In Self-Defense Podcast 138: Educating the Judge and the Jury in a Self- Defense Case

After more than 25 years in law enforcement, Doug Deaton became a consulting and testifying expert witness for defense attorneys and armed defenders in self-defense cases. True self-defense trials are relatively rare, and sometimes the prosecutor and judge – and especially the jury – aren’t aware of all the nuances of self-defense law. That’s when having a good consulting expert like Doug Deaton can make the difference.

 

 

TRANSCRIPT:

Educating the Judge and the Jury in a Self-Defense Case

Hey everybody. I’m Shawn Vincent. Thanks for joining us on the podcast today. I’ve got a treat for you today. We’ve got a fellow named Doug Deaton on the show. Doug has done podcasts with CCW Safe before, but we approached this conversation with specific attention on his role as an expert witness, a consulting witness, a testifying witness for criminal defense attorneys who are defending defenders who are accused in the wake of a self-defense shooting.

 

Doug spent more than 25 years in law enforcement. During that time he also served as a firefighter. He was on SWAT teams. He was an investigator for sensitive criminal issues, and he’s translated that experience into his role now. He runs his own consulting firm. He is sometimes a private investigator, and he works with lawyers, as we said, as a fantastic expert.

 

I’ve got to tell you from my perspective as a litigation consultant working on self-defense cases, who you have as an expert to consult the defense team, and then if they end up appearing before a judge and before a jury, the way they present themselves, the credibility and the experience they bring becomes super huge to the case. Doug has that as a treasure trove of experience, and when you hear him speak, you’ll know that if you were ever in trouble, you’d want him on your side.

 

Some of the things that we’re going to talk about today are the importance of as a defense team, running your own investigation, and having someone who knows law enforcement from the inside scrutinize the investigation of the homicide if you were an armed defender and involved in one.

 

There’s a conversation here about whether the accused should testify in the self-defense case. Don West, he’s CCW Safe’s national trial counsel, a criminal defense lawyer, he’s going to talk about how in a self-defense case often is assumed that the accused is going to testify because you have to make the argument that it wasn’t self-defense, but that’s not always a good idea. Doug works with defenders to advise the attorneys whether he thinks it’s a good idea for them to testify.

 

We’re also going to have a conversation about, we talk about this a lot, social media posts, things that you say in texts or messages about firearms and your attitudes towards self-defense. What you say can and will be used against you in a court of law. Doug’s been involved in some high-profile cases, including the Daniel Perry case, where that social media evidence, that prior statements and messages come back to haunt the defender at trial.

 

Then we’re going to wrap up this conversation talking about often it’s the choices you make before the choice to pull the trigger that can determine whether or not a self-defense moment, a justified use of self-defense is even necessary. Doug talks about this idea of a decision tree, cases he’s worked on where the defender when he pulled the trigger was certainly justified, had no choice but the defendant himself, but had made several decisions leading up to that that could have precluded the whole event from happening in the first place.

 

Doug’s got great insight into both before and after a self-defense incident, what armed defenders need to think about. Here’s my conversation with Doug Deaton. I want to give a special thanks to Steve Moses who brought Doug to the show today. Thanks, Steve. Here we go:

 

Shawn Vincent: 

Doug, I got to tell you, I think you are the first guest we’ve had on the show that has a Internet Movie Database profile.

 

Doug Deaton:

Right? Well, I’m far from famous, I can tell you that. The one movie I was in hasn’t even come out yet.

 

Shawn Vincent:

Okay, fair enough. But since you’ve had that involvement, one of the themes that we’ve been exploring lately is how innocent people or good people can end up going to jail for homicides when they maybe earnestly felt that they were in a self-defense scenario. As someone now who’s been involved with movies and firearms, tell me a little bit about how you feel firearms and self-defense is treated in motion pictures and on television.

 

Doug Deaton:

Well, just to be very frank, at the end of the day, it’s always Hollywood. It’s very, very rarely realistic in any way, shape or form. As we all know, I mean, movie cops are in multiple shootings and no one ever investigates them or no one ever stops them. And then the depiction of citizens using firearms in movies is usually, obviously we all know technically incorrect, just horrible tactics, techniques, and procedures. It’s not realistic at all. It’s all done obviously, for the illusion, for the image, but it’s certainly not realistic.

