did she not know that there was nothing that person could do inside that place that mattered a lot? The only thing that mattered was her safe. And of course what you're saying, wasn't there enough that was going on that seemed out of order that would have caused someone to just take a second and reflect and regroup and reassess before... Even if you are a trained police officer, even if you have a sidearm and if you're used to going to the threat as opposed to away from it, isn't there enough there that would cause you to say, "Wait a second, I am not in immediate danger. I don't have to make an immediate decision. What's the smart thing to do so that nobody gets hurt?"

Shawn Vincent: Yup. And what I'm encouraging people to do is even if those signs aren't there, if you're in an escalating situation where the tension is getting high but before you reach a point of no return is make it a best practice. Our friend Bob O'Connor calls it the warrior mindset. I think that includes checking your assumptions before you take the next step and assume that you could be wrong about one of them before you commit to deadly force or putting yourself in the position where you won't have the choice to back away.

Don West: Make no mistake that juries take firearm offenses, especially those involving serious injury or death very seriously. And the first thing I believe the prosecutor will look to even those prosecutors that are proponents of the second amendment and proponents of concealed carry will immediately focus on whether the concealed carrier is responsible. Is there anything we can look to show that they were being reckless or irresponsible or not exercising the high level judgment that you expect someone to have when they're carrying around an instrument with them that can cause immediate death.

Shawn Vincent: Yeah.

Don West: We have seen that theme over and over and over again as we look back at the cases we've talked about.

Shawn Vincent: Well, that's a good point Don and as the psychiatrist says, I think our time's up.

Don West: But we haven't even talked about mom yet.

Shawn Vincent: Well, you may save that for a different day. As always, really enjoy talking with you about these things.

Don West: Thanks Shawn. Look forward to the next time. I hope it's soon. Take care.

Shawn Vincent: Alright. Take care.

In Self Defense - Episode 52: The Warning Shot Case: Part II

 

In this second look at the Marissa Alexander case, Don West and Shawn Vincent look at their long legal fight Alexander faced in defense of the warning shot she fired during a 2010 confrontation with her estranged husband.

 

TRANSCRIPT:

Shawn Vincent: Well, hey Don, how's it going?

Don West: Great Shawn, good to talk with you.

Shawn Vincent: Last time we spoke, we were talking about the Marissa Alexander case. We had a great opportunity where Mike Darter and Stan Campbell had a chance to talk to Marissa Alexander. She was the defender in the famous warning shot case where she fired a single shot at her estranged, now ex-husband after he had just assaulted her in their shared marital home, and she made the mistake of not calling the police. He called the police. They came and questioned her, ultimately arrested her for this discharge of the firearm at her husband. It was ultimately, it ended up being a case of aggravated assault with a deadly weapon.

Shawn Vincent: And in our last podcast, if our listeners haven't listened to it, they should go online and pick that one up. First, we talk about how the whole event unfolded, how she had the violent encounter with him in the bathroom. She retreated to the garage, couldn't get out, got her gun, came back inside. He saw the gun, he threatened to kill her. She fired a shot. He left, called the police. Police came, they had to call her, tell her to come out of the house with her hands up, asked her some questions and then all of a sudden she who, at first felt like she had done nothing wrong because she was defending herself and her own home, was now wrapped up in the criminal justice system.

Don West: Yes, that's exactly right. She certainly was wrapped up in it. And as we'll discuss as we go on here, how much the laws in place ... not the laws in place always drive the case. Obviously those are the rules and the guidelines and they outline not just the elements of whatever offense is charged, but in many instances potential penalties as well. And more than most cases, Marissa Alexander found herself right in the middle of this legal quagmire where her fate was largely driven by what the legislature had done some years before in reference to mandatory minimum sentences.

Shawn Vincent: Yeah. So just to give a taste of what she was in for and what she had no idea about. I'm going to play a quick segment from her podcast with Mike and Stan.

Marissa Alexand: I literally was, so I'm naive. I'm thinking, okay, it's going to be like Law and Order or the Heat of the Night. I'll go to a little room, I'll tell them what happened and be like, everything is good. And it was not the case and it really feels it's a situation where you are guilty. You're not innocent until proven guilty. You're already guilty. You got to prove your way innocent.

Shawn Vincent: So not unlike the understanding that most people have about the criminal justice system, Marissa Alexander's expectations of what she was in for were set by television --in particular, Law and Order. And we talked about this a little bit in the podcast last time. It's a great place to start up. Now, this idea that she went into that little room with investigators. She told her side of the story and thought that that would be it okay, and they'd figure out the truth from her point of view, and then she gets to go on living her life. And instead she ended up getting booked that day in jail, given a prison uniform and a bologna sandwich and told to walk a line to a jail cell.

Don West: I think in her situation it's so much a parallel with other self-defense cases that we've seen or experienced even where because you don't feel like you've really done anything wrong. It's the urgency of trying to explain it. We touched upon that in an earlier podcast, but the idea that she's desperately trying to explain why she's not guilty and there she is in custody or certainly being detained at the time. And as we've seen, and I suspect in her case as well, just continue to dig the hole. And genuinely is surprised and at the end of this interview isn't a send on home because the police finally realized how wrong they were to suspect her all along. As she said, naive. I think that's a perfect word to explain her mindset and the mindset of many people that wind up in her situation.

Shawn Vincent: Well, I mean and it perfectly until you see it actually work you don't know. The first real interaction with the criminal justice system that I ever had is when I had a chance to work with you on the big famous case. And the first trial I ever saw was the Zimmerman trial but I got an inside look to see how everything works. And since then I've been lucky to call myself a litigation consultant. I've worked on all sorts of types of cases, both on the criminal side and on the civil plaintiff side. And a lot of what I ended up doing when I interact either with a defendant or with a plaintiff is helping communicate to them in non-legalese terms, just what's going on with the justice system and why, Don, everything takes so long.

Shawn Vincent: And Marissa Alexander's case, yeah, we're looking at the shooting itself happening on August, 1st of 2010. It was essentially, gosh, May 11th of 2012 when she finally had a two day trial and was found guilty. So that's was better than a year and a half later. And then she files an appeal and that appeal in terms of how quickly appeals are done, pretty quick, September of 2013. So another year and a half goes by and then during that time she ended up incarcerated for 1,065 days. She ends up at the end, not exonerated, but pleading to a lesser sentence with a threat of serving three times what her original sentence was.

Don West: Sure.

Shawn Vincent: So, like, nearly four years, she was lucky that the case was high-profile and that some people had some sympathy for a victim of domestic abuse using a firearm to defend herself. So she had some pro bono legal services, which most people would not have the benefit of. And so there she is at a time when her kids were entering, at least, her twins were entering their teenage years. She's gone for 1,065 days in a fight for her life where she doesn't know that she's not going to spend the rest of her life in jail.

Don West: So Shawn, let me ask you this question. You've studied the case, you were watching it in the news while it was unfolding along the way. Why do you think the case got such media attention and why people were going on television programs, news programs, internet and saying what an outrage this whole case was, that it was just a warning shot. And the fact that she was not just exposed to 20 years but sentenced to 20 years is outside the realm of belief. How could anybody be treated like that by the system?

Shawn Vincent: Yeah. Well, I don't think that you can ignore the fact that this happened, this overlapped the Zimmerman case when he looks at the cultural context that this falls under. So the big cultural issue underlying the Zimmerman defense was that here's a guy who shot an unarmed black man and looked to get the benefit of the Stand Your Ground law in a time where the justice system is perceived to be, and I believe is, disproportionately stacked against African American people. And then in the midst of that outrage, then you look at this other case where now you have a black woman who defended herself and didn't even kill anybody, didn't even hurt anybody. And she's looking at that time, 20 years in prison for it. And it just seemed a disproportionate and patently unfair. Do you think that's a fair assessment?

Don West: I do. So if you take the 20 years out of it and you talk about a year or two or probation or even three or four years for shooting a gun at somebody that was a close call and put other people at risk, if you assume for the moment that it wasn't legally justified and someone who does that get prosecuted and sent to prison for two or three years, is that as outrageous or is that just people understand sometimes bad things happen to good people or that domestic situations are chaotic and bad things happen that wouldn't typically happen in a person's life, but for the 20 years. It was the 20 years that was so outrageous and looks so disproportional that it became the flag that people wave to point out why she was treated so unfairly.

Shawn Vincent: Yeah, it feels wrong in your heart. I think that's when we talk about the Zimmerman case, I talk a lot about the truth with a big “T” and truth of the little “T.” And we know all the evidence in that case inside and out, and those little facts that weren't necessarily known to the public until the trial and then nobody, not everyone watched the trial beginning to end, and that they don't know those little facts. We know they added up to a justifiable use of force incident. And those are the little “Ts” and you can argue those until you're blue in the face. But what didn't change was the big “T,” the big truth that was sparked by the case, but not necessarily supported by the facts of the case, which is that there is an inequity in how people of different races are treated in the justice system.

Shawn Vincent: And so then you look at another case where all the little details, the little “Ts” make it difficult, but the big “T” is no one was hurt. And it was a woman defending herself from an abusive husband that she had a restraining order against. And to think that she's going to face a large minimum mandatory sentence just doesn't pass the feel test.

Don West: All right. If you take that to the next step, and I think we should try to drill into this a little bit. I know this area of the law quite well. I've handled a number of cases, firearms cases that have involved mandatory minimums. I'm familiar with prosecutorial discretion, I'm familiar with claims of an abuse of that discretion. I'm familiar with plea negotiations. I'm familiar with overcharging to use as a weapon to sort of bully away into a settlement and this is sort of my wheelhouse when it comes certainly to Florida law.

Don West: So I feel like I have a unique understanding of the dynamics of how cases like this play out and I think it might be a good illustration for how people can get caught up in a system over which they have no control and frankly the judge has virtually no control. The prosecutor has some control, the most discretion and the defense lawyers have really no control over how a case is pursued and ultimately how to manage risks. That's what these cases turn out to be from a lawyer standpoint is managing risk so that the worst possible thing doesn't happen.

Shawn Vincent: Your description of that makes me think of a runaway train, in that you get a case like this, you have laws built the way they're built. You have an action like this discharge of the weapon that triggers a criminal investigation and then it's almost like this train let loose down a hill, it is just going to go and that maybe the only control is the prosecutor in the caboose with the break back there, they can decide how fast or slow it goes.

Don West: And Miss Alexander's case is a wonderful example of that analogy and also how certain cases can have an impact. And I think her case had a direct demonstrable impact on how future cases were handled or can be handled. And I think that it's probably fair that her case had resulted in changes in the law since 2010 when she was prosecuted through 2012, 2013 and then when her new trial and ultimately the case was resolved, the law has changed specifically with regard to the minimum mandatory for aggravated assault.

Don West: And that's a life-changer for people that are involved in a similar situation as to what she found herself in.

Shawn Vincent: So where's a good place to start talking about that Don, and maybe it's this idea that minimum mandatory and how ... so you and I both know that the vast, vast majority of criminal prosecutions don't end in a trial; they end up in some sort of plea settlement. A few of them probably get non-billed eventually, but yeah, most of them end up with the defendant agreeing to some plea and some compromise sentence. Is that right?

Don West: The vast majority, I don't know what the numbers are. I think it's 90% probably. Maybe somewhere in the high 80s of cases that are resolved without a trial. Frankly, the system would come crashing down if all criminal defendants insisted on a jury trial. The system would collapse.

Shawn Vincent: Right.

Don West: And there's lots of reasons why cases resolve without a trial. And some of them are honest and forthright and based upon a better understanding of what happened after investigation and discovery and discussion. And the end result is a negotiated resolution that both sides are reasonably happy with.

Shawn Vincent: So what you're saying is that sometimes a prosecutor will see some evidence come out, listen to some argument and testimony and say maybe you're right, we don't have a real assault charge here. We're going to find a misdemeanor, and plea it out to that. And here's something that everyone can live with.

Don West: Yeah, that's right. The facts may be tweaked or changed. There may be assumptions that the prosecutor made based upon certain witness statements or evidence that when further investigation are done shown not to be exactly as that impression was. And frankly, a good defense lawyer will spend some time helping the prosecutor better understand who the defendant is, of course, if that's favorable. And why maybe their discretion should be exercised in favor of the accused. The prosecutor has all the cards, they make the charging decision, they involve are involved in any plea discussions which could result in one or two directions.

Don West: One direction could be that since every crime has a relative range of punishment with it, by offering a plea to a lesser crime, you've resulted necessarily in a different sentencing range typically. So the prosecutor may conclude at the end of the day, let's talk about a serious crime that could be a murder charge. And there are several lesser included charges. A first degree murder charge might carry a mandatory life sentence without parole. A second degree murder charge of the firearm could carry a life sentence. And then there's manslaughter, that is a lesser included offense of murder, but does not have mandatory minimum sentences typically. And the sentencing ranges considerably less on that.

Don West: So after investigation, the prosecutor may believe that the defendant committed a criminal act and the evidence may show it pretty convincingly, but be satisfied that it's more in the context of manslaughter rather than murder. So a defendant that's looking at a lengthy lengthy sentence may be life could wind up with a five year or 10 year sentence, which is still a lot of time, but it may in fact be a good and fair resolution of the case.

Shawn Vincent: Yeah, but all that said, you and I have seen cases where we think they're overcharged. And maybe a prosecutor might think, this could be manslaughter, but they're not going to talk you down the manslaughter if they start there. So they might start somewhere like it's second degree murder or first degree murder. And you talked about they hold all the cards. Now it's the defendant that has to call that bet. And going to trial is an all or nothing proposition. So you get in a situation where you're going to face this maximum prosecution that the DA wants to pursue, or you get this offer, which is a guarantee of less time or maybe a lesser charge that is easier for you to live with afterwards. Or you have the option to roll the dice, see what a jury thinks and either spend way more time in prison or none at all. That's the bet.

Don West: It is the bet and that's a calculation based upon your knowledge of the evidence of what you think the strengths of the prosecution case is, the strengths of your defenses, the intangibles, how certain evidence might resonate with a jury. We talked about several cases in prior podcasts including the Gerald Strebendt case where there was a guy who had a pretty good self-defense claim but was simply not willing to take the chance that at the end of the day, because of some prior events in his life and the fact that an AR-15 style weapon was used, and the deceased was unarmed, you put all that stuff together, and he made a decision that he would rather serve a relatively short prison sentence to avoid the risk of a lengthy -- if not life sentence --  and they entered into a plea and that happens every day in the criminal justice system.

