CCW Safe

In Self Defense - Episode 55: Enemy at the Gates Part 2: Drunken Sailor

 

 

It’s four in the morning and someone is angrily pounding on your front door, trying to get in. What do you do? That’s what Army veteran Greggory Farr had to decide. Don West and Shawn Vincent discuss Farr’s decision and the legal consequences.

 

Transcript:

Don West:

You know that surprisingly, there are plenty of those out there. Once they're on your radar and you start looking around, you see these tragic consequences coming out of people that make what may turn out to be a fatal mistake pounding on somebody's door, typically in the middle of the night, often under the influence of alcohol or sometimes, I suppose, combined with some other intoxicants of some sort. And then we had as a point that the tragic case in the Detroit, Michigan area, that Ted Wafer case, a young disoriented woman who had been in a fairly minor car accident, but clearly under the influence of alcohol and maybe some other things.

 

Shawn Vincent:

Marijuana.

 

Don West:

Yeah, and was pounding on the door, I suppose looking for help. I don't know if she was mistaken as to where she was or if she just was trying to raise anybody that could come help her, but she certainly gave all of the outward appearances to Mr. Wafer as an intruder, someone trying to break in the house.

 

Shawn Vincent:

Well, and it's terrifying. So you have one person who's intoxicated and disoriented and confused and someone else who's just been awoken from a deep sleep in their home in the middle of the night. And it's confusing for everybody.

Don West:

Yeah. You've got people a world apart trying to meet somewhere in the middle to exercise good judgment and make some decisions that keep everybody safe and often that just doesn't get there.

 

Shawn Vincent:

You got me thinking about my tone. When I talk about these things and write about these things -- and I think sometimes I can be harsh on the defender while we have our conversations. And I think it's in the same spirit that I'm harsh with my kids sometimes. It comes from love. Because I've seen so many of these cases were very good people, well-intentioned people are put, not because it's their fault -- these people came to their home drunk in the middle of the night and imposed on the security of their home, their family -- and they make a couple of mistakes, and you and I have tried to defend these people, and have successfully sometimes in court, but they make a couple of mistakes and it makes your job and our job so much harder, where if they had spent a little more time thinking about it in advance, what they're going to do in certain circumstances, they could have avoided it altogether or had been just so clearly justified that they never have to call us in the first place.

 

Don West:

I suppose that we're talking now how you can prepare for what may be a highly unlikely event, but at the same time if it ever happens to you and you've taken a few minutes to think it through in advance or to get some special training on how to deal with these scenarios, whether it's the parking lot scenario and somebody's walking up to you and you have to figure out whether it's an attacker or whether it's a homeless person looking for a handout or whether it's a crazy person, a potential rapist, who knows, but you've got those moments when you have to protect yourself, but at the same time hope that you can make some good decisions and that innocent lives aren't lost.

 

Shawn Vincent:

That's fair.

 

Don West:

And most importantly of course, is that you don't wind up committing a crime during that process, so that even though you firmly believe that you are doing what is absolutely necessary and lawful, reasonable people can sometimes disagree and if depending on where you are, what the jurisdiction is, who the police officer is that's investigating. Perhaps we should talk about prosecutorial discretion at some point. Maybe this is a good case that we'll get to talk about that. And you just wind up on the other side of this traumatic event in what we've called before the second fight, the next fight. The next fight. And that's when you're dealing with the criminal justice system.

 

Shawn Vincent:

I hate to see good people get prosecuted and sometimes go to jail for making what are entirely understandable mistakes, but mistakes that could have been avoided.

 

Don West:

And by that, I think the keyword is avoidance, because any time it doesn't happen, you've avoided it and your risk zero.

 

Shawn Vincent:

Yeah, the legal risk.

 

Don West:

That's what Andrew Branca talks about. No matter how legally or actions are.

 

Shawn Vincent:

How justified you might be.

 

Don West:

Yeah, the risk is not zero that something won't happen.