 

Shawn Vincent:

Do you find that armed defenders often get bad ideas or habits from what they see on television and the movies?

 

Doug Deaton:

I’m not sure if it’s often or not. I do believe though, that the American public, whether we believe it about ourselves or not, we often I think are probably subconsciously or unconsciously affected by what we see in the movies.

 

The reason I think that is just because of some of the classes that I’ve helped to teach, some of the concealed carry classes that I’ve helped with in the past and teaching people, teaching citizens who have no law enforcement or military background of any kind. When you see the way that they’re handling the firearm initially, it’s pretty obvious that they’ve been affected at least in some way by what they’ve seen on TV.

 

Shawn Vincent:

One of the cases that we’ve explored is the case of Dean Cummings, a guy who was involved in the self-defense shooting with a rifle. We get to see a little bit of the trial because some of it was live-streamed, and there was a part where the prosecutor had the rifle in evidence and wanted to demonstrate how the defendant was holding the rifle and pointing it at the person who he shot.

They didn’t want the defendant to do it, so they actually called a bailiff to hold the rifle. She wanted the guy to point the rifle at her like she was the defendant, and the bailiff was like, “I don’t think this is a really good idea.”

 

I tell this story because obviously it was not a good idea, and it illustrated that that prosecutor had absolutely no concept of firearm safety, I don’t think understood how firearms worked, and probably didn’t really understand self-defense law very well. I know Doug, I suspect that part of your role is to not just educate a jury or to inform a defense attorney on how things go, but also you talk about the prosecutors who don’t know what they don’t know, bringing them up to speed on what the reality of firearms and self-defense law is.

 

Doug Deaton:

Yes. That’s where oftentimes, for me anyway, my expert reports, my opinions that I write well prior to trial can be very helpful. Some of the reports that I’ve written have resulted in people being set free, I mean the charges being dropped and/or at least reduced, so for mitigation purposes.

 

But you’re exactly right. There are plenty of prosecutors out there who have absolutely no idea about how firearms work, and that’s fine. We can’t expect people to know everything about all things. I mean, there’s certainly many, many parts of the law that I have absolutely no idea about, and why would I? I’ve never worked in that particular field.

 

But that, in fact, is the role of an expert witness. It is to educate all parties involved, anyone who needs to know that information, and obviously the prosecutors are a big part of that audience. And so if you can get logical, solid information to those prosecutors, to those decision makers as early as possible, then you might be able to prevent going to trial at all. You might be able to get this thing resolved in three to six months instead of two to five years.

 

Don West:

I want to ask Doug a little bit in terms of his role as a consultant, and that is, does the defendant testify? There has to be evidence of self-defense. So if there is no evidence of self-defense, you probably have to put the accused on, but sometimes it’s a very difficult decision whether the accused testifies.

 

In a large percentage of criminal cases, the defendant does not testify because the claim is the state has failed to prove its case beyond a reasonable doubt. And that’s the end of the story. In a self-defense case, unless there’s affirmative evidence of self-defense, you don’t even get the instruction.

 

Also, Doug alluded to the idea, sometimes criminal defendants have other problems than the one that they’re facing in court. I think he’s being nice by saying a lot of the times there’ll be criminal records involved, there will be other sorts of problems they have if they take the stand because a criminal conviction might not be revealed to the jury unless they testify. And then you have to figure out the impact. Can you neutralize that? What’s the weighing process of the testimony versus the prejudice by revealing the prior record?

 

That’s a fascinating, fascinating process. I think that bottom line, in a self-defense case, you assume that the accused testifies unless there’s compelling reasons not to, whereas in a regular criminal defense case, it’s the opposite.

 

Shawn Vincent:

You assume they’re not going to testify.

 

Don West:

Unless there’s really good reasons to do so.

 

Shawn Vincent:

Have you had work, Doug, working with a defendant on their testimony?

