Is this self defense or murder?

This situation really happened in Minneapolis and it’s troubled many people.  Let’s look at their concerns:

1.  The shooter is another example of “vigilantes.”  Untrained but armed citizens who “take the law into their own hands.”

2.  This is a Good Samaritan who tried to rescue a victim and stop the attacker.  He provided a public service, and when the attacker turned on him the rescuer acted in self-defense.

As a criminal lawyer myself, clearly the rescuer is within his rights to help the victim.  Also to try and recover the stolen purse.  To even chase the attacker.  He was also licensed to carry a gun.  But once the attacker turned and ran away, the rescuer doesn’t have a duty to chase him.  What about self-defense?

But he did choose to run after the attacker.

Under the law, this is considered a separate incident from the original crime.  At this point, if the rescuer uses force against the attacker, the rescuer may be committing the crime of assault.  Because the original crime was not directed at the rescuer.  Strange as it may sound, if the attacker feels threatened by the rescuer, he has a right to defend himself against the rescuer!

In Minnesota, the right of self-defense is defined as:

Taking of the life of another is authorized when necessary in resisting or preventing an offense in which the actor reasonably believes exposes the actor to great bodily harm or death to himself.

In the real case we have only the rescuer’s version since the attacker died from the gunshot.  It’s possible that either man acted in self-defense.  The rescuer could be charged with some level of homicide, although the prosecuting attorney has said he will not do so.

One concern that I have is the “vigilante” aspect of this incident.  For all I know, the rescuer acted as a Good Samaritan and only when he was threatened with death himself, reluctantly pulled out his own gun and shot the attacker dead.  But what if his intention from the start was to act as law enforcement, knowing he was armed and ready to shoot at the smallest reason?

As a society, we license law enforcement to use force—only after rigorous training and education about weapons and violent situations.  Most of us, even if we’re licensed to carry a weapon, lack similar training and may act in a rash, wrong, and deadly way.

What do you think?

The post Self Defense or Murder?? appeared first on Colin T. Nelson.

During the trial, prosecutors played recordings that Smith made on his home audio system in which he says he is glad the two young people are dead because he “considered them vermin” and that he was “doing the community a favor by cleaning up the waste.”  Besides using a bullet to stop each of the intruders, Smith continued to shoot them even after they were no longer a threat to him.

People have asked me several questions about the trial and verdict.  Here they are:

1.  The jury came back in less than three hours.  Does this mean anything?

I think it shows how convinced they were of Smith’s guilt.  In trials I’ve been involved with, juries can deliberate for days, especially if it’s a serious case like this one.  People understand the responsibility they have as jurors and want to make sure they make the correct decision.  It always takes an hour or more to choose a foreperson and to take an initial vote.  The fact this jury returned so quickly tells me they had few doubts about Smith’s guilt.

2.  Does this verdict mean that a person cannot use self defense in their home?

No.  The law in Minnesota says that you may use the deadly force that a reasonable person would use if you feel threatened with great bodily harm or death in your home.  Or, if the intruder is committing felony in your home.  You are allowed to use deadly force—even killing someone.  In this case, the jury obviously thought Smith went far beyond the necessary force to stop the threat and even turned it into an execution.

3.  Should Smith get life imprisonment without parole instead of being required to work with young, troubled teens?

Yes.  The Sentencing Guidelines in Minnesota that all judges are required to follow, prescribe a life sentence without parole.  Under some circumstances, the judge can deviate from that and could even give a shorter time in prison or probation, but the judge must have compelling reasons that he puts on the record to justify the departure from the Guidelines

http://http://www.startribune.com/local/east/257435001.html  See interview with the prosecutor.

4.  What about an appeal?

All losing defense lawyers promise they will appeal the case and, maybe, Smith’s lawyer will do that also.  However, an appellate court will not decide if Smith was justified using self defense—that’s not the purpose of an appeal.  Instead, the appellate court will look at the trial and if there were errors in the proceedings that were so prejudicial to Smith that he deserves a new trial,  the appellate court could order a new trial.

Let me know what you think about this case.

The post Jury Says “NO” to Byron Smith’s Self Defense appeared first on Colin T. Nelson.

I don’t think so.

Here are the basic facts:  Byron Smith is an elderly man who lives alone in a small town in central Minnesota.  For a period of many months he was the victim of several home burglaries.  He wasn’t during those break-ins, but he became afraid that the burglaries would continue.  As a result, he set up a camera system outside the house and made sure that he had guns in the house.  At about one o’clock in the morning, he heard noises outside his house and was quite certain that he was about to be burglarized again.  He sat in his basement with several loaded guns.  The first person in the house was a juvenile boy.  Smith shot him three times, killing him.  Next, a young girl came downstairs and Smith shot her, but that didn’t kill her immediately.  Smith dragged her body into the basement beside the boy and shot her in the head to kill her.  Several hours later, he called police and confessed to everything.

The self defense statute in Minnesota says that a person can lawfully use force in their home if they “reasonable believe they are exposed to great bodily harm or death or they are preventing the commission of a felony within their home.”  The reasonable force used could be killing the intruder.

The question prosecutors have set before the jury is: did Byron Smith go too far in defending himself to actually have committed murder, which requires the government to prove that he killed both young people intentionally and with premeditation?