Shawn Vincent: Yeah. And add onto that, that Strebendt had been in jail long enough to where he was already starting to become institutionalized. It's your perception of what's acceptable for the rest of your life changes, the deeper that you get into it. And you've seen this with clients who come at first, convinced of their innocence, and they're not going to serve a day in prison for this crime. They're never going to plead guilty to, after sometimes years, certainly months and months and months of prosecution with their savings drained,  and probably their relationship shattered, and they've lost their job. Now they're a broken person and any light that gives them a way out of this prosecution now takes on a new luster, doesn't it?

Don West: Certainly does. Why don't we circle back and let me take a minute and explain some of the legal issues that Marissa Alexander found herself facing once she was arrested and then ultimately charged.

Shawn Vincent: Okay.

Don West: Then we can parse through that a little bit and better understand the decisions that were made by her lawyers and by her. And I think we can see a pretty clear trajectory as to how she wound up where she is now. And then we can actually talk a little bit about some of the changes, her advocacy and maybe some about the real effect of some of the advocacy.

Shawn Vincent: Great. So do you want to start?

Don West: Well, let's go back to the beginning and let me set the stage. This was in Jacksonville, Florida. The elected State Attorney was Angela Corey. She's pretty controversial. She's no longer the State Attorney. She was appointed by the governor, Rick Scott to handle the George Zimmerman / Trayvon Martin case. So I have a lot of firsthand experience with her and the lawyers that work for her, that are assigned to various serious high profile cases. And I can tell you that most of my experiences with her are not favorable. Well, without going into all of that, I can tell you that I'm no fan of hers, but at the same time I want to talk about the way her office handled this case as objectively as possible. So I'm going to give her office the benefit of the doubt, even though personally I don't feel that way.

Shawn Vincent: Fair enough.

Don West: So the case that the police got with Marissa Alexander was, as we've talked about at some length, she shoots a gun inside the house in the general direction of her husband. There's a bullet in the wall. It goes into the ceiling in the general vicinity of where he was standing. She claimed that she was attacked and he threatened to kill her and that she had no choice but to use deadly force. So the prosecutor had a wide range of charging options at that point. There were the attempted homicide or criminal homicide charges. There was certainly attempted first degree murder if they thought she fully intended to kill him, but just was unsuccessful. Attempted second degree, which is a reckless, wanton disregard for the safety of people. They could have charged even an attempted manslaughter, which is kind of a weird charge these days, but it would be on the books.

Don West: But they chose to file her with a specific intent crime of aggravated assault, meaning that she intended to threaten but did not necessarily have the intent to kill. It's typically a third degree felony punishable by up to five years. If you put a deadly weapon involved, specifically a firearm, then you have a three-year mandatory sentence that the judge has no discretion but to impose on a conviction.

Don West: Here's where the prosecutor has some discretion. They had discretion not to charge an attempted murder of some sort. They also had the discretion what level of aggravated assault to charge. They charged the enhanced crime under Florida's “10-20-Life” provision that was in effect at the time, which basically says that if you are committing a crime and you use a firearm, depending on the circumstances, you will receive a mandatory minimum sentence upon conviction at a certain level. With aggravated assault if you use a firearm and discharge it as opposed to just using it to point. If you discharge it, the mandatory minimum becomes 20 years.

Shawn Vincent: Just for context, like a manslaughter conviction, you could realistically be sentenced for much less than 20 years.

Don West: Interestingly enough, in Florida, if you use a firearm to commit the crime of manslaughter, there is no mandatory minimum associated with using a firearm for manslaughter because it's in a sense a crime of a gross negligence. It does not have the enhancement. So for example, while a firearm increases the potential maximum penalty, it does not impose a minimum penalty. So Michael Drejka, the Clearwater handicapped parking spot case that we've talked about-

Shawn Vincent: Sure.

Don West: ... he was charged with manslaughter, but he clearly used a firearm and then he was facing a maximum 30 years because of using a firearm, but there was no minimum. Interestingly enough, a different kind of crime could have resulted in a higher sentence, even if it didn't result in a death. So back to Marissa Alexander for a second, the prosecutor chose to charge her with aggravated assault with the discharge and that would apply to Rico Gray and also to the kids in the house if the prosecutor chose to charge her with that.

Don West: So going into it, she would have known after meeting with her defense lawyers and seeing the prosecution documents, that if she were convicted, she would face a mandatory minimum of 20 years, which means that the judge has no control over it. The judge cannot impose one day less than the 20 years upon a conviction.

Shawn Vincent: Sure. And the jury would have no idea what the minimum was if they chose to.

Don West: That's a really important part. I've been watching the Amber Guyger case in Texas where Texas juries actually impose the sentence after finding an individual accused of a particular crime. And unlike Texas, Florida juries and most juries around the country have absolutely no idea what the range of sentences will be on a conviction, whether there's a mandatory minimum, if so, how much. They're looking at the evidence and whether the evidence supports the elements of the particular crime.

Don West: And frankly, if you have a hole in the wall from a bullet and you have a person saying they fired the gun, it's kind of a no brainer to conclude that the person discharged the gun. So from a factual standpoint, if the jury rejected self-defense, Marissa Alexander was in big trouble. And you're right, the jury would not have known the actual effect of the conviction. So when I said before, I'm no fan of Angela Corey, I do want to point out that in the plea discussions, in the negotiations of the case, right at the very beginning, Ms. Alexander had a plea offer. The prosecutor agreed that upon a guilty plea or no contest plea, whatever the terms were, that they would amend the charge from the aggravated assault with a discharge to an aggravated assault with the possession of a deadly weapon, specifically a firearm.

Don West: And what that would have done is taken the mandatory minimum from 20 years down to three. Again, no discretion if she pleads to it, the judge has to impose a sentence of at least three years. So she would have been looking at a maximum of five years, a minimum of three. And I think the deal was she would just serve the three years and be done with it.

Shawn Vincent: So now the gambling bet given to Alexander at this point is a guaranteed three years or roll the dice and it's either 20 years or nothing. There's nothing really in between here.

Don West: There's not going to be much in between because like we were saying, the facts clearly showed she pulled the trigger, clearly showed she fired the gun, and if the jury didn't buy self-defense then there was no reason for them not to convict her of the aggravated assault with a discharge. So that was the decision she made with the benefit of counsel. I'm sure they agonized over it, and I imagine she knew what the risk was, but interestingly-

Shawn Vincent: She said, "I'm innocent, I'm going to go for it.”

Don West: Yeah, but I think what's really interesting about this case too, is Florida, in 2005 when they passed this Stand Your Ground, wide ranging comprehensive statute included the self-defense immunity provision that allowed people charged in a criminal offense who claimed self-defense to take it before the judge, prior to the criminal trial and present their case. And if the judge believed there was a sufficient showing that it was in self-defense, then the judge could dismiss the case. The law has changed since then. Under the law in effect during Ms. Alexander's case, the defense files a petition with the court and then at the hearing has to show by a preponderance of the evidence, like 51%, that she acted in self-defense.

Shawn Vincent: So in the immunity hearing back then, the defense has the burden of proof, to prove that it, in fact, was self-defense.

Don West: That it was self-defense. Yeah. So she had that opportunity and they took advantage of it and they had the hearing and at the end of the hearing, which it's an evidentiary hearing. I mean, they would call witnesses and make arguments. You can call experts.

Shawn Vincent: It's like a mini-trial. It's essentially a trial.

Don West: It is. I've been involved in one and you as well, that lasted a full five days. There was 30 or 40 hours of testimony and argument.

Shawn Vincent: Which was three days longer than Marissa Alexander's ultimate trial. Yeah.

Don West: That's right. So somebody walking into the courtroom would see this going on and have no reason to think, it wasn't a full blown trial.

Shawn Vincent: Except there is no jury there.

Don West: Exactly right. So Marissa Alexander lost the hearing. The judge ruled against her and concluded that she'd not made the necessary showing and refused to dismiss the case. I would have thought that's a pretty good indication to me that self-defense was not clear, which in my mind would have heightened the risk of going to a jury trial.

Shawn Vincent: Sure.

Don West: But however it sorted out, she still rejected the plea offer and decided to take her chances with a jury. Unfortunately, as we know, not only did the jury convict her of aggravated assault, but they also convicted her of the aggravated assault with the discharge of the firearm, which triggered the mandatory minimum. They didn't give her the lesser charge.

Shawn Vincent: Go straight to jail, do not pass “Go.”

Don West: Yeah, and the judge had no choice but to sentence her to 20 years. So if I look back on it, I can't say that the prosecutor's office was completely outrageous or irresponsible. They made from their perspective a pretty decent offer in that they were convinced they had the evidence to prove that she was not justified, that she in fact committed a crime. They clearly could have gone for attempted murder if they wanted to really overcharge. They charged the aggravated assault with the discharge, which is pretty consistent, although extremely punitive as we know because of the mandatory minimum and then to avoid the risk of trial and to exercise their discretion, they offered a plea that while it would have meant a prison sentence would have been capped at three years and that would have been the end of the case.

Shawn Vincent: But it was not the end of the case.

Don West: So we can criticize prosecutors all the time and point to them and I think Ms. Corey certainly had the fingers pointed at her. She became the person that was vilified in all of this, when the case got characterized as just a warning shot and all of that. But in my experience, I have a hard time concluding that it was outrageous. Three years, people may think was outrageous, but I've seen too much in the system to think that if the self-defense claim was rejected and the 20 years may have been a bit of a bludgeoning tool, but they did make the offer that would have allowed her to resolve the case in three years. So it's rejected. She's convicted, she sentenced to 20 years. I imagine her mind is blown at that point. This was the worst possible outcome for her under the circumstances.

Shawn Vincent: Well, she says in the podcast with Mike and Stan that she said immediately, “All right, round two. What's next?” She was still convinced of her innocence and was going to exhaust the procedural opportunities that she had.

Don West: Well for a jury to convict somebody -- unless they are a complete rogue jury that's operating out of bias or prejudice or emotion or something that's not supposed to factor in -- if a jury convicts you, they have to be unanimous. They have to have concluded that the prosecutor proved the crime beyond a reasonable doubt, and also convinced that in self-defense that the state proved beyond a reasonable doubt that it was not lawful self-defense, in some ways an extension of what the judge said that Marissa hadn't established in the immunity hearing.

Don West: So I don't know what Marissa was thinking, whether she was somewhat diluted or confused about what the evidentiary standard was or what the power of the evidence was. But for someone on the outside, once you lose the immunity hearing and once you get convicted by a jury, I think the writing is pretty much on the wall at that point. So the next step procedurally is an appeal.

Shawn Vincent: Right. And we've talked about appeals before. Not everyone understands what an appeal is. Sometimes people think it's a second shot at the trial with judges from a different court, but in fact, you can't appeal the result of a trial, you can only appeal specific errors that perhaps the judge made.

Don West: Legal errors typically. Sometimes if the prosecution commits ethical mistakes or if they comment on the right to remain silent, if they appeal solely to emotion, if they make it unfair, that can be a subject of an appeal. But usually it boils down to decisions the judge made and whether or not those are consistent with the law or there's been some sort of fatal mistake. Sometimes mistakes can be real but found not to have an impact on the outcome. So it's no harm no foul kind of thing, but what appeals are not, and I think this is the area of the greatest misunderstanding, is a reevaluation of the credibility of the witnesses.

Don West: For Marissa Alexander to have been convicted, the jury would have had to accept the testimony of Rico Gray or the kids or some combination of that and reject her testimony and conclude that either he didn't threaten her, and that she sort of made that up to justify shooting at him, or that the threat didn't rise to the level of an imminent threat of serious bodily harm or death or some part of that, that satisfied the jury; that she was not allowed to act in the manner that she did and that it wasn't self-defense. So the appeal court doesn't go back and decide who they believe more than the jury did.

Shawn Vincent: Right. And then in this case, the appeal was granted based upon the jury instruction that was given, the defence felt, errantly.

Don West: At the end of all of the evidence, meaning whatever the prosecution puts on, whatever the defense puts on before the final arguments, there is a meeting with the lawyers outside the presence of the jury and the judge to decide what instructions the jury will receive. A lot of them are boilerplate rules for deliberation and definition of reasonable doubt and that sort of stuff. But then there's a number of them that are case specific and in self-defense cases making it clear whose job it is to prove what and if the judge decides to give certain instructions, a certain instruction specifically as to which side has to prove what element or by what standard, then those become the guidance for the jury to apply when they're trying to evaluate the evidence and decide whether the laws were broken and if so if the defenses are sustained and that sort of thing. So it'd becomes-

Shawn Vincent: So if the jury was given the wrong instruction, like in the Gyrell Lee case that we talked about, than it's pretty easy to make an argument to the appellate courts at least, that had they been given the proper instruction, the jury could have come up with a different result.

Don West: Exactly right. And we have a parallel to that case here where on appeal, the appeals court decided that the jury was miss-instructed on a couple of key aspects of the law of self-defense, and that it was important enough that it may have affected the jury's verdict, and as a result, reversed the conviction and ordered a new trial. So that's how Marissa Alexander wound up basically with a do-over because the appellate court found that the first jury really didn't have the right instructions.

Shawn Vincent: But get this. So in this particular case, the do-over is a triple or nothing do-over because, in the intervening time, there had been some controversy over how the 20-year minimum mandatory would be applied. And Angela Corey's office made the case that there were three of them, there was Rico Gray and then his two children who are in the vicinity and that aggravated assault applied to all three of them. And a higher court ruled, that 20 year minimum would be now consecutive instead of concurrent. So instead of it all running in one 20 year sentence, she was facing in the second trial, a minimum mandatory of 60 years if convicted.

Don West: I don't know Shawn, whether frankly from my standpoint as a criminal defense lawyer looking at this case and looking at the history, I don't know if that would have made a difference to me because 20 years is a hell of a long time, and I'm not sure adding more on top of that would have made a difference in whether given the history of the case and the lack of success at the various stages before would have convinced me not to go to trial when I was otherwise going to go to trial.

Shawn Vincent: So it's a big enough number where 20 and 60 is still essentially the best part of the rest of your life?

Don West: It depends on how the choice was presented. The prosecutor, like we said, holds all the cards, assuming they decided to raise the stakes for a trial. I think it depends on what they do as well and their discretion to offset that. We know that first time around they had offered a reduced charge to the three year mandatory minimum and then this time from what you described, they raised the stakes from 20 to 60. Now if I'm looking at serving 20 versus 60 I don't know if I would opt at my age, I may not make the 20 so what difference does the extra 40 make?