 

Doug Deaton:

Well, so I have to be very cautious about moving into an area where it could be considered that I had perhaps coached a defendant because I can’t coach anybody else’s testimony, but I have had three separate occasions that I can think of right off the top of my head. I’ve had criminal defense attorneys ask me to interview their client in their presence for the purpose of determining if that defendant is going to be capable of intelligently testifying in front of a jury.

 

In those interviews, I’ve asked some pretty probing questions about their background, about their training. For example, in one case in a major Texas city, the defendant did have some formal training, and he also probably grossly overstated his tactical abilities and his shooting abilities. He also had some criminal background from some previous violent incidents, nothing firearms related, but still some minor assaultive type behavior, none of which had any real bearing on the facts of the case that he was the defendant in. But still, it just didn’t look good.

 

That’s probably one of the more stark examples. After we got done with that interview, then the attorney wanted to speak with me separately, and we had an extremely candid conversation about the client’s maturity level, about his self-image, frankly about his ego, and whether or not he would be able to get those things under control when he would be testifying in front of a jury.

My advice to the attorney on that one was that he would not be able to, that even though that particular defendant, did justifiably use deadly force, he would still just be an absolute train wreck in a courtroom and he could not help himself. He absolutely could not help himself from looking like an egotistical, self-aggrandizing fool. That’s a difficult decision that defense attorneys have to make. Obviously that’s not my decision to make. I asked him more questions.

 

Shawn Vincent:

Well, it’s not even the defense attorney’s decision to make. The client could hijack it right at the last moment when the judge asked if they want to talk.

 

Doug Deaton:

That’s a great point.

 

Shawn Vincent:

Don, tell me if you think it’s right, and Steve, on all the cases that we’ve looked at where technically we feel like the defender legally had the right to use deadly force, and when there’s a conviction, those close calls are often pushed over the edge by the defendant’s own words, whether to police after the incident or on social media before and after the event.

 

Doug, did you see in the news from last year that Arizona rancher, George Kelly, he actually wrote a novella that he self-published on Amazon that demonstrated a scenario very similar to the one that he’s being charged with.

 

Doug Deaton:

I was not aware he had written a novella, but that’s probably not going to ultimately prove to be helpful.

 

Shawn Vincent:

Yeah, exactly. I know you may not be able to mention it, but in the Perry case it was ultimately, I think we’ve decided a lot of his social media posts that did him in.

 

Doug Deaton:

Yes. That’s some of the public things I can talk about. That’s already come out in the media, and it was certainly available in the courtroom.

 

Don West:

I think what’s really interesting, Doug, about that is we were looking at this case, we were looking at it from a self-defense standpoint, from all of the typical assessment perspectives that we do when we look at this stuff. It can be awful but lawful, all that kind of stuff.

 

The Daniel Perry case looked pretty compelling from the little bit of information that we had early on that it was self-defense. The story was that he was not quite lost, but made a wrong turn. He was driving an Uber, he winds up in the middle of this protest, a guy approaches him probably in a reckless way handling his own firearm that winds up, at least from Daniel Perry’s perspective, being pointed at him in such a way that Daniel Perry being trained and armed, felt the need to respond to save himself.

 

That on its face looked pretty good. In fact, one of the early responses was this was a guy who was deserving of a pardon, he shouldn’t have been charged to start with. And then as the social media stuff came out, it put such a different spin and twist and frankly, a different taste in your mouth about what was actually going on, something a little bit like that.

 

What that I read anyway wasn’t directly focused on Perry commenting about what he did when he was pulling the trigger. It was all stuff floating around that, before and such. We have to be so cognizant of that.

 

Doug Deaton:

It was just reckless commentary. Yeah, keep in mind that at the time well prior to that shooting, there had been a great deal of activity in Austin, many protests, some of which were legal and some that were not, a lot of BLM activity. There’s no nice way to say it, but just some extreme radical activist type behavior going on there. A lot of people have strong opinions about that. Many of us do.

 

You mentioned earlier some things that are said in jest, the things that are not said in a serious manner. The problem arises though, is that when we make those kind of statements in a public forum, whether that’s in real life or whether it’s online, and then something sort of kind of similar to the scenario that we joke about or that we kind of sarcastically commented about comes to pass, where the fiction that we discussed a couple of weeks prior now becomes reality.

