In Self Defense – Episode 101: The Curtis Reeves Trial Pt. 2

Don West joins Steve Moses and Shawn Vincent to talk about the consequences of a self-defense shooting – even when the defender is acquitted by a jury. s.

The Curtis Reeves Trial: Part 2

Hey everybody, it’s Shawn Vincent. Thanks for joining us, and listening to our podcast today. Today is going to be part two of our conversation about the Curtis Reeves trial. If you haven’t heard part one, I recommend you pop back and check that one out before you listen to our podcast today … might make a little bit more sense. But in case you don’t want to do that, you just want to plow through, I’m going to give you a little recap about the main points of the Curtis Reeves case, the shooting of Chad Oulson.

 

This shooting took place way back in 2014, it took eight years for this thing to get to trial. There was a self-defense immunity hearing. There were delays from COVID. Finally went to a jury in February of 2022, just a couple of months ago. And this case you might know it as “the popcorn shooting.” It took place in a movie theater in a little town called Wesley Chapel, which is north of Tampa, Florida.

 

And in this case, Curtis Reeves and his wife, Vivian went to see a showing of Lone Survivor. They’re going to be joined shortly by their son. Curtis Reeves, a retired law enforcement officer, had a long career. He had never been in trouble in his life with the law. I also want to mention, mention that Chris Reeves was in his 70s. Chad Oulson was a much younger man in his 40s. He was physically fit. He was there to see the movie with his wife as well.

 

When the theater darkened and the preview started playing. There’s always that little message to put your cell phone away. Chad Oulson didn’t regard that message. He had his cell phone out, the shining light, allegedly, he was texting the babysitter before the film started.

Curtis Reeves asked him to put the phone away, complained about it. Chad Oulson gave him a lippy response, didn’t comply. And Curtis Reeves ended up going to the theater manager to complain. Came back in, the phone was put away. He said, “Oh, if I knew you were putting the phone away, I wouldn’t have gone said the manager.” Chad Oulson didn’t like that. He responded in a way that was unkind. And eventually, he ended up standing up over his chair, leaning to the aisle behind him where Curtis Reeves was. He was explosive. He was visceral. His wife, put her hand on his chest to try to hold him back.

 

There’s some contention about whether Oulson threw his cell phone and struck Reeves in the head. Eventually, he grabbed the popcorn out of Reeve’s hands and threw it at him. Reeves, a licensed concealed carrier, was able to draw his pistol. He fired one shot that actually struck Oulson in his chest. The bullet went through Oulson’s wife’s hand, the hand, she was using on his chest to try to restrain him, and bring him back. One shot proved fatal, and it was investigated. Ultimately, Curtis Reeves was charged with second-degree murder, in this case.

You’re going to hear from our conversation today that Don West, National Trial Counsel for CCW Safe, and a venerated criminal defense attorney, along with Steve Moses, well-respected firearms instructor and CCW Safe contributor. We looked deeply into this case and agreed that it was a close call about whether Curtis Reeves would be convicted or found not guilty. There are a lot of things that contribute to the complexity of this case. Today, we’re going to continue the conversation we started with you guys a couple of weeks ago, we’re going to start with a conversation about the credibility of witness testimony.

There is some question about whether everyone who testified on behalf of the prosecution were being forthright compared to the statements that they had made eight years earlier. And we’re going to talk a little bit about the challenges of having family members testify on your behalf, because they’re obviously going to be biased. And the jury has to weigh whether what they’re saying is credible.

And here’s one thing I want you guys to think about is, there was a moment in this case where Curtis Reeves’ wife, Vivian, suggested that they just change seats to get away from this hothead who is yelling at him. And in every case that we look at – almost every case that we look at – there is a clear opportunity for the defender to leave the situation safely, without it building to deadly force. And sometimes that can be as simple as listening to our wives or to other people who have cooler heads. In the end, there’s a sense that Curtis Reeves wanted to win the argument, not understanding that the argument would escalate to violence, and that the final word would be a round from his pistol.

 

And before we wrap up this conversation, we’re going to talk a little bit … even though Reeves was acquitted, that’s not really a win. We say that you survive a criminal prosecution, you don’t win it. And there are numerous consequences that Reeves faced despite being found not guilty. And a good question here, there’s been a lot of conversation online, particularly, about this is a victory for gun rights, maybe not the perfect self-defense case to rest our hat with on that. We’ll talk to Steve about that.

 

And before we wrap up, we’ll talk a little bit about some of the evidence and the difficulty with the video evidence in this case, and why that wasn’t as clear as we might have wanted it to be. So we’ll get into it. This is my conversation with Don West, Steve Moses, wrapping up our discussion of the Curtis Reeves case.