Don West: On the other hand, if I'm a lot younger, I may decide that if I've got no choice and I'm convinced I'm going to lose, I may opt for 20 to avoid the risk of facing 60, that's not what she was facing though.

Shawn Vincent: Right. But then you get the offer again for three years and you've already served a thousand days of that.

Don West: So I think realistically the analysis has to be three versus 20 and to me 63 versus 20 given the history of this case doesn't make that much difference to me. Marissa Alexander with her lawyers opted, and I think this is where the prosecutor deserves some credit, I think for ... They do not have to make any plea offer whatsoever. There is no requirement that they offer any reduced plea or any reduced sentence. They may have felt the pressure of the media. They may have felt that they couldn't withstand the onslaught of what would happen, no doubt if they insisted on going forward and she wound up with 20 years again or God forbid, 60 years. But I think to their credit, regardless of whether the motives were sincere, they made the plea offer that they'd made before, which is plead aggravated assault, get a three year sentence and be done with it.

Shawn Vincent: Well, let's wrap it up. Let's listen real quick to what Marissa Alexander had to say about contemplating that plea.

Don West: Okay.

Marissa Alexand: And I have to make a decision not only for myself but for people who also have to be called to be witnessed. And these are teenagers, there was a lot of decision making to make that process. And like he mentioned, it's an easy one for some but for me it was not because I had that to consider plus the fact that she was trying to give me 60 years this time. So if I've gone to trial again, then I wasn't facing 20, it was 60 years.

Speaker 1: Wow.

Shawn Vincent: So she mentions the 60 years and they're thinking there, but she also has to kind of think about what another trial is going to do to her family and a particular her teenage twins and other people she loves and cares that would be called to testify and go through that whole ordeal again.

Don West: Oh my goodness, imagine for a minute what it would be like to be in that situation, believing that you really didn't do anything wrong, but at every opportunity along the way for someone on the outside to evaluate that I'm rejecting your claim and now you've got the biggest decision of your life. Am I going to roll the dice facing 20 years, 40 years, 60 years, knowing that that would effectively not only be the end of her life and freedom, but how it would impact her children. It's just gut-wrenching.

Shawn Vincent: Well, it's also a great lesson that the prosecution itself is a punishment. Set aside any jail time that you might serve. Just the ongoing nightmare of being accused and facing a criminal prosecution is difficult to explain. And I've known people well as they've gone through that process and yeah, I can't even understand it the way that somebody who's been through it can understand it, of course.

Don West: I've been involved in cases where the client gets so desperate, so frustrated, exasperated and fearful of what their future will bring that they just want it over. They lose perspective and proportionality and they get to the point they don't care as long as it's over. And that's because of what you're talking about. The fear of waking up every morning and not knowing.

Shawn Vincent: Go ahead.

Don West: Also, keep in mind that, after losing the first trial, the time that the case was on appeal, Marissa Alexander was in prison. So she suffered the consequences of being in prison, not knowing whether she was going to have to serve the rest of that sentence, but by the time she got the second opportunity, the new trial and the opportunity to make this decision how to resolve it, she'd already accumulated the better part of three years. Now, while she can't get that back, if she went to trial and were acquitted, and it's not like you can store it up and get a refund for the time that you've been in prison, at the same time, she is required by law to get credit for any time served against any new sentence.

Shawn Vincent: And so she had already spent $2.80 out of that three bucks.

Don West: All right, so let's say then that she's looking at a deal for three years versus the risk of 20, 40 or 60 years and the three years now is-

Shawn Vincent: 64 days.

Don West: 64 days. She's a convicted felon. As a result of it, she has to deal with that the rest of her life. She entered a plea which acknowledged guilt in some way, but on the other hand, it had to make so much sense to her to serve another month or two, effectively. Now there may have been some after supervision, some other conditions, but the bottom line is she could effectively, at that point, trade two months for the risk of 60 years.

Shawn Vincent: And just the relief of having it behind you and resolved must be a huge weight off, knowing that the uncertainty is over, and now you know how you can go forward with your life.

Don West: So this is a fascinating story because it touches on so many things, including idealism, knowing you didn't do anything wrong ultimately to a compromise that everyone would have to agree was in her best interest. Why would she possibly take the chance on being away from her children's life for the next 20, 40 60 years? At the same time, it doesn't sit well with her. She feels like she was victimized by the very system that she respected and believed in all those years of her life. So it's a really really interesting dynamic.

Shawn Vincent: Let me play a little clip real quick. That I think encapsulates how she felt about the experience going through that prosecution.

Marissa Alexand: Very dark, very hard, very difficult times. There were a lot of very difficult decisions to make. There was a lot of very difficult conversations to have, and so when I explained to people as you are doing on your show, is  if you get yourself in this system, it's like an octopus. It's just wrapping itself around you, and it's so difficult, once you're in, it is so very difficult to get out of it.

Shawn Vincent: I was struck by that metaphor of the octopus, and that's really why we talk. We spent this whole almost an hour now talking about this complicated legal path that Marissa Alexander went down. But we talked at the beginning about that being a runaway train and the initiation of that was her decision to pull the trigger and-

Don West: I think more than any one thing, it was her decision to pull the trigger. Her decision to go out to the garage to get the gun, I think was a bad one. Her decision to go in the house with it was a bad one. Probably setting the stage for the illegality at that point, regardless of how it's settled out. But pulling the trigger is what turned it from something relatively little to something that nobody could ignore and put her on this path. So how many times have we told people if there is any possible way to avoid it, take every ... no matter how legally right you are, know how justified or angry or offended or how much you want to show that you can't be treated like that, no matter what part of that surging through the brain. The only smart choice is to avoid it.

Shawn Vincent: If you possibly can. And let me play this. You talked at the beginning about how the law changed and some things changed after this case, and I want to play what she said about the 10-20-life minimum mandatory. And I think that's a great way to segue into what the bigger resolution of this case was beyond just her,

Marissa Alexand: The intent of 10-20-life was for habitual violent offenders. It was just not used, just the willingly they throw around. But in addition to that, prostitutes absolutely like everything else have the right to be able to say, well no, we're not going to use the enhancement, incident enhancement. And they had discretion.

Shawn Vincent: So that goes said, to the discretion that you talked about. Now you had mentioned that some things changed after this case.

Don West: The big thing that changed relates specifically to aggravated assault as being one of those enumerated crimes on this list of crimes for which the use of a firearm triggers the enhancement. The 10-20-life enhancement under Florida law applies to a number of specific crimes, and she is exactly right. I think in terms of the legislative intent, somebody commits a robbery and uses a gun, shoots the gun, hurts somebody. All of those have higher and higher mandatory minimum sentences. Kidnapping, sexual assault, that kind of stuff, burglary makes perfect sense why it would be on that list. Even degrees of murder. However, aggravated assault was on the list as well. And that's what triggered in her case, the 20 year mandatory for the discharge of her firearm.

Don West: Well following her case, and the attention that her case brought to this, the legislature sort of revisited and around 2014 didn't eliminate it, but they gave the judge some discretion finally. So if you are convicted of aggravated assault under one of these 10-20-life enhancements and the judge felt that the circumstances were mitigated, that whether it was cause of a self-defense scenario, but not necessarily completely legal, but there was some reasonable explanation for how this was transpired. The judge would have the authority to mitigate and impose a sentence less than the mandatory minimum.

Don West: And then finally, a couple of years later in 2016, the legislature simply removed aggravated assault from that list of enumerated felonies triggering the 10-20-life. So at this point you can commit the crime of aggravated assault, you can still go to prison for it, and you'd still go to prison for at least three years under most circumstances, but no longer are you facing the 20-year mandatory if the gun is discharged.

Shawn Vincent: Which changes the bets you make as a defendant, it puts a couple of cards back into your hand, when you-

Don West: It may have changed. Yeah. It could have changed the entire direction this case went. Now whether it ... I'm a bit cynical, I'm a bit jaded from having done this for so long, and I expressed my frustration about Angela Corey early on, and I'll digress for a moment. One of the things that really made me mad was we were in the Zimmerman case and I'd pulled into the courthouse, I think it was a Saturday in fact, and the jury was out deliberating and we had to show up. We'd been trying the case for about a month and I pulled into a parking place, parked, went inside and about 20 minutes later the deputies came in to find me and said, you're parking in Ms. Corey's space and she wants you to move the car.

Don West: I didn't need any more aggravation so I wound up doing it. But just that kind of ego driven pettiness just and of course subject about an entirely different conversation would be some of the ethics and some of the shenanigans that were pulled in that case. Not by her specifically but-

Shawn Vincent: Just by the team.

Don West: Well, I have enough stuff there that we could talk about.

Shawn Vincent: I'm thrilled that after all these years there are still stories about that time that I haven't heard.

Don West: I wonder what would have happened in this case if the prosecutor couldn't use that enhanced aggravated assault charge on her. Would they have charged her in this sort of overcharging bullying context with an attempted murder of some sort, but assuming not, then she would have had a much more reasonable, realistic way to address the charges, make an informed decision whether to roll the dice.

Shawn Vincent: And had she been convicted, there would've been a much broader sentencing range and it almost certainly wouldn't have been 20 years.

Don West: Agreed.

Shawn Vincent: We have like a minute left here. I want to play something real quick that Marissa Alexander said about self-defense in the legal process that follows that I think encapsulates everything that we've ever talked about. So hold on.

Marissa Alexand: And your options are life and death or prison and freedom. I mean, essentially at the end of the day, that's what it's going to be. You either have to choose between life or death, depending on how bad it is. If you could leave, then you have your life and you have your freedom. If not, then you risk, ultimately in the end, which would be something tragic as death. And if you survive it, then you could be prison, which was my case. So these are your options in these things.

Shawn Vincent: She says, when you choose to carry and when you've committed to using a gun for self-defense, then you may one day face a choice that is life, death, freedom, or prison and what she buries in there is the final lesson that we touched on earlier that if you can leave with your life then you'll leave with your freedom, too.

Don West: Profound, insightful and coming from a person who certainly knows what she's saying.

Shawn Vincent: Yep. I think that does it, Don, that was ... I think there's ... often we want to talk about the legal minutiae, and I know for non lawyers and non-litigation consultants that can get a little dry, but in the context of this case, I think it was a great case to walk through that. So I hope it gives our listeners some better perspective at what that fight after the fight looks at.

Don West: And I'm going to I'm going to hold us up one more minute and finish our brief discussion since you brought it up about the legal minutiae and Marissa Alexander's fate.

Shawn Vincent: Sure, please.

Don West: She lost her self-defense immunity hearing when the law required her to prove by a preponderance of the evidence that she acted in self-defense. Another area of the law that she had complained about was having to prove that when at trial the prosecutor had to prove that it wasn't self-defense. There was a concerted effort and movement and the legislature changed that statute as well. So now in a self-defense immunity hearing in Florida instead of the defendant having to prove by a preponderance that they acted in self-defense. Now when you claim immunity and you file your petition and have your hearing with the judge, the judge applies the standard of whether the prosecutor has shown by clear and convincing evidence a high standard, not quite beyond a reasonable doubt, but getting up there has to prove by clear and convincing evidence that you did not act in self-defense, much closer to the standard used at the jury trial.

Don West: And I don't know how much credit Ms. Alexander gets for that, but it's something that she talks about and there has been a clear change in the law in Florida, in the defenders' favor when it comes to the self-defense immunity, and I think to some degree, that's a byproduct of her case as well.

Shawn Vincent: All right, everybody, that's it for today. Thanks for listening. I hope you get some new insights into the complexities and difficulties of the legal fight that can ensue after a self-defense shooting even when nobody's hurt. This is Shawn Vincent. Until next time, stay safe out there.

In Self Defense - Episode 51: The Warning Shot Case: Part I

 

Not long ago Stan Campbell and Mike Darter spoke with Marissa Alexander about the warning shot she fired that triggered a long legal battle and some substantial prison time. In this episode Don West and Shawn Vincent draw upon the conversation with Alexander to identify the lessons learned for concealed carriers.

 

TRANSCRIPT: 

Shawn Vincent: All right. Don, what's happening.

Don West: Hey, Shawn. Good to talk with you again.

Shawn Vincent: Yeah. So, it was a couple of months ago that Stan Campbell and Mike Darter, founders of the CCW Safe, had a chance to talk with Marissa Alexander, who is actually someone who survived a self-defense encounter, and was prosecuted, and actually served time in prison, and is now out and she's an advocate that goes around talking about domestic violence, and gun rights, and educating people about self-defense.

Don West: That's right. People may not immediately know the name Marissa Alexander, but this is one of those handful of cases coming out of Florida several years ago that get known nationwide by some other name. We know the Loud Music Case: Michael Dunn in Jacksonville. I think Marissa Alexander also was a Jacksonville, Florida case.

Shawn Vincent: She was.

Don West: It's known as the warning shot case. It got lots of publicity at various stages.

Shawn Vincent: Yeah. Part of the reason that it became so well-known is this idea that it was a warning shot. Here's a self-defense case where nobody's killed. In fact, nobody's even harmed by the discharge of the weapon. A single shot was fired, nobody was hurt, and then you have Marissa Alexander looking at a very lengthy prison sentence for what she claimed was defending herself against an abusive husband, who she had a type of restraining order against, a contact with no violence order.

Don West: Marissa had just had a baby, who's in the hospital. I think when this happened, the baby may still have been in the hospital, and she was going back to her residence for the first time in a while where her husband and her husband's children were there, sort of setting the stage for the argument that then led up to this.

Shawn Vincent: Sure. She was actually nine days after giving birth to her premature baby. The baby is in the hospital. She's staying with her mother because she's got this problem with her husband, the father of that new baby. She was going back to that marital home to get some stuff that she needed, and that's where Rico Gray, that's the name of her husband at the time, now ex-husband, and his two kids encountered her there.

Don West: As I recall, there was an interesting lead-in to the argument. That's not the purpose of our podcast, but as I remember, some of the discussion that Ms. Alexander was showing Mr. Gray pictures of the baby, and actually handed him phone to him to look through the pictures, and while she was in the bathroom either collecting things or washing her face or what have you, he wound up scrolling through the phone and came upon some text messages, which apparently were between Ms. Alexander and a prior husband or someone with whom he was then accusing her of ... I guess Mr. Gray was then accusing her of some infidelity and maybe even questioning the father of the child.

Don West: So, one innocent step maybe even that was a nice gesture on her part. Foolish. Can you think about how these things just go from zero to 100 in a half a second? All of a sudden, Rico Gray is angry because he questions if he's the father of this child. Oh, my goodness!

