In Self Defense – Episode 107: Post Incident Actions Pt.3

Steve Moses joins Don West and Shawn Vincent to talk about what to say and what not to say in the wake of a self-defense shooting and how social media comments can come back to haunt you.

 

 

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Shawn Vincent:

Hey everybody, thanks for listening. This is Shawn Vincent. Our podcast today is the third and final installment of my recent conversation with Don West and Steve Moses. Don West is National Trial Counsel for CCW Safe, a veteran criminal defense attorney. Steve Moses is a CCW Safe contributor and well-regarded firearms instructor.

We have been talking these last two weeks about this list that the CCW Safe founders and some of the law enforcement experts they’ve got on staff have put together to describe the top 10 considerations that an armed defender should have in the wake of a self-defense shooting. This list is not comprehensive and is not definitive. It’s just a list of really good points … things that as an armed defender, you should have in your mind, should you ever, unfortunately, be forced to use your firearm in self-defense.

We’ve covered a lot of ground. If you haven’t heard those episodes, the last two episodes, I suggest you pop back and listen to them. But you don’t have to do that for today’s conversation to make sense. Because we’re wrapping up this conversation this podcast is going to be a little bit shorter than usual. So if you’re anything like me and you listen to your podcasts while you’re exercising, you’re in luck. You can cut your workout a little bit short today, about half an hour or so.

We’re going to start our conversation by talking about something that people don’t think about. And that’s, if you have any injuries, you need to get those reported to responding officers and documented because they’re going to become important during the investigation. And God forbid during the criminal defense, should you get to that point. And we’re going to end our conversation about the importance of managing the information around the case.

And this includes the type of conversations you have on social media about firearms and self-defense, and certainly the types of engagements that you have following a self-defense incident, including anything that happens online. Our best advice – the best thing is just to shut down your online presence and stop talking online, because anything you say can and will be used against you in a court of law.

In the course of our conversation, we’re going to make reference to the Stephen Maddox case. Stephen Maddox is a CCW Safe member. CCW Safe had his back, supported him, and got him all the way through trial to an acquittal. And Steve’s very outspoken about his experience. He has specifically even us permission to talk about his case so that you can learn the lessons from his experience. So here is my conversation with Steve Moses and Don West, finishing up our chat about post-incident actions. Thanks for listening.

Shawn Vincent:

The next on the list though, is informing the responding officers about any injuries that you have. So if you have been attacked, you’re going to have some evidence of that physical attack and in the end, self-defense is justified, use of deadly force is justified only when you’re facing, you have a belief of imminent, great bodily harm or death. And if you have injuries at all, those are probably more likely than not going to support your claim that you feared that those injuries would become worse and that you were in physical contact with somebody.

And there’s no time – there’s no time that those injuries are more demonstratively present than immediately after the fact. And if you’re not diagnosed with those injuries, they don’t carry nearly as much weight as evidence after the fact. And Don, you and I worked on a case where the evidence that showed how bloody our guy was immediately after the fact wasn’t shown to us for months. And he actually declined some medical treatment that he could have had, which probably would’ve helped the case.

Don West:

I think the rule is if there’s any kind of contact that you’ve had that could have resulted in an injury, even if the full effect isn’t felt at the moment, that you should request medical attention. Don’t be the tough guy, the macho guy, and say, “No, I’m fine. I’m fine.” You might be bleeding at that, like you say, we’ve had cases where people are bleeding and they say, “Nah, I don’t need any medical attention.” Well, there’s much more value to the case than just whether or not you need a stitch or a bandaid.

It is clear proof that you had physical contact. That you were injured as a result of this contact. And while legally you don’t have to be injured in order to act in lawful self-defense, the fact that you were injured means there was contact. That there was physical force applied to you in some fashion. And even if the injury is relatively minor, if it is consistent with what happened and your explanation ultimately of what happened, it becomes very valuable evidence and that would be lost.

So beyond just being treated for the injury, it helps document it. It documents it from a medical standpoint and it becomes very important to the case ultimately. In fact, in some respects, if you have the presence of mind to do this, the police should photograph you if there’s any evidence of injury, if you’re bleeding. They may or may not photograph you though. And if they don’t photograph you, I think it would be helpful to ask the police officer to take some pictures if you have blood all over your face or the back of your head or something like that, to document that because no doubt paramedics will respond. They’ll respond because of the person you shot.

