Well, I'll also say we've got our CCW Safe tumblers here, which we're going to give one of these away. We're just going to say the best comment, and it can be in an email form, it can be on Instagram, YouTube, Facebook, whatever. We're going to check the comments and we're going to pick one. We'll talk about it next week.
Stan Campbell (00:02:08):
Mike Darter (00:02:08):
We're going to send you out a Polar Camel CCW Safe tumbler.
Stan Campbell (00:02:15):
That's right. I love these.
Mike Darter (00:02:15):
Laser engraved. These are nice.
Stan Campbell (00:02:18):
Yeah. I represent every week. This is Michael's first time joining in, but I love this thing.
Mike Darter (00:02:23):
Last week you killed it with it, man. You got all the ratings.
Stan Campbell (00:02:27):
Mike Darter (00:02:28):
With your shiny nails.
Stan Campbell (00:02:31):
Mike Darter (00:02:32):
Let's get into the... what's going on new with you, Don?
Don West (00:02:37):
Well, we are... well, as you guys know, I spent some time with Andrew Branca, working on some stuff out at [Shot 00:02:50]. We're looking forward to how that's going to be sort of packaged and put out. I think it'll be some good material, some good talking points, and a good opportunity to introduce some of our members to Andrew.
Mike Darter (00:03:03):
Don West (00:03:04):
And vice versa. I think we work well together, we're complementary in our mission, and we're glad to see him partnering up with us.
Stan Campbell (00:03:13):
It's not too often that we find an attorney in our industry that is also aligned with de-escalation and avoidance. A lot of the stuff... and we send a lot of our members Andrew Branca's way, and we do some soft partnerships with his books and different material that he has as well. He is one that we actually do endorse, because he's aligned with our core values and the things that we actually do, and how Mike and I present information to our members on how to be their own risk managers, and how to avoid some of these deadly force incidents. Always be ready for the ambush, but you have to be ready to walk away as well.
Don West (00:03:57):
Mike Darter (00:03:58):
Stan Campbell (00:03:59):
Let's get right into it, Don. The Amber Guyger case, out of Dallas, you followed that pretty closely, correct?
Don West (00:04:08):
Yeah, I did. The incident was in the later summer, early fall of 2018. Then the trial was about a year later. It was by all accounts just a tragedy.
Stan Campbell (00:04:20):
Don West (00:04:22):
Amber Guyger had worked that day as a Dallas police officer. She had gone home at the end of a long shift, she went into what she believed to be her apartment and encountered a stranger there that she perceived to be an intruder. One thing led to another and she fired two shots, one of which turned out to be a fatal shot. Of course, where the tragedy began and then compounded ultimately into the death of a fellow named Botham Jean. Ultimately, her prosecution was that she went into the wrong apartment. She went into a place thinking it was hers, and in fact in turned out to be Mr. Jean's apartment. She made a critical mistake right from the very beginning.
Don West (00:05:09):
She was prosecuted. She was originally, I think, charged with manslaughter, and then the charges were increased by the grand jury to murder. She went to trail on a murder charge. A lot of people thought that maybe she would be... because she's a pretty sympathetic person, she's a career police officer. By all accounts a good person, and a capable police officer. A lot of people thought maybe the jury would convict her, if not acquit her, convict her of a lesser charge. In fact the jury verdict was for murder.
Stan Campbell (00:05:46):
Because you watched the case, and as a police officer, we always think about going into these encounters knowing that a split second decision could cost you either your life or the failure to do so, or send you to jail as well. We keep that in the back of our minds, but never have I thought about coming home and possibly dealing with an intruder or entering the wrong home. This case actually stuck out to a lot of us. Don in particular, you found this a very interesting case to start off with, but as you followed it... because I think you also tried to get down and sit inside the courthouse as well.
Don West (00:06:36):
I did. I was in Dallas at the time of the trial and I actually went to the courthouse, got inside, was never actually able to get in inside the courtroom because there was just no seats left. It turned out to be quite a small courtroom and with family and press and other interested people that had a priority, there just weren't enough seats.
Don West (00:06:57):
That day, I was outside among those in my position, that couldn't get in either, kind of waiting to see what was going on. Interestingly, you could actually hear what was going on or livestream what was going on, outside the courtroom, so you had an idea what was going on, but I was 15 feet away.
Stan Campbell (00:07:18):
If you had to defend her or just kind of outside looking in, what are the problems that her defense attorneys had with her case?
Don West (00:07:31):
We know that from having been involved in self defense cases basically our whole professional lives, that many times big cases turn on how little aspects or small facts are viewed. In this case there were some really huge facts that were clearly established, no doubt about it. Then there were some other things that were in dispute. How that all laid out, ultimately I think, gave the prosecutor an effective argument on this notions of reasonableness.
Stan Campbell (00:08:07):
Don West (00:08:08):
We have Amber Guyger going to the wrong place. The prosecutor pointed out that she should have known that she was not in her place. A little fact, that there was a different floor mat in front of the door. She should have known that wasn't her floor mat. It was a different floor. Now all these apartments sort of look the same. Also, she was able to gain entry into the apartment without using her key, so the door had been unlatched in some way that... this wasn't a situation where her key worked by accident.
Stan Campbell (00:08:43):
Don West (00:08:43):
She actually sort of pushed the door open, realized at that point that there was something that had gone on. She still didn't realize that it was not her apartment. She goes in, and then the prosecutor could argue, well, the furniture wasn't the same configuration. More indications that she should have known she was in the wrong place.
Don West (00:09:05):
Then, of course, the question of what happened actually inside the apartment. The testimony, as I recall, was that Mr. Jean was there kind of just hanging out in his own house, watching TV, had just gotten a bowl of ice cream, was sitting dow, maybe there was some music on, and was startled by Amber Guyger being in his place. He kind of gets up, and her testimony was, as I recall, that he came toward her. I think she said she told him to show his hands or something, but in his state, he came toward her and that's when she decided to discharge the firearm.