Shawn Vincent: Alexander described it as a “jealous rage.” Yeah. I think what she said, part of it, is that some suggestion that the child that he thought they shared might not be his or some suggestion of that. So, he went off the handle. Now, clearly, with this restraining order, this contact with no violence order, Alexander had convinced the court that there was some cause for concern here to support her allegations that this was an abusive relationship. She actually claims to Mike and Stan in her podcast with them that her premature birth was induced by some of that violence.

Shawn Vincent: So, he goes into his jealous rage, and she tells the story. She's in the bathroom. He goes in, approaches her there, and chokes her or attempts to choke her in the bathroom. She struggles against him, and is able to get away. She goes out to the garage. She claims to try to escape, but she can't get out. She doesn't have her keys. The garage door won't open. She ends up getting her gun coming back inside and that's where she confronts him in the kitchen of their house.

Don West: Yes. I think that she had perhaps parked the car in the garage, but then when she went back out, she couldn't get the garage door to open, but she did have a firearm in the car, a firearm for which she was issued a lawful permit to carry concealed in Florida, and then she made that fateful decision to grab the gun, and instead of coming up with some other way to get out, she elected to go back into the house, which I would have to think she would expect there to be some verbal confrontation, if nothing else, but in any event, that's exactly as described it.

Don West: She went back inside, where Mr. Gray was and then go ahead and describe how she saw these things unfold.

Shawn Vincent: Well, I'd say since we have the benefit of Mike and Stan's podcast, let's let her tell this part of the story from her own words.

Don West: Great.

Shawn Vincent: I'll play this clip.

Marissa: So, let me be clear. When I left out the room, it was to get into my truck and leave. It was not to go and come. He was parked out front, and came in through the front door. My vehicle was in the garage. So, in order for me leave, I needed to go to the garage where my vehicle was parked. When I got there, not only did I not have a key, the garage door would not go up.

Marissa: So, at that point because I knew that I had no other way out other than to stay in the garage, which locks from the inside out, what I needed to go do is go back in the house and I couldn't go back in in the state that I was in with the assault that took place prior to in the bathroom and not be able to protect myself.

Shawn Vincent: So, that's what Marissa has to say about this. So, we'll talk about in a minute the problems that had caused her in her case when she actually left a place of relative safety or she left a place of danger to a place of more relative safety, and then reengaged. We described ourselves into the kitchen. So, she fires this shot.

Shawn Vincent: Well, here's another clip where she talks about encountering him there in the kitchen.

Marissa: Right. So, that was in the kitchen where he came and he confronted me. He saw me with my firearm, threatened me, and then that's when I fired my warning, my shot. He didn't see my gun and run. He didn't do that. He saw it and decided he will threaten to kill me.

Shawn Vincent: She says that after he saw the gun that he wasn't initially perturbed by this that he threatened to kill her, and that's when she fires the warning shot. So, here's a couple of questions for you, Don. How about this whole idea that a threat, a verbal threat to kill somebody? Does that open a door for reasonable fear of imminent great bodily harm or death?

Don West: Well, sometimes it can if they have the immediate ability to carry through. So, for example, if someone's carrying a weapon of some sort, and you're not quite sure what they intend, and then they announce their intent by stating, "I'm going to kill you," and they had the immediate present ability to carry that out. If it's a gun, it can be almost at any distance. If it's a knife, it's relative close proximity. Then, sure, I would think so that they have by their own action and ability to carry it out put you in jeopardy and you would have the right to defend yourself up to and including lethal force if you reasonably and sincerely believed that the threat to your safety of great bodily harm or death was imminent. That would seem to fit.

Don West: It's a little fussy and a lot more difficult to assess when the person does not apparently have a weapon. The analysis is the same even without a weapon. I'm assuming here that Mr. Gray did not have a weapon. No one's ever said that he did. He maybe physically imposing, and we know that he has a history of violence. I don't think anyone has disputed that, that there has been physical violence caused by him in the past sufficient to get a restraining order, and Ms. Alexander knew that. She knew he was capable of physical violence, but she would have to assess, and then ultimately, the police and the prosecutor and to some degree, the judge if you have an immunity hearing, and then as she did, we can talk about that later.

Don West: Then a jury, whether he in fact imposed an imminent threat of great bodily harm or death and was capable at that moment and intended at that moment to carry it out. So, in roundabout way to get to your question, just because somebody says, "I'm going to kill you," even if you accept that to be true, that is not from my perspective in and of itself enough for you to pull out a gun and shoot somebody.

Shawn Vincent: In most of the cases that we've looked at, the real controversial cases usually involved armed defender who shoots an unarmed attacker.

Don West: Yes, and then all of that analysis comes in to play the relative physical capacities, the knowledge of the history, the abilities of the individuals to defend themselves. There are several notable self-defense cases where juries have concluded that the armed defender was legally justified in using deadly force against an unarmed attacker. There is absolutely no requirement that the attacker be armed.

Don West: However, the other analysis doesn't change. There still has to be that imminent threat of great bodily harm or death, and from ultimately the jury's perspective, all of that had to be reasonable. There's this overriding analysis that looks at the totality of the circumstances. That's a common phrase you hear in legal circles, the totality of the circumstances taking everything into account. Was the response to the threat reasonable? If so, then the jury should properly acquit. If they conclude it was not, even though there may have been a real threat, then they can justify a conviction.

Shawn Vincent: Sure. On this idea of the reasonableness of the fear in the imminence of that reasonable fear, this is where we get back to what we talked about the controversy about her going into the garage and then choosing to come back into the main area of the house with the gun, right? I think that went a long way to convincing a judge in the immunity hearing, and then subsequently a jury in the trial that she wasn't that afraid of him if she's willing to go back to where he was, where she had been attacked by him before.

Don West: There's that perspective how afraid was she, and I think equally important what happened in the house was effectively over at that point. There's nothing to suggest that she wasn't safe from him in the garage, at least to the extent he wasn't in the garage. She was there, she had a gun. I don't know if there was another door. I can't remember having been in a garage that didn't have a door-

Shawn Vincent: A side door or something.

Don West: ... as well as the garage door, a side door of some sort, but notwithstanding that had she gone out to the garage and armed herself and then tried to figure out where to go and what to do and reassess. Had he come in to the garage still angry toward her, I think that completely changes the dynamic of this. For her to arm herself, go back inside expecting to confront the person that she claimed had just threatened to kill her or was capable of and intended to harm her in some serious way, I think that changes the perspective and it puts her at a great disadvantage when the jury is trying to assess whether her actions were reasonable.

Don West: There's an interesting conversation to have at some point. We should get a law enforcement officer to talk with about this, but in this use of force continuum that law enforcement are taught and to some degree a civilian use of force continuum that Mike and Stan have developed, it's an interesting notion of when you introduce a firearm into an escalating event is the introduction of the firearm an escalation or is it a deescalation?

Don West: I think that it's such an interesting issue that law enforcement probably considers it a deescalation because the attempt is by-

Shawn Vincent: When an officer does it?

Don West: Mm-hmm (affirmative). Mm-hmm (affirmative). The goal at that point is not to shoot somebody, but simply to demonstrate that they have the superior force and the capability and hope that that modifies the behavior of the person that they're confronting. It might, but as we will know from other cases that we've had, it may be the very thing that causes the other person to go off. We can talk about other cases because we've had them where somebody displays a firearm expecting to deescalate, thinking the other person will back off, and it encourages them to get even more violent.

Shawn Vincent: Sure. In the cases that we looked at, we've seen a couple where the presenting of a firearm stops the conflict cold, but more often than not, it inevitably triggers a gunfight in which somebody or both people get shot and killed.

Don West: Yeah. You've just introduced fear and rage in the same mix. You're going to have a fight or flight reaction, I suspect. You're hoping for the flight of the other person, but you may very well wind up getting the fight instead. Is that what Ms. Alexander is basically saying that she made the decision. In hindsight, we can say we think it was a bad decision to go inside with the firearm. Is she saying then that once the firearm was presented, then he knew that she had it, that instead of backing off and just letting her leave as she claim was her intent, that he got further agitated and escalated his aggression toward her?

Shawn Vincent: Yeah. She says that he threatens to kill her after he saw her back in the house in the kitchen with the gun. It's clear to her that he saw she was armed, and then he threatened to kill her afterwards. That's when she decides to fire the warning shot. Something I want to talk about on this point, though, that I think is going to be relevant to the CCW Safe members is: some states are stand your ground states, and some are duty to retreat states, but what we know is that in every state, there's a version of the castle doctrine, which means that in your home, there is no duty to retreat.

Shawn Vincent: I think what an interesting thing comes up here is that even if you don't have a duty to retreat, if you do retreat, then leave the house or leave the immediate area of where the threat is, and then you decide to return to it with a weapon and reengage. Does that change the calculus on this a little bit?

Shawn Vincent: Marissa Alexander, when she talks to Mike and Stan, argues that she never left her house. The garage was still the house. It's not a detached garage, but on the same hand, I think if the garage is different from the house, it's further away from where her attacker was.

Shawn Vincent: If we look at the Zach Peters case, where the kid encountered the invaders in the kitchen, and then after he shoots them once, he goes back to his room, locks the door, and calls the police. If he had gone back out into the house and reengaged those guys, we might have a different scenario. So, what's your take on that, Don? If you've retreated from your home already, do you have a problem if you go back in to reengage?

Don West: You know it's interesting. We have a partnership with Andrew Branca who wrote the book Law of Self-Defense and regularly produces video and live content on the legal aspects of self-defense, understanding what the law is and the various jurisdictions and also the basic rules of what you should do, and what you should really avoid at all cost.

Don West: To distill this into a very simple statement, Andrew would say there's a huge difference between the fight coming to you and you going to the fight. He would say that if you go to the fight, you have changed the dynamic of everything, and you have put yourself in a legally vulnerable position, and that of those things to avoid, you should never go to the fight unless there's some other circumstance or factual need or other reasons why you had to do that to increase your own safety or to protect others.

Don West: The notion of her from a relative position of safety to going to the fight I think puts her at a great disadvantage. Whether she would lose the right to self-defense at that point, I think that's almost a discussion that lawyers would have sitting around a coffee table or in a cocktail lounge, but the lawyers don't make the decisions of whether Marissa Alexander is guilty. The jury does.

Don West: They do that by putting themselves in the position of the accused. Self-defense is pretty different than virtually any other kind of criminal defense where you are encouraging asking the jury to see what happened from the very perspective through the eyes of the person on trial, and through those eyes considering what they knew, what their background was, what their experience with this person, then all of that stuff seeing whether what happened was reasonable.

Don West: I think what that really means is when a juror looks at a case like that, they're probably saying to themselves, "I get it. I understand what she was going through. Had I been in her situation, what would I have done?" If the juror says to himself or herself, "I sure wouldn't have done that," then there's an easy way for them say, "That's just not reasonable. I can believe everything she says, but I can still find that she violated a law because it's just not a reasonable for a person to act under the circumstances.”

Shawn Vincent: Something that came up in the conversation with Marissa Alexander between Stan, Mike on their podcast was how often people who own a gun, they're concealed carriers or interested in home defense have a thought in their mind that they're reasonable people, and that should they ever be involved in a self-defense incident that it's going to be pretty cotton-dried, all the scenarios that they might pain for themselves and their mind of when they would need to use deadly force are clear, right?

Shawn Vincent: We found in all the cases that we looked at that there are all these weird little factors whether you've misperceived a detail or you've mistaken an identity or there's these scenarios you can't imagine that complicated, right? So, here's-

Don West: Right. The analysis of that is done after the fact like people in a somewhat sterile environment with all the time in the world to assess the reasonableness of the defender's conduct that probably took place in a half a second. This case, I think, more than any that we've talked about really turns on some of these little details that got lost in the media discussion that the public perception of this case is very different than what the actual facts demonstrated.

Don West: We're calling this the warning shot case, for example. It's clear that Mr. Gray was not killed, and injured as you said earlier, but we also know from the physical evidence that the shot was pretty close to his head. It was shot in the room where he was in his direction. I think it went through a wall, and then ultimately into a ceiling where the claim was that it post a danger to his children, keeping in mind not her children. It was his children. So, when she went back in the house, she wasn't there to protect her children from him.

Shawn Vincent: Right. They weren't there.

Don West: He was there with his children. So, defense of others was not an issue. So, the people that called it a warning shot felt that it was in a sense an attempt to deescalate, to prevent him from being able to fulfill his threat to kill her. Others look at it as a miss, that this was an attempted murder and a miss, which is a completely different legal context than a warning shot.

Don West: So, when I talk about little details, for example, you take a look at where the shot was fired from, where the bullet landed, and what the immediate risk was. Had that shot been 90 degrees, had it been fired into the floor of the kitchen or even into the refrigerator or someway where it was absolutely clear that it was not intended to hit him, then we have a true warning shot situation.

Don West: Frankly, I think the analysis of the case changes. Certainly, the emotional impact of the case changes. Angela Corey who was the elected prosecutor in Jacksonville at the time would be far less able to stand behind a microphone and say that Marissa Alexander fired out of anger, not fear.

Shawn Vincent: Yeah. Before we wrap up this section, this segment of our conversation, so she claims that she absolutely could have hit him if she wanted to. She was a licensed concealed carrier, she had trained with a gun. Her father was in the service for 27 years, and was a concealed carrier I believe in gun rights and self-defense. So, she's pretty adamant that it was a warning shot, but to your point, as a warning shot a few inches above and a few inches to the right of his head. So, there's some ambiguity there.

Shawn Vincent: We talked earlier about you don't brandish your weapon. You don't defensively display a weapon unless you had been justified in using the deadly force. I think we got close enough to this where we think at that particular moment deadly force was not justified. Would you say that's right?

Don West: Not to go on a side trip, but brandish is the notion of waving a gun around in a threatening way. Displaying it may be quite different than that if it's done for defensive purposes. Brandishing is a question of degree, frankly, whether it's a lawful display given the context or whether it's a crime of recklessness and threatening behavior. All of that stuff has to be analyzed exactly under the circumstances under which it arose.

Don West: People that claim they displayed the gun in self-defense could wind up being arrested and prosecuted for a brandishing type offense because the prosecutor didn't buy the story or that sort of thing, but separate and apart from that, when you draw a gun and you point it in the direction of somebody, and you fire the gun, you have committed a crime right then, a very serious crime unless you have the legal justification to do that. Firing a gun is the use of deadly force. It may be arguable that displaying a gun isn't necessarily using deadly force, but certainly, there's no doubt that firing one is.