 

Shawn Vincent:

Or that you've misperceived one critical thing. And so let's go to Hawaii. There's this place called, I'm not going to say it right. EWA beach in Hawaii, I'm going to call it Ewa beach and there's a guy named Gregory Farr. He's 35-year-old army veteran. He lives there with his girlfriend and a daughter in this townhouse community, rows of townhouses. They all look-

 

Don West:

Kind of cookie cutter?

 

Shawn Vincent:

Remarkably similar to one another. So it's an April 15th a couple of years ago, tax day, and a sailor in the Navy, John Hasselbrink, Chief Petty Officer, 41 years old, was out drinking. He was reasonably responsible. He Ubered.

 

Don West:

If that's the case where, well one can assume he's probably a career military if he's still in.

 

Shawn Vincent:

At 41, yeah.

 

Don West:

Sure. And was living that life. And did I read it correctly that he was going to ship out the next day somewhere and that's why he was, kind of lighting it up that night?

 

Shawn Vincent:

I'm pretty sure. And so he lives in this town row, a couple of doors down. He usually keeps his door unlocked because you've got friends who come and go will crash on his sofa, and he's fine with that. So the Uber drops him off. The Uber's not pinpoint accuracy as it turns out, so he's a couple of doors down and he doesn't go to his front door, which he assumes is unlocked. He goes to the front door of Gregory Farr, who's asleep upstairs. Now Gregory, three days ago prior to this event, had hurt himself. He's in a cast, broke his ankle I think.

 

Don West:

So he's got some limited mobility.

 

Shawn Vincent:

He's hobbled. Right. And so now it's four in the morning, the terrible hour, four in the morning where all this stuff happens, and there's frantic pounding on the front door. This guy thinks he's at his house, he's trying to get in.

 

Don West:

So he probably goes to the door, turns the knob. What happens is not what he expects. He gets resistance, the door is locked.

 

Shawn Vincent:

Right. I think he assumes one of his buddies came in and crashed on the couch, they locked him out.

 

Don West:

So he pounds on the door, wakes him up and they let him in and he goes to bed and.

 

Shawn Vincent:

And they'd laugh about it and work off their hang overs the next late morning I imagine, but that's not what happens. Our guy Farr, he gets a rifle. The reports didn't say what kind of rifle he has, but it's a long gun and he goes downstairs and he's sort of covering the stairway that leads to the front door. There's a window there. You can see that there's a figure out there. It's someone he doesn't recognize. He calls out, wants to know who he is.

 

Don West:

So at this point he's making noise from the inside trying to get this guy's attention, asking him questions, but no sense of recognition or no response on the outside other than the continued. . .

 

Shawn Vincent:

The continuation of it. He's said that he had his girlfriend call 9-1-1. I assume she did. I haven't found any reports that prove that she did that. I haven't heard the 9-1-1 phone call in any of the news reports that I read on this, and that's what we have to go by. But let's assume that that happened ,or at least that he intended for her to call. So this goes on. So then we read at one point that he tells investigators, he thought his daughter was asleep up in bed, but I guess she's on the mattress downstairs. So she's sort of in between him now at the top of the stairs with his hobbled ankle in a cast and a rifle and this guy who's plowing away on his front door. And he fires.

 

Don West:

So as I understand his thinking, from what the reports seem to indicate, is that once he realizes that his daughter is essentially between him and the door, but in close proximity to the door, he's now concerned for her individual safety, not just the general safety of the family, but now he realizes that she is at high risk from this fella if he bursts in.

 

Shawn Vincent:

Right when he comes in, he's going to get to her first, and I'm the father and I'm injured I can't get to her quickly. That's a terrifying place to be.

 

Don West:

So that basically was the deciding factor from what you can tell-

 

Shawn Vincent:

So this guy's not responding. He's had it. And so it seems like he fired one shot this rifle through the door.

 

Don West:

And as far as we know, the door is still locked. There's been no progress made getting in by this intoxicated sailor.