Don West (00:09:42):
As I mentioned earlier, she fired twice. Once shot apparently missed all together and the other shot him in the chest area, turned out to be fatal.
Stan Campbell (00:09:50):
Mike Darter (00:09:51):
I can say I... because I was in an apartment for a short time, and that happened to me twice.
Stan Campbell (00:09:59):
Mike Darter (00:09:59):
Yeah. When I... because it sounded like in that case, she had parked, she thought she had parked on one level.
Stan Campbell (00:10:06):
Her floor, mm-hmm (affirmative).
Mike Darter (00:10:07):
That's the way this apartment was that I had lived in for a short time, they had parking garage and you'd park on your level and walk in. Twice, I walked to the floor, the apartment underneath me, tried to put in my key, couldn't get it in. Looked at the door and I thought, I'm at the wrong floor.
Stan Campbell (00:10:26):
Mike Darter (00:10:27):
That's happened to me before.
Stan Campbell (00:10:28):
Mike Darter (00:10:29):
The other thing that I saw in this case, I think she had worked a 14 hour shift.
Stan Campbell (00:10:34):
Don West (00:10:35):
She was in full uniform, she still had her equipment belt on and radio. The prosecutor pointed out that the police department itself is just a few blocks away.
Mike Darter (00:10:45):
Mm-hmm (affirmative). Yeah.
Don West (00:10:47):
The prosecutor ultimately exploited the idea of with her training, with her knowledge of how these things can go bad, especially if there is, in fact, an intruder, why did she exercise the judgment that she did? Claiming that her decision to go in and confront whatever she believed to be inside was a bad decision. Was unreasonable, when she could have simply phoned for... radioed for backup.
Wasn't the thing that hung her was that they asked her what her intent was when she went in? She said her intent was to kill the guy.
Don West (00:11:23):
That's a brilliant point, Justin. As I commented before, sometimes big cases can turn on little facts or interpretations of little facts. She was on the stand, and the prosecutor was questioning her about what happened at the time that she shot him. Basically just said, "Were you trying to kill him? Did you intend to kill him?" She said yes. I thought that was a critical mistake. I still think it was a mistake on her part, in that she was on the stand, which is a really difficult thing to do. To testify in open court, subject to being cross examined, just the whole notion, being on television, all that stuff, is disconcerting.
Don West (00:12:11):
I do not believe, just on the other things I know about the case, that that was an accurate statement about what actually happened, but that's what she said. Then it's almost impossible to come back from that. The notion that she was trying to kill him contradicts all of her training. They aren't trained to kill somebody. Killing somebody may be the consequence of some use of lethal force, but it's not the objective. Hardly ever.
Mike Darter (00:12:39):
That's what I was going to say. That's a big point for law enforcement officers, or anybody conceal carrying. You never, if you're in a shooting, you never shoot to kill. You always shoot to negate the threat. That's the way we were trained.
Stan Campbell (00:12:53):
Mike Darter (00:12:54):
Therefore, that's the intent of any lethal action, is to negate the threat to you.
Mike Darter (00:13:03):
One of the points I was going to make, working a 14 hour shift, I don't know what time that was, but I worked midnights for quite a bit of my career, which was 9:00 at night to 7:00 in the morning. I worked second shift, which was 4:00 to 2:00. 4:00 in the afternoon to 2:00 in the morning. Then I worked some days. Third shift was always the worst.
Stan Campbell (00:13:29):
It really was.
Mike Darter (00:13:30):
When you get off of a late third shift and you get a DUI late, or you get on something where you have to be on, you have to take somebody to the hospital and you're stuck there. Coming home, you're... I remember coming home times where I was just totally out of it.
Don West (00:13:48):
Mike Darter (00:13:49):
I can, I guess what I'm saying is I can see, I can kind of see what happened, or what actually led up to this with somebody getting off a 14 hour shift, being tired, not alert to anything. Coming home, parking on the wrong deal, and then getting there. That's kind of where it stops for me, because if you got into a situation where a door was open, number one, you push... if I go home and I push a door open, and especially if I hear somebody inside, I'm probably going to immediately call 911.
Stan Campbell (00:14:33):
Mike Darter (00:14:33):
Post at that door, and try to wait until somebody gets there.
Don West (00:14:38):
There's a couple of other things, I think, relevant to this case and that discussion. First of all, she would have known, since she lived alone, that no one else was home. She wasn't... didn't need to go in to protect someone else.
Mike Darter (00:14:52):
Protect anyone else, yeah.
Stan Campbell (00:14:53):
Don West (00:14:53):
Apparently, she had a dog, and that she had boarded the dog-
Mike Darter (00:14:58):
Yeah. That's right, that's right.
Don West (00:14:59):
... Because she had been told that at some point in time, I never gathered or never figured out when that was, maintenance may be coming in. The dog was boarded to... so the prosecutor really made a lot of effort to point out all these things that happened that made her decision to go in and confront whatever it was that was in her apartment, on her own, unreasonable. Essentially creating the opportunity for a confrontation where she had other viable options. Just to wait outside, as Mike said. Just call 911. She could radio, there were people within seconds if not minutes.
Mike Darter (00:15:41):
Stan Campbell (00:15:41):
Yeah. When I watched it, too, like Mike said... and we talk about this all the time with our conceal carriers, it really is important, no matter who you are, if you're a police officer, which police officers should do it more often, but citizens should follow the same, if you find yourself in an incident, or an encounter that is not an ambush, where you don't have to act immediately to a threat, you always have to call for backup. I always say this for citizens as well. Back up is 911. I'm surprised that she didn't so that, like Mike brought attention to.