Shawn Vincent:

I wanted to talk a bit more about something you mentioned there, Steve, about how some of the adverse witnesses to the defense seem to change their story. And what you’re referring to is there was a witness or two who, when they first gave statements, following the shooting in 2014, didn’t express any sentiment that Reeves was angry or having that impassioned response. But by the time they testified at trial, they seem to have changed their story to suggest that he was. So, Don, really the witnesses who would most speak to Reeves being in that state, where he might be guilty of second-degree murder, their credibility was shot right out from underneath them in cross-examination on their own statements from years before.

 

Don West:

Yeah, I think the primary purpose of cross-examination is to challenge the testimony by revealing any biases or prejudices, some aspect of this person’s life or experience or relationship to the case, or to people that would give them an agenda, a perspective or some reason to shape their testimony in one fashion or another. And then, of course, typical impeachment by inconsistent statements, as opposed to by revealing a bias or prejudice in, is that when people have made multiple statements, they are fair game to be challenged by any statement they’ve made previously, which is inconsistent with the statement that they made in court.

 

One, and I think what we’re seeing here is sort of the progression of some witnesses who made earlier statements that were either more favorable to the defense or at least less favorable to the prosecution. And when they were challenged, it appeared, I think, and I’ve heard some commentators say, that it was obvious they were trying to help the prosecutor. That they seemed to be favoring the state’s case, even though earlier statements were made that were much more neutral or even more defense-oriented.

So their bias was exposed, which certainly hurts anybody’s credibility. That’s why you really don’t want a family member being your only witness when you’re on trial, because the assumption is they would be biased in your favor. Well, any witness can have a bias, depending on how they view the case, how they view the role in it, what they think the outcome should be, that sort of stuff. And if a bias is revealed, they have less credibility, overall, than if they’re perceived as just saying it like it is, calling balls and strikes.

And then if they are further revealed to have made inconsistent statements, that’s huge, huge damage to the overall credibility of the witness. And then a jury in addition to having a bias revealed now has inconsistent statements that they have to reconcile. And one of the jury instructions that you talked about early on in our conversation today, Shawn, is the judge gives the juror’s instructions, whether there are inconsistent statements, whether the witness has been impeached, and they have the complete discretion to accept some, all, or none of a witness’s testimony, depending on how credible and reliable they think that testimony is.

I might point out, too, that because of the age of this case, remember it started with the incident back in 2014, and the final trial was eight years later in 2022, that there had been prior opportunities for most of these witnesses to have given prior statements under oath. They may not have all been recorded or subject to questioning, but some of them were by the other side.

So typically, the police would respond to a scene and take statements from those that have been identified as witnesses, or later from people that have later been revealed to be witnesses. And it’s often in a handwritten statement form that at the end of the process, the officer swears them in and they swear that it’s true.

Well, as the case proceeds, in Florida, especially, because it’s one of the handfuls of states in the country that allows discovery depositions in felony criminal cases. So these witnesses would’ve had to have sat for a deposition, or at least they would’ve had to have sat if the lawyers wanted them to, where the lawyers asked questions, the defense asking state witnesses, and vice versa with both sides participating. And then, of course, if there were ever any prior judicial hearings that would all be recorded.

 

Shawn Vincent:

Like stand-your-ground, self-defense immunity hearing?

 

Don West:

Exactly right. Self-defense immunity hearing-

 

Shawn Vincent:

Which they had in this case, in 2017.

 

Don West:

Where there would have been, yeah, evidence offered by these same witnesses, subject to cross-examination, and all of that stuff would have been available in transcript form, recording form, and available to the lawyers in 2022 when they had this trial. So this was well-plowed ground, I would suggest. And that witnesses that made inconsistent statements should have known it was coming. I mean, it’s pretty outrageous in some ways that there would be inconsistent statements. It almost either proves the bias in and of itself or suggests that they weren’t very well prepared knowing what was out there and what inevitably was coming.

 

Shawn Vincent:

Sure. And I’ve seen this happen before, and I think it happened in this case, that if you’ve got a state’s witness and you expose that bias, not only does that witness have no value for your case anymore, potentially, but they might end up pushing their weight over and benefiting the defense side of things. Because you’re going to give them negative credibility for that, and that helps the defense’s argument.

 

Don West:

Well, the one thing that’s consistent throughout the criminal justice system is that the burden of proof rests with the prosecutor. And if they fail, even by a little bit, to convince the jury of every element of the offense, or in this instance, failing to disprove every aspect of defense, beyond a reasonable doubt, then the proper lawful verdict is not guilty.