 

Shawn Vincent:

That's right.

 

Don West:

But nonetheless, inside the homeowners are now armed, yet to some degree disabled, not as able to be physical, not as able to make some decisions in terms of his relative capacity physically with the guy outside and whether anybody would allow someone in just to fight them under these circumstances is certainly overwhelmed by the idea of a minor child at risk.

 

Shawn Vincent:

Right. We talk about immanence all the time, and I think he seemed content to call out and wait -- until he had a suspicion that his daughter might be at risk, and that wasn't a chance he was willing to take, so he fires and kills the guy.

 

Don West:

Why are so many of these cases that we talk about one shot fatalities. I've been a criminal defense lawyer for a long, long time and I've handled lots of aggravated battery cases, attempted murder cases where there's been one, two, three, five shots and nobody dies. And yet these innocent homeowner cases almost always one shot and the person on the other side dies. They're typically pretty decent people in their own right. They just made a tragic mistake of going to the wrong door and compounded of course by their level of intoxication.

 

Shawn Vincent:

Michael Drejka just happened to hit him in the heart. Could have hit him an inch over.

 

Don West:

The handicap parking place shooting.

 

Shawn Vincent:

Yeah, George Zimmerman. One shot.

 

Don West:

Yep.

 

Shawn Vincent:

This guy's an Army veteran. He understood how to handle a rifle and been trained to shoot. Gerald Strebendt had one shot; he was a veteran Marine sniper.

 

Don West:

Well, and that's, I imagine if you're going to assume that training played some part in it, even if it's through a door, that the notion is you shoot for the large part of the body, the center mass, and that's where a lot of vital organs are.

 

Shawn Vincent:

And if you hit it, then you hit it.

 

Don West:

And if you don't, you may very well not kill somebody, but if you do or you hit a place that's going to bleed out, then it just takes a few seconds.

 

Shawn Vincent:

So for whatever reason, often it is one shot as the case in this case. So he's eventually arrested on manslaughter charges. I'll add that the gun he had, I don't know all the details behind this, but he didn't have it legally, so he was arrested on weapons charges as well. And you and I have talked about this before in cases where those are mutually exclusive things. You can legally justifiably defend yourself with an illegal weapon and potentially be justified in the homicide but still face weapons charges for having an illegal weapon.

 

Don West:

That's right. That's happened surprisingly often actually where the claim of self-defense may very well be supported by the evidence and no charges are filed, but at the same time a convicted felon in possession would be a charge that some people would have to deal with or some other illegal weapon possession of some sort.

 

Shawn Vincent:

And we've seen people run for the scene because they knew they weren't allowed to have the gun and made their defense case much harder. And then some of the weird stuff happens, and we'll talk about, you called it lawyer nerd stuff earlier. We went and talked about some lawyer nerd stuff, but it's relevant because each one of these cases gets prosecuted or not differently, and it affects the defender's lives in myriad ways, but in this case, they arrest him, the charge him with a manslaughter, then they screw up speedy trial. They took too long, I guess, the prosecutor, to go through certain steps, and a judge dismisses it. But you made a distinction here. He dismissed it without prejudice, which meant that months later they pulled together this case and they came back and they charged him with manslaughter again.

 

Don West:

The initial criminal charge was dismissed on a speedy trial violation, because apparently the judge specifically allowed that the dismissal was without prejudice. In legal parlance, that typically means that a legal, a judicial action is taken typically a dismissal of some sort, but the key word is without prejudice. Without prejudice means that it's not fatal to the case and oftentimes that lawyers have, especially in a civil context, you can fix it. You can amend the pleading and file it again. So a dismissal without prejudice usually gives leave to take another run at it. Whereas frankly, that's a pretty novel concept to me in criminal law. I'm not really familiar how many states would allow a dismissal, especially on speedy trial grounds without prejudice, but clearly that's what happened here.