Stan Campbell (00:16:19):
It's so important as a citizen, get help on the way. Don't enter and clear a house if you don't have to. Make sure that if you know that you're safe outside, you don't know how many people could've been in there, it could have been more than one person and they could have actually... she could have been overcome. It's really important just to think about your safety overall. I know there's other circumstances with this particular case, but think about all cases in which... make cover your friend. Cover is your friend. Behind a wall, behind a car, whatever the case may be. That keeps you from having to react haphazardly or too early, because that becomes a problem sometimes and it comes up in court often. It gives you a chance to think as well. Get your thoughts together so that you don't move too quick and react like you should not.
Stan Campbell (00:17:15):
I was thinking about that case, too, because on the internet, it was a buzz, Don. I want to find out, do you feel that race played anything, or was it a factor in maybe them deciding to go with murder?
Don West (00:17:34):
I don't think so.
Stan Campbell (00:17:35):
Don West (00:17:35):
I think there were efforts made by representatives of Mr. Botham Jean's family to introduce the question of race in this.
Stan Campbell (00:17:46):
Don West (00:17:47):
I don't think thought that anyone believed that Ms. Guyger was motivated by some sort of racial prejudice.
Stan Campbell (00:17:54):
Don West (00:17:54):
I don't know that she even knew the race of the individual when she fired the shot. The prosecutor attempted to make something out of that during the trial though. There was some comments made on, I don't know if it was an email or something about, something to do with a Martin Luther King parade or some event. Really tried hard to make it look like she could have some prejudice aspect. I thought that completely was... backfired because she was well respected, well liked by members of the force of both races. She had a best friend that was a police officer, a very compelling, powerful individual who came in and spoke on her behalf, that was African American. I think that while there may have early on been some attempts to introduce race into it, I don't think, I have no reason to think whatsoever that the jury seriously considered that.
Mike Darter (00:18:55):
There wasn't anything else, right? I thought I remember something, there wasn't any other history between them as neighbors, right?
Don West (00:19:04):
No. I think that Ms. Guyger had only lived there two or three months maybe.
Mike Darter (00:19:10):
Don West (00:19:10):
She was pretty new in the building. I don't believe they had ever met. Certainly no history of any conflict or bad blood, or anything. That was just... she just went to the wrong apartment.
Stan Campbell (00:19:21):
Which is kind of strange because they even brought in the fact that... before they gather facts, it goes crazy on the internet. They talked about the possibility of them having an intimate relationship, like it was a ex-boyfriend or she did this in response to that.
Don West (00:19:42):
Well, there was an aspect, not as between Ms. Guyger and Mr. Jean, but there a little bit of sleaze, if you will, introduced into it because of her former partner. I think he and she had been lovers at some point. They still texted frequently. Justin, you may know more of those actual details.
She was texting him when she was walking into the building.
Don West (00:20:05):
Yeah, it was ongoing and they were using that as part of the distraction and failure to focus on what was...
She was texting him, as far as I understand it from when I followed the case.
Don West (00:20:15):
Maybe even after.
Don West (00:20:16):
Maybe even shortly after. Which reminds me, some points that the prosecutor made, that are good lessons for everyone to know, that's involved in a potentially lethal self defense scenario, is that her after incident conduct was also examined under the microscope. She was criticized for not rendering aid quickly enough, or enough aid. They even went so far as to say who had blood on their clothes and who didn't, because the responding officers clearly rendered more aid. Now, I think she did render aid. I don't think she was necessarily... I think she was confused. She still didn't know where she was. She was having detailed lengthy conversation with dispatch, trying to figure out what was going on. She did talk about losing her job, repeatedly. That was exploited as if her priorities were clearly in the wrong place.
What I took from the text and stuff that I saw, it looked like somebody knew they had made a mistake, their life was changed, and now they're dealing with this.
Don West (00:21:23):
This overwhelming thing, like I just really screwed up.
Mike Darter (00:21:28):
One of the things I was going to say, when you're in a shooting, there are just a rush of not only emotions, but also the physiological aspects we've talked about. It really is, coming from somebody who's actually been in one, it's very almost... it's confusing, it's almost like a out of body experience. It's almost like you're looking at... and it's just hard to explain. I think what I'm trying to say is, if you're involved in a shooting, things are not going to be right in your mind.
Mike Darter (00:22:12):
Things are not going to be right in your mind, you're not going to know what... you're not going to be able to recall certain things that led up to that, at that time. That's one thing we talked about with Alexis Artwohl, which she's got a new book out, we're going to be talking to her soon, but she talked about one of the biggest things with law enforcement is the intense second guessing. Knowing when not to do that, because a lot of times you don't know what happens. It happened, and it's human nature to justify yourself, so you fill in with what you think happened, to justify yourself, which can ultimately be damning in the long run, too. Especially if it's something that is against forensic evidence.
Stan Campbell (00:23:01):
Mike Darter (00:23:02):
One thing that I found really interesting in the case was the Texas Rangers got on one of the... the representative, I guess he was a lead investigator for the Texas Rangers, got on and they found her basically justified. He testified that, essentially, they didn't think she did anything wrong. Based on-
Don West (00:23:25):
Well, let me-
Mike Darter (00:23:25):
That was based on the perception, her perception of the-
That was my understanding, she, in her-
Don West (00:23:31):
Let me qualify that though, because you may have a clearer recollection of what actually played that I did. I'm aware of that determination by the use of force expert in a sense, but I believe that that opinion never went before the jury.