Unfortunately, many people, especially some of those radical activists that were on the side of the individual that he shot, they’re going to absolutely assume that that was a signal of intent, that the individual who posted that was hoping for just such a confrontation. Of course, reckless comments appear on both sides of these kinds of issues, but the problem is the reckless comments that occur when we are the ones who’ve been charged, those reckless comments that are made about us after the fact, those people will never be held accountable for those things.

And so if we post something foolish on social media saying something, words to the effect of somebody ought to shoot those, insert whatever group that is, and then through no fault of our own, we do actually end up in a shooting a few months later, well, when people say that we were out there hunting members of this group, then it’s very difficult to convince people otherwise.

 

Don West:

Well, especially if that person’s a prosecutor, right? I mean, especially if you give the prosecutor that kind of argument, you give them the opportunity to completely gut self-defense by characterizing you as a hunter or predator …

 

Doug Deaton:

Yes.

 

Don West:

… someone looking for trouble, anything that takes the jury’s mind away from the elements of the crime and the elements of self-defense. Once the prosecutor is successfully able to do that, then it’s a crapshoot what happens.

 

Shawn Vincent:

Well, and before that, even the investigation, because when the homicide investigation begins, because a deadly self-defense shooting is a homicide, then the investigators that look into it are going to get a disposition on the shooter. How much they believe them right up front can determine how the investigation goes forward. And you can prejudice it right off the bat by having easily discovered social media that makes you look like a jerk.

 

Doug Deaton:

That’s right. Shawn, it’s not just the things that we post on social media, it’s all of our previous behaviors that are in any way documented or that people are aware of. One case in particular that I worked on involved a farmer who had a enraged trespasser come onto his property and repeatedly refuse to leave the property. The farmer eventually obtained his Remington 870 shotgun chamber to shell, told the man to leave, and instead of leaving, the man became even more enraged and attacked him and tried to take the shotgun from him. And then they ended up in a life or death struggle over the shotgun.

 

Now, the point I’m trying to make, though, is that every single facet of our personal lives will be looked into. If there is anything in the past at all that the prosecution can use or that your detractors can use against you, they will use it. In that particular case, this same farmer years prior had a serious problem with trespassers and people entering a particular area of his farm. And he had gone down there one time prior with a shotgun and had ordered some teenagers to leave his property. They got a little mouthy and smarted off to him, and he escalated verbally, but he didn’t do anything wrong.

 

Still someone had called the police about it, and the police then had said, “Okay, whatever. He can do that. Stay off of his property.” But there’s still a written record of that. His name is still attached to it. And so now, years in the future, when he is absolutely forced to use deadly force to protect himself and his family, someone went and found that record. And then they attempted to use that incident as an example of, again, how this man was actively hunting people on his property, that he wanted to be involved in a life or death struggle, that he was a confrontational rage-aholic. That’s truly the kind of image that they tried to paint of this innocent man.

Anything that we’re involved in a public forum, again, whether it’s in the real world or on social media, just like your statements, can and will be used against us. Whether or not they will ultimately be successful, well, that’s really up to a fact finder, a jury to determine, but trust me, they’re going to attempt to use those tools against you.

 

Shawn Vincent:

And Steve, that might sound unfair to a lot of concealed carriers, but I know as a firearms trainer, I’ll be curious on your thought on this. I think when you choose to carry or you choose to arm yourself, that you take on a lot of responsibility. Would you say that as a concealed carrier, you’d change your behaviors because of that?

 

Steve Moses:

Yeah. I think you actually have to assume then that you need to set that bar way high. That is a lot of things that you might’ve otherwise considered doing if you weren’t armed, you don’t even do any of those things if you are armed.

 

Another thing, one of the things that was occurring to me as we were discussing this is there’s a lot of back and forth on Facebook, and mostly Facebook is the one I’m familiar with. One of the things that I make a diligent effort to do is that if I have a friend or somebody that posts something that others might take offensive or think that is racist or just anything that would paint me perhaps in a bad picture, not only do I not like those things, which I see people like, give the thumbs up, and all that stuff, the other thing is if I find somebody that blatantly does it, that’s just like, okay, I’m unfriending you.

