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Thread: When trial courts go stupid on self defense law (aka, know the law)

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    When trial courts go stupid on self defense law (aka, know the law)

    I recently came across a 2011 self defense case in which the prosecution, the defense, and the judge all got the law completely backwards on the reading of a brief and rather straightforward self defense statute.

    The result was that the defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 20 years in prison. Somehow, every expertly trained legal professional in the court room managed to make a mistake I wouldn’t have expected from a first year law student. And, of course, it was the defendant who paid the price.

    Although this particular case is out of Kentucky, trust me, mistakes like this happen in every state, and far too often. All the more reason why it is essential that all armed citizens have at least a basic working competence in the self defense laws of their jurisdiction (or anywhere they might go). Just because you're paying your defense lawyer a lot of money doesn't mean he's not going to make a stupid mistake--and if he does, it's you who pays the price. Know the law.

    If you're interested in more details on how something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: http://bit.ly/WIjqLk .

    Andrew

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    Well they all have immunity ... so .. I guess that's why we have reviewing courts

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    Quote Originally Posted by davidmcbeth View Post
    Well they all have immunity ... so .. I guess that's why we have reviewing courts
    Who has immunity?

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    Quote Originally Posted by Law of Self Defense View Post
    Who has immunity?
    I think he means the Judge and Prosecutor.

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    Just read your blog.... Honestly, you would have to be an IDIOT to sit in a courtroom and hear the below instructions and not immediately realize something was horribly wrong:

    “[i]f you believe from the evidence beyond a reasonable doubt that [the Defendant] provoked [the Victim] to use or attempt to use physical force upon the defendant, and that they did so with the intention of causing death or serious physical injury to [the Defendant], then the defense of self-protection is not available to him.”

    The judge and all attorneys in that courtroom should be disbarred for being too stupid to function.

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    Quote Originally Posted by arentol View Post
    The judge and all attorneys in that courtroom should be disbarred for being too stupid to function.
    Perhaps. But they're not. And there's more like that everywhere.

    Just as we arm ourselves to defend against physical wrongs, we need to arm ourselves to defend against legal wrongs.

    Know the law.

    Andrew

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    Quote Originally Posted by arentol View Post
    I think he means the Judge and Prosecutor.
    Ah, I see. Well, that's not the term, but the idea that there's no practical recourse against them is correct.

    Andrew

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    Quote Originally Posted by Law of Self Defense View Post
    something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: http://bit.ly/WIjqLk . Andrew
    Thank you. There's this acute insight -
    The Law of Self Defense provides an in-depth and informative understanding of the five fundamental principles of self defense: Reasonableness, Innocence, Imminence, Avoidance, and Proportionality, as well as many non-core but important facets of self defense law, such as defense of others, defense of property, and imperfect self defense.
    Reading the vast histories in OCDO/archive.org, that's well paraphrased here. Searching the larger webz, it was validated at the University of Illinois' Daily Illini student news paper.
    The common law elements of self-defense are four; be innocent of instigation, use sufficient force only to deliver oneself from evil, be in reasonable fear of bodily harm, and attempt to withdraw.
    The bolds paraphrase the bolds in your books fly text. I'll look for your book at the library, though it's unlikely at Santa Cruz liberal hell.

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    Quote Originally Posted by Nightmare View Post
    Thank you. There's this acute insight - Reading the vast histories in OCDO/archive.org, that's well paraphrased here. Searching the larger webz, it was validated at the University of Illinois' Daily Illini student news paper.The bolds paraphrase the bolds in your books fly text. I'll look for your book at the library, though it's unlikely at Santa Cruz liberal hell.
    Can't believe they failed to include imminence. The use of force against another is never self defense in the absence of imminence.

    Well, I suppose one could argue about the controversial "Battered Woman Syndrome" cases, but in those cases the courts are really re-defining "imminence" in a non-traditional way in an effort to adequately handle difficult circumstances that would never normally qualify for self defense.

    Andrew

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    Quote Originally Posted by Nightmare View Post
    Thank you. There's this acute insight - Reading the vast histories in OCDO/archive.org, that's well paraphrased here. Searching the larger webz, it was validated at the University of Illinois' Daily Illini student news paper.The bolds paraphrase the bolds in your books fly text. I'll look for your book at the library, though it's unlikely at Santa Cruz liberal hell.
    Except that plenty of states have castle and/or stand-your-ground laws that don't require one to withdraw. There's a difference between avoidance and withdrawing, though given that it came from an Illinois school I can't really say I'm surprised that they use the term withdraw.

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    Quote Originally Posted by Aknazer View Post
    Except that plenty of states have castle and/or stand-your-ground laws that don't require one to withdraw.
    Be careful. Just because it's a "stand-your-ground" state does NOT mean a failure to retreat won't be held against you in a court of law, won't destroy your claim of self defense, and won't result in your conviction.