Don West: Now, is there any legal difference between firing an obvious warning shot and shooting in the direction of somebody and missing? Not necessarily. The prosecutor in Ms. Alexander's case chose not to charge her with attempted murder, but they charged her with aggravated assault with the discharge of a firearm.

Don West: Under Florida law, when you commit the crime of aggravated assault and pulled the trigger, you have taken a crime that is a serious crime, nonetheless, it's punished by a maximum of five years in prison. There's a three-year mandatory minimum for the aggravated assault, but when you pull the trigger and discharge it in that kind of threatening way even without the intent to kill, you now have a 20-year mandatory minimum. That's in fact what she was prosecuted for, and ultimately what she was convicted of. That's how she got the 20-year sentence, a sentence that the judge had no discretion, could not impose one day less than 20 years.

Don West: Well, we'll talk more about that. I think the legal context of this case is really fascinating. I'm sorry I didn't really respond to your question, specifically, but-

Shawn Vincent: Well, this wasn't a cross-examination, so you have the discretion to go off on a tangent, but to bring it around, I think we can argue and, obviously, because this is controversial, that at that moment after coming back in and reengaging with him across the kitchen unarmed that she was unjustified in shooting him at that point.

Don West: Yeah. I think that's fair. That's certainly what the judge decided, and then ultimately what the jury decided.

Shawn Vincent: Right, and our general rule here is that if you're unjustified in shooting someone using deadly force, you're also unjustified in either displaying the weapon in an aggressive way or firing a warning shot.

Don West: Certainly, firing, and what we don't know for sure is whether the jury concluded that he didn't post an imminent threat to great bodily harm, that her claim that he was trying to kill her wasn't supported by the record. That's a possibility or that they didn't ... For all we know, they didn't agree that it was in fact a warning shot. They may very well have concluded that they thought that she just missed. The sanctity and security of the jury deliberation process unless they come forward and want to explain their thinking, they're certainly not required to. You may never know what it was that was important that pushed this thing one way or another.

Shawn Vincent: Fascinating. Well, now, let's take a quick break. I want to talk next about her post-incident actions and some things that occurred immediately after this warning shot that caused her troubling her legal defense.

Don West: Sounds good. Thanks, Shawn. Talk to you soon.

Shawn Vincent: All right.

Shawn Vincent: All right. Don, so we're talking about the Marissa Alexander case, the so-called Warning Shot Case. In our last segment, we had talked and gotten ourselves right up to the point where she fired the warning shot and Rico Gray leaves the premises. He was with his two children. They were, as Marissa Alexander explains it, at the threshold of the house on their way out when she encountered Rico Gray in her kitchen. He saw that she had a gun. She said that he threatened to kill her. She fires this so-called warning shot that was just a little above his head, and a little bit to the right, and then he leaves.

Shawn Vincent: So, then here's part of it that's amazing to me, and it's a piece of her mindset perhaps. After this happens, she doesn't call the police to report it. She figured that she fired a warning shot, he left, and that was the end of it. I'm going to play a quick clip of what she said to Mike Darter and Stan Campbell in her podcast with them.

Don West: Okay.

Mike: So, what happened? Did somebody else call the police? Did he call the police? How did that transpire after that?

Marissa: After that, he called the police. He called the police.

Stan: Yeah. We talked to our members about this all the time being the first one to call 911. Us being police officers, we always state that usually the way we look at it, the one who called 911 is the victim. Is that pretty much what happened where you had the opportunity to do so or you felt that the warning shot would be enough to back him off, and you didn't need to call the police on it?

Marissa: Right. So, that's basically what happened. To be honest with you, I didn't think I did anything wrong. I was in my home and nothing happened. So, I thought that that would be enough, and if he had come back, then I probably would have to, but at that point, that was my thinking. So, like you said the first one to call is apparently the victim.

Shawn Vincent: So, she says, "To be honest with you, I didn't think I did anything wrong." What are your thoughts about that, Don?

Don West: There's so much to unpack on that. I have to take her comment to mean that she was expressing that she indeed felt threatened, that he had expressed the intent to harm her, and that by firing the shot, she was completely legally and factually justified. So, in other words, she felt that she needed to do it in order to save herself, and that she hadn't broken any laws when she did it. I don't know how else you want to interpret a comment like that except I can offer that in many, if not most self-defense cases, certainly in all plausible self-defense cases, the person who defended and used force to defend themselves believes they didn't do anything wrong. They felt justified. That's the crux of the whole thing. That doesn't necessarily mean that you've stayed with, painted within the lines or that you're within the legal parameters and boundaries, but I think it's a common feeling that you didn't do anything wrong. You had to do what you had to do.

Don West: Shawn, I think what we're leading up to, though, is the fact that she didn't call the police. So, even if she didn't feel that she did anything wrong doesn't make sense if you accept her at her word, doesn't make sense that she wouldn't call the police to explain that she was attacked in her home, that she had to display a weapon, and ultimately fire it to prevent this guy with a history of violence from making good on his threat. Go ahead.

Shawn Vincent: I was going to ask, have you ever seen the show The Office, the American show with Steve Carell?

Don West: Oh, sure.

Shawn Vincent: Yeah. Do you remember the episode where we found out Michael Scott's in terrible debt, and somebody talks to him about the option to declare a bankruptcy and convinces him that he needs to declare bankruptcy? Then he decides that, yes, he's going to and he walks into the office and just yells out, "I declare bankruptcy." Someone has to explain to him that he can't just declare it, that it's actually a legal process. This is what I think about when I hear Marissa Alexander saying she didn't think she did anything wrong. It's like she just declared to the sky that that was self-defense.

Shawn Vincent: Listening to you talk about the ramifications of that, in that feeling that you were justified, I have to look at it like this, and maybe we'll do a thought experiment. Anytime a gun is displaying in a threatening manner, discharged in a threatening manner or used to shoot somebody, I think we should assume a crime has been committed. Now, it's a question of whether that crime was justifiable or not, right?

Don West: I think that's fair. Yes. We live in a community of very strict laws on the possession, ownership, and certainly the discharge of firearms. The presumption is if a gun is fired, something bad happened.

Shawn Vincent: Yeah, and a self-defense claim is a legal claim. You can't just say it to make it self-defense. It makes me think. We talked about the Michael Dunn case, talked about Jacksonville, the loud music trial that Michael Dunn somehow in his mind, he tells his fiance Rhonda Rouer, "Don't worry. It was legal. It was justified. It was self-defense," as some excuse of why they would speed away from the scene of the shooting and not report it.

Don West: Some of the materials in another podcasts and video series we did a while back, we talk about the aftermath of a shooting, and we talk about the reasonable responsible way to interact with law enforcement. We also talk about the importance of declaring, declaring that you acted in self-defense, that, sure, you were the person with the handgun, yes, you were the person that fired it, but that you were legally justified in doing it.

Don West: Let me digress for just a moment to put this in context. When you get to trial, the prosecutor has to prove it was not self-defense, and that's true all across the country. However, until there is evidence in the record, it doesn't take a lot and it doesn't have to be all of that persuasive, but there has to be evidence in the record in support of a claim of self-defense before the judge will recognize it and give an instruction on self-defense, which allows the jury to consider it.

Don West: Unless you get some of that evidence in the record, then the judge is not obliged to instruct the jury and the jury may not even be able to consider self-defense as a legal affirmative defense. So, there is a responsibility on the part of the accused to have some evidence, whether it's their statement about what happened or a witness' statement about what happened or some physical evidence that's compelling, that shows that the force that was used was in response to a threat, and therefore, there's evidence of self-defense.

Don West: So, for Ms. Alexander to say, "I didn't call the police because I didn't do anything wrong," in no way puts her in a position of carrying that initial burden to demonstrate ultimately at whatever stage this case got to that she acted in self-defense.

Shawn Vincent: Sure. Stan Campbell brings this up in that conversation from a police officer's perspective, whoever calls 911 first is the victim, right? So, the police come to this discharge of a firearm with only Rico Gray's side of the story. Let me play another clip from this conversation. This is from Marissa Alexander.

Marissa: Well, you know somebody at some point they were contacting me on my phone, but I did not have my phone. So, once they were able to get a hold of me, and let me know that ... I believe he told them that I had barricaded myself in the house. So, that was the time from what I understand it was a call for SWAT to come out. I had no idea because I did not know where my phone was, but when I did find my phone and my sister was like, "Hey, down here," and I was like, "Okay." I took the officer's call and he asked me where I was. I told him. I told him I was going to come out. I told him I have my hands up, one hand on the black cellphone, and one up, and just don't shoot me.

Shawn Vincent: So, the big thing I take out of this is that she believed Rico Gray told the cops that she had barricaded herself in the house, and that the police had considered calling the SWAT team to come. So, not only is there not a self-defense claim filed here, the police are acting as if they've got an armed deranged individual inside of this house, and they're attempting multiple times to call her on her cellphone to bring a peaceful resolution to this. That is the wrong foot to start off on when you're making a self-defense claim.

Don West: Yes, I agree. I think that Ms. Alexander was probably agonizing over this for a minute even though she didn't think that she had done anything wrong. Legally, she had to have know this was messed up, and that maybe she was taking that risk like when you go to Vegas and you put everything on red or you pick on number out of 30, what is it? 36.

Shawn Vincent: I don't know that. I'm a terrible gambler.

Don West: Not a roulette player. You just hope that your number comes up or you hope in someways your number doesn't. I suspect that in her mind, her best outcome was probably if nobody calls the police under these circumstances and maybe she thought that because of Mr. Gray's prior history with the law and violent history with her that maybe he wouldn't either, and hope upon hope that this thing would just go away. If that's what her thinking was, then she miscalculated.

Shawn Vincent: She made a bad bet.

Don West: Yeah, she did. As I remember, though, some of the materials, this is a very convoluted and complicated case to sort out factually because Mr. Gray gave extensive interviews and statements. In Florida, you can do depositions in criminal cases on felony. He changed his story a lot. He was against her, and then he was in favor of her. So, factually, it was really hard to get a clear handle on it. Let's not forget that his two children were there, and I think they were both old enough to be competent witnesses, whether they were good witnesses or not, I don't know, but competent meaning that they know the difference between right and wrong. They are able to know the difference between a lie and not, that they were old enough that they could testify.

Don West: I didn't read their statements exactly, but if they told the police that their dad didn't threaten to kill her, that when she came back in with the gun, the first thing she did was point it at him and fire it, and there was no actual threat, then there's a big problem with the case factually from a self-defense standpoint notwithstanding all the stuff that you and I have talked about so far.

Don West: So, without her explicitly saying what her thinking was other than, "I didn't do anything wrong," I'm going to speculate and say that she thought that maybe directly involving the police wasn't in her favor and she would hope that he didn't either. As it turns out, he gave his phone to one of his kids and it was one of the kids, I think, that called 911 to initially report it.

Shawn Vincent: That might be the case, but in what Alexander told Mike and Stan in their podcast was that essentially the father gave the statement to the police in the presence of the kids, then the oldest gave his statement, which essentially echoed what the father had said, and then the youngest was too young for them to really take that statement, so they didn't. They just did what the eldest son had said. Anyways, he had-

Don West: Well, we've had cases and I've counseled people in cases whether they should call the police under the unique facts of their circumstances. It's not as clear as you would want it to be because sometimes you have no reason to think that the other person involved is going to call the police, no injuries, maybe no shots fired, that it happened very quickly, and that you're not sure that you want to involve the police either and start admitting that you had a gun and that you displayed it under questionable circumstances. That's a very difficult thing.

Don West: On occasion, maybe from a strategic standpoint, the decision can be supported that you don't. That's pretty rare in my mind and I don't know that it's ever happened in experience when shots were actually fired at other human beings I would think. Our advice has always been get on top of that, get ahead of this because like you say, the first person to the phone is often identified by the police as the victim, and in this case, the story that the police got was the one most favorable to Mr. Gray, and then that was compounded by the lack of communication with Ms. Alexander, this notion that she was barricaded, and then by the time they actually had contact with her, this whole narrative of her being violent and armed and all of that was out there. So, she probably in some ways didn't get a fair shake in telling her side of the story. The snowball was already going down the hill at that point.

Shawn Vincent: Let me play another clip, if you don't mind, from this conversation. She talks about once she surrendered to the police with her cellphone in the air walking out with her hands up what she experienced.

Marissa: They "detained" me, and we just came out doing a proceeding, but they detained me and put me in a car, in the back of the car seat. I did not know that I was going to be arrested. I thought, "Well, okay. He was telling the truth. What happened?" The truth was not very helpful for me. So, yeah, I ended up ... Once I let him know I had a restraining order in place, I said, "Listen. This happened. Look it up." He did. He verified it, but essentially, it was their word against mine.

Shawn Vincent: Right? So, she talks about now that she's surrendering to the police, and we've just been discussing how she surrendered to the police who have the other side's version of the story that's not kind to her, she starts talking to the police about what happened. She said, "Tell them the truth," but the truth wasn't on her side. When she says that the police detained her, she says in the way that has air quotes around it, where she feels in retrospect that she was under arrest from the beginning, even though they didn't tell her that she was. At a certain point, she realized she was in trouble.

Shawn Vincent: She's not doing a great job now. She's behind the ball at getting her narrative out there once Rico Gray and his kids have already told their side of the story.

Don West: I agree with that assessment. At that point, I think that probably from the very beginning that she should have taken the initiative and obviously in hindsight it's very easy when you see what this case turned out to be an absolute nightmare for her. We'll talk in another segment, I hope, about some of the legal process that she found herself in, and what was driving that, and how very, very quickly she was completely out of having any control over her life. She didn't write the laws that impacted her to the extent that she could have handled it differently at the beginning. She didn't.

Don West: Then pretty soon, she was at the mercy of a very aggressive prosecutor. This became a political case. It was in the midst of other things happening in the media. This was going to trial around the time of the George Zimmerman-Trayvon Martin case that had started with the shooting in 2012.

Don West: This turned out to be a really big deal. When we sit here at our kitchen tables or wherever we happen to be at the moment and look back on it, it's easy for us to say what might have been different. I'm not criticizing Ms. Alexander. What I'm trying to do is point out at those moments when a different decision from our perspective may have resulted in her being treated differently, the case being viewed differently and possibly even a different outcome.

Shawn Vincent: Sure. That criticism is an opportunity to learn lessons from her mistakes. Before we wrap up this segment and start talking about what her legal challenge looked like, which we'll do in our next podcast episode, one thing I think is fascinating about the self-defense cases is this first encounter with law enforcement because we say that we want you to be helpful and courteous to the police. We want you to make yourself defense claim, but we also don't want you to talk about a lot of details about the case or about what your experience was before you have a chance to meet with a lawyer, and do so only with their council, right?

