Proof Positive: Always Ask for a Lawyer

The local public defender’s office recently hired me to act as an expert witness in two self-defense cases. For those unfamiliar, an expert witness is an individual who has knowledge on a subject “beyond the ken of a layperson.” My experience and training in law enforcement and diplomatic security and as a close-protection instructor in the military allow me to act as an expert in use-of-force and self-defense cases.

However, I only accept cases where I believe the defendant was in the right. I recently turned down a case where the defendant just happened to be in a car “playing on his phone” and didn’t notice the other occupants were planning a drive-by shooting at a rival gang member’s house. I kindly explained to the attorney that his defendant returning fire at someone his friends had just tried to murder is not self-defense.

The most important lesson I have learned from legitimate cases of self-defense is that lawyering up is always the best course of action. Anything you say can and likely will be used against you — even if you are in the right. I was involved in two separate self-defense cases with two very different outcomes; one of the defendants asked for a lawyer, and the other failed to do so.

Kurt’s Case

Kurt, a 70-year-old man, was accused of trying to murder his stepson during an argument. His 45-year-old stepson used methamphetamines and alcohol to control his schizophrenia. According to Kurt, his stepson was distraught over possibly going to jail after a court hearing the next day. He became enraged and attacked his mother, yelling that he intended to kill her.

Kurt grabbed his wife’s pistol, a .25-caliber automatic, and ordered his stepson out of the house. From a distance of less than 5 feet between them, his stepson lunged for the gun. Kurt fired five times but failed to stop him. During the ensuing struggle, Kurt and his wife were able to get the enraged stepson out of the house and onto the back porch. Kurt dropped the gun during the chaos, and the two men ended up in a tussle on the ground. Neighbors broke it up and separated them. Kurt recovered the pistol, went back into the house and called the police.

The police took Kurt into custody, and an ambulance rushed his stepson to the hospital. He suffered five wounds from .25-caliber FMJ bullets. Two of the bullets barely penetrated his skin. The most serious wound was to his left eye; a bullet went through it and into his sinus cavity. He reportedly spit the bullet out in the ambulance. (This is a shining example of why many people, me included, consider the .25 auto too small to be a reliable defensive caliber.)

The incident happened around midnight. Five hours later, detectives began to interview Kurt. He’s your typical older, blue-collar American. He firmly believes cops are the good guys and that it is his duty as a good citizen to cooperate with them. He never asked for a lawyer because he didn’t think he would need one. He only fired that pistol in a desperate effort to protect himself and his wife.

For an hour he answered every question as best he could, trying to be as helpful as possible. As the interrogation wore on, Kurt’s answers began to wander as he became more exhausted. He had been awake for nearly 24 hours, and detectives repeated the same questions. Kurt mostly gave the same answers, but there were some minor variations in how he phrased them. The detectives tried to get him to admit the shooting took place in the backyard, while his stepson was on the ground.

They bluntly asked Kurt, “Is it possible the shooting took place in the backyard and you just don’t remember it? Is it possible you just don’t remember?” At this point, the sleep-deprived old man replied, “Yeah.” The detectives immediately arrested Kurt. They wrote in their report that Kurt changed his initial answers and finally admitted it was “possible” the shooting took place in the backyard. He was charged with attempted murder.

Decades prior, Kurt was in another self-defense shooting and charged with murder. Under the belief that only guilty people need lawyers, he never hired one and instead “talked it out” with the district attorney. Facing life in prison if he were found guilty at trial, Kurt pled guilty to discharging a firearm inside city limits in exchange for the murder charge being dropped. He never served a day in prison but still had a felony conviction on his record. That prior conviction caused him to get charged with being a felon in possession of a firearm this time around.

I should note that I have gone up against one of the detectives who interviewed Kurt previously.¹ In that case, the detective committed multiple counts of perjury trying to get an arrest warrant approved.

Things got interesting at the grand jury proceedings. The detective who was present at the scene (not among those who interviewed Kurt) and the crime scene technicians testified that the physical evidence showed five shots (all the rounds in the magazine) were fired inside the kitchen. There was no evidence that any shots were fired in the backyard. The DA made the argument that the detective and CSI techs were wrong about where the shooting took place. He surmised that in the few minutes it took for the police to arrive, Kurt staged the scene to make it look like the shooting took place in the kitchen, even placing drops of the stepson’s blood on the floor and counter.