    Let me explain.

    Without stand-your-ground there exists a general duty to retreat, and a failure to take advantage of a safe avenue retreat results in the automatic and total loss of the right to argue self defense at trial, because you've violated that legal duty. In those jurisdictions, the "failure to retreat" is one of the most common and powerful weapons a prosecutor uses against your self defense claim.

    With stand-your-ground, the general duty to retreat is eliminated. In some stand-your-ground states, the courts have interpreted this to mean that the prosecution can't even bring up the possibility of safe retreat as an issue. In those jurisdictions, "safe retreat" has been totally eliminated as a weapon to be used by the prosecutor (unless, of course, the defendant was the initial aggressor, and some other odd circumstances).

    In other stand-your-ground states, however, the elimination of the general duty to retreat simply means that the failure to take advantage of a safe avenue of retreat doesn't result in an automatic win for the prosecution on the issue of self defense . . . BUT the prosecution is still permitted to argue to the jury that your use of deadly force wasn't genuine self defense because it wasn't necessary, you could have safely retreated. And without necessity, there is no self defense.

    Word to the wise . . .

    The Castle Doctrine is, of course, an entirely different set of issues, and is also not as clear-cut as one might think. In some places it applies just inside the four walls of your house, in others to attached porches, in others the curtilage (yard, driveway, sheds), in others to even temporary places of abode (hotel, camper, tent), in others to places of business, to others vehicles . . . . in addition, it's often not an absolute issue, as in many jurisdictions you DO have to retreat EVEN IN YOUR HOME under some circumstances (e.g., if you were the initial aggressor, if the other person also has a right to be in the home, etc.).

    The details matter.

    Andrew
    Last edited by Law of Self Defense; 03-17-2013 at 11:08 AM.

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    Recent Castle Doctrine, on point exemplar from new law Wisconsin 2011 Act 94.

    Quote Originally Posted by Law of Self Defense View Post
    Word to the wise . . . The Castle Doctrine is, of course, an entirely different set of issues, and is also not as clear-cut as one might think. In some places it applies just inside the four walls of your house, in others to attached porches, in others the curtilage (yard, driveway, sheds), in others to even temporary places of abode (hotel, camper, tent), in others to places of business, to others vehicles . . . . in addition, it's often not an absolute issue, as in many jurisdictions you DO have to retreat EVEN IN YOUR HOME under some circumstances (e.g., if you were the initial aggressor, if the other person also has a right to be in the home, etc.).

    The details matter.

    Andrew
    895.62 Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.
    (1) In this section: [definitions]
    (2) Except as provided in sub. (4), an actor is immune from civil liability arising out of his or her use of force that is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person and either of the following applies:
    (a) The person against whom the force was used was in the process of unlawfully and forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was on his or her property or present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that an unlawful and forcible entry was occurring.
    (b) The person against whom the force was used was in the actor’s dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.
    (3) If sub. (2) (a) or (b) applies, the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force and the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.
    (4) The presumption described in sub. (3) does not apply if any of the following are true:
    (a) The actor was engaged in a criminal activity or was using his or her dwelling, motor vehicle, or place of business to further a criminal activity at the time he or she used the force described in sub. (2).
    (b) The person against whom the force was used was a public safety worker, ...
    (5) In any civil action, if a court finds that a person is immune from civil liability under sub. (2), the court shall award the person reasonable attorney fees, costs, compensation for loss of income, and other costs of the litigation reasonably incurred by the person.
    (6) Nothing in this section may be construed to limit or impair any defense to civil or criminal liability otherwise available.
    History: 2011 a. 94.
    Halfway to Heaven is not an Ivory Tower but it's close.

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    Quote Originally Posted by Law of Self Defense View Post
    Be careful. Just because it's a "stand-your-ground" state does NOT mean a failure to retreat won't be held against you in a court of law, won't destroy your claim of self defense, and won't result in your conviction.
    ...
    This is why I didn't speak in an absolute term and was simply refuting that which I quoted that seemed to be saying that one was required to try and withdraw before they can claim self-defense. Yes some places "require" such actions, but that isn't the case everywhere as it seemed to be implied.

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    Quote Originally Posted by Nightmare View Post
    Halfway to Heaven is not an Ivory Tower but it's close.
    The very complexity of the statute you cited simply reinforces my warning to BE CAREFUL. This area is wrought with dangers.

    Sure, (3) says "the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force".

    But (3) applies ONLY if you meet the conditions of (2)(a) or (2)(b): the person against whom force was used was attempting to, or had, unlawfully or forcibly entered a special protected place (e.g., dwelling, motor vehicle), the person using force was present, and the person using force was aware that the entry had been unlawful or forcible.

    So, outside of those narrow parameters, this statute does nothing to prohibit the prosecutor from arguing to the jury that they should deny you self defense because you could have retreated rather than resort to deadly force, even though California has no general duty to retreat and is, in that sense, a Stand-Your-Ground state.