 

Shawn Vincent:

You said something earlier about how, like, when you measure the bias of a witness, and you mentioned specifically, family members make difficult witnesses for you as a defendant because they’re going to be biased towards you. That very truth is what I think made Curtis’ wife Vivian’s testimony so powerful. Because Curtis suggests that something was thrown at him, and that Chad was striking him, and his own wife, who was sitting next to him, who’s on his side, who would like to spend the rest of her life with her husband, said that she doesn’t remember him being struck by anything. She didn’t see him being hit by anything.

But what she did say was that, when Oulson stood up and started yelling and being aggressive, she was terrified. And I think in the context that she didn’t just blindly say these other things to support her husband’s claim of what happened, but that she spoke to the reasonableness that a person in their 70s would have of being terrified by this response. I think that carried a lot of weight. It did for me, if I were on that jury, I would’ve put an awful lot of weight on that testimony.

 

Don West:

I think that’s well said. And I think that’s a very good point, that, just because you are a relative family member, close friend, neighbor, whatever, that there might be some suspicion of bias, doesn’t disqualify you in any way from being a witness. It only makes it, perhaps, in the eyes of the jury, a little more suspicious, and they may be a little skeptical. But exactly for the reasons you’re talking about, when she was clear, she was clear. When she was uncertain, she allowed herself to be uncertain, and it resonated, I think. And that meant the jury probably had a good feeling about her testimony, and they didn’t discount what she said that she was confident of, because she wasn’t sure about some other things.

 

Knowing full well that she could have made something up, and no one could have done anything about it, except, she might not have sounded very believable. And I think the jury has a terrific BS detector. I think they’re all human beings. They live long lives. They deal with people day in, day out, and they have to make those assessments in their daily lives that they do as a juror, too. Just who do you believe? And do you believe them? And do you have a good feeling that they’re trying to tell you the truth, even if it’s not perfect?

 

Steve Moses:

I don’t think there’s any way that she would’ve been able to see him strike her, which I think she basically said she didn’t, for the very simple reason that she was seeing right next to Reeves, at such time, her husband that is, that Oulson came up and was behaving in such a scary fashion. I would imagine that 100 percent of her attention was on Oulson, and not so much that she was able to also even see her husband at that time. Because, typically, when we’re under risk, basically your field of vision just narrows and becomes very sharp, and very much so on what the potential danger is, kind of to the exclusion of everything else.

 

Now, they say, of course, that steals your peripheral vision, which is exactly why it does, and that’s why, when you’re under stress, it’s important to scan. But it seems very evident to me that, more than likely, he came up and she just fixated on him. Because he was not only a threat right then to her husband, he was potentially a threat to her too.

 

Shawn Vincent:

Sure. And in addition, the theater lights were off, and they actually had an expert testify to this, or they tried to get an expert to testify to this, where the screen was backlighting him. So he would’ve been just a massive silhouette to her, and a lot of that detail would’ve been lost.

But, Steve, there’s something you said earlier, I wanted to pick up on, and it has to do with another thing that Vivian testified to. And she said that immediately after the notice that you should turn your cell phones off, and the first exchange, before Reeves said, “I’m going to go talk to the manager,” She suggested, “Why don’t we just change seats?” And you talked about all the opportunities for this not to happen, isn’t that the most obvious one?

 

Steve Moses:

Absolutely. Absolutely. It’s definitely important to listen to your wife. And if your wife sometimes is kind of getting those little hinky feelings that something’s up, she may be more dialed into what a potential threat might be than you are. And guys, we tend to sometimes be, and sometimes it’s true for women, be somewhat dismissive. But if someone in your family says, “Hey, I want to move. Let’s just move.” I think it’s well worth following that recommendation unless there’s just some other reason that you can’t. And I believe that they decided, I’m not sure who made the decision, to remain in a place, because they’d made prior arrangements to meet their son in the movie. And I believe they wanted him to know roughly where their location was.

 

Shawn Vincent:

Yeah. And I just want to add on to that “listen to your wife thing” for all the fellows that are out there, because we’ve encountered this on more than one occasion. And I want to bring up the Charles Dorsey case. And this is the case where the next-door neighbor’s drunk house guests came around after midnight trying to get into what he thought was his buddy’s house. He had just made a mistake, because the houses looked very similar and shared a driveway. And there’s a Ring doorbell that recorded the audio of all these interactions. And you hear at one point, Chuck’s wife, Dorsey’s wife say, “Don’t go out there.” I think Mr. Dorsey was tempted, at a break in the conflict, to go out and investigate. And had that shooting occurred on the outside of the threshold of his door, and not after the stranger had broken in through the door, it would be a whole different assessment. He was of course never charged in that. And it was a justifiable shooting, I think because he listened to his wife.