 

Every time I run across somebody, I want to do that, just with the idea that if something happens down the road and they come back and they try to get into everything that I’ve ever posted, liked, whatever, that I’ve been seen as, okay, I don’t condone that kind of behavior, and actually I take positive action on my part to …

 

Shawn Vincent:

Disassociate yourself with it.

 

Steve Moses:

… eliminate that, disassociate myself with it. Sometimes I think it’s even more subtle than what we think in terms of what we post. I think we need to be very careful as to who our friends are, what our friends say, and anything that we may say that, oh, yeah, we like. I still see a lot of people that I know and many of them to which I respect, they post some stuff that I think someday is just going to possibly, as they say, bite them in the butt big time.

 

Shawn Vincent:

Steve, from your look into Doug’s background, were there anything that you wanted to talk to him about while we have him on the show today?

 

Steve Moses:

Well, I tell you what, one of the things that I was just super impressed because in addition to not only having all that experience as 25 years as a peace officer, supervisory roles, was actually on a SWAT team, just a lot of experiences, dealt with a lot of people, was the fact that Doug had a … I can’t remember exactly what the saying was, Doug, but it was something to the effect that every time that you have an interaction with someone, you are possibly giving them some control over your future. I just thought …

 

Shawn Vincent:

Yes, that’s good.

 

Steve Moses:

… oh my gosh, that sums it up so nicely. In many ways we may think that, okay, well, just having an exchange of words with someone that is doing something, they just cut you off in a line that you were waiting to check out at Walmart or they beat you to a parking spot or something, is just consider the fact that as soon as you approach them and have any kind of exchange with them, you have no control over what’s about to happen.

 

If something like that does happen, you either allowed yourself to get caught in that situation or you just couldn’t avoid it, then just breaking contact, moving away. Movement is just such a great tool for armed defenders. If there’s something going on that you have concerns about, then just get distance away from it.

 

In some instances, you may actually have to force that other person to break contact if indeed they are potentially violent, they’re manifesting, okay, this is somebody that could seriously injure me or kill me. Well then if I don’t have any other options, I can’t leave, I’m with my family, I have all these other things that prevents me from getting out of there, yeah, I’ll defend myself, but my objective is I want to break contact first, and second if I need to, I’ll force them to break contact. But ultimately, I do not want to have an exchange with this person, and I’ll get away from it just as fast as I can.

 

Shawn Vincent:

Yeah. Doug, how many of your cases, even when they were justified in using deadly force, do you realize that they could have prevented this whole thing if they had either just not gone there and they should have known better than to go there or had just walked on by or walked away?

 

Doug Deaton:

In the private sector, obviously since I left law enforcement, there’s been multiple cases I’ve been hired on where when you do sort of a root cause analysis of the incident, when you start with the shooting itself and then work backwards, the shooting is clearly justified. But as you work backwards in that chain of events, and I don’t want to use the word inevitably, and I’m just being very blunt here, more often than not, what I have seen is that there were multiple opportunities for that person to have made a different decision along that decision tree, and it would’ve had a radically different outcome.

 

One particular case that I was hired to look at in Waco, the man had absolutely no choice but to use deadly force, but there was probably five or six different horrible decisions that he made along the way. Had he just not made one of those decisions, any one of those five or six, then that causal chain would’ve been broken, and there never would’ve been a shooting to begin with. There wouldn’t have been a confrontation to begin with.

 

I use the word exceptionally probably too often, but that kind of situations is exceptionally common. I think that human beings, we have a remarkable capacity to lie to ourselves or to convince ourselves that our actions were absolutely necessary. And sometimes that’s true and correct, but many times if we are being honest with ourselves, we’ll have a serious conversation with ourself and realize, I don’t actually have to say something about this. Yes, I’m angry about it, and I’m justifiably angry, and he’s not a nice guy. He’s a jerk. And yeah, somebody probably does need to tell that guy to quit acting that way, but it doesn’t have to be me.

 

Even though I would really enjoy telling this guy what I think about him and what he’s doing wrong, I can tell you from a law enforcement experience, that kind of joy lasts about 10 to 15 seconds. And then you realize that other guy now has a vote about how this situation, how it’s going to develop, and ultimately how it’s going to end.

