Case Of The Week with Andrew Branca- When Stakes Aren’t Worth The Risk

When the Stakes Aren’t Worth the Risks:

Murder re-trial for man who confronted public urination

This case of the week involves the recent murder trial of a Texas man, Terry Thompson, who got into a barehanded fight with a drunk, John Hernandez, in a Denny’s parking lot. Thompson ended up choking Hernandez to death, and being tried on charges of murder, manslaughter, and criminally negligent homicide.  That trial ended days ago in a mistrial when the jury was unable to arrive at a unanimous verdict, and the prosecution has already announced his intent to re-try the case.

The facts of this case as reported by the media are that Thompson was having dinner at Denny’s with his wife and his teenage daughters, when he saw a staggering Hernandez urinating out in the parking lot. Thompson took it upon himself to confront Hernandez’ unpleasant behavior.  The case raises a number of interesting legal issues. (Also racial issues, because Thompson was white and Hernandez was black, but we’ll not discuss those here today.)

Lawful Conduct Can Lose You Self-Defense

Our first point is that it’s certainly true that Thompson was not acting unlawfully when he walked out of the Denny’s and told the Hernandez to stop peeing in plain view. That said, just because conduct may not be unlawful doesn’t mean it’s smart, nor that it’s likely to be productive.

Also, if otherwise lawful conduct predictably leads to or contributes to a fight, it might qualify as “provocation” for purposes of losing the element of innocence, and thus losing the legal defense of self-defense, despite the fact that the conduct is not itself unlawful. In many states, it is not necessary that conduct be unlawful in order for that conduct to qualify as sufficiently provocative to lose the element of innocence, a required element of a self-defense claim, and thus lose self-defense.

Make Sure the Stakes are Worth the Risks

Indeed, given that Thompson just experienced a full-blown murder trial, and the prosecutor has already committed to re-trying him again after the jury hung, I’d suggest that choosing to engage Hernandez, even lawfully, was rather counter-productive to the best interests of both Thompson and his family.

Remember: the moment you engage in a confrontation, you’ve immediately incurred two risks you weren’t incurring a moment before: a greater-than-zero risk of death, if you lose the physical fight, and a greater-than-zero risk of going to jail for the rest of your life, if you lose the legal fight.

Make sure that the stakes you’re fighting over are worth those risks. It’s hardly unpredictable that confronting someone as Thompson did the Hernandez in this case could likely lead to a physical confrontation, with all the risks we’ve just described. Was it worth it?

Don’t Be Surprised by Predictable Events

Next, instead of the drunken urinating Hernandez recognizing he was in the wrong after being chastised by Thompson, the Hernandez decided to take personal offense and engage with Thompson—again, totally predictable. The two men proceeded with what self-defense trainer Rory Miller refers to as “the monkey dance”: conduct involving escalating verbal hostilities, threatening physical posturing, chest bumping, fist clenching, and ultimately resulting in a thrown fist.

In this case it appears that Hernandez first punched Thompson, after which Thompson threw Hernandez to the ground, face-down, laid Hernandez’ back and wrapped his left arm around his neck. It was this arm around the neck that would choke Hernandez and ultimately lead to his death.

Disproportional Force Can Lose You Self-Defense

Setting aside the juvenile stupidity of engaging in a monkey dance, which we’ve already addressed, we now have a defendant who arguably is using deadly defensive force to neutralize a bare-handed attack (no weapons were ever displayed or found), and absent aggravating circumstances not apparently present in this case a bare-handed attack can generally be countered with only non-deadly defensive force.

Yet here Thompson managed to kill Hernandez by choking him for, purportedly, as long as 15 minutes, clearly an application of defensive force capable of causing death or serious bodily harm—that is, deadly defensive force. As such Thompson has arguably lost the element of proportionality, another required element of a self-defense claim, and lost self-defense.

What Resources Are Left for a Re-Trial?

I also wanted to point out a legal process issue I thought I’d share. First, this murder trial ended up in a mistrial because the jury could not unanimously agree on a verdict, although a supermajority were in favor of a not guilty verdict on all charges. Now, a hung jury is surely better than a conviction, no doubt about that, but the prosecution has the right to re-try Thompson once again.

Think to yourself what resources you would bring to bear to defend yourself in a murder trial, in which a conviction likely means life in prison without possibility of parole. Would you sell your motorcycle? Cash out your retirement fund? Sell your home? Your business?

I expect that most of us would expend pretty much every resource, to do everything you could to win that first trial. And what do you think is likely to be left, now, to fund a RE-trial? Probably not much.

You think it might be easier for a prosecution to win a guilty verdict now that he’s prosecuting a defendant who has been effectively stripped of the resources to mount an effective legal defense? You bet. And you can be sure the prosecutor knows this.

–Attorney Andrew F. Branca, Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.