The reason it sticks in my mind is because after he testified, there was a big uproar online. There was a lot of people in the places I read, the forums and groups and things, that were really disappointed in the Texas Rangers as a entity, because they are always viewed, at least from the outside, people in Texas seem to have a real high regard for the Texas Rangers. They're generally the one who come in if there's a weird case, or there's any appearance of impropriety, the Rangers come in and they're kind of viewed as straight and narrow and they'll get to the truth. When that happened, that's what sticks in my mind about it. His testimony's online, I remember watching it on video. Word for word, it's available out there. That was just one thing that's-
Don West (00:24:39):
My confusion was I had, I thought that was in a motion in limine, that would have been outside the presence of the jury where the judge heard all that testimony, as did anybody else that was watching the livestream-
I don't know if the jury heard it then. It's possible they didn't.
Don West (00:24:53):
Then the judge ruled that it wasn't admissible.
Don West (00:24:56):
I don't know that for a fact. I know that process, or that scenario, happens frequently.
Don West (00:25:02):
We've had other cases. We were involved in cases where we've hired use of force experts who were prepared to offer an opinion on the ultimate issue, but then the testimony was challenged. The vehicle is a motion in limine, just to limit testimony. The judge then often hears that through a proffer. Basically hears what the testimony would be that the jury's going to hear, and then rules on its admissibility. That's pretty controversial. Lots of times judges will let in some of the evidence. Rarely all of it, because it gets to the ultimate opinion about the case and oftentimes not only will drastically limit the testimony, but will even exclude the witness.
Don West (00:25:47):
I apologize, I should know the answer to that, about whether it was before the jury or not. I suspect, knowing as this thing went, that it wasn't.
Speaker 5 (00:26:12):
Do you have an opinion about whether it was reasonable for Amber Guyger to have believed that she was in her apartment when she encountered the complaining witness?
Speaker 6 (00:26:15):
Yes, I do.
Speaker 5 (00:26:15):
What is that opinion?
Speaker 6 (00:26:15):
That she believed that there was burglar in her apartment.
Speaker 5 (00:26:15):
And that it was reasonable?
Speaker 6 (00:26:15):
Speaker 5 (00:26:15):
Do you have an opinion as to whether it was reasonable for Amber Guyger to perceive, based on the facts and circumstances, that from her standpoint, that the complaining witness was an intruder in her apartment?
Speaker 6 (00:26:27):
Speaker 5 (00:26:28):
And what is your opinion?
Speaker 6 (00:26:29):
That it was a reasonable perception.
Speaker 5 (00:26:32):
Do you have an opinion as to whether it was reasonable, based on the facts and circumstances, an ordinary and prudent person in Amber Guyger's position, for her to perceive that Botham Jean was a deadly threat?
Speaker 6 (00:26:48):
Mike Darter (00:26:50):
Yeah, I think that comes down to the perception at that time, which is common, you see common in shootings where people would say, "Well, how could that be?" As the detectives look at it as the perception at that time, from that person.
Stan Campbell (00:27:07):
It would be reasonable.
Don was right, the jury was not present when that was said.
Mike Darter (00:27:11):
He told the judge that and then I don't think the judge let that in. I can look. He said, let's see, "Stunning announcement by Texas Ranger David Armstrong, lead homicide investigator on the high profile case, came while he was under cross examination by an attorney for fired police office, Amber Guyger, but not while the jury was present in the courtroom."
Don West (00:27:36):
Yeah. I think ultimately that that testimony was not presented before the jury. Amber Guyger had good lawyers. They were experienced lawyers. We can question, how is it possible that she could say, "Yes, I intended to kill him," if she had good lawyers that certainly would have anticipated something around there. That's just the way trials go. There could have been lots of anticipation and preparation, or they could have just missed that specific issue.
Don West (00:28:07):
I'm giving her the benefit of the doubt, because I just don't believe, in a calm setting, that she would have answered that way. She may have, in fact, said that earlier and was stuck with it. Don't know that either, but in talking about those kinds of things that could make a difference in the whole case, that could have made a difference. It certainly could have made a difference between murder, and maybe manslaughter, and the jury's decision. The testimony there that was proffered from the Texas Ranger may very well have changed the outcome of the entire case if the jury believed him, thought he in fact was expert, more than they were. That's sort of the test, is it really a subject for which an expert's testimony is required, find him qualified as an expert, believe him. Could very well have, in a sense, deferred that final conclusion.
Mike Darter (00:29:03):
This is a case that is... another thing I was going to bring up earlier, we've seen this in multiple other cases where people are at the wrong residence, whether it be... but normally it's not the person... either conceal carrier or the person with the... in defense is at home and has somebody else there. I've seen this multiple times as a police officer, where people come home drunk to the wrong house.
Stan Campbell (00:29:35):
Mike Darter (00:29:36):
Bam, bam, banging on the door, trying to get in. We've seen it in some of the cases-
Stan Campbell (00:29:40):
That you guys worked up.
Mike Darter (00:29:42):
... that they worked up.
Don West (00:29:43):
That's right. Shawn and I have talked about some cases in the past-
Mike Darter (00:29:45):
We had the one guy who called in, who sent the email in that because of the Ted Wafer case, he didn't react. He stayed calm-
Don West (00:29:55):
Stan Campbell (00:29:55):
He stayed inside.
Mike Darter (00:29:57):
... Stayed inside. I think, wasn't it, he lived way out somewhere and it was a long period of time before law enforcement, it was 20 minutes or something.
Stan Campbell (00:30:06):
That possible intruder not only banged on the front door, he went around to the back door as well.
Mike Darter (00:30:13):
Yeah, trying to get in.
Stan Campbell (00:30:14):
The member did a great job of deescalating and holding his-
Mike Darter (00:30:18):
He was looking at him through the window.
Stan Campbell (00:30:20):
Oh, he was. Yeah.