They’ll also respond and treat you if you have any evidence of injury that doesn’t require immediate transport to the hospital. And if the photographs of you aren’t taken before you’re treated by the paramedics, it will be lost, because they probably won’t take the pictures, but they’ll clean you up. They’ll wipe off all the blood, they’ll do something, so they can do their own medical assessment of what the source of the blood was and how serious the injury is so that they can make treatment decisions. So preserving the evidence as it was, is important. And then getting any medical help that you need is really important too. Not just for your own health, but also for the evidentiary integrity of the case.

I wanted to just offer something. It came to me because of some cases that I’ve worked on. And that is the person that you shot, especially … well, if they die, they’ll be taken to the morgue and ultimately autopsied. And there will be toxicology screens done on the deceased. A typical drug screen will be just a regular part of the autopsy. And of course, if the presence of alcohol or drugs will become relevant, if it’s otherwise relevant to the incident itself. And yet, unless you get medical attention or you specifically request some sort of tox screen of yourself, it won’t exist. And that will be a point that someone may make down the road if there’s a claim that well, “They screened the blood of the guy you shot, but the police didn’t even bother to give you a blood test.” So they were obviously biased in your favor and they were looking out for you. And therefore it’s a faulty, shoddy investigation and know how that stuff can go. It can just spiral out of control. 

So I’m thinking, at least you should have the presence of mind if you can and you know that you haven’t been consuming alcohol or drugs, that you might even consider asking for a breath test or a blood test as part of law enforcement’s response. Saying, “I’m happy to take a breath test. I’m happy to my … you can take my blood. I’m not under the influence of alcohol or drugs.” And just get that off the table right away. So it can’t show up later in the case, and there’s no opportunity to show one way or another. So I’ve never known that to happen. I think that if you have the presence of mind to do it in the right case, it could cut off an avenue of concern.

Steve Moses:

That brings up another point, because I do know a lot of concealed carriers who think nothing of going out to a restaurant and having three or four beers or mixed drinks while carrying concealed. And how that might look if you’re engaged in an altercation after that and you have that much alcohol in your system. And so I think that’s something that concealed carriers should be very much aware of, is that if you’re going to go out armed with the idea of getting some drinking done, that may not work in your favor later.

Don West:

Well, it’s going to impair your judgment, isn’t it to some degree? Whether it’s to a significant enough degree that it’s going to change how you would respond, but it creates an opportunity for an argument. And certainly, the last thing people want is concealed carriers with impaired judgment.

Shawn Vincent:

Let’s talk about this next point. It’s called “controlling information about the incident.” And Don you touched on this a little bit. We’ll explore it more now here, but to use the Miranda cliche, anything you say can and will be used against you in a court of law. And that’s not just in the immediate aftermath, that’s things that you said before or long after the incident that are about the incident or about your mindset, about self-defense, about being a concealed carrier. What you post on social media a year ago could come back to haunt you today.

And certainly what you post on social media in the wake of a self-defense shooting is going to be looked at by investigators and could be used against you. I feel like a good rule of thought, I wish every defendant I’ve ever worked with would take the advice of just stop using social media until this whole thing’s over, because there’s not a lot great that can come out of it. And lots of terrible things can happen.

I also want to bring up in this conversation too, that if you are detained and you go to jail, every phone call you make is going to be recorded. Those statements. Now if they’re to a lawyer, they shouldn’t be used, but I’m not entirely convinced they’re never listened to by somebody who has some influence. So neighbors, friends, family, you need to keep a tight lip in the days and weeks following a shooting while an investigation’s going on, because all that could become evidence used against you. Tell me a little bit about that from your perspective.

Don West:

Well, it might be one of those “duh,” but people don’t think about how broadly the investigation will be taken in that sense. In the Stephen Maddox’s case, I think there were three or 4,000 pages of discovery from social media, from Stephen’s media account, from the deceased media account. The police are going to get your phone. They’re going to get it at the scene. They may not get into it that night, but they’re going to get a search warrant and be able to inspect it.

So they’re going to see your history. They’re going to see the text messages. They’re going to see whatever evidence is otherwise relevant to what they think happened that night. And likewise, they’re going to get social media accounts backward and forward, looking for information that helps reveal among other things – and maybe first and foremost your mindset, because that’s really all that matters at the end.