 

Had the judge dismissed it with prejudice, that typically means that's the end of it. Nobody can go back at another bite at the apple. A speedy trial is a notion that's a criminal procedure issue that originally is sort of designed at least, constitutionally, to keep people from languishing in jail waiting for their day in court.

 

Shawn Vincent:

You, the State, the oppressive government, you can't just arrest me on charges and then keep me in jail pending trial for 10 years, keeping me in prison without a trial.

 

Don West:

Without a determination of guilt. Sure. There's a provision in the United States Constitution for speedy trial in the day to day work of a criminal defense lawyer that would be known as constitutional speedy trial and that looks at a lot of factors including prejudice to the defendant for the delay and bringing the person to trial. Maybe they've lost witnesses or other evidence that they could have preserved had they then brought to trial more quickly.

 

Don West:

That can even sometimes exist in a far different context than what we're talking about here. But here we're talking about a state procedural rule, just like there's an overall constitutional speedy trial concept, that essentially focuses on due process and the fairness of the way that you were treated and the prejudice that you've encountered as a result of not being moved along in the system. And under state court, there might be very specific rules and it could be as hard and fast as a specific number of days. And if you're not brought to trial with any specific number of days, then the court has the authority to dismiss it. I remember in the old days, old days meaning 20, 30 years ago, that Florida had a very specific speedy trial rule for both misdemeanors and felonies, but for felonies it was 180 days. And if you were arrested and you were not brought to trial within 180 days, the court had the obligation to dismiss the case on application.

 

So you often would look at the calendar and figure out how many days actually where the 180th day fell and if you weren't brought to trial and jury selection started on that day, then you could file a motion with the court to dismiss it and it didn't matter if it was a bad check or a first degree murder. The judge had no discretion in that. And sometimes it gets kind of silly because the prosecutor would sometimes just count wrong and misunderstand when the 180th day was. That's changed now, it's still pretty rigid though because it's 175 days and then there's a window that the defendant must request the trial and then they've got a couple of weeks to bring the person to trial, but then it would be dismissed.

 

Don West:

Unlike other states, for example, well North Carolina is one where there really isn't any state speedy trial, so people can wait weeks or months to go to trial and not have any specific provision that guides that. Other States, when I talked to lawyers around the country, always seem to tell me a different story how their speedy trials worked and that's not to be confused -- I won't go on too much longer -- not to be confused with the statute of limitations. So the statute of limitations is basically how long the prosecuting authority can wait between the incident and the prosecution. That's typically measured in years. In most jurisdictions, a felony would be maybe four or five years, statute of limitations. And in some cases, cases that you and I have worked on, there is no statute of limitations on in most places for murder for example.

 

Shawn Vincent:

Which means there could be some defender who was involved in the self-defense incident and the police decide not the charge for some reason, but he's never explicitly exonerated, so he lives his life month after month, potentially year after year, with this specter that a prosecution could happen at some point.

 

Don West:

Yeah, a lot of those cases just kind of hang out there because there is no statute of limitations, the prosecutor doesn't have to finally decide and frankly there's pretty good reason in some cases, not the ones we're talking about, but we know all those cold cases, right? Technology changes. There are people that committed murder 30 years ago that are now being successfully prosecuted because of DNA and these genetic databases and things that. . .

 

Shawn Vincent:

The Golden Gate Killer.

 

Don West:

Yeah, there you go. They're able to identify people there was simply not enough reliable evidence on before.

 

Shawn Vincent:

I bring that up, because one of the, you talked about the next fight, right? One of the points of our discretion and our podcast is to help the members understand just what comes or what can come after a self defense shooting. And what we'd like to think is that the cops show up, they look around and say, "Oh yeah, he was trying to break into your house. Congratulations on being a great citizen. You're fine." And life goes on. But that's hardly ever the case. They're going to come, they're going to treat it as a homicide. Sometimes they clear these pretty quickly, other times they don't. And then the defender's left in this limbo for days, weeks, months, years sometimes. Usually an arrest comes within days or weeks, but not always. And then there's, depending on where you live, different speedy trial clock, your lawyer will probably opt to voluntarily to spend that to take the time they want to get the experts they need to. . .

