In Self Defense – Episode 57: Defense of Last Resort Part 2: Non-legal Consequences and the Trouble with Video

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In Self Defense – Episode 57: Defense of Last Resort

Part 2: Non-legal Consequences and the Trouble with Video

Don West and Shawn Vincent conclude their conversation about the Dorsey case, exploring some of the consequences the Dorsey’s face despite the shooting being declared justified, and discussing the sometimes problematic role video evidence can play in self-defense investigations.

Transcript:

Shawn Vincent:

Hey everybody, this is Shawn Vincent, thanks for listening in. Today is going to be part two of my conversation with Don West about the Dorsey Case out of Maryland. If you tuned in to our last podcast, then you know that the Dorsey Case is a home defense case, it’s third in our Enemy at the Gates series about homeowners who encountered intruders on their doorstep late at night. All three homeowners had very different reactions to the intruders. Our first two that we talked about made some very tragic mistakes that led to them being prosecuted for their self-defense scenario. Our third story about the Dorsey’s was what Don West calls an “awful but lawful” case; it’s a case of misunderstanding, misperception, but in the end it was completely justified, and we’ve used it as an example of a case for our listeners to say: this is an example of someone who did almost everything right in a home defense self-defense scenario.

Shawn Vincent:

So if you haven’t listened to our podcast from last time, I encourage you to go back and do that. If you have, here’s a little recap for you. Here’s the situation. We have a guy named Gary Espinoza. He’s an out of town, overnight visitor of the Sweeney’s. The Sweeney’s just moved into this rural Maryland neighborhood not long before. They moved in next door to Charles and Barbara Dorsey. They haven’t been real friendly yet, these two neighbors — they don’t know each other. So Gary comes over to spend the day drinking by the pool, his blood alcohol level by midnight was somewhere around 0.22, that’s almost three times the legal limit to drive. His wife had gone to sleep. Gary, at about 1 o’clock in the morning, wanders off of the Sweeney’s pool deck, probably gets something out of his car. He comes back, it turns out that the Sweeney’s and the Dorsey’s sort of partially share a driveway. Their houses look very similar, they both have black Gates in the backyard, they both have pools.

Shawn Vincent:

In his inebriated state, Gary goes to the wrong house. He goes to the Dorsey’s house. At 1:04 a.m., he starts ringing the ring doorbell that’s got a camera and a speaker. He tries the latch on the door, he knocks gently. I’m going to play the audio for you. There’s video that was captured, and although the audio is not as compelling without the video, I still think it’s interesting to listen to. You see how this whole situation goes down. So what starts out sort of lighthearted, Gary knocking on the door, ringing the doorbell, he’s waving at the camera, clearly thinks that his friends inside can see him and he’s going to let them in, but instead he’s coldly received. Gary thinks that his friend’s pranking him. This is what the prosecutor in this case decided, too — that he thought he was being pranked by his friends.

Shawn Vincent:

So first he’s patient about it, he waits, he rings the doorbell, he leaves, he comes back, he knocks — but you’ll be able to hear that his patience wears thin and then he starts to get angry. And after what was about a 13 minute episode (the audio I have for you has been edited down to less than four minutes) by the end of this 13 minute episode, he gets really upset at what he thinks is his friend jerking him around late at night. He starts yelling obscenities. He starts making threats. You’ll hear a little bit of this on the audio. He grabs the handle of this door, shakes it up and down so violently that the latch fails. The door opens, and Charles Dorsey, whose wife’s been on the phone with 911 for most of this episode, fires one round from his pistol. That round strikes Gary Espinoza in his left shoulder, punctures his lung. It’s a fatal shot, but is a justified shot.

Shawn Vincent:

We explored all the ins and outs of the legal liability and what Charles Dorsey did right, and a couple of things that he could have perhaps done better in our last podcast, but Don West and I got a little chatty. I think it was because we were trapped in our houses because the COVID pandemic and our conversation went a little bit longer than we could justify for one podcast, so here’s a couple of additional thoughts that we had about the Dorsey Case for a little bonus part two episode of Defense of Last Resort. Before we get into the conversation, here is the audio from the Ring video that I promised you, and just a warning: this records the shot, the fatal shot at the end and it has a little bit of profanity.

Charles Dorsey:

Who is it?

Gary Espinoza:

Gary.

Charles Dorsey:

Who?

Gary Espinoza:

Gary. Gary. Yo, come out. Hello? Open up. Open up.

Charles Dorsey:

Get away from the door.

Gary Espinoza:

Okay.

Charles Dorsey:

Away from the door.

Gary Espinoza:

All right.

Charles Dorsey:

All the way to the driveway.

Gary Espinoza:

All right, go ahead man.

Charles Dorsey:

Go to the driveway.

Gary Espinoza:

Okay. Hey asshole. A**hole. F**k you! F**k you! Fuck you. Oh, yeah, yeah.

Charles Dorsey:

He pushed the door open.

Gary Espinoza:

Why did you do that?

Charles Dorsey:

He pushed the door open.

Barbara Dorsey:

Oh my God!