And we talked about the Melinda Herman case, where her instinct was not to go charge and meet the intruder, she tried to hide from him. And when he had crossed the number of thresholds, she almost retreated too far, in fact, to her own detriment. But so far that it was never … She got praised by the local police for her bravery and not any suspicion of that.

Don, you and I talked about a case out of Cincinnati, Ohio, where a mother of several children was at home, and her estranged husband, who she had a restraining order against, came over and was trying to beat down the door and yelling through the windows. And she waited for him to actually yank the air conditioner, the indoor/outdoor window air conditioner, out of the socket, and as he was climbing through, she shot him. And she had waited until he crossed that threshold where it now is imminent and she had run out of options.

So a lot of the female armed defenders we have, tend to exercise a little bit more restraint or take that opportunity to avoid the situation. And I don’t want to be sexist or gender-specific really, because anyone can be this way, but it’s a funny trend that we see, right Don?

 

Don West:

Yeah. And I think what’s especially interesting too, in this context, is Curtis Reeves’ background. The idea that he’s been in charge for a long, long time, he’s used to having what he says, respected and obeyed. And in some ways, I have to think he wanted to win this interaction. He wanted Chad Oulson to put his damn phone away, and probably apologize for it. He was smart enough and careful enough to go to the manager, but not smart enough or careful enough to move. I don’t buy that story a 100%. It’s a pretty good explanation, but it’s not sufficient that they …

 

Shawn Vincent:

It’s an excuse.

 

Don West:

… could not have otherwise communicated with their son, if they moved a couple of rows away. I think, psychologically, he still wanted to win that interaction, in a respectful, lawful way, but his wife had a much better sense of this, probably, and not nearly as much interest in asserting themselves against this bully, against this irrational, against this volatile guy. And I wonder if that dynamic played a part in it, and that’s why, maybe, another person’s perspective that’s watching this thing unfold is something that really should be considered and respected. Regardless of whether it’s a spouse or a child or someone else that’s not actively engaged in it, and has no stake, no stake in the pride or the ego or really the outcome, other than being safe.

 

Steve Moses:

And to jump onto that, in terms of winning, I believe that he did say, before the manager came, “Oh, if I knew you were going to put away your cell phone, I wouldn’t have contacted the manager.” So had he just perhaps just kept his mouth shut, there may have never been a verbal confrontation between the two afterward.

 

Don West:

It’s so easy for us to second guess. And that’s what’s fun, and also, hopefully, a little bit useful. And we don’t know, but that’s exactly right, Steve. It was almost like he was making his point. That …

 

Steve Moses:

He made his point. Mm-hmm (affirmative).

 

Don West:

Mm-hmm (affirmative).

 

Shawn Vincent:

Well, we had that conversation with Gary Eastridge, who’s the critical response coordinator for CCW safe, former law enforcement, a homicide detective, and still gets involved in those things. And he said, “The whole business of law enforcement is second-guessing.” And if you shoot somebody, there are going to be a host of people who second guess your actions. It might be us on a podcast, but better for us than the prosecutor or a jury, frankly. And so it’s going to be second-guessed.

And in this case, Curtis Reeves admitted during his own testimony that he spent the last eight years, second-guessing everything that he did that day. So I don’t think we’re being unreasonable in our second-guessing of his actions. But that speaks to your point, the only person who was there was him. And the closest thing to that was his wife, and even the jury, who wasn’t there, was left with everyone’s word to decide.

 

Don West:

And here’s another example of a situation that maybe 99 times out of a 100 just gets resolved, and people go about their business and they watch the movie or what have you. But everyone in a while, the lid comes off, and something tragic like this happens. And to the extent that our listeners take value, that is, if you see it coming, if you get any sense that it could go like that, get away. Get away and put yourself in a safe position, de-escalate by removing yourself from the situation. And then it’s okay, then it’s fixed. And then you don’t have to worry about whether you’re dealing with somebody who’s unhinged or crazy or reacting to you for something that happened to them the night before.

You can’t control how somebody else responds to you, as much as you might hope you can, and as much as you may think you can. We see that in these road rage cases all the time, where each person’s assuming the other person will act in a proportionate reasonable way, as this thing goes on. And we know how many times a gun comes out, somebody gets shot, somebody gets pushed off the road. And pretty soon an interaction that could have been ignored or diffused becomes a tragedy.