 

Don West:

Yeah. In most circumstances, if there's a rigid speedy trial rule, it can be waived or told because of something that the defense wants to do to get expert review of evidence or that sort of more investigation.

 

Shawn Vincent:

That's why you have a year or two before you get the trial.

 

Don West:

Yeah. You know your point is . . . I've personally been involved in a case that's now a year and a half old and there's been no prosecution to note, no clear evidence that there ever will be, but there's been no absolute dismissal with prejudice. You know we talked about with prejudice if the case is dismissed with prejudice. . .

 

Shawn Vincent:

There's no deep sigh of relief for this guy.

 

Don West:

No, and then there's another case I'm personally involved in that is almost four years now since the incident and once again, well there's no interest apparently in prosecuting, and the longer the time passes I think the more comfort one can take that there won't be, but there's no guarantee that it won't be picked up at some point in time.

 

Don West:

Now this is not the kind of case where DNA and advances and forensics are likely to change the shift. It's a self-defense case and I think the facts are pretty well known and we can be confident because no charges were filed, that it was thoroughly assessed and an intelligent and informed decision was made. But no guarantee that, who knows? You know that's how, frankly, you hear cases all the time where after five years or 10 years, a suspect in a case, in the traditional typical kind of murder case where they can't prove who did it, they know it was a murder. It's clear that it was a criminal murder, but they don't know for sure who did it or the suspect. There's just not enough evidence. There'll be a statement made, there'll be new forensic evidence or something that will connect the dots and all of a sudden there.

 

Shawn Vincent:

There's a case. So this guy Farr, he had sort of a, the case was dismissed at one point. There are several months, then it was reasserted. The reporting kind of goes cold on this. At one point there's going to be a trial in December. I don't think that trial happens. I couldn't find any reports on it, so it was continued or the likely case of it or dismissed. But that guy spent a long time and wondering what was going to happen to him. And a lot of that has to do with some of the choices he made during this. Well, I guess there's, there's one critical choice here. If we're going to talk about the lessons learned from the case and that is he chose to fire against the intruder before the intruder had gained access to his house. This is, we were talking about the enemy at the gates.

 

We talked just earlier today about a guy who went out to meet an intruder in his yard. We've talked about the Ted Wafer case where he opened the door to the intruder on the porch. We talked about a similar case where a guy had two people breaking into his house. He knew who they were. He knew they were there to get them and he fired through the door and killed both of them. He was found justified probably because he knew once he got into the house, he knew what their intent was.

 

Don West:

And he was outnumbered and apparently the police were pretty satisfied that was good. That was true.

 

Shawn Vincent:

But our general advice was you probably should never shoot through a closed, locked door. We talked about a case in Cincinnati where this mother of five, her abusive ex boyfriend came, was raging on the front yard and trying to get in, and he finally pulled out the air conditioner, the window unit, and it was only then when he tried to get into the window unit that she fired and ended up wounding him and just disabling him. She was clearly justified, but it was that moment when that threshold was to be crossed. The breach had been made and Farr shoots before that moment.

 

Don West:

So we touched upon this in our conversation, this notion of prosecutorial discretion, the discretion that a prosecutor has in any criminal case, but I think especially in these kinds of cases. If they don't have clear marching orders from above that they always do something when these these things are present and the prosecutor's going to, after looking at the case package, you want to talk to law enforcement, they may reach out independently to talk to witnesses. They have the authority to do that. Of course, they have the benefit of the forensic reports. A lot of them the police don't have, at least not at first and they can sort of piece this together. They will scrutinize and scrutinize and dissect and turn inside and out any statement that the accused made, the shooter made, to see if it matches up with other witness statements, but I think maybe most importantly if it matches up with the physical evidence. They'll take a look at gunshot residue, trajectory. In this case they might very well look at the door jamb. Was there damage to the door jamb? What kind of door was it? Is it steel or is it thin wood that could be easily smashed down?