Mike Darter (00:30:20):
That's something different. Usually if you have somebody come home drunk, banging on the door, once the find out they're at the wrong house-
Stan Campbell (00:30:28):
Correct. That guy was kind of weird.
Mike Darter (00:30:29):
Yeah. That had some different aspects to it.
Stan Campbell (00:30:35):
Don West (00:30:35):
Anybody could find themselves in that situation, as a home owner. Just some weird thing happens and some drunk guy, crazy guy, lost guy, Uber drops him off at the wrong place.
Mike Darter (00:30:48):
That's happened before. That's happened before.
Don West (00:30:49):
Shawn and I are going to explore several cases, variations of that scenario. We've been working on some articles and podcasts, so we're going to focus on some of the aspects of that with real world reported cases.
Stan Campbell (00:31:04):
Don West (00:31:05):
Try to identify the difference between those for which the shooting was considered justified, and others where the individual got charged.
Mike Darter (00:31:16):
Don West (00:31:16):
Not necessarily convicted yet, but charged anyway, from those that didn't. Then there's a couple of the ones we talk about where the cases aren't finished in the system yet, because that could take years, where we think that there was some critical mistakes in judgment.
Stan Campbell (00:31:35):
The good thing about that, and if you guys haven't, make sure you check our news section at ccwsafe.com, and the archives of their content. Their articles are great. You can have a lot of lesson learned from these articles. Going into the next step of not just presenting cases in which the victim shooter went to jail, now you're going to be introducing cases in which it was a successful outcome as well.
Don West (00:32:05):
Success, of course-
Stan Campbell (00:32:07):
Success, as in-
Don West (00:32:08):
Success meaning that you survived the first fight.
Stan Campbell (00:32:13):
Don West (00:32:13):
Now when you shoot somebody through a locked door, that's a little harder to justify.
Stan Campbell (00:32:20):
Totally different, correct.
Don West (00:32:21):
You survive that first fight meaning that you are, in fact attacked, or clearly there is a risk of this attack that would cause severe bodily harm or death, and you make it through that because you're not the one who died.
Stan Campbell (00:32:35):
Don West (00:32:35):
Then the second part of that process, we've called it the next fight and other things, where you're now facing investigation. Any time a shot is fired, police are going to come.
Stan Campbell (00:32:45):
Don West (00:32:45):
I just have never seen a case where they didn't bother if a shot was fired. Now, somebody displays a gun and nobody else is complaining, the so called victim isn't calling in, not all of those result in a formal investigation, but I've never seen a case where a shot was fired, police didn't respond.
We were talking earlier, something I'd like to get Don's input on was about how something basically... something early in the case, a statement usually, like for example Stephen Maddox talked for 12 hours without counsel and then the defense had to go back and kind of overcome some of those statements that he made. Basically it made the case harder.
Don West (00:33:32):
If there were other examples or if you want to go in to detail on the Maddox example, what are some things you've seen in your experience that people do, that make it harder for them down the line in their defense? Whether that's statements, actions, choices, whatever that is.
Don West (00:33:48):
Is there anything you can speak to on that?
Don West (00:33:52):
Yeah, I can talk about all of that, sort of in categories. What you're talking about is something that a specific individual did within the context of their own case that they thought was going to be helpful, which in fact turned out to create challenges for their counsel.
Don West (00:34:08):
The 30,000 foot view of lethal self defense cases is, I think, the most challenging are, all other things considered, let me also say we're talking about legitimate uses of deadly force. We're talking about innocent guy defenses where they have been attacked by someone, reasonably perceived all of that, used deadly force, and are now facing the prospect of being in the criminal justice system.
Don West (00:34:37):
From that viewpoint, I think the hardest cases are when someone shoots and kills someone that is considered to be an unarmed attacker. You've got that disparity of force, this disproportion of bringing a gun to a fist fight. Prosecutors immediately look more carefully at those than they would if it was clear both people had weapons, all other things being considered. That becomes complicated because the size, the capacity, the physical abilities, the age, all of that leading up to it and being evaluated during the event itself, is critically important.
Don West (00:35:18):
I've represented a number of individuals who shot and killed people that were unarmed, because they legitimately believed that if they didn't use lethal force, that they would be seriously harmed or killed. I can tell you that juries in the right case also agree that there are circumstances where the use of lethal force against an unarmed attacker is lawful. I know that legally is correct, and we also know that it can be attractive to jurors in the right case.
Don West (00:35:52):
Typically, what that would mean, I think, to the defender is you really want to be careful. You really want to know who you're dealing with. You want to do everything you can to buy yourself enough time that you have the opportunity to assess what this person's intent is, and what their capabilities are. You don't just pull your gun out and shoot somebody because they raised their hand at you, or because they're pissed. People who use the gun too quickly, that use it to win an argument, are the ones that go to jail first and foremost.
Don West (00:36:30):
That's an example from the big picture. Your point about statements, I think may be the next big thing. We suggest that if you are involved in a lethal self defense incident, especially, that when the police arrive that you of course identify yourself, you explain very, very briefly that you were attacked, that you had to use force to defend yourself, and very little more. You're cooperative, but you don't put yourself in the position of giving a full debriefing, a detailed recorded interview at that point, for lots of reasons.
Don West (00:37:07):
One of them is because of the trauma that you've just experienced. We know from Mike's comments, Stan's comments, and other experts like Dr. Artwohl, that people just aren't very good at being accurate. What they may say immediately following an incident isn't necessarily going to be reliable. I can tell you, the worst thing a lawyer can have to deal with is a statement that the prosecutor offers in the trial a year and a half later that is inconsistent with the testimony that your client is giving now, or inconsistent with some physical evidence that they didn't know about then. I think that's good, reliable advice. You have to be calm enough, and cool enough, and collected enough to know how much to say and when to stop. The easy thing is you want to be cooperative, but you don't want to give your formal interview then.