Shawn Vincent: That's easy to say, but you and I sat with Stephen Maddox, who gave in-depth recorded testimony, interviews with police about his experience and he knew intellectually that you shouldn't talk to police, but he also felt that he was absolutely justified. He was the one who called the cops, originally, and felt like he was making his claim and supporting his decision.

Shawn Vincent: So, it's one thing to say don't talk to police, but a whole other thing to now have been part of the shooting to believe you're correct to feel now the weight of law enforcement coming on you and wanting to seem like the good guy.

Don West: Being in that position having been involved in a self-defense incident whether it meets the high standard ultimately, checks off all the boxes that it was legal self-defense, we're talking about those especially using deadly force where shots are fired. I think when a shot is fired, whether it's characterized as a warning shot or a miss or something in between, it fundamentally changes the nature of the case.

Don West: We've had lots of cases where guns were displayed, threats may have been made, but it's a whole different category when somebody pulls the trigger. I think law enforcement looks at it differently. I think the entire criminal justice system looks at it differently because when the bullet leaves the barrel of a gun, it's death in the air. If it hits somebody, there's a high probability they will die as a result of it.

Don West: When you are involved in a situation like that, you can expect that you will be considered a suspect, truly a suspect. The police don't know what happened. They're working on limited information when they respond. If you weren't the one that called the police, they have some misinformation, no doubt. Certainly, they have one-sided information and for an individual to subject themselves to the investigative process on their own without the benefit of council is a highly risky and, in my view, a foolish thing, not just because of you don't understand how the system works. People that are friendly aren't necessarily your friends, and you won't understand the meaning, the real meaning of the questions. You won't know how to modulate your answers to say what's true without saying things also that could be construed or misconstrued as harmful.

Don West: Plus, you've got the trauma that you've just gone through destroying your perception and making you perhaps feel that you really, really, really need to explain yourself, but we know in the Maddox case is the perfect example that you're not going to be very good at it.

Shawn Vincent: So, he is in accurate about simple things like where did he live and how many children does he have-

Don West: Yes. Here's a guy-

Shawn Vincent: ... that you couldn’t possibly get wrong.

Don West: Super professional guy, highly educated, lots of life experience, and you wouldn't know that he's so wrong when you listen to the recording. You would think this is a guy who's telling it like it is and yet when you go back through it, and you pick out some of these things, you'll realize just how much of what his statement was was a byproduct of that traumatic experience he'd been through. Frankly, some of it was simply unreliable. The most obvious being when he got that kind of stuff wrong.

Don West: So, if we're going to take Ms. Alexander's situation and try to get some lessons from it, she should have called the police. I think that's pretty evident, and maybe said as little as, "I was attacked by my husband. He threatened to kill me."

Shawn Vincent: "I have a restraining order."

Don West: Yes. "I had to fire a shot to keep him from killing me. Fortunately, nobody was injured, but I wanted you to know that," or what have you. Then once the investigators and the detectives get there to conduct a formal interview, you do as we've always said which you provide the basic information enough to stake your claim of self-defense, and then you acknowledge that you will continue to cooperate, but you'd like the benefit of council before a formal interview.

Shawn Vincent: Law enforcement will understand that.

Don West: Well, that's the law, and they do understand it. They will acknowledge or respect it. If for some reason they don't and they try to trick you or come at you a different way, then what you say should not be admitted in the court against you. That's the whole notion of Miranda Rights.

Don West: Secondly, you cannot be compelled to make a statement against yourself or you can't even be compelled without court process to make any statement at all. The idea is that you have the right to make a statement or not at your choosing, and if you want to make a statement, you certainly should have the benefit of council in such a high stakes circumstance.

Shawn Vincent: It's a really difficult position to be in, but I think the lesson from all this is that you have to, and this is from the first segment, too, where Marissa Alexander said she didn't really think she had done anything wrong. If there's a discharge in the firearm in self-defense, you have to assume that you've committed a crime until it can be demonstrated that it was self-defense, and that you have to interact with a police as if you're the suspect of a serious crime or else I think in our case, nine times out of 10 it's going to blow up in your face and cause you trouble down the line.

Don West: I think that's fair and good advice. In this case, it wouldn't have taken much of an investigator to walk inside the house and take a look at where the bullet entered the wall and positioned the people, and immediately conclude that she fired at him. He may have been or she may have been wrong about that, but the physical evidence becomes an incredibly important part of this.

Don West: Having been through a traumatic situation, self-defense shooting, you're simply not going to be presently aware of all of the things that are important, the things that you may very well need to think through carefully to be able to explain convincingly when it's time to do that. It's so easy if you decide to give a detailed statement before you've processed it and digested it and better understood what the legal issues are, what's important and what isn't for you to make a statement that you simply can't recover from.

Don West: I've said this before. I'll repeat it that I've tried a lot of self-defense cases. Frankly, the ones that are the hardest to try are the ones when we have to explain what the client said to the police and why that isn't accurate or why it wasn't complete or why, frankly, it wasn't lying if it was inconsistent.

Shawn Vincent: Yeah, a nightmare. Well, that's a great preface for the long legal road that Marissa Alexander faced after the shooting. So, let's call that quits for today, and our next podcast is going to be dedicated to the torturous, twisted legal odyssey that she went through after that day.

Don West: Thanks, Shawn. Looking forward to it. Talk to you soon.

Shawn Vincent: All right, Don.

CCW Safe Podcast- Episode 49: Interview with Criminal Defense Attorney Andrea Luem

 

In this episode CCW Safe National Trial Counsel Don West interviews Las Vegas based Criminal Defense Attorney Andrea Luem. They discuss how the criminal justice system works, the realities of working inside it and things people should consider when choosing a criminal defense attorney should the worst ever happen to them. 

In Self Defense - Episode 50: The Anatomy of a Self-Defense Trial Part 2

Don West and Shawn Vincent continue their discussion of the Michale Drejka trial. Topics include Drejka’s statements to police, his decision not to testify, and what was learned from jurors who spoke to the Tampa Bay Times after the guilty verdict.

 

TRANSCRIPT:

 

Shawn Vincent: Hey, everybody, this is Shawn Vincent. Thanks for listening in. I'm excited about the podcast today. Today is the second part of my conversation with Don West, he's CCW Safe National Trial Council, on the Michael Drejka case. So if you remember Michael Drejka is the parking lot shooter out of Clearwater, Florida. He was getting into an argument with Brittany Jacobs over her parking in a handicapped parking spot, a disabled parking spot.

Shawn Vincent: Markis McGlockton, that's Jacobs’ life partner, the father of her children, came out of this convenience store, saw this dude arguing with his girl. He walked up to Drejka quickly, without notice or warning, he pushed him to the ground violently. Drejka pulled his licensed concealed carry pistol, and he aimed at McGlockton, who was at this point standing over him in kind of an aggressive posture. He paused for a minute.

Shawn Vincent: The video shows McGlockton take half-step back, a real slow retreat. And then he fired. That shot struck McGlockton in his heart. He stumbled back in the convenience store, fell to the ground, died at the feet of his five year old child. At first there wasn't an arrest. After some more details came out, the prosecutor charged him with manslaughter. A year and a half later, little over a year later, he goes to trial, convicted for manslaughter.

Shawn Vincent: Don West and I watched that trial. We had a lot of things to say about it. And in today's podcast, we're going to talk more specifically about the statements that Drejka made to police, and why if you're ever approached after a self-defense shooting, you shouldn't say much without the advice of a lawyer. How those statements can be used against you, whether that means you have to testify or not at trial. And we're going to look at the jurors in this case. In full disclosure I helped, I contributed in a minor way in the jury selection of the Drejka case. I helped research the jurors, and vet them to make sure that they were qualified for trial. They spoke to the Tampa Bay Times, and they give us some pretty interesting insight into what happened behind closed doors in the jury room, and how they rendered that decision. There’s a lot of great lessons for concealed carriers from that. So, thanks again for listening in. Here's my conversation with Don west on the Michael Drejka trial.

Shawn Vincent: Here's one thing that we tell CCW safe members all the time, and that's after a self-defense shooting. Don't make detailed statements to cops, without the presence and advice of a lawyer.

Don West: Right, just as a quick refresher, generally speaking, if you're involved in a serious self-defense incident, there will be a responding officer, maybe in response to your own 911 call, which you should keep in mind is being recorded and available as evidence down the road.

Shawn Vincent: Right.

Don West: You'll be interacting with a responding officer, who will want you to tell him or her what just happened. You will likely be detained. Certainly, you'll be detained at the scene for officer safety. You may be detained and taken to the police station for further questioning. You may or may not actually be arrested at that point. We don't need to go into the nuances of that. But it's likely at some point, either that evening or shortly thereafter, a detective with the police agency, who has now been fairly recently assigned to the case and getting up to speed-

Shawn Vincent: A homicide detective.

Don West: A homicide detective, yes, will want to talk with you in detail about what happened. So the general advice is that you provide enough basic information to orient the responding officers, you clearly state that you acted in self-defense because you were attacked, telling them where any evidence that may not be obvious might be, if describing the attacker or attackers if they fled. Providing the basic information that helps the police officers know you're not a threat, that you are defending yourself.

Don West: Then if being requested to provide further information, say you're happy to cooperate, but you want a counsel present. Same thing with the detective, where you ask for a counsel to be present during any sort of detailed debriefing, and there's lots of reasons for that. Part of it is legal: Why would you subject yourself to the questioning of a trained investigator, without having a trained professional helping you? You certainly are clearly at a disadvantage.

Don West: Secondly, you may very well say things in a way that you don't intend to say, because you haven't thought it through, or you felt the need to come up with an answer instead of reflecting on it. Then the trauma of the event itself. You will have undergone a life threatening circumstance, which will affect your judgment and your decision making, it will affect your perception. And it's commonly said, police officers will get a couple of three days in between the use of force incident they're involved in, until they're asked to be fully debriefed.

Don West: And that's the recognition of how difficult and how traumatic that experience is, and how it can make you unreliable when you're otherwise doing everything possible you can to tell the truth.

Shawn Vincent: So you and I had a chance to talk to Steven Maddox, that was the CCW safe member who was charged and prosecuted. You were instrumental, I think in his defense, and I got a chance to help pick the jury on that. And Stephen told us that he was trying to answer questions honestly to the investigators there, but he got things wrong, like the number of children that he had, or his address, because he was so affected by the attacks that he had endured and the stress of the shooting itself. And he wasn't intentionally trying to deceive, but he got things wrong because he was in an unfamiliar emotional state.

Don West: Keep in mind too, that the investigator has a very clear role in this. They may have already decided that you're guilty. So they may be just looking to confirm things they believe they already know, and getting you to try to incriminate yourself. Others may be more genuinely looking for information, without having sort of prejudged the situation, but the rules are different.

Don West: The police can try to trick you and deceive you and lie to you about things during this interrogation process. So if you respond to that, if you become defensive, if you say things that can make you look guilty, that's going to be permanently recorded and available to use against you. I really believe that sometimes the hardest job of the defense lawyer representing an innocent person is to-

Shawn Vincent: Undo what they did.

Don West: Undo. Yes, yes. And I can think of several cases that I've been involved in, or worked on in some capacity, where it was an hour or two hours or longer into this extended interview, before the suspect even knew that the person they had shot had died. That's not a fact that's offered very often, certainly not very early, because they know how that changes the entire picture. And Maddox was one of those. Maddox didn't know for two or three hours that his attacker was dead.

Shawn Vincent: We talked about the Michael Dunn case; the Michael Dunn interrogation tape is fascinating, because Michael Dunn felt like he was justified at first, although he knew he messed up by leaving the scene. But there's this point in the tape where he realizes how much trouble he is in, and he is being nice to these guys, these investigators. He's like, "All of a sudden I don't feel very good." And the homicide officer is like, "Yeah, I bet. Because you messed up dude.”

Shawn Vincent: But it's that moment where... and I feel like a lot of self-defenders feel they're justified. They have no doubt to themselves, that they were justified, and see the law enforcement as their friends in this. That the criminal is the other guy that I had to shoot, and now I'm talking to you like we're bros here. Right? We're on the same side, because we're both against that bad guy. And then it sinks in potentially later that, "Wait. I'm the bad guy. Or they might be thinking of me as the bad guy." Because you in fact, committed a homicide. But let's look at it in terms of the Drejka case. Drejka gave pretty extensive video tape statements to law enforcement.

Don West: That's right. And they became featured in the trial, of course. So during that interview, he recreated, reconstructed the events, even with a demonstration. He answered all of the questions. And if you look at that recording, it appears to me that he was genuinely trying to answer the questions, honestly, from his perspective, that he used some language that the prosecution made a lot to do with... that he said was kind of cop talk.

Shawn Vincent: Cop talk like?

Don West: I don't know if that was or not, whether he was trying to act like he was a police officer, but that certainly is a good example of how... or act like a police officer, or just being sure that he was clear in what he was saying. But nonetheless, the prosecution made a heyday out of that, looking for any tiny little thing that could be exploited and turned against him. And there were lots and lots of those examples.

Shawn Vincent: When you say cop talk, you mean like this, he quotes this 21 foot rule?

Don West: The 21 foot rule probably falls into that category. What I was referring to specifically, was he might answer a question that would call for a yes or no answer. And he would say, "Negative." As opposed to, "No."

Shawn Vincent: I got you.

Don West: That kind of talk. But since you mentioned the 21 foot rule, that of course, was also featured in the trial. His comment referenced the 21 foot rule, and the prosecution had a heyday with that, and featured an expert witness, whose primary purpose it seems to me, was to make Drejka look bad by talking about how Drejka was wrong, the way he talked about the so called 21 foot rule.

Shawn Vincent: And the 21 foot rule is essentially, is mostly for law enforcement, right? It's how far away someone is, that they can still get to you, and the time it would take you to unholster your weapon, drop the safety, and aim and fire. Right?

Don West: It's interesting, I imagine anybody who has taken any kind of self-defense class, or probably even a concealed carry class is going to hear about the 21 foot rule. And it's unlikely that they will understand clearly what the research actually was when it was done, how it was done, what you can draw from it and over time. And of course, through the mouths of different instructors in different circumstances, it becomes all sorts of things.

Don West: One of the purposes of calling the expert at the trial against Drejka, was I think, to show that Drejka misunderstood what the significance of that is. And I think it's arguable, I think it's pretty clear, that the expert got it wrong, or at least the expert focused on some aspect of that, that wasn't completely accurate. It wasn't completely forthcoming.