 

Shawn Vincent:

Right, in Ted Wafer they brought in the screen door that was between him and Renisha McBride to try to decide what damage was caused by her that night.

 

Don West:

Sure, and they can do this in the comfort of their office with the quiet and a time to reflect. Nothing like the decisions that were made of course at the scene.

 

Shawn Vincent:

Yeah, the life or death imminent decisions.

 

Don West:

They'll take a look at his statement when he said, "My daughter was there in between me and the door." And see if that really holds water. How old was she? Could he have said to her, get out of the way. Come here, go upstairs. Could he have done anything to have increased her safety before he used it as a justification for shooting through the door? He said, as I recall, that he could see the face of the sailor through the window in the door and that he was yelling at him and showed him the gun and one would think just logically, the prosecutor certainly will think this through, it's not a home invasion robbery. It's not somebody bursting into your house to hold you at gunpoint to steal things from you typically, if they bang on the door and yell and want you to come open the door. They may be crazy. They may be drunk, but it's not likely that they're part of a home invasion team.

 

Shawn Vincent:

If it's a home invasion robber, they'll knock and say, "Hey everybody, we're here to rob you. We're going to barge in 10 seconds."

 

Don West:

"Please open your door."

 

Shawn Vincent:

"Get ready for us. Get your shotgun ready." And yeah.

 

Don West:

There apparently wasn't any clear attempt to kick the door in. I'm sure that would have been mentioned if there'd been evidence to show that. So even though Mr. Farr had seconds to make these decisions, they're going to be looked at over the course of days and weeks and months, in this case a number of months. Speedy trial and then refiled. And there may be some critical evidentiary aspects. There may be some part of his story that doesn't fit some of the other known facts and they're really wrestling with how to go forward. The prosecutor has to feel bad for this guy, probably doesn't want to prosecute him. Hawaii, I don't think, necessarily, is the best state to be in when you're dealing with the. . .

 

Shawn Vincent:

As a defender. Yeah.

 

Don West:

You've got all that stuff.

 

Shawn Vincent:

And the fact that he didn't legally own the weapon he used -- it doesn't help.

 

Don West:

Does not help.

 

Shawn Vincent:

We talked about how they're mutually exclusive charges, but it doesn't make his judgment in the self-defense case look better.

 

Don West:

And the fact of who you kill really shouldn't factor in either. Every life is worth the same, I guess would be the statement. But as a practical circumstance, he killed a 41 year old Navy veteran . . .

 

Shawn Vincent:

Active service.

 

Don West:

Who was about to ship off, who was serving his country, who was just blowing off a little steam before he headed out to protect us.

 

Shawn Vincent:

Freedom and democracy.

 

Don West:

Yeah. And that's very compelling and makes it even more tragic.

 

Shawn Vincent:

And the victims have an influence on the prosecutors, don't they?

 

Don West:

Sure.

 

Shawn Vincent:

I mean the prosecutors make their decisions, but if it's the Navy saying, "We want you to get this guy." I'm not saying that they said that in this case, we don't know. But if it's a compelling -- the victim has somebody, an uncle in law enforcement and he has some sway -- they're sensitive. They're advocates for the victims.

 

Don West:

They are, and the family of the victim, frankly, as you know, it sounds kind of crude almost, but how much noise the family of the deceased makes can impact how the decisions are made and the prosecution. Are there legions of people in protests or are the family members that are really focusing the attention on this case and maybe the media attention as well?

 

Shawn Vincent:

You saw that in Ted Wafer too that the family was out there protesting every day until they finally filed charges.

 

Don West:

And I know there are some cases, you and I have been involved in them, where the prosecutor's feeling so much heat, even when they think they probably don't want to file criminal charges, they either do anyway, which is sort of succumbing to the political stuff or in a lot of jurisdictions, even when they don't have to, they'll punt and put the case before the grand jury. I've seen that several times where the prosecutor has the authority to file the charges, but they decide it's kind of a hot potato.