Don West (00:38:01):
The second reason, not only because you aren't going to necessarily be very good at it, is you don't have a lawyer at that point. You really don't want to put yourself in the middle of a criminal investigation without having the benefit of counsel. No police officer would do that.
Don West (00:38:20):
Another thing I think that's a big challenge in innocent guy or good guy self defense shootings, that makes the case difficult, that may not be under anyone's control, is the lack of forensic evidence. A lot of people think that the absence of evidence is evidence. Sometimes it is, but not what most people think. For example, if somebody says, "He touched the gun," and fingerprint analysts were not able to get any prints from the gun, they think he must be lying. There were no prints on the gun, but anybody who's worked a case knows there's a much greater chance there won't be prints, even if they touch it, than there is that you can connect the two.
Don West (00:39:07):
Just as the kinds of forensic evidence, like fingerprint evidence, DNA evidence, we now know that practically everything is recorded by somebody, somewhere, whether it's a Ring doorbell, or surveillance cameras and such. Getting that before it's destroyed, or identifying it while people may be able to hold on to it, knowing that it's relevant. One of the things that we suggest people do is if they know there's evidence out there that the police haven't collected, maybe point that out, too. If you're at a scene and you saw somebody run that way., you might want to simply say that, "The guy who attacked me ran off that way."
There's something that I think we should mention for what our service is, too. It's been demonstrated in a couple, several cases, where we actually send an investigator, boots on the ground, almost always within 24 hours. Part of his job is to get out there and find those videos and that evidence, and those witnesses before they disappear, and things like that. I think that's a huge thing that I want most people to know about what we do, is you can't put too much emphasis on the fact that you've got somebody there working for you within 24 hours, securing things that could make all the difference in your case., like you say, 18 months later.
Mike Darter (00:40:32):
Yeah, because that's the... to think that the police are going to get all the evidence, it's just not going to happen all the time.
Stan Campbell (00:40:40):
Don West (00:40:41):
We had a case, actually, where we weren't sure if the police collected all of the evidence, or photographed some critical locations where this thing unfolded, got a lawyer and the investigator you're talking about on the scene the next day, and actually talked with the police to be sure that he had documented that. They assured us that it had been, and we accepted that, but we were fully prepared to take those next steps to be sure that that evidence was documented before it rained, and before a year passed, and before all of a sudden it was a he said, she said.
Don West (00:41:19):
I can tell you, having tried a lot of cases, especially when the attacked is unarmed, that juries. Judges, prosecutors, police, are a little suspicious of that. They're a little suspicious of why a guy had to kill somebody that wasn't armed. The more forensic evidence, the more eye witness testimony, but frankly that's not all that reliable, typically. The more forensic evidence you have to prove the way that you said it unfolded, I think is critically important not to get arrested, perhaps. Not to get prosecuted, ultimately to get acquitted. That sounds a little backwards because the prosecutor has the burden of proof.
Stan Campbell (00:42:01):
Don West (00:42:01):
In every self defense case, after some evidence of self defense is offered, the prosecutor has to prove it wasn't self defense. I absolutely guarantee you, if you have evidence to show it was self defense, you want to put that in the record. You want your evidence to be as strong and as compelling as possible, that just makes that job harder for the prosecutor to disprove.
Don West (00:42:25):
If you have medical examiner testimony that corroborates your version of what happened, if you have photographs of your own injuries that shows that, yes, you were physically attacked, this guy meant business, and was physically able to kill you before you acted, all of that stuff is what makes the biggest difference at the end.
Mike Darter (00:42:46):
That's a good point we've talked about before, too. Don't let anybody clean you up until it's documented. If somebody asks if you're involved in something, and you have injuries, and they ask you if you want to go to the hospital, go to the hospital.
Stan Campbell (00:43:01):
Yeah, but make sure before they clean you up, you get some pictures and document. Also, to piggyback Justin's thought, we put a lot... I think it was about a year that we put in really planning how to really make this the best model in the industry. Not to say that our competitors and those in the industry won't do what they say they're going to do, they absolutely will, but the thing about us, when we decided to lean on our experience which was number one for us, over 75 years of collective law enforcement experience, then reaching out and making sure that we get the top lawyers also, who have over 35 years in working self defense cases, that we knew that there was another element that we wanted to push forward. That was the boots on the ground element.
Stan Campbell (00:43:50):
As police officers involved in shootings, or shooting incidents and being mostly supervising, Michael actually being in one, if you don't get that boots on the ground, the people there, those investigators seeking out that evidence, it kind of starts going backwards where Don was talking about the absence of evidence.
Stan Campbell (00:44:10):
To my point, when we have our critical response coordinators or the investigators, homicide guys that's working on your behalf, trying to locate evidence that might have been missed, and please understand, we always state this, we are not cop bashers, we love police officers, investigators. They do what they have to do, it's just they're also human, they sometime miss things. It's not they're trying to do anything against you, it's just that it's good for you to have a fresh set of eyes that's coming in on a different day and looking at the scene and seeing what might have been missed. Like Don said, the new Ring cameras on people's doors, and the person across the street. Or surveillance that might have been missed. We know the importance of this and that's why having the only company that has a true boots on the ground-
Mike Darter (00:45:02):
Stan Campbell (00:45:02):
... Response, it's critical to the case.
Mike Darter (00:45:05):
Don West (00:45:07):
Well, I think everyone is subject to this notion of confirmation bias. I'd love to hear Dr. Artwohl's take on that. Police officers in our daily lives, we are, no matter what we do, we have this tendency to get an idea about something, then either consciously, or mostly unconsciously, you look for those things that confirms what you thought it was, to the exclusion of other evidence sometimes, or information that had you looked at it objectively, may very well have completely changed your mind on the subject.