 

Shawn Vincent:

Well, and let’s talk about the consequences of Curtis Reeves winning that argument. If there was any pride in winning the argument, before he had any real notion that it would become violent, before he could have predicted Chad Oulson’s really excessive response to his request to put the phone away. One, he didn’t get to see the movie and neither did anyone else in the auditorium that day. They all had to give statements. They all had to be subpoenaed for this thing. And then he was charged with murder, and the rest of his life, which are his retirement years are, are now shrouded in uncertainty. And he lives with the specter of going to prison for the rest of his life. Essentially, widowing his wife, while he rots in a jail cell, hangs there. And then this thing drags on for eight years, it’s three and a half years before he can even get to his self-defense immunity hearing. I think COVID, didn’t …

 

Don West:

He didn’t get out of jail right away either. The first judge assigned to the case denied bail. And he spent, I don’t know how long it was in jail. But his lawyers took an appeal of the bail issue, and wound up getting bail as a result of an appellate court action. So that had to have taken, I’m guessing without knowing more, weeks anyway, and you would think perhaps more. And then when he gets bail, he has an ankle monitor, right Shawn? So he’s got . ..

 

Shawn Vincent:

Yeah.

 

Don West:

… some sort of community supervision, which GPS based, no doubt, which means that even though he was free, in that sense, it wasn’t like he could go get on a cruise ship out of Tampa Bay and go over to Cancun for a weekend or any of that stuff. He is within clear geographical confines of the court, he’s monitored. He may be checking in with people.

 

He did have the monetary bail, and he’s paying lawyers. He’s paying a lot of lawyers, a lot of money over a long period of time to minimize his chance of spending the rest of his life in prison, no guarantee ever. And he never knew, until the moment the jury returned a verdict, which way it was going to go.

 

But we can talk a little bit about what that eight years must have been like, because we know there was an immunity hearing. We know there was discovery, and we know that the entire process, before he finally got his so-called day in court was eight years.

 

Shawn Vincent:

Well, and we know he did an interview with the Tampa Bay Times, I think, after the acquittal, and so did his wife. And his wife was talking about how, in the last couple of years after the immunity hearing failed for him, and they’re going through COVID and they’re waiting for trial, that he started making sure she understood everything about how the house worked, and how to do … He was preparing her to live without him, because he knew that was a very real possibility. And when you say, Don, right up to the last minute, while they were waiting for the jury to deliberate, he took his wedding ring off and gave it to his wife, so that she’d have it thinking that he was probably more likely than not to leave her that day in shackles to go spend the rest of his life in prison.

I mean, if you want to feel how visceral that is to decide, now it’s time for me to take my wedding ring off and give it to my wife, because I’m going to spend to rest of my life in prison, that’s a tough moment. And a nightmare, even if you are acquitted afterward. We talked one time about how you don’t, you don’t win a criminal prosecution, you survive it. And Curtis Reeves, I think survived an improbable acquittal, until I really looked into some of the nuances of the testimony, and a couple of things we didn’t talk about … We didn’t talk about how bad the police investigation was and how they mishandled evidence in this case, and couldn’t have known how poor some of the state’s witnesses would’ve been. We couldn’t have known how strong Reeves’ own testimony would’ve been and the testimony of his wife.

I think it was a real close call. And if Reeves hadn’t been such a long time law enforcement officer, who had demonstrated a very mild demeanor, if the state hadn’t overcharged it, if Chad Oulson wasn’t so explosive and unreasonable in his response, I mean, we’re talking about razor-thin nuances here that I think, ultimately, the jury just decided he wasn’t a bad enough guy to send a prison for this. But, Steve, this is not a Second Amendment rights celebration here, right? This is not a clean, shiny example of self-defense here, is it?

 

Steve Moses:

No, it’s not. And once again, I’ve seen on Facebook and some other media people celebrating this acquittal and making statements, “Well, you just can’t go around beating up old people now. So this is a win for people that conceal carry and are Second Amendment advocates.” And it’s really not. It’s very unfortunate circumstances, and of course, there’s more victims, really, than Reeves and his family, and that’s going to be the family of the Oulsons, by virtue of the actions that Oulson took. Basically, that his wife is now a widow, and I believe that he was texting a babysitter who was taking care of their daughter. So now that young lady, she doesn’t have a father. And so it’s a real tragedy on multiple counts, in my opinion.

 

Don West:

So many things that could have been done slightly differently that could have changed the jury’s perception of this case, could have changed the jury’s perception of the defendant, Curtis Reeves, may have modulated Oulson a little bit, may have emphasized some parts of the evidence more. The prosecutors could have taken a different tact. We think, though, we think that, as you said, Shawn, you survive a criminal prosecution, you don’t really win it. And once you’re involved you lose control over it, and you’re subject to the lawyers that you pick, you’re subject to the prosecutors that are assigned, you’re subject to the judge that’s assigned to the case.