If the forensic evidence is pretty clear, the only thing that really matters is what you were thinking and why you were thinking it at the time that you pulled the trigger. And ultimately whether in response to what was happening at the moment, that decision was relevant. And if you have a lot of trash talk on social media where you’re bragging about your skill with a firearm, and you have labels on your guns and bumper stickers on your vehicle, that can be viewed as someone who’s got an attitude and someone who’s looking for a way to use their gun.

Then that sets you up, that undermines this whole notion of reasonableness. And that’s not just going back, it’s moving forward. So all of that will be examined and it’s never too soon to be smarter about social media, in that sense. Shawn, maybe you could talk about how social media plays into everything in a trial these days, including the backgrounds of witnesses and the backgrounds of jurors. It’s not limited just to the accused, but it extends well into the entire case and their histories are also examined and explored.

Shawn Vincent:

Sure. Well, yeah. And that’s such a broad topic, so I’ll try to condense it into just a few comments here for the sake of this conversation, Don. But the truth is that when we do a trial, we do a background search on every potential member of the jury. And we look at things that might inform what kind of juror they’re going to be, whether they’re being honest with their answers to the lawyer’s questions in the courtroom. And also what types of predispositions they’ll have about guns, about self-defense, about other elements that might be part of the case. About alcohol, if alcohol is a part of the case. 

These are things that we look at and we extend that to the witnesses that we deal with. The first thing that I do when I’m involved in a criminal case is scour the internet for everything that’s public, that the defendant has posted that we know is going to be collected by somebody else and potentially used against them.

And here’s where that comes down to. So we live in a time where it’s common to be on social media, where we make public comments to large audiences, to where we’re on camera anytime we’re outside practically, in any kind of urban or suburban setting. And Steve, this is where mindset comes into play, that they conceal carry choice is not just an “in case I’m attacked” – it is all the time. Just like you say, you don’t go drinking with the pistol strapped to your side.

You don’t do things that impair your judgment. And the attitude that you have as a concealed carrier, any evidence of that, that exists before or after you’re ever forced to use your firearm in self-defense will give a window into what’s in your heart as a concealed carrier. So yeah, it’s going to show up. And here’s the thing, nobody can tell on you better than you. You know what I’m saying?

When you have a bumper sticker on your car that has a silhouette of a long barreled, .357 revolver. And it says, “I’m your huckleberry.” That’s not great for us, Don, when we have to talk to the jury about what your attitude toward self-defense is. Whenever I see a joke sign that says … that has a silhouette of a pistol and it says, “We don’t call 9-1-1.” The implication is if you come past the fence on my auto repair shop, you’re going to get shot and we’re not going to call 9-1-1 beforehand.

That’s something I don’t want to have to deal with on the defense side. In the aftermath, these are terrible. These look terrible. They’re designed to make you look bad. So I feel like when we talk about firearms and the second amendment and self-defense online, we do it with a sense of responsibility, a respect for life. And almost as … this is how I see my role now. I am an advocate for responsible gun ownership, and that starts with what’s in your heart and why you do it.

Steve, you get all sorts of people with different attitudes who come to you in your classes. Just tell me a little bit about … I imagine some of them you like, this is the kind of person that we want. This is the kind of responsible, armed citizen that makes our society better. And then there are other yahoos where you think, “Oh gosh, that their attitudes are going to take them in a bad direction.”

Steve Moses:

Yeah. We’re actually concerned that the way that they act reflects poorly on the rest of us. One of the things that I really find an issue with are the people, not so much that actually post kind of stuff, where perhaps a bank robber gets killed or something really bad happens to another person that we would consider to be a criminal or an undesirable in some way. And you see these things, “Good. Well, he got what he deserved. Darwinism in its finest form.” And making all these little comments and laughs and likes and everything.

I think that in and of itself is a mistake too. And that’s something that I really encourage concealed carriers to avoid doing. Anything that you’ve done in the past, if there’s any way you can go back and say, “Man, I was wrong to do that.” And definitely not do anything like that going forward, I think is well advised.

One of the things about the people that we actually have in the majority of our classes, is for the most part and I mean really pretty much for the most part, they are law-abiding citizens. They want no trouble. They just don’t want people to harm them or harm their loved ones. And most of them have pretty good attitudes. But when you go to shooting matches or you go to gun shows, you go to conferences or such, there will be a lot of people though that walk around with the little Punisher skull on the back plates of their Glocks. With all the stuff that you talked about, you see posted on their … or stuck to their windshields and their bumpers, “Driver only carries $20 worth of ammunition.” All this other stuff.

Don West:

I hadn’t heard that one yet.