Stan Campbell (00:45:39):
That absolutely happened in the Maddox case, in which those officers and investigators, they just, in their mind, they had a dead body, a guy that said, "I did it." The quick answer is murder. Once you get that in your head as a policeman, especially younger policemen, because we run into that. A lot of younger... some of the older guys who have been through these cases, they know to set back and wait for all the evidence to come in, and the facts, and try to seek additional facts.
Don West (00:46:06):
That was a great example, because the track was laid out so clearly from everybody's perspective that was investigating the case, that they even ignored eye witnesses that had been identified. People that could have picked up the phone, and if they didn't get them the first time, you'd think you'd call back, right?
Stan Campbell (00:46:24):
Don West (00:46:24):
You'd do something to be sure that that wasn't important information that you had missed. The Maddox case is exactly that. It was critically important information. When our critical response guy was there and helped identify some of that video surveillance issue, and put people, and we hired experts to realize that the assumptions that law enforcement made about the sequence of events, when these two discreet attacks were, they accused Steve Maddox of lying about it. We proved that that was simply a function of them not knowing that the video systems weren't synchronized. As soon as you figure that stuff out, it changes everything. Absolutely everything.
Stan Campbell (00:47:03):
When I look at these cases, just from my perspective, I look at the importance of having a defense team. When you think about the team, because everybody thinks about the lawyers, absolutely, the quarterback is important. The person that you have in that position, saying what the play is, looking at the defense, or reverse, looking at your opponent, that person is key. Without those other players, because you could have the best lawyer ever and if you don't have the investigators, the expert witnesses, if you don't have those other key players, you can still lose the game, no matter how good this person is.
Stan Campbell (00:47:41):
That's the good thing about making sure we have the right... not looking for the cheapest guy to be your expert, or not putting the money that you should put in on the investigative portion of it, because sometime the lawyer can only go off of what's in front of him.
Don West (00:47:58):
That's right. You make a good point, though. Justin, what's another easy way for an innocent guy to get convicted, that's having the wrong lawyer. Not necessarily a bad lawyer, they may be a good lawyer at what they usually do, they may even be a very skilled criminal defense lawyer without much experience in self defense cases.
Don West (00:48:19):
We've talked all around how self defense cases are unique. They're really different than any other criminal case that I've ever tried. They require the insight to understand not just what happens at the scene, and how you are able to put the jury in the mind of the accused, seeing how this thing unfolds as he or she did, knowing the things that he or she did, having the past that he or she did, knowing what he or she knew about the attacker. All of that stuff, whether you learn it through social media or on the ground investigation, or prior contact between these individuals, all of that stuff becomes critically important in painting that picture for the jury so that the jury can decide at the end of the day, were the actions reasonable. They can only make a decision based upon what they have available from which to make that decision.
Don West (00:49:16):
I pride myself on helping this company find lawyers, to represent our members, that have had actual hands on self defense case experience, that have been there, done that. We... I don't, I wouldn't want to be represented by somebody that was getting on the job training when my life was at stake.
You're talking about attorneys. One thing, one question we get a lot, can you explain why it's preferable to choose local attorneys? Why don't you just go fly around to every case we have? What is the benefit of hiring local attorneys to handle the cases with your support?
Don West (00:49:55):
Sure. That's a very good question because I believe strongly in that, and that's the model that I've encouraged these guys to adopt. The focus of a lawyer getting involved in a, we'll talk bout lethal self defense shootings. There are less than lethal self defense shootings, things where no one's hurt at all, that are legitimately self defense, that require the same kind of response, but just not the full court press that a lethal self defense shooting.
Don West (00:50:24):
When you have a lawyer who works in the community, you have a lawyer who has a professional relationship, typically with law enforcement. They may very well have had a case with the same investigating detective, six months ago or six weeks ago or six years ago. They can size each other up. The lawyer knows whether this is a guy who's a straight shooter, or he's going to try to catch somebody at something. Likewise, the law enforcement would have a sense of understanding of who the lawyer is. Are they trustworthy? Are they well respected? Are they any good? A lot of cases are prosecuted in some way because of their anticipation of how the other side's going to dea with it.
Don West (00:51:07):
If you have a rock solid lawyer representing you, you're going to be treated with respect, maybe a little fear, because nobody wants to get caught with their thumb on the scale. They don't want to get caught lying, they don't want to have their reputations tarnished. You get a fair, more legitimate process. You may very well have had bond hearings, on serious cases, with the same judge that you get. The judge has a sense of you and your professionalism, and whether when you say this person is a strong, stellar member of the community, that they can believe that, that it's not just some phony statement made to help get a guy out of jail.
Don West (00:51:49):
Likewise, with the prosecutor. Lethal cases, murder cases, anyone, anything where a gun is fired and someone's facing a lengthy prison sentence, is going to draw the more senior prosecutors, sometimes career prosecutors. If the prosecutor knows the lawyer on the other side because they've had cases, just because you've been adversarial with the other side, in no way means they disrespect you or don't like you. In fact, a lot of times, if it's good head bashing, then you get more respect in the system.
Don West (00:52:24):
People want those involved to play by the rules. Play hard, don't cheat, play by the rules. I know that's a long winded way of saying that when you are representing somebody involved in a serious self defense case, if you have a lawyer who understands all of those dynamics, including the local politics, I think that is an advantage.
Stan Campbell (00:52:47):
Don West (00:52:47):
You Amy want to pair up with me. I'm happy to consult, I have consulted on cases just for strategy purposes and such. I want someone on the ground, who works there every day and is a well respected member of the leal community.