 

And if everybody does their job well, and the evidence is presented fairly, and arguments are good and the jury instructions are correct, and the jurors do a good job of parsing out the evidence and resolving the conflicts of the evidence, and arriving at the true evidence, applying it to a proper explanation of the law, then you’ve got to a better than average chance of getting a proper verdict. But if any of that stuff goes wrong, the verdict could be consistent with the juror’s view of stuff, but maybe their view was skewed or maybe they were asked to consider something they shouldn’t have been considered.

If Curtis Reeves gets convicted, because the prosecutors made a mistake, or his lawyers made a mistake, or the judge made a mistake, he gets to appeal. But he spends the next couple of years in prison, while that appeal takes place, he doesn’t get out on bond while that appeal takes place, I don’t think. And then two years down the road, if he’s successful, he gets a new trial and gets to start over again.

Fortunately, for him, the jury found in his favor or they found against the prosecution more likely, and he doesn’t have to go through all of that process. But there’s no happy ending, I guess maybe that’s what you’re saying, Shawn. Even an acquittal is not really a happy ending, other than the fact that you’re going home instead of going to prison.

 

Shawn Vincent:

Only compared to the alternative, which wouldn’t exist, if you had happened to be able to preclude the shooting in the first place, to use one of Tom Givens words there. This is a case where, as a consultant, if a lawyer were to bring me this case and these facts, I’m going to say, “Technically, it’s not a justified shooting, that Reeves overreacted based upon all the evidence.” But as a self-defense advocate and as a passionate advocate for defendants, especially defendants in self-defense cases, the whole strength of this argument, to me, the whole play was that Curtis Reeves is a reasonably likable character. Chad Oulson displayed unbecoming behavior and is an unlikable character.

And that you really leverage into the disparity of force, Reeves’ old age and Oulson’s relative fitness, to get a compassion vote. We’re basically asking a jury in this to be so angry at Oulson for acting unreasonable and putting a guy who had been a law-abiding citizen and never got in trouble for 71 years, in the situation and where he would make that mistake, if indeed it was a mistake. That’s what we bet the whole thing on. And I think that’s kind of how it turned out, but that’s a scary bet to make, right?

 

Don West:

Yeah, that’s not one that I would choose. Because I agree with you, I think it could have gone either way. And I think the legal commentators thought that same. That those that were watching the trial in real-time and talking about it were very capable at pointing out how things might have been done differently or better, or the things that were done well and criticizing the process as one does as a commentator.

But I have to think that many of them were surprised at the verdict. And I have to think, Shawn, that you make maybe the best point of all, and the jury as human beings and peers look at these very difficult, challenging, tragic scenarios, and even if they don’t like the verdict, they want it to make sense. And under these circumstances, for the reasons that you articulated, it made sense to them.

 

Shawn Vincent:

Steve, and I’ll admit I was one of those commentators, that leading up to it, thought it was going to be an easy guilty verdict. And it wasn’t until I went through the day by day, the work that Andrew Branca did in dissecting it, and the stuff that some of the press did, who did a pretty good day by day analysis of the testimony, that I thought, okay, there’s some real room here. And now that I know more of the facts, that changes my opinion. And Steve, were you surprised by the verdict? And did going through all the testimony and the evidence affect your opinion of the case?

 

Steve Moses:

Well, I’m surprised by the verdict, but as I was reading Andrew’s narration of what was going on, which was outstanding if you ask me …

 

Shawn Vincent:

Yep, great analysis.

 

Steve Moses:

… and his bringing into view some of the errors that the state made in terms of presenting the case. In many ways, I think several of the witnesses, I think one of the lead detectives mishandled some of the evidence, I believe that kind of called into question, basically, everything that he had testified to. The fact that, in some instances, I believe Andrew said, the prosecutor or someone’s on the prosecutor’s team was actually unlikeable. All of these things, I’m going, okay, all these things factor in order to come up with a final verdict.

 

And so I look at this case and then I think going forward, wow, if I’m in a case like this, am I going to need the state to make a bunch of fumbles and do all this other stuff, or the investigation to be done poorly in order to convince a jury of my peers that I’m not guilty. And to me, that’s kind of frightening. Looking at it at the face, from the very beginning, I’m a little bit surprised that it turned out this way. But after reading what Andrew wrote and everything, that seemed to make more sense to me.

 

Shawn Vincent:

Don, is there anything else you really wanted to talk about in this conversation on this?

 

Don West:

I want to talk a little bit about the police handling of some of the evidence. And the reason I want to talk about it is because the defense lawyers talked a lot about it. So without trying to second guess them accepting the fact that they spent a lot of time pointing it out, and a lot of time talking about it in the closing arguments, they must have thought it was important. Important to the case, that somehow it helped them to point that out to the jury.