 

Steve, where I came up with that is, I mean, just hundreds of calls for service that I’ve been on as a police officer where when you get there, you realize this thing escalated out of control. Usually one of the parties really just wishes he could go home. And just, I never meant for this to happen. They’re often apologetic. They’re truly sorrowful, they’re embarrassed. They’re usually embarrassed. Decent people typically have a sense of shame and embarrassment.

 

And so these people will say, “I never meant for this to happen, and I really just want to go home.” As the responding officer, you have to tell them, “Well, I believe you. I believe you didn’t want it to happen, but now we’re here and it did happen, and now we’re going to have to work through this. So no, you don’t get to go home now. We’re going to have to figure this thing out.”

 

Shawn Vincent:

Sticks and stones may break my bones, but words may result in a deadly use of force incident.

 

Doug Deaton:

Yeah, they sure might. You just never know. Yeah, that’s something I picked up along the way in law enforcement, Steve. I just realized, man, if this guy, if Bob here had just not said anything to John over there, there wouldn’t have been a confrontation to begin with. And so then there would not have been an escalation to begin with.

 

A police friend of mine, a law enforcement colleague of mine, not at the same agency, told me a story about something he did off duty. He told me how embarrassed he was about it, but it’s a great example of why just best not to say anything. This is really kind of funny because this guy is a man’s man, is a cop, but he was at the opera with his wife. His wife was in the opera. So they’re at the opera, and now the show’s over and they’re trying to leave. Some guy is just standing there in the middle of the aisle, not moving, not doing anything, just standing there.

 

And my friend, very foolish, and he’s the one that told me the story, he said, “Very stupidly, Doug, I told the guy, ‘Hey, pick one side of the other, buddy. You can’t take it out of the middle.'” And this guy immediately spun around and face to face and began screaming at him as loud a voice as he could muster, saying the most foul things about him and his wife that you can imagine. And this is at the opera. This isn’t like some dollar movie theater. And he said …

 

Shawn Vincent:

Well, in fairness to that guy, he did have to just sit through an opera.

 

Doug Deaton:

That’s true, right. My buddy said, “Man, I just kept moving.” He said, “I kind of positioned my wife to the side away from me, and I just kept moving. I just wanted to make some distance.” He said, “And he kept following me. He followed me all the way out to the exit door screaming and yelling at me.” And he said, “I just kept telling him, ‘Don’t touch me, sir. I apologize. Stay away from me, sir.'” And he said he was eventually able to break contact.

 

But he said, “That was embarrassing, Doug. It was really embarrassing.” And he said, “I just never thought I would get a reaction like that out of somebody.” And he said, “I admit it. I shouldn’t have smarted off to the guy. Probably shouldn’t have said that. Probably should have just gone around him and moved on.” He said, “If I could do it all over again, I wouldn’t have said a word.”

 

Shawn Vincent:

But to Steve’s point, the movement saved him there because it’s actually more embarrassing to get in a fist fight or to shoot somebody at the opera than …

 

Doug Deaton:

Absolutely it is.

 

Shawn Vincent:

… have a verbal argument there.

 

Doug Deaton:

Yes. My buddy did the right thing. I mean, say out loud …

 

Shawn Vincent:

Yeah, I messed up.

 

Doug Deaton:

… don’t touch me.

 

Shawn Vincent:

I’m an idiot.

 

Doug Deaton:

I apologize. Yeah, stay away from me. Just say the words out loud because you need witnesses to hear those things.

 

Don West:

It’s unlikely, I think, that at an opera, it would result in a stabbing or a shooting because it’s the opera, but a lot of these encounters that you’re talking about don’t happen at the opera. It could happen at a Walmart, it could happen at a bank, it could happen in a parking lot or in a bar, and the outcome may have been completely different.

 

Shawn Vincent:

All right, my friends, that’s the podcast for today. Thanks for listening through to the end. I want to thank Steve Moses once again for inviting Doug to the show. Without Steve’s reputation in the industry, I don’t think we’d have half as many of the great guests we have. So thanks, Steve.

We got more cooking for you. Until then, everybody, be smart, stay safe, take care.