Don West: Let me just take a second, and I'm certainly no expert on this. I've gathered some information on, and I know generally, what you've said, Shawn, is correct. And that is, the notion is that if someone is attacking you, that by the time it would take someone to draw a weapon -- so this is someone that has some skills, and some training to draw a weapon, prepare it to fire, put it on target and fire it. The actual drill was two times. That person can easily cover about 21 feet.

Don West: So that means basically, if somebody has an edged weapon, or a blunt instrument, a baseball bat of some sort, and they're 21 feet or closer in front of you, and they intend to seriously injure or kill you, they can cover that distance in about a second and a half.

Shawn Vincent: So faster than you can get your gun out, the idea of, they're inside that circle.

Don West: Yeah.

Shawn Vincent: Your decision making is over at that point.

Don West: So the value of knowing that is, generally speaking, someone can be a lot further away than you would think, and still get on top of you and kill you, before you have an opportunity to defend yourself.

Shawn Vincent: Sure.

Don West: So in general, that's the notion behind it.

Shawn Vincent: And Drejka brings this up, because he's on the ground on his back and this guy is just a feet away from him.

Don West: Yes, he's clearly less than 21 feet. And I think what Drejka was trying to illustrate is that, he was well within that zone of danger, that meant that, if McGlockton intended to come over and kick him in the ribs, kick him in the head, stamp him to death, continue the violence that he had initiated by shoving him to the ground, he was close enough that he could have done that before Drejka could defend himself. That's the sense of it.

Shawn Vincent: Yeah. To get back to your cop talk conversation, you and I have both been involved in cases where the prosecutors have tried to use the defendant's knowledge of self-defense against them. Almost as in, you know these rules and you're trying to work around them to justify a homicide. Do you agree with that? Am I explaining that properly?

Don West: Yeah. Let me back up just a little bit and say that, when someone is involved in a self-defense shooting, the jury is asked to look at that incident through the eyes of the shooter, of the defender. And that includes, knowing what the defender knew. And that necessarily incorporates what their training may have been as well, good or bad. It incorporates what they might have known about the attacker. Did they have information beforehand? Was this guy was violent and aggressive? Did they have a beef?

Don West: All that kind of stuff is allowed to be looked at by the jury, in deciding, was there a fear of great bodily harm or death? And then ultimately, was that fear reasonable under all things known to the defender? So that's where this notion of there's the subjective view of the evidence, and that's through the defenders eyes, as the jury looks at what the defender saw, and knew, and then there's this objective view, and that's kind of this reasonable person test. The jury looks at, was it reasonable for him, knowing all that he knew and seeing it as he saw it to act the way that he did?

Don West: And I think in large part, that's the jury saying, what would I have done if I had been in that situation? So the training is legitimate. The problem is, sometimes it gets exploited. And I think, by the prosecutor and I think that's what happened here. Drejka was basically accused by the expert of the state, the prosecutor, of not knowing what he was talking about, when he mentioned the 21 foot rule.

Don West: The prosecutor's expert made a big deal, that this research that was done was based upon an edged weapon only, and that McGlockton didn't have an edged weapon. So nothing that Drejka said made sense. I think that's an overly restrictive view, because an edged weapon is a deadly weapon, but so would a baseball bat be at that point. And that doesn't change anything.

Shawn Vincent: Yeah.

Don West: Do you care, particularly if you're stabbed? Or hit in the head with a baseball bat? I think not. Both of them are going to do you harm. So I think that was frankly disingenuous. The background is, it's called the Tueller drill. The research was done by Dennis Tueller. I think it goes back to the '80s, trying to understand better what this dynamic was. And the research was duplicated over the years, that it became pretty much the standard. That's why it's called the 21 foot rule.

Don West: That is, that it takes... that a person can cover the 21 feet in about a second and a half, which is about the time that it takes to draw and fire a weapon by a trained person. So the mindset is that, if the person is 21 feet or closer, that you're in big trouble at that point, because once they get their hands on you, if they have a knife then you're done.

Shawn Vincent: I guess the lesson here is, if you rely on that rule and the police investigators are talking to you after a self-defense shooting that, that's something you want to save to talk about with your lawyer, as your lawyer can decide that, that's now one of your defenses, justifying the shooting. And I think anything that-

Don West: I think that's right. I think Drejka was inarticulately trying to explain his thinking, trying to reconstruct the events in his mind. And he had heard that from a class or read about it and thought it might help him to throw it in. Just like he thought it might help him to talk to a police officer in cop talk, because that's who he was talking to. It wasn't like he was at a cocktail place.

Shawn Vincent: Right.

Don West: And those two things backfired in the sense that the prosecutor made hay, and unfortunately, I don't think that the defense lawyers were particularly effective at blunting that or explaining it further. So in a sense, the prosecutors went there and got away with it. And the jury had sort of a bad taste, I think about Drejka, and this whole, this picture of who he was.

Don West: Now, we know that the only picture that the jury got of Drejka came from the witnesses that talked about the prior incident, when he had threatened a guy over a handicapped parking spot, the prior bad act stuff, the witnesses at the scene who described his manner after the fact as almost being matter of fact, which didn't help very much, and what he said on the statement. He didn't testify.

Shawn Vincent: Yeah, they didn't put Drejka on the stand to explain to the jurors, what his mindset was. They ended up relying on this recorded testimony.

Don West: And we could talk for an hour about what's involved in making that decision, as a criminal defense lawyer, if somebody testifies, why they don't. Let me say, first of all, that a defendant has the absolute right to testify if they choose. It is their choice and their choice alone. Of course, they would like the guidance of counsel to help them make that choice. But that's not a decision the lawyer can make for them, unlike other legal decisions.

Shawn Vincent: Mm-hmm (affirmative).

Don West: So the fact that Mr. Drejka did not testify was his decision with the counsel, and advice, obviously.

Shawn Vincent: Was an informed decision. Yeah.

Don West: Yes. In fact, I think in most cases, the judge will actually address the defendant outside the presence of the jury and ask him if he intends to testify, or if he had chosen not to at that point. Whether he understood he had the right to, whether it was his decision, whether he needed more time to talk about it for trying to protect the record, so that, if there's an appeal down the road that, the defendant doesn't come say, "Well, I didn't know I had the right to testify." Or, "My lawyer told me I wasn't allowed to." Those kinds of things, as a fundamental right.

Don West: And Drejka elected not to testify. Now, keep in mind that, by the time he would have made that choice, the prosecutor had already decided to offer the recorded interview into evidence. They did that during their case, during the prosecution case, and that was their choice. They didn't have to do that.

Shawn Vincent: Sure. In fact, in the Dunn case, they waited until the rebuttal argument to play the recording, after they Dunn testified.

Don West: Because Mr. Drejka voluntarily gave that statement, and it was otherwise admissible, it gave the prosecution the choice to play it in their case or not. It was not a choice that the defense had.

Shawn Vincent: Yeah, that's an interesting point. You need to emphasize, because you can't just offer pre recorded stuff about the defendant to testify, or I'd say evidence if you're the defendant.

Don West: That's right. Mr. Drejka, in order to get his story in front of the jury, if the prosecution hadn't offered that recorded statement he gave to the police, Mr. Drejka would have had to take the stand. Now, that statement could have been used by the prosecution as cross examination, or as impeachment. All or parts of it may possibly have been introduced, but not by Mr. Drejka. He doesn't get the opportunity to offer a prior exculpatory statement, and evidence in lieu of his testimony.

Don West: So a lot of the legal commentators wrestled, when they were looking at this case. Should the prosecution offer it? Or effectively, should they force Mr. Drejka to take the stand? And that was a strategy decision, based upon a number of things.

Shawn Vincent: Sure.

Don West: They would have had to evaluate their case, and decide whether they thought it helped them or hurt them.

Shawn Vincent: And then when you look at the contents of that, there's one segment of it where he's recalling to the officer what happened. His perception was that, Markis McGlockton, after Drejka pulled out the gun, either stayed still or stepped towards him, in direct contrast with what the recording showed. So all of a sudden, you have the defendant making statements that, whether maliciously intended, are untrue, based on the evidence.

Don West: They are inaccurate. Yeah. So it's clear that, his perception of that was wrong. It's a question I suppose, and the prosecutor gets to play with that too. Was he just wrong? And that makes it unreasonable. Or, was he lying about it? Which makes it evidence of guilt. So I assume they figured they could box him in that, since it was evident from the tape that McGlockton was backing up. I think that's a reasonable construction, when Dr. Drejka said he was actually coming forward to him, that puts the prosecutor having his cake, and eating it too. Because they get to make the reasonableness argument at the end, which they did over and over and over again.

Don West: I thought it was interesting, too, the way that Drejka explained the situation, because when he was challenged a little bit by the interrogator, by the investigating detective about McGlockton coming toward him. He actually said to Drejka, "What if there was information that he wasn't coming towards you, that he might actually even be backing up?" And Drejka said, "Then I couldn't shoot him. I wouldn't shoot him. In fact, I wouldn't shoot him or I couldn't shoot him, even if he was just standing still, much less coming toward me."

Don West: So in some respects, Drejka knew where the boundary was, that had he recognized that McGlockton had stopped or was retreating, he knew that he would not legally be allowed to use lethal force, because the attack was not imminent at that point.

Shawn Vincent: So interesting, and he seemed to me credible, when he said that. I believed him.

Don West: Yes, I didn't get the usual markers that you look for somebody that's lying about it, and trying to get away with something. No, I believe that's at least the way he was explaining it, what he thought and that was sincere. And of course, another interesting dynamic of self-defense is that the threat has to be perceived as real and actual. But it doesn't, in fact, have to be real. That you can be mistaken about certain things, as long as your perception of the threat is reasonable and that your response is reasonable.

Don West: I think where the prosecutor kind of wove the way through this was that, they kept pounding on the idea that McGlockton had stopped, and he had actually taken a step back. So that not only was there not an actual threat at that moment, but Drejka's perception, even if you gave him the benefit of the doubt, was so wrong, that it was unreasonable for him to think there was a threat.

Shawn Vincent: That's right. So if you're going to be wrong about a detail, if you're going to misperceive, the jury has to believe that you misperceived it.

Don West: And that it was reasonable.

Shawn Vincent: Yeah.

Don West: I really think that's where they put themselves in the case, where they look at it through your eyes as the defender, but then they also step back and say, "What would I have done in that situation?" This is an interesting case because there were some jurors... well, it was interesting because you had the video, and rarely do you have the video that shows the crucial moments leading up to and after shooting, but then there was media coverage. So you could see it gavel to gavel, and see how the lawyers presented this case, their strengths and their weaknesses.

Don West: I like to armchair quarterback and second guess. So I'm sitting there saying, "Wow, that was pretty good. I'm not sure I could have done it that way." Or, "Wow, that was terrible. I wish that I was there to ask those questions." Or where I thought evidence was available that wasn't sufficiently developed, especially knowing that he wasn't going to testify.

Shawn Vincent: We'll be right back with more of my conversation with Don west, to include a look inside the jurors’ minds. And the conversation about whether concealed carriers are compatible with vigilante justice.

Don West: We write a lot about... we talk a lot about self-defense. I write for CCW Safe, a lot about self-defense, and sometimes I get people who are angry at me, or challenge my point of view on some aspect of self-defense and what's justifiable, what's not justifiable. My answer always is, "I'm not telling you what I think. I'm telling you what my experience has been with what juries think." And in the end, if you're a self-defender, if you're a self-defense shooter, it doesn't necessarily matter what you think about whether or not you're justified. It's going to be in the hands of the six to 12 people, who come from all walks of life, and what they think.

Shawn Vincent: And in the Drejka case, a number of the jurors spoke to reporters afterwards. And that's going to give us a little bit of insight into what they were thinking. And obviously, we haven't mentioned this yet, but Drejka was convicted of manslaughter after a six and a half hour jury deliberation. And in my experience, six and a half hours is not bad. That means that they gave it some real thought.

Don West: I think that's a good comment. I think that, while there were a handful of witnesses that testified, and certainly a handful of physical exhibits that were on their way in it, this was not a particularly complicated case to unravel. It wasn't a document case, where there are thousands of documents to sort through or tons and tons of expert testimony that really mattered much in the scheme of things. So for this jury to deliberate, to just sort through the information and then the no doubt, sometimes agonizing process of trying to figure out what's right, what's lawful, what's fair. Six hours is certainly a tribute to the system working, I think.

Shawn Vincent: Yeah. And so an article from the Tampa Bay Times that covered the trial extensively, when they spoke to some jurors, said that, it was about 45 minutes to an hour in, that they took their first poll. And they said that the jurors were split between guilty and not guilty at that point.

Don West: I don't think that's uncommon and a difficult or a close case, and certainly there's nothing wrong with it. It's encouraged that one of the things the foreperson, once chosen, would do, and once they get settled down and have everything with them, and they're ready to start, there's no reason not to take a sort of a preliminary look at how people feel. And then they can start the hard work of people explaining it, and people having enough of an open mind that they're willing to re-look at things or reconsider, and -- only to comment that, sometimes the hardest thing to figure out is how to apply the law to the facts.

Don West: Once you've got the facts sorted out, the jury is supposed to do that, figure out which witness is believable, what evidence is reliable, and sort of get a handle on what happened. After they do that, they still have to then apply that to the law and figure out whether a crime was committed. And if so, what crime? In a self-defense case, it's not an issue of who committed the crime, but rather was a crime at all committed? And then they've got to dive into the deep end of the law, and as hard as the Supreme Court who drafted the instructions and the trial judge who conformed them to the trial itself, that's no easy task. Those instructions are often very difficult to truly understand, and to apply to a challenging situation.

Shawn Vincent: Sure, for the case in point, there is one jury question that came out to the judge and to the lawyers. And that was the jury asking for clarification on what reasonable doubt meant. And reasonable doubt, that's the fundamental thing a juror needs to know when they're deciding guilty or innocent, or guilty or not guilty, right?

Don West: Yeah, that's kind of the bottom line, isn't it?

Shawn Vincent: Yeah.

Shawn Vincent: It's always funny. You and I talked about, how we felt about this case and we put ourselves in the jurors shoes. And we know an awful lot about the law of self-defense. And you mentioned something that's in the instruction for reasonable doubt. And that's this idea of a vacillating conviction. You know what I'm talking about?