Now, of course, even those that were watching the trial minute by minute were not looking at the jurors. The jurors did not show up on the screen. You didn’t see their body language. You didn’t see their facial expressions. You didn’t see in any visceral sense what they may be responding to along the way. And as a trial lawyer, that’s important.

It’s important to watch how the jury receives evidence, your sense of how they are accepting or rejecting testimony along the way. And the defense lawyers are experienced, and my sense of it is they did that for a reason, a reason they thought must have helped their case. And the way it would’ve helped their case, I think, if you try to distill it to the real basics, is that because certain evidence was mishandled, it failed to preserve evidence that would have been helpful to Curtis Reeves. Pointing out, for example, that the phone, Chad Oulson’s phone, was found on the floor of the theater at Curtis Reeve’s feet becomes pretty important on the issue of whether Chad Oulson hit him, through the phone at him. Now, he could have dropped it. There could have been other explanations, but it was consistent with what Reeves had said about being struck with something.

I don’t think that the phone itself was handled properly. I don’t think the person who retrieved the was wearing gloves. I think there was no way to truly do a forensic examination of the exterior of the phone to see, for example, if Curtis Reeve’s DNA might have been on the phone. If Curtis Reeve’s DNA were on the phone, that kind of proves the point, doesn’t it? That he was struck with the phone, and it makes perfect sense. And it sort of puts a bow on that aspect of the case. Without having that evidence to even consider, the argument would be that the police’s failure to do everything they could have done in a capable, competent way may have prejudiced Curtis Reeves in his own case. And he should get the benefit of the doubt, not in some ways the absence of that evidence be held against him.

That’s just something that he didn’t have to help him, but he shouldn’t be as it shouldn’t be assumed that it’s somehow against him. And then there was sort of some head shaking, miscues of evidence being held out of the normal tradition of marking it, bagging it, and putting it in evidence. Some of it was held personally for a while, and stuff that just raised eyebrows about the overall handling, especially of the evidence.

And when you get to the point that the jury is being asked to conclude that the prosecution has proven its case beyond a reasonable doubt, and you have clear, articulable points to make where there could have been reliable, competent, admissible evidence favorable, but because of government’s involvement, failing to properly preserve it, and make it available for the jury, that the jury’s not getting the whole picture. And the last person that should be denied the benefit is the accused.

So I know that’s kind of a long, somewhat rambling way of understanding why it must have been important to the defense to point that stuff out, because they spent a lot of time on it. Whereas, the police handling of the evidence itself doesn’t really relate to the elements of self-defense that the prosecution would’ve had to have disproven, if you will. But in any event, I’m not going to second guess the lawyers, because what they did obviously was powerful, and it was effective because at the end of the day, the jury rendered their not guilty verdict.

Shawn Vincent:

Yeah. And Steve, like you were saying, when you’re making your self-defense decisions, you don’t think about whether or not a piece of evidence is going to be mishandled that would otherwise perhaps exonerate you or prove you justified, right? That’s not in your mind. You don’t think, am I going to have to decide if I can afford a video forensic expert to look at the grainy black and white video that doesn’t even show the guy who’s attacking me.

Don, that’s one thing I wanted to bring up, since we’re wrapping up and talking about evidence here, these days, if you’re in a public place, you’re probably on camera somewhere, and so many of these things happen and we have video to look at. But the video’s never great, and it never shows the action from the point of view of the defender. And it’s not always of all the crucial moments that play a part of it. And sometimes, some of the critical action is not even on frame. In this particular case, the camera that captured the shooting was motion-activated. And so it only come on when things had started already. Plus the theater’s dark, so it’s not great. And the frame of it is, you can see Curtis Reeves, but you can’t really see Chad Oulson. And so all you can see is like Reeves, responding to Oulson, and then the hand and the popcorn fly.

To talk about frame rates on video, you don’t even see the shot. They don’t really see a muzzle flash of the shot that lit up the whole theater, other witnesses said. So video is not the perfect eyewitness that you think it is. And sometimes video that you think might exonerate you, might not show enough of the story to prove the point.

 

Don West:

Got to put the evidence in its proper perspective, and the most compelling evidence, if you ask anyone, would be a video of what happened. But we know from our own experience, and this is a perfect example, that it’s not necessarily complete. It’s not necessarily from different angles. And that sometimes it’s even misleading, because of the things that you about, Shawn, that it may be motion-activated, or it may be so grainy that you’re seeing things that aren’t really there. That was some part of the Rittenhouse trial, was it not? At the very end of that, there was some very grainy video that was magnified so manyfold, where you were seeing things that weren’t necessarily there. And that became a highly controverted piece of evidence in the case.

