At the Discretion of the Prosecutor

A change in Ohio law illustrates the broad discretion of prosecutors in self-defense shootings.

Joshua Walker and Aaron Mason had a history of bad blood, according to Cuyahoga County prosecutors. On the night of October 25, 2017, both men went to the Westender Tavern, a dive bar in Cleveland, Ohio. Walker sat at the bar, on the stool closest to the front door. Mason sat in the back, at a table with a friend. Security camera footage shows Mason, approach Walker.

“You’ll see him kind of stare at Mr. Walker,” says assistant Cuyahoga County prosecutor Andrew Santoli, “and then approach, punch him, start punching him a few times.” The video shows Mason violently sucker-punch Walker, and within seconds, the fight spills out the front door of the bar.

The camera covering the front door shows Walker stumble backwards onto the sidewalk. There’s a glimpse of a gun in Walker’s right hand as he falls to the ground. “Mr. Mason’s on top of Mr. Walker,” Santoli says. “Mr. Walker is brandishing a firearm and shoots him while he’s on top.” Witnesses say they heard three shots. Two struck Mason. He died later of his wounds.

Once Walker, a previously convicted felon, struggled loose from his attacker, he fled the scene, and then he kept on running. Law enforcement caught up with him a month later — in Phoenix, Arizona. Authorities extradited Walker back to Ohio where prosecutors charged him with murder.

Although Walker’s act of fleeing the scene could be used as consciousness of guilt evidence, the surveillance video seems to show a case of clear-cut self-defense. “Virtually all the critical moments are on video,” says Don West, criminal defense attorney and National Trial Counsel for CCW Safe. “No one can dispute that Walker was attacked, Mason had the better of him, and that Walker was on the ground trying to fight as this other man was on top of him.”

Why then, was Walker charged?

Don West explains, “Up until recently, Ohio was an outlier on self-defense law . . . the only state in the country where you had to prove that you weren’t at fault, that you were defending yourself, and you had the burden of persuasion. The prosecutor could basically sit back and convince the jury that you didn’t carry the weight of the evidence.”

With the burden of proof on the defendant, the Cuyahoga County Prosecutor’s Office clearly felt they could get a conviction at trial. However, before Walker was to face a jury, Ohio lawmakers changed the law, putting Ohio more in line with the other 49 states by requiring the prosecutor to disprove self-defense. The new law would take effect on Thursday, March 28, 2019. Trial was to begin on Monday, March 25.

“One day, Joshua Walker would have to prove that he’s innocent,” Don West says, “the next day, the prosecutor would have to convince the jury that it wasn’t self-defense.” Before trial began, the judge indicated that he would be applying the new law to Walker’s trail. Prosecutors quickly dropped the charges.

“It became readily apparent to our office that we wouldn’t be able to go forward on this case,” assistant prosecutor Santoli says, “not only based on the new law, but based on the video that this was a self-defense case.”

It seems, from this statement, that the prosecutor’s office admits that the undisputed facts in the video clearly suggest self-defense — but that video wasn’t new evidence; they’d had it for nearly a year and a half. The only thing that changed is that one day they thought they could get a conviction, and the next day they thought they couldn’t.

The lesson for the concealed carrier is that prosecutors have very broad discretion when it comes to charging in self-defense cases, and they don’t look just at the shooting itself; they consider what happens before and after, and they consider the character of the shooter. Walker had a criminal record, and he fled the scene. “Walker was his own worst enemy,” Don West says. Prosecutors didn’t like him, and despite the video, they were content to move forward with the prosecution as long as the law allowed it.

Most prosecutors are ethical people who believe they are holding bad guys accountable for their misdeeds. But every criminal defense attorney knows that some prosecutors can be overzealous. Don West says, “Sometimes I wonder how prosecutors can convince themselves that they can still go forward in good faith when they take a cold hard look at the facts.”

As a concealed carrier, don’t be your own worst enemy. Don’t give prosecutors a reason to abuse their discretion. If you behave responsibly before and after a use of force event, prosecutors may be more inclined to see things your way. If you behave irresponsibly, you can turn prosecutors against you, especially if they feel they can use your actions against you at trial.

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