Steve Moses:

Yeah. I kind of like it. Not that much ammunition anymore, but the point is just advertising that, hey, you have any kind of mindset where you think it’s right to harm other people for the least possible reason. And if harm comes to them, well, good. That’s funny. Haha. I think that is to be avoided.

Shawn Vincent:

Well, Don, you mentioned this earlier – and this is at the center of every self-defense case – is it’s an impossible task, because you’re saying, “Yes, someone was shot and killed.” You’re saying, “Yes, I did it, but it was justified.” And it’s all going to hinge on what the juror’s impression is of whether your fear or your belief of imminent harm or death was reasonable. And reasonable is the best of the subjective terms that we have that they can latch onto.

We’re asking a juror to look into a criminal defendant’s heart and tell us, did they have reasonable fear? or what is usually the case, some sort of anger, animosity, or revenge? “Usually the case” is that’s usually the alternative to reasonable fear to the jurors’ mind and anything that you do in your life that makes you appear more reasonable is a benefit. And anything you do that’s going to show that you don’t value human life or that you’re making decisions based on anger, animosity, or revenge is going to sentence you to a very long prison stay unless it can be mitigated in a court of law, which is not a fight you want to have.

Don West:

In criminal law every criminal offense is broken down into elements and those elements are read to the jury in the jury instructions at the end of the case. They’re examined of course by the prosecutors in charging the case and certainly known and understood by law enforcement when they’re investigating a case.

And in the typical case, the prosecutor must convince the jury beyond a reasonable doubt of each element of the case. And in a first-degree murder case, for example, they would have to prove that a human being is dead. It’s pretty obvious when there’s the body on the ground. They have to prove that the person on trial is the person that shot and killed them. And then they have to prove the circumstances of the crime from a mental standpoint. Was the crime calculated and premeditated? Was it a result of what’s typically known as second-degree murder, anger, ill will, spite, depraved mind stuff? Or was it kind of a negligence, a manslaughter type thing, a gross negligence?

Well, when you act in lawful self-defense, you’ve checked off pretty much all of the boxes. You’ve checked off, yes, I’m the person who did it. Yes, I intended to do it. And as a result of what I did, the person is dead or in a homicide, is dead or seriously injured. So the only question becomes what the state of mind was, what your mental intent was. And it starts with you intending to cause them harm or death.

So all that’s left is whether or not you can also check the boxes on self-defense. Were you in fact facing an imminent threat of great bodily harm or death, and was it reasonable for you to use deadly force in response to that? And there has to be some evidence of that. So when you go into a self-defense murder trial, you’ve already committed murder except for the affirmative defense of self-defense. So alibi is gone. Accident is gone. I’ve had some cases where the guy says, “I didn’t mean to pull the trigger.” And we’ve talked about those, right?

Shawn Vincent:

Yeah. There is no accidental self-defense. It is an affirmative, deliberate action. Yeah.

Don West:

There’s no insanity defense. So you’ve eliminated all the real defenses that most guys will look for. And you have a legal, justifiable, but affirmative defense. And when you act reasonably in the face of that threat, you haven’t committed a crime, but it’s not because you didn’t do all of the things that would otherwise make you guilty. It’s because under the circumstances under which you did it, you had a legal basis for it. You had a legally recognized, justified reason for it.

So it’s different. Defending a self-defense case is very different than any other kind of criminal case, I think. It’s presented differently. It’s thought through differently. How aggressive I think the defense lawyers have to be, how proactive they have to be is very different than a common approach to criminal defense, which is you just hope for a reasonable doubt. And unlike most criminal cases, a self-defense case often requires the shooter, the defender to take the stand. And that’s a very different dynamic than most other criminal cases.

Shawn Vincent:

This final point that is on this 10-point list for anyone who is actually counting or could determine the chapter titles of our conversation, it’s to provide identifying information only. It’s almost a recap of the whole interaction with anybody, especially law enforcement in the wake of a self-defense shooting is, and let’s just use this as an example to reinforce this idea that practically any evidence that is presented to trial, any statement from witnesses, any testimony has to be authenticated.

And the judge is going to tell the jury, decide how much weight it has, decide the credibility of the witness, decide the credibility of even the science behind some forensic evidence, because you’ve been deeply involved in hearings to validate or invalidate the science behind certain techniques for analyzing evidence. Everything, it can be put into controversy or dispute, but the statements that you’ve made outside the context of an interrogation on social media to people, to witnesses, the bumper stickers on your car, all these things, those are self-authenticating.