And potentially prejudicial and misleading. And it was a struggle for the judge to decide whether the probative value of what little probative value there will was, was outweighed by the prejudice, and whether it should even be admitted at all. And, yes, this, this sort of thing that you’re talking about is not uncommon, and often results in expert testimony to explain the significance of the evidence that you would think would be self-explanatory. It’s pretty wild in that sense.

 

An interesting point, I thought, since we’re talking about, at least tangentially, experts, the expert for the prosecutor on use of force in the Drejka case was a defense witness in this case. So …

 

Shawn Vincent:

Oh, yeah?

 

Don West:

Yeah. I thought that was really kind out of an interesting turnabout that the fellow that testified on behalf of the state was actually a defense witness. There was a criminologist that testified in this case, we already talked about the expert about aging. And you would think that you could take a look at a 15-second video and make your decision, but I guess that’s why an event that takes 10 seconds to unfold can take 10 weeks to try.

 

Shawn Vincent:

Sure. And how many times did they watch that video? And you’re talking about experts, they had one expert, they kind of fought for a good portion of a day over whether to allow a demonstrative video to illustrate the backlighting phenomenon. What can a person see when they’re in the dark, and there’s a bright light behind them? Attesting to what visually did Reeves really have to make this threat assessment with? And in the end, some of this stuff, after hours of argument, not in front of the jury, the jury was out during that time, doesn’t get in. And so a huge amount of money probably spent on that expert, spent on the demonstrative aid that may or may not end up helping you at trial.

 

Don West:

And you have to do it all. If you’re representing an individual facing the rest of their life in prison, high a stakes case. You’ve got to take a run at it. You’ve got to do it all. And unfortunately, it can be subject to financial wherewithal. How much money do you have to spend? Now there’s a safety net in the criminal justice system. The public defender is appointed to people facing criminal charges, and they will provide lawyers and have some funds for experts and such. But if you’re going to be as thorough as these lawyers needed to be, to talk to as many experts, and no doubt, there were other experts that they may have consulted with that never wound up in court. Hundreds of thousands of dollars, I’m guessing, on the forensic side of stuff, because I heard one of the lawyers talking about the case may have cost a million dollars to defend.

And that doesn’t surprise me. You went on for eight years, there were multiple proceedings, and finally, a full-blown jury trial. A couple of lawyers, at least. Most serious cases will have a team. The team could consist of a couple of lawyers, but there may be investigators, forensic consultants, maybe litigation consultants, jury consultants. What you see in court at that moment is just the very tip of what it takes to prepare a case. And it can take years in the making. We’ve talked about that before. It’s highly unusual to get to trial in less than a year on a serious case. And this one was eight years in the making.

 

Steve Moses:

Hey, Shawn. One thing I might add is that it’s possible that a trained concealed carrier, in a like situation, could have avoided shooting him, or if it turned out that the attacker was truly intent on injuring or killing that concealed carrier, that they wouldn’t take the gun away from him. So what happened then is what we saw was we saw Oulson come over there and Reeves thought he’d been punched, but now we’ve talked before about basically being punched in the face or something like that is not necessarily cause for shooting another person. You have to have a reasonable belief that person is posing a lethal threat to you at that particular time.

So actually what we saw was we saw Reeves have to take that firearm and literally extend it almost to arm’s length below the eye line, and that’s when he shot Oulson. Now, that in and of itself is somewhat risky, because had that shot not taken Oulson down immediately, it’s possible that Oulson would’ve taken that gun away from him and killed him with that gun. And so we had a great podcast with Craig Douglas, he teaches the principles of an entangled gunfight, how to protect yourself from being knocked down or knocked out by, basically, forming, basically, a helmet with your arms and hands over your head.

And also, why the ability to be able to shoot a gun from retention is important, because basically, you don’t want that other person to take that away from you. So, again, just second and third guessing this, had he… was confident in his ability to withstand that, he didn’t feel immediate pressure, he was able to draw that handgun to retention and even display it as opposed to using it, this whole tragedy may have never occurred.

So I always kind of throw this out, not so much as, well, reeves should have known that, or everybody should know that, but these are things, this training and knowledge is out there available. And I really would encourage listeners concealed carriers to avail themselves of that knowledge because as we saw it, even with that not guilty verdict, Reeves’ life was probably hell for at least eight years.

 

Shawn Vincent:

All right, everybody, that’s the podcast for today. Thanks for listening through to the end. You may have heard Steve mention our conversation with Craig Douglas a couple of minutes back. That’s the next podcast in my buffer to edit, you’ll hear that soon. Until then be smart, stay safe, take care.