 

Shawn Vincent:

Like Ferguson.

 

Don West:

Sure.

 

Shawn Vincent:

Ferguson, Missouri where the kid shot the cop.

 

Don West:

Other way around.

 

Shawn Vincent:

Yeah, the cop shot the kid, right. I think the prosecutor wanted to null pross that, but he sent it to the grand jury.

 

Don West:

And the grand jury cleared, and it's still controversial. So there are those cases where the prosecutors under lots of pressure from any number of angles and that's assuming true motives. You still never know when there's a political pressure somewhere because the boss wants to get reelected or you want to run for office as a prosecutor and in a close call you may make the personal choice. Who knows. I'm not . . .

 

Shawn Vincent:

Suggesting that any of that's happening here, but it's funny it’s been dismissed and then reappointed.

 

Don West:

Yeah. But this is another one of those examples of just a tragic outcome and we spend so much time and we wring our hands. Could something have happened that would have changed the course of this, either for the homeowner, frankly, for the deceased. It was what it was. He was just drunk and out of his mind a little bit and confused. And the homeowner . . .

 

Shawn Vincent:

Well, we've talked before about this window of justification, that the window opens and it closes and it's only in this very specific frame work of time where use of force is justified. And we've seen cases where they fire a little bit too soon. This is one of those cases. It very well could have been 30 seconds from then the door splinters, the glass breaks, and all of a sudden now the windows open, literally opens, and then we've seen cases where like in the pharmacist's case where the perpetrator leaves and there's a final shot after the fact. Once the threat was neutralized.

 

Don West:

That's like the person in Oklahoma city where there are shots fired after the robber is incapacitated.

 

Shawn Vincent:

That's right.

 

Don West:

And that's clearly viewed by the prosecutor, a guy who was viewed as sort of the hero initially by the media for stopping these armed robbers, winds up getting prosecuted and convicted of murder for shooting the robber after the robber was already down.

 

Shawn Vincent:

Yeah. And so I think you have a case here, a guy who was almost justified and he's facing prosecution because he fired too soon. And the lesson I take from it is if I ever find myself in that circumstance, I want to be thinking about that window. If someone's calling 9-1-1, I'm thinking tactically. Where am I? There's where my daughter is. Has the window opened yet? Is that threat imminent and what would it take for that threat to be imminent? And hopefully I'll have the peace of mind, state of mind and the judgment to wait for them. But that's like I said at the beginning -- we talked about tone -- is why I get so passionate about these cases, because I can see myself there and how seconds can make the difference.

 

Don West:

Obviously easier said than done. You would think, well the daughter goes upstairs, he retreats further up the steps maybe with still a view of the door and the gun ready and if he comes through the door and still seems to be aggressive, maybe that's a better time. It certainly would be much more justifiable when a prosecutor is sitting in the easy chair trying to decide whether to prosecute this guy or not.

 

Shawn Vincent:

Yeah, tough case.

 

Don West:

This is one of those as so many of them we talk about that we know they're awful, they're absolutely awful, but are they lawful? And this is one that may very well be awful but lawful, but the fact that he's being prosecuted suggests that there are at least some of the authorities believed that he had other decisions he could have made, and that the decision he made to fire the gun, to take life as a consequence of it were simply not supportable under the law of self-defense.

CCW Safe Podcast- Episode 55: COVID-19

 

This week Mike and Stan discuss all things COVID-19. From being prepared to how to deal mentally with a stressful situation. CCW Safe Content Manager Justin Collett joins in as well.

CCW Safe Podcast- Episode 54: Attorney Andrea Luem

 

This week Mike and Stan interview Las Vegas, Nevada based attorney Andrea Luem. Andrea has great deal of experience with self-defense cases. She talks about what is important for a defense and things that people should consider if they are going to carry a gun for self-defense. 

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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.