There’s no easier way to impeach a witness than to pull up a social media page from a year ago that says the complete opposite of what they’re trying to say. And so when you’ve said things in a context that wasn’t you trying to prove your innocence, which there’s some credibility. People are going to be suspicious of that, but things outside that context, you’re just going to tell on yourself and it’s hard to throw those into controversy, they’re self-authenticating. And so the big resonance on this is “shut your mouth,” stop posting on social media, tell the police only what they need to hear, and get your counsel involved right away. And that you have to take this seriously. Steve, your thoughts on that?

Steve Moses:

I agree with all that and also train and continue to obtain knowledge about what’s involved in self-defense. Understand who represents a threat. What are the reasons that you might be justified in using force or deadly force. Do it now, and if you do, not only are your chances diminished that I think you’ll ever have to use force to defend yourself. I think the chances are increased that you will be successful in not only in preserving your life, and the lives of your loved ones, but all of the legal issues that you’ll have to deal with in the future. I think those are going to be minimized. So now’s the time to start preparing for that day that we hope never comes

Shawn Vincent:

Don?

Don West:

Well, I suppose in my mind, it boils down to don’t make it worse for yourself. Obviously, get the training you need to be able to be responsible and to respond definitively to that threat, should you ever have to deal with it. But don’t make your legal jeopardy worse. Don’t say those things on social media that come back to question you, who’s telling the truth about having to defend yourself.

Don’t run off at the mouth with the police and risk saying something that comes back to haunt you against the acts that you did lawfully. Don’t have an attitude that causes people to question your intent. Don’t do those things that will make an otherwise lawful self-defense case questionable. So help your lawyers by helping yourself and just don’t make it worse.

Lawyers don’t change the facts. Lawyers do the best they can with the facts they have. They can employ expert witnesses. They can have forensic examinations and hire jury consultants and social media consultants to get you the best possible outcome under your facts, but they can’t change the facts. So just don’t make bad facts. Just don’t make it worse for yourself and give you the best possible chance of having the right and fair outcome should you ever be involved in one of these cases.

Shawn Vincent:

And if there’s anything that our listeners are taking away from this conversation, I hope it’s that this illustrates how much legal peril that you are in, in the immediate hours, minutes, days after a self-defense shooting. It is really a precarious time, no matter how justified it seems, because it’s all going to be scrutinized heavily.

And that’s an extraordinary … at the very best, that’s an extraordinary pain in the ass could take weeks or months of your life and leave you in this paralyzing limbo, where you don’t know if you’re going to be justified or spend the rest of your life in prison. Beyond the emotional turmoil of having taken somebody’s life.

So in all cases, we come back to this. If there was any way to avoid this shooting in the first place, you don’t have to worry about any of this. And we all know that there are, we see cases all the time where the defender really had no other good options and did the right thing. But so often we see that there are choices that an armed defender could have made in the minutes leading up – or seconds even – leading up to a case that could have circumvented the shooting in the first place. And if you can do that safely, gosh, isn’t that always a better way to go?

Don West:

I’m with you 100% plus. And even if you are vindicated at the end, even if you are found not guilty, even if someone else has paid your expenses along the way, even if the jury says, “Yeah, that was lawful self-defense.” It’s taken you a couple of years to get there. It’s caused you daily, hourly anxiety for that entire period of time. Not knowing every day what the final outcome is going to be.

So what we’re talking about, there may be situations where ultimately your actions are completely lawful, where you have acted in lawful self-defense. But what we’re suggesting is if there is an opportunity leading up to that to take another course, to avoid in some way so that you never wind up in the position, even if you act completely legally, you’re always better off. You’re always better off, in terms of your own, not just legal risk being avoided, but the drama in your life, the stress, the anxiety, the effect on your family and you can’t get that back. You can’t get that back no matter how quickly the jury comes back with an acquittal.

Shawn Vincent:

Any final thoughts Steve?

Steve Moses:

Well just kind of like Claude said, it’s best to have a plan for all elements of this, whether it is managing potential threat, dealing with a potential threat or dealing with the legal aftermath. Have a good plan in place. And it’s easier to revise that plan as needed than come up with one on the spot.

Shawn Vincent:

All right friends, that’s the podcast for today. Thanks for listening through to the end. That’s the end of that conversation. So we’re cooking up something good for you next time. Until then, be smart, stay safe, take care.