Don West: Yeah, let's back up a little bit. Now, this was a criminal trial in Florida, which means that, whatever the rules are in Florida are the rules that apply to this case, as opposed to a federal case that could take place in any federal court around the country, where the rules are basically the same. So what I'm saying is, every state in their state criminal courts would have their own set of jury instructions, that have been crafted over the years by their courts.

Shawn Vincent: Yeah.

Don West: So they are different from state to state. The concept is the same, the reasonable doubt standard is the same, but the language that's used to try to explain it changes. Some is better than others, frankly. The courts, the trial judges, are really, really hesitant to change the language of those core instructions. They basically just read it the way it is, and don't deviate from it. And if the jury doesn't quite get it, it's really hard for the judges to do much about that, other than just read it again.

Shawn Vincent: Yeah, that's what happened here. They said, "Listen, it's written down." He has got to go figure it out.

Don West: So from the reasonable doubt standpoint, I don't have it in front of me just sort of by memory. Having heard it a few times, is that a reasonable doubt is explained in the jury instructions more what it isn't than what it actually is, because how do you actually define it? And there's no easy, clear way of doing it. So one of the instructions that's given is that, it's not a forced doubt or a speculative doubt. It's not a possible doubt. The prosecutors love to latch on to “it's not a possible doubt,” meaning it's possible that you could wake up tomorrow and there could be six feet of snow in Florida.

Don West: Well, yeah, we understand that. But the instructions go on to say, even if you have no reason -- let's say, if you have an abiding conviction of guilt, and that's kind of old language, I think. Who uses abiding these days?

Shawn Vincent: The Dude.

Don West: But nonetheless-

Shawn Vincent: The Dude abides. The Big Lebowski. But yeah, I get your point.

Don West: That's Jeff Bridge's moment in the sun, isn't it? Of course, he has a few.

Shawn Vincent: Sure, but that's our favorite by far. Yeah. An abiding conviction.

Don West: An abiding conviction of guilt is as close to the instructions as you get them saying, "If you believe there is no reasonable doubt." So meaning, if you have an abiding conviction of guilt, but one that waivers or vacillates.

Shawn Vincent: Yeah.

Don West: Again, pretty old language, the waiver not so much but vacillates. So if you have an abiding conviction of guilt, but it wavers or vacillates, then you don't have an abiding conviction.

Shawn Vincent: Sure. And it takes-

Don West: That's another way of saying that, if that's a reasonable doubt, then we know the standard is, if there is a reasonable doubt... some places say, "A doubt to which you can assign a reason," which is kind of the tail wagging the dog.

Shawn Vincent: Mm-hmm (affirmative).

Don West: Then the jury has this sort of mash, kind of a mash up of stuff they take in there and try to figure out what that means, and how to apply it to the case.

Shawn Vincent: Well, here's how the jury approached that problem. They had that first poll at 45 minutes to an hour in. That meant, for the next five and a half hours, they were hashing it out. One juror said that -- this 11 seconds of surveillance video, in this case, they said they re-watched that 11 seconds hundreds and hundreds of times. It was the key piece of evidence obviously.

Don West: Sure, it was. Whatever that was, for better or for worse, that's what drove the decision, don't you guess?

Shawn Vincent: I do. We talked earlier about the motions in limine, and how the prosecution won the right to show that video in slow motion. But one of the jurors actually says that, one of the witnesses talked about how that's not a accurate representation of what happened. So the video they watched over and over again was the full speed video. So I'd give the jurors a lot of credit for that.

Don West: You should. That they just didn't sign on to one side or the other from the beginning and run it through. Certainly, the prosecution showed it to them, because they were allowed to, in slow motion, but that the jury was so conscientious that they realized, maybe that wasn't the fair thing to do. Maybe that was not the due process that Michael Drejka deserved. They didn't succumb to that in the jury deliberation room. That's powerful stuff to me that the system works.

Shawn Vincent: But here's a quote here: “It really came down to the fact that once the gun was drawn, he the victim retreated. The defendant had enough time to make the decision, that once he saw the victim retreating, that he did not have to pull the trigger.” Is there any statement that you can think of, that defines this case much better than that?

Don West: No, that's right on the money. That's the moment of truth, so to speak.

Shawn Vincent: Gosh, that kind of takes your breath away, I think, if you're a concealed carrier. And you come to terms with life or death and freedom and prison. Right? That it comes down to this pause. Right? The sheriff of Pinellas County said, "That pause gives me pause." That's what kept him from charging, or making the arrest originally. But then, you get this juror that watches that hundreds of times. I don't know how many times you watched it. I've watched it at least 40 times in my analysis of this. There is that moment. There's that moment of reflection. Maybe, if he hadn't paused, he has a different case.

Don West: How incredible is that? If he had actually fired sooner, nothing else changing, if he had fired sooner, the jury may have felt that he didn't appreciate that McGlockton was retreating at that point. Now, of course, they may very well have said, that he didn't have to fire so fast. He had the situation under control by virtue of displaying the firearm. And then you start getting into the nuances of this so called 21 foot rule, right? Or, how quickly could McGlockton react to that?

Shawn Vincent: Yeah. Here's another juror -- a quote from them that I think is interesting, "I think he had the opportunity not to kill him." And that's an interesting thing to think about. Right. And that speaks kind of like it's a duty to retreat, or an ability to retreat. The juror says there's an option not to use deadly force here. What they were saying is that they didn't think that the threat to Drejka was imminent, or reached the level of force that would justify lethal force, right?

Don West: That's a beautiful, beautiful assessment of the case by the juror. It touches on all of these elements of self-defense in a way that is particularly human, if you think about it. It's in our genes to preserve human life. You preserve your own, but you preserve everyone else's too, as long as you can. That he didn't have to do it. And if you heard the prosecutor say, unreasonable, or it wasn't reasonable, one time, it was said 50 times. And that's this notion that he didn't have to do it. Because he did, it was unreasonable.

Shawn Vincent: Sure. And another part of that is, we're looking at it from the law, but we're also putting ourselves in the shoes of the defender, right?

Don West: I feel bad for McGlockton. I mean, what a tragedy. A guy, not quite 30 years old, I think, who was shot and killed and no longer on this earth. He has young children. He was in a long term relationship with Brittany Jacobs. He did some stupid things. He exercised really bad judgment. He was high. But in his mind, he was coming to her rescue. He did it illegally and wrong.

Shawn Vincent: But of course battery is never punished with executions, right? We don't execute people for battery charges.

Don West: Exactly. I also feel bad for Drejka, of course. Because he made equally bad decisions. He stuck his nose in something that wasn't really his business, at least not in a confrontational way. He could have handled it very differently and still made his point. Shawn, I was struck by the testimony that Brittany Jacobs told Drejka, when he said, "You don't have a parking permit. What are you doing in this parking spot for handicapped?" There were no other people using that spot. There was another one available, I think. And her response was, "My guy or my husband is in the store. As soon as he comes out, we will move. There are a couple of young kids."

Don West: So she wasn't agreeing, but she wasn't being particularly defiant either. She just was saying, "Look, it's just not a big deal, because I'm going to move as soon as he comes out." It wasn't like she parked there and left. And there wasn't any immediate use for it. And Drejka, that wasn't good enough for him. He didn't say, "Whatever," and walk away. He continued to escalate it. And of course, that's the problem.

Don West: You get two confrontational, aggressive guys in something, one that's not hesitant at all to be physical and the other who's armed. And by the Williams rule, I guess the prior bad acts stuff we were talking about, arguably, is looking for a reason, itching for something. Man, you've got the makings of a bad outcome, and that's what we had here.

Shawn Vincent: Yeah. We have a quote I want to talk about from another juror. That the law says... we have this one who said that, she didn't think that it was necessary. He had the opportunity not to shoot, right? And that's not necessarily the legal stuff standard. But, we ask a jury to put themselves in the shoes of the defender, right?

Don West: Yes.

Shawn Vincent: Even if we know that he misperceived it. You've talked about before, legally, you're allowed to misperceive it, as long as you are honest about that, and you are still reasonable under that perception to act, right?

Don West: Well, I guess, rather than perception, you should use the threat. The perception of the threat. The threat itself does not have to be real. So in other words, you're allowed to make certain mistakes. Part of that, if you fast forward to the Amber Guyger trial in Dallas, where she's went-

Shawn Vincent: She is the one who went to the wrong house and shot the occupant, thinking he was a burglar?

Don West: That's right. She made a huge mistake. Her perception of the threat was wrong. But that does not prevent her from melting an effective self-defense claim. There were other problems in that case, but-

Shawn Vincent: Which I can't wait to talk to you about, by the way, on another day.

Don West: Yeah, that's going to be interesting stuff. The threat doesn't have to be real. The perception of the threat has to be reasonable. So in other words, other people are going to have to say, "Yeah, I would have seen it like that too."

Shawn Vincent: And here's what this juror said. He said, "I had a hard time seeing what he saw." So here's a juror who watched this 11 second video hundreds of times. And even though Drejka gave statements to the police that were recorded and shown to the jury, saying that from his point of view, he was moving forward, that this juror said, "I just didn't see it. I had a hard time seeing what he saw." It's tough to overcome.

Don West: It is. Yes. And I think that juror was being honest with-

Shawn Vincent: When he said something like, "I had a hard time seeing what he saw," meant that he tried. Right?

Don West: Mm-hmm (affirmative).

Shawn Vincent: He tried to see it the way he did, and just couldn't, when it came down to it, when he had to make the decision.

Don West: In some ways that gives Drejka the benefit of the doubt. That's kind of what this whole notion is, with the prosecution burden having to disprove self-defense beyond a reasonable doubt. When the juror says, "I tried to see it the way Drejka did, but I couldn't," that tells me that he was genuine and sincere in his role as a juror.

Shawn Vincent: Yeah. So going back… the lessons for the concealed carrier, there's a ton of them in this case, but the ultimate lesson that we always come down to is, I think this one juror said it best, "If you have the opportunity not to use lethal force, you got to take it." Legally, you should take it. Because that's going to... if the jury thinks you had an opportunity to avoid it, whether the law says it or not, they may hold that against you.

Don West: Yes, that's a fundamental and a valuable lesson to learn. That's a direct window into how jurors look at these hard cases. And that's a valuable lesson. There are of course, lots of other lessons too. And the obvious lesson is, if you're the guy with the gun, you may just want to mind your own business.

Shawn Vincent: Well, isn't that a huge lesson in this? Because, they made hay in the... like, although that spot was painted handicapped, it wasn't an official city designated handicapped spot, that she wouldn't have gotten a ticket for parking in that spot. We talked over and over again that, if you are armed, if you choose to carry a concealed, then you sort of have an obligation to avoid unnecessary confrontations.

Don West: One of the arguments that the prosecutor made and I thought he made it effectively is that, Drejka was the guy with the final solution. So he didn't have to care about putting his nose in other people's business, or how far he took this thing, because he knew he was equipped with the final solution. That scares the hell out of most jurors, don't you think?

Shawn Vincent: I think so. We talked a little bit about doing his recorded statements with cops. He had this quote unquote “cop talk.” And we encountered this in Zimmerman. I've seen it before. It gets brought up in some self-defense cases, where they project a law enforcement mentality on the defendant. Right? If you're defending your home, that's one thing, but if you're out, seeming to be enforcing parking permit law, or somehow patrolling the neighborhood, if that was the suggestion.

Shawn Vincent: Cops are trained to be armed, and to approach people who are breaking the law, and citizens are not. So I think, if you're armed and a private citizen and you put yourself in a position where you're encountering a would be criminal or some code violator, then you're not trained like a cop necessarily. And you don't have the legal standing. You're just putting yourself in a potentially no-win scenario.

Don West: There's certain hot button descriptions that, words that are just thrown out there because people know the kind of reaction that they cause. And in a firearm incident of some sort, if you throw the word “vigilante” out there, you've just pushed all those hot buttons that makes everybody-

Shawn Vincent: Bristle.

Don West: Yes, yes. And that was the word that was used for Zimmerman of course, and that's the word that comes to mind with Drejka. It's easy to paint him as the parking lot vigilante.

Shawn Vincent: Yeah.

Don West: That's a lot of ground you have to make up, if you're trying to defend that guy, if that name gets associated with him and sticks. And just like any other scenario where you're having to overcome a negative perception right from the beginning, associated with somebody who arms themselves, goes out and sticks their nose into other people's business.

Don West: By the way, let me say, Drejka did nothing illegal, except when the jury determined that he committed the crime of manslaughter. Up to that point, he didn't commit any crimes. He just exercised questionable judgment. And it's not against the law to go up to somebody and express your displeasure at the fact that they are parking where they're not supposed to be. You can raise your voice and call them names as long as you're not threatening in some way.

Don West: But that's all protected by the First Amendment. The first crime in this scenario was committed by Markis McGlockton, when he shoved Drejka to the ground. But that would not have happened, and no way justifying what Markis McGlockton did. But that would not have happened had Drejka just let it go and backed away, anyway.

Shawn Vincent: But that's what we talked about, when you are armed and you enter a conflict, you can't control what the other person is going to do. We see these dominoes fall to so many scenarios, where the shooting becomes almost inevitable.

Don West: This is an expression that one of the guys at CCW Safe used just offhand. I don't know where it came from. We were just talking about some self-defense scenario. I don't remember if it was even one of the ones in the news, but something that he knew about, and we talked about. He just kind of shook his head and said, "When assholes collide."

Shawn Vincent: Right.

Don West: It's a little descriptive or overly descriptive, but at the same time, man, does it say it all.

Shawn Vincent: Yeah. And you and I have talked about before that, when you carry a concealed, then you give up your right to be an asshole. If you want to be an asshole, don’t bring your gun, right?

Don West: Good enough.

Shawn Vincent: I think that's the final word, Don.

Don West: One of my favorites, one of my favorites.

Shawn Vincent: All right. Thanks again for taking the time to talk.

Don West: Enjoyed it, Shawn. This has been a fascinating discussion. It's a fascinating case. It's as you point out, one that you can come at from many different perspectives and learn so much about it. I greatly enjoy talking with you about these cases. It makes me think about stuff I haven't thought about in a long time, or thought about in a particular way. And I think whether you're visualizing yourself in a restaurant and wondering who could be coming through the door, and how you might react if somebody approaches you in a parking lot, trying to figure out what their intentions are.

Don West: Anytime you see something in your mind and discuss it from beginning to end, you're going to come out at the other side, better prepared to deal with it if it actually happens.

Shawn Vincent: I agree, Don. So thanks again for going through that exercise with me.

Don West: Thank you Shawn. Look forward to the next time. Bye, bye!

Shawn Vincent: Bye.