    Further, even if you DO meet those detailed conditions, (3) STILL doesn't apply if any of the conditions of (4) exist.

    I won't bother citing the (4) conditions. The point is if you don't already know them, you don't already know whether you would have been exempt. And if you don't know that, you don't know whether you qualify under the (3) provision saying that the fact finder cannot consider retreat as an issue.

    Be careful. The details matter. Know the law.

    Andrew

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    Quote Originally Posted by Aknazer View Post
    This is why I didn't speak in an absolute term and was simply refuting that which I quoted that seemed to be saying that one was required to try and withdraw before they can claim self-defense. Yes some places "require" such actions, but that isn't the case everywhere as it seemed to be implied.
    Indeed, only a minority of states have a general duty to retreat. The majority of states have some degree of "Stand-Your-Ground". But, as said, the details matter.

    Andrew

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    Not "aware." "Had reason to believe."

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    Quote Originally Posted by eye95 View Post
    Not "aware." "Had reason to believe."
    As you say, the statute clearly says "had reason to believe." The correction does nothing to change the point being made--it's a tricky space.

    Andrew
    Last edited by Law of Self Defense; 03-17-2013 at 03:52 PM.

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    Quote Originally Posted by arentol View Post
    Just read your blog.... Honestly, you would have to be an IDIOT to sit in a courtroom and hear the below instructions and not immediately realize something was horribly wrong:

    “[i]f you believe from the evidence beyond a reasonable doubt that [the Defendant] provoked [the Victim] to use or attempt to use physical force upon the defendant, and that they did so with the intention of causing death or serious physical injury to [the Defendant], then the defense of self-protection is not available to him.”

    The judge and all attorneys in that courtroom should be disbarred for being too stupid to function.
    The instruction sounds OK .. am I missing something? Or the evidence did not support a finding that the defense is not available?

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    Quote Originally Posted by davidmcbeth View Post
    The instruction sounds OK .. am I missing something? Or the evidence did not support a finding that the defense is not available?
    The statute requires the jury to determine whether the provocateur intended to cause death or grave bodily harm.

    The judge instructed the jury to determine whether the person being provoked intended to cause death or grave bodily harm.

    Two different people.

    Andrew

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    Quote Originally Posted by Law of Self Defense View Post
    As you say, the statute clearly says "had reason to believe." The correction does nothing to change the point being made--it's a tricky space.

    Andrew
    It makes a huge difference. One does not have to be correct, just have reason to believe. "Aware" implies correctness.
    Last edited by eye95; 03-17-2013 at 04:07 PM.

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    Quote Originally Posted by eye95 View Post
    It makes a huge difference. One does not have to be correct, just have reason to believe. "Aware" implies correctness.
    Ah, I see the confusion.

    "Aware" does not, however, mean, nor even imply, "correct" Aware merely means having or showing realization, perception, or knowledge.

    When people were "aware" that the earth was flat, they were not correct, were they?

    Indeed, in the case in which I started this thread, the court was "aware" of the provocation statute, but they very far from "correct".

    In fact, being aware of something is a necessary precursor to having a reason to believe something.

    After all, you can't possible have "reason to believe" something that you are not even aware of, can you?

    At least, I don't see how. But I've been wrong once or twice before.

    But enough nitpicking, we can agree to disagree, if that's what you like.

    Andrew
    Last edited by Law of Self Defense; 03-17-2013 at 04:22 PM.

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    Aware does not mean correct. I said that it implies being correct.

    "Have reason to believe" implies zero level of correctness. You can be dead wrong and still have reason to believe.

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    Quote Originally Posted by eye95 View Post
    Aware does not mean correct. I said that it implies being correct.

    "Have reason to believe" implies zero level of correctness. You can be dead wrong and still have reason to believe.
    I understand your point.

    Andrew
    www.lawofselfdefense.com
    This message does NOT constitute legal advice.

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    All armed citizens have an obligation, to themselves and their families, to establish and maintain a robust competence in the law of self defense.......

    http://lawofselfdefense.com/when-tri...f-defense-law/
    The burden must be on the state to be sure that the law is applied as written, this includes jury instructions. Anyone who places the burden onto the citizen is anti-liberty and anti-citizen.

    The law cited by Nightmare: "895.62 Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity."

    Civil liability not criminal liability. The KY Supreme Court even cites the correct law for us http://www.lrc.ky.gov/krs/503-00/060.pdf

    Incidentally: http://www.lrc.ky.gov/krs/503-00/080.PDF
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Finder of fact be da judge or jury in civil or criminal court.

    3) If sub. (2) (a) or (b) applies, the finder of fact may not consider whether the actor had an opportunity to flee or retreat before he or she used force and the actor is presumed to have reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.

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