I think the jury will disallow the self defense and find him guilty.  Smith has shown, in his defense, that prior to the break-in, he was extremely afraid and nervous from the previous burglaries.  That would justify his shooting at any burglar who broke into his house, even juveniles, to stop the threat of great bodily harm or death to himself or to prevent them committing the felony of burglary.  But he went beyond that.  Once the girl had been shot four times, she ceased to move or pose any threat to him.  He could have called the police at that time.  Instead, he dragged her into the basement and carefully shot her under the chin into her head.

Here are some questions to think about:

Does it make a difference how many times he shot the first intruder, the boy?

Could the jury find him not guilty of the boy’s death, but guilty of the girl’s death?

Does it make any difference that he waited a long time before calling the police?

Does it make any difference that he had a recording system in the house where he is recorded as saying, “I’m glad I got rid of the vermin, just like cleaning up some waste.”  (Referring to the victims as vermin)

Let me know what you think will happen.

The post Killing Someone in Your House—OK as Self Defense? appeared first on Colin T. Nelson.

The facts presented by the media are straight forward.  Mr. Pistorius and Ms. Steenkamp were at home in the evening.  Mr. Pistorius left to get two fans while Ms. Steenkamp went to the bathroom.  Mr. Pistorius didn’t realize she’d done so.  He came back into the bedroom and heard a suspicious noise in the bathroom.  He pulled-out a gun in order to protect both of them from the possible intruder, and he shouted at the bathroom door.  No one responded, but Mr. Pistorius still heard noises so he fired the gun through the door four times— killing Ms. Steenkamp who was still in the bathroom.

Mr. Pistorius claims self defense.  Did he act in self defense and should he be acquitted of murder?  Here are some issues to consider:

1.  What does self defense actually mean?  Can you defend yourself unlimited no matter what the situation?  One of the goofy things about law is that it is different in every jurisdiction.  Federal law is different from Minnesota law is different from New Jersey law is different from the law in South Africa.  That means, I can’t say for sure what the definition of self defense is in South Africa.  However, most laws are very similar to one another.

Let’s look at the Minnesota definition:  A person can defend themselves with deadly force if they reasonably believe they or another person are exposed to great bodily harm or death, or preventing the commission of a felony in the person’s home.

2.  We can see that self defense, even killing someone, is justifiable.  What about Mr. Pistorius?  He says that he believed that there was an intruder and that he feared for the safety of both he and Ms. Steenkamp, particularly because Mr. Pistorius is missing both of his legs.

3.  We can also see that if a person is in their home, they are entitled to even greater justification for killing someone.  The first half of the law only allows killing if you believe great bodily harm or death to yourself or another is imminent.  In the home situation, the standard is only you think a felony will be committed.  A felony could be stealing something expensive from you.  That would justify killing someone in your home.

4.  Under this analysis, Mr. Pistorius looks like he may win.  However, the prosecution produced a neighbor as a witness—Michelle Burger who says she heard Ms. Steenkamp scream several times before Mr. Pistorius fired.  If this is true, he certainly can’t claim he continued to think the person in the bathroom was an intruder.

What do you think will be the outcome?

The post Is Oscar Pistorius Innocent?? appeared first on Colin T. Nelson.

The news media has covered this story in great detail and I won’t repeat the many things they’ve discussed.  Let’s focus, instead, on what self defense really means.

The concept of self defense is as old as any law on the books.  It makes sense that this should be the case since we all have an internal, instinctive feeling that we should be able to defend ourselves and our families and homes from aggression.  In the law, it means that even if you kill someone else, if you were acting in self defense, you may be found not guilty.  It doesn’t mean the jury would decide you didn’t kill someone; it means that you’d be excused from liability.

But the self defense statutes are more complicated than what we commonly think of them.

Most self defense laws state that force can be used to protect yourself but only if you feel that your death is imminent.  Even then, you have to use force only to the degree that a reasonable person would use to stop the aggression.  What does that mean?  If someone comes at me with a knife unless I feel he will actually stab and kill me with it, I can’t rely on self defense to excuse me if I shoot him to death.  If the aggressor is using fists, can I respond with a gun?  That’s the question the jury will decide in Florida.  Did Zimmerman feel that he was in imminent threat of death that would allow the use of a gun to protect himself?

There is also the duty to retreat in most self defense statutes which states the defendant has a duty to try and get away before killing the aggressor.  If you are cornered and unable to escape, self defense may be the only choice you have and if you feel your own death is imminent, you are justified in using force to repel the aggressor.

In my experience as a criminal lawyer and having tried dozens of trials, I know that juries take the law of self defense seriously.  It’s one of the strongest defenses available to us as citizens.  But I also caution you to not depend on the media to give you the full story about what’s going on in the case of George Zimmerman.  It’s not that the media mislead us, it’s just that they are confined to certain amount of time and space in their stories and so, leave out many critical details that the jury will hear about self defense.

For instance, early in the case, the media reported that  a witness for the prosecution, Ms. Rachel Jentel, had very damaging testimony against Mr. Zimmerman.  It made him look guilty.  When she actually testified, it revealed that the police had questioned her in the presence of Trayvon’s mother!!  As a former prosecutor, I can tell you this is a huge mistake on the part of the police since it obviously leads the witness to slant their story toward the victim.  Ms. Jentel should have been interviewed by herself in a neutral setting.

My point is that the evidence the jury hears is often much different than the news information we hear through the media.  Let’s wait and see what the jury decides.

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