The only thing Kurt was guilty of was not getting a lawyer right away before he permitted the detectives to subject him to a grueling interview to coerce a confession out of him. At the time he pulled the trigger, Kurt faced an immediate and unavoidable threat of death or serious bodily injury.

Dave’s Case

Dave was a young man hanging out with some friends at an apartment complex. A friend of a friend showed up and started an argument. Dave and some of his buddies proceeded to leave, and the newcomer confronted them at the elevator. Fortunately, this building had cameras.

The two had words, and the newcomer kept trying to circle behind Dave. When the man tried to grab Dave’s crotch, Dave removed a pistol from his pocket and kept it at his side. The other man pulled his own pistol and struck Dave in the head with it but did not fire. Dave took a step back, and the other man fired shots at him. Dave returned fire. One round went through Dave’s hat, another into his leg. The attacker was also struck in the leg.

Fast forward a couple of hours. Dave is in a holding cell. The same detectives who interviewed Kurt are interviewing Dave. They start their interrogation by acting as though they are on his side. Yes, they could see how he felt threatened. The other guy was a major hothead and needed to be restrained in the hospital. The shooting totally looks justified. They just need him to fill in some details. What were the two arguing about? Did they know each other prior to that day?

To me it seemed as though the detectives were trying to establish that bad blood existed between the two men and that this was not a self-defense shooting but rather mutually agreed-upon combat.

Dave kept his story simple and repeated that the other guy tried to kill him. He never said he fired a gun. He never admitted to anything other than being there. When pressed, he said the magic words: “I want a lawyer.” The interview stopped. From what I saw on the security video, it was a justified shooting.

Don’t Throw Them a Bone

Legal proceedings take on a life of their own, and there is no way to predict how they might end. We have a legal system in the United States, but it’s not necessarily a justice system. Kurt spent nearly a year and a half in jail awaiting trial. He refused all plea offers, which were getting more and more favorable. Kurt maintained his innocence and said he didn’t do anything wrong, so he wasn’t going to plead guilty to anything. In plea negotiations, the DA kept bringing up Kurt changing his answers during the interrogation and “admitting” the shooting took place in the backyard as reasons he was going to take the case to trial. The DA’s success hinged on the statements Kurt made without a lawyer present.

The day before jury selection, the DA offered one final plea deal: Kurt could plead nolo contendere (no contest) to a misdemeanor and receive a sentence of time already served. By offering a nolo plea, Kurt wouldn’t have to plead guilty. With his options limited, he took the deal.

Dave also had a prior felony conviction on his record. The camera recorded him pulling a pistol out of his pocket. I was certain he would be convicted on the felon-in-possession charge but was confident he would beat the other charges at trial. After reading my report, the DA agreed with me. He offered to drop the attempted murder and first-degree assault with a firearm charge if Dave pled guilty to the weapon-possession charge. Dave agreed.

Legal proceedings take on a life of their own, and there is no way to predict how they might end. We have a legal system in the United States, but it’s not necessarily a justice system.

These two cases perfectly illustrate the difference between asking for a lawyer versus answering questions without one. Every bit of probable cause used to arrest Kurt came from statements he made without a lawyer. Probable cause is a much lower bar to reach than beyond a reasonable doubt (which is the standard for guilt in criminal court). Without those statements, Kurt might never have been arrested — and had he talked with a lawyer 20 years ago instead of talking with the DA, he may never have had that conviction in the first place. Dave invoked his right to a lawyer and didn’t make any statements that could be twisted, taken out of context or used as probable cause. The prosecutor in Dave’s case was willing to drop the attempted murder charge almost immediately because he didn’t have any evidence, bogus or otherwise.

Defend Yourself

We all want to believe that if we follow the law and never act with malice that the police and legal system will look favorably on us. Some people truly believe only the guilty will ask for a lawyer. However, I have seen too many people get in trouble because of statements made without a lawyer present. I have seen police and DAs file charges not because they thought a person was truly guilty but rather because they could (and the defendant would probably be forced to plead to something to salvage his or her life). I would rather ask for a lawyer and have people think I was guilty than naively talk with the police and end up behind bars for a crime I did not commit.

Endnotes

[1] Schuyler P. Robertson, “Fantasy Land: Dealing With the Aftermath,” USCCA Firearms & Self-Defense Blog (blog), Jan. 23, 2019, USConcealed-Carry.com/blog/fantasy-land-dealing-with-the-aftermath.