Stan Campbell (00:53:02):
You know, Don, speaking of lawyers, we've had a case in which we've worked it from just after the smoke, to the end of a murder trial. Our most recent case with deadly force, we also worked a case in which we use our resources to get ahead of it. Prior to a determination being made by a DA or prosecutor, we actually used our services and teamed up with an attorney. Can you talk about the importance of gathering all those things and possibly getting ahead of cases? We've done that on a few now.
Don West (00:53:37):
You talking about that lethal-
Stan Campbell (00:53:40):
Don West (00:53:41):
... Incident, not that long ago.
Stan Campbell (00:53:43):
Don West (00:53:44):
I think that case is a good example of the point that Justin was making about the value of having local competent counsel who knows that lay of the land.
Don West (00:53:58):
This was a lethal self defense shooting. We hired a lawyer who met with the member and was there onsite less than 24 hours. Now the investigator had already been there, the member had been cooperative, as we've discussed. "I'll help you, I'll tell you what you need to know, but I'd really like to have counsel." They respected that.
Stan Campbell (00:54:22):
Don West (00:54:23):
That was the end of that.
Don West (00:54:25):
Our lawyer meets with him, our lawyer happens to know the lead investigator from a case that they had worked not that long ago, and they had some immediate understanding and respect. The assessment was, the detective is experienced, he's hard, but he's fair. You don't jerk him around, he's going to be straight with you. That's really, really valuable information.
Don West (00:54:51):
The prosecutor may not have been known immediately but would within a few days, especially in a homicide. Then you can sort of assess how they handle these things. Do they get involved early? Do they sit back and wait? Do you have any concerns about how they might approach a certain kind of case?
Don West (00:55:08):
Well, that's a bit of background to a critical decision in this case. That was, law enforcement contacted the lawyer and said, "We would like to talk with your client. We have a few questions to ask." Now, keep in mind he hadn't really been debriefed fully at the beginning. "We have a few questions we want to ask. We'd like to clear some things up. Is that okay? Can we make that decision?" Most lawyers, certainly new lawyers, or lawyers that haven't really worked extensively in this field, I think would have said, "No. Hell no, you're not talking to my client. He has a fifth amendment right not to say anything, and he's not."
Stan Campbell (00:55:52):
Don West (00:55:53):
They would have to respect that, too. However, understanding that this was a critical stage of this case, that things had gone well so far, and all of those sort of inside information channels suggested they really weren't looking to jam him up, they really were probably looking, in fact, to get a few questions answered so they could make a charging decision. The lawyer decided to do that. They actually, a few days later, did a little sit down with the member. It was, of course, as all interviews should be presumed to be, recorded, but it wasn't an interrogation. It was clear from the beginning what they had said was, in fact, true. "We've got a few questions, we want to clear a few things up." That was the end of the case. It didn't happen right that second, but the member successfully answered questions, appropriately answered questions, had the benefit of counsel, it was professional context and setting. The necessary information was then relayed to the prosecutor, who then ultimately made the decision, no charges.
Don West (00:57:00):
Now, talk about the yin and yang of life, right? Here's a guy, had he been charged, would have been looking at life in prison.
Stan Campbell (00:57:09):
Don West (00:57:10):
Whether he ever got convicted is different, but the next two years of his life are like he's never seen before.
Stan Campbell (00:57:16):
Don West (00:57:17):
Even if the end of the day, like Stephen Maddox, he's acquitted.
Don West (00:57:20):
Through the proper application of resources, more importantly the understanding of how those resources should be applied, the influence when you have it, where to apply it, can make all the difference in the world, I think.
Mike Darter (00:57:34):
I think this is a great example of what we have, a lot of the questions that we have, "Can I use my own attorney?" Yes, you can use your own attorney, but they're going to have to be vetted by Don. Don has a very good understanding of what a case needs, specifically.
Mike Darter (00:57:51):
All these shootings are going to be different. There's no two cases that are going to be the same, and they have to be looked at that from every decision through the case, including the decision to hire the proper attorney.
Stan Campbell (00:58:06):
Absolutely. Then also, with Don, not just his experience. We lean on that. He leans on ours for certain things in reference to investigators of decisions. As far as working these types of cases, his reputation is also very important to us, and the reputation that he establishes with the lawyers.
Stan Campbell (00:58:27):
The last case that he was making references to, it was a holiday deadly force incident. Don was able to contact this attorney and get that person to work on a holiday. That's really, really big for us. That leans on his professionalism and the relationships that he establishes. That's just so key for us in the way that we do our business. We actually care, not saying no one else does, but we care about getting you that top notch response and resources within the first 48 hours, because it's key to how the rest of the case is going to go.
Mike Darter (00:59:04):
Stan Campbell (00:59:07):
Just thanks again, Don, for being who you are.
Don West (00:59:10):
I'm just glad to have connected up with you guys. I have liked what I saw from the very beginning. Now that I've been here, what, it's years now, right?
Mike Darter (00:59:17):
Stan Campbell (00:59:17):
It's been a couple of years now.
Don West (00:59:19):
It's been a while.
Stan Campbell (00:59:20):
It's The Don now.
Don West (00:59:21):
I continue to be impressed with the work you guys do, the commitment you have, the loyalty to the members.
Stan Campbell (00:59:28):
Don West (00:59:28):
That you say what you say, and then you do what you say.
Mike Darter (00:59:34):
Don West (00:59:35):
I did want to compliment your nails.
Stan Campbell (00:59:38):
Thank you, Don.
Mike Darter (00:59:39):
Mike Darter (00:59:41):
Thanks for joining us again. We're going on about an hour, a little over, so Don, thanks for coming in.
Don West (00:59:47):
Mike Darter (00:59:48):
Stay safe out there. Make some comments. Follow us on all our social media, YouTube, Instagram, Facebook. Put some comments on, send us emails, you might get one of these tumblers.
Stan Campbell (00:59:59):
Mike Darter (01:00:00):