Shawn Vincent:

Two more things I want to talk to you, I think that are relevant in this case and one is: were you surprised, because we talked about this case before we got the video, the Ring video, were you surprised or any way affected by Barbara Dorsey’s reaction to the shooting?

Don West:

Well she was hysterically screaming, but then as I recall, didn’t she say, “Why’d you do that?”

Shawn Vincent:

She says, “Why did you do that?” She had this full-on horror movie scream, I’ve never heard anything like it in real life. He says, “He came in the door,” or something to that effect, and then she says, “Why did you do that?” And he says, he came in the door. I don’t know what she saw, but she must’ve saw something similar to what Charles saw, but clearly she wouldn’t have pulled the trigger from her perspective.

Don West:

Maybe that’s a fair interpretation, I don’t know. I hadn’t thought of it exactly like that except that for her to question what he did, why he did what he did would suggest, I think perhaps that she thought there was even at that point when he came in the door, an alternative …

Shawn Vincent:

Mm-hmm (affirmative).

Don West:

… something less. Although we can talk about it and come up with interesting talking points, but we don’t know what she could see either. We don’t know if she was behind a wall or …

Shawn Vincent:

Right.

Don West:

Because his explanation was because he came in. So let’s give both of them the benefit of the doubt that he shot only when he believed he truly needed to, and that is after Mr. Espinoza gained entry to the house and that she wasn’t necessarily second guessing his decision, but rather more wondering what the reason was.

Shawn Vincent:

Sure, she wasn’t thinking about what she was going to say before she said it in that situation — that was her natural gut reaction. You know why I bring that up though, Don, is that I think there’s what you’re legally justified to do, and then there’s what could have happened and there are other consequences to a self-defense shooting beyond just whether you’re prosecuted or not. And I think Charles is, maybe, in a little trouble with his wife. I think the two of them are going to be traumatized by this for a long time. And his wife, her response to witnessing her husband kill somebody on their front stoop, is going to be a factor in their marriage for a long time. And I say this because I feel like, sometimes when we’re thinking about home defense, feel that if someone’s broken into our house and threatened our security and comfort for criminal purposes, if they get shot, they’ve kind of got what they got coming, right?

Don West:

Mm-hmm (affirmative), sure.

Shawn Vincent:

And even if Espinoza was that guy and got shot, that still doesn’t change the fact that. . . now the Dorsey’s didn’t have kids home, I often imagine how would children respond to seeing a dead body in the front of their house and knowing that their father killed somebody? And I guess that’s just an extra reason why, if we’re talking about the security, that to focus on security and to make those choices before the choice to avoid this shooting because criminal liability is not the only consequence to these things.

Don West:

You could change a few facts just a little bit and put Mr. Dorsey in far greater jeopardy than he was legally by him opening the door, him going outside or him shooting through the door. We’ve talked about other scenarios where that took place where there were criminal prosecutions and create a scenario where he had legal problems as well as the emotional consequences of what happened. But we started this by saying, here’s a guy who did just about everything right. He certainly did everything right from a legal perspective, and yet it’s evident that he and his wife are going to suffer for years and years to come from the emotional trauma of it …

Shawn Vincent:

Mm-hmm (affirmative).

Don West:

… which underscores the point that even though there may be scenarios where you know you have the legal right to use lethal force, there still may be a circumstance whether it’s at your home but in another context where you don’t have a duty to retreat but you can stand your ground, but you might have an opportunity either to retreat or by doing something else, deescalate or avoid that — even if you don’t, your actions still may be considered lawful or justifiable. But if you did that different thing or that extra thing that allowed you to avoid the confrontation altogether, that not only do you avoid the risk of the economic disaster that defending yourself against a criminal prosecution causes for most people …

Shawn Vincent:

Well even just being the target of a five-week investigation, even being certain that it was going to end in no charges — it’s worth going way out of your way to avoid being investigated by the police for five weeks …

Don West:

Yes.

Shawn Vincent:

… if you can safely.

Don West:

So there’s the criminal side of it and the trauma we know that causes when someone is waiting to go to trial for a couple of years and spending the money and the heartache and the fear and the uncertainty every morning when you wake up, whether you’re going to be spending the next decade or two or three in prison or being able to go back to your family and job. But the financial side of it, the emotional side of it, I guess we can’t emphasize enough from having seen all those scenarios play out …

Shawn Vincent:

Ordinary people.

Don West:

… in one way or another with yeah, folks that have suffered through that and when the acquittal at the end comes or the decision ultimately not to prosecute comes, there’s a great sense of relief and in some ways victory, but you don’t get that time back, you don’t get that emotional anguish back. That’s why I think we emphasize that regardless of how legal your actions might be, if there was some way through avoidance, through deescalation, through just visualizing the things that you might do if you were ever in one …

Shawn Vincent:

Instead.

Don West:

… of these situations to avoid it, the dividends that that pays.

Shawn Vincent:

Yeah. So here’s a final thing that I’d like to get your insight on and we’ve talked about cases that have audio and visual evidence as part of them. And you say from one perspective “Thank God there’s the video” when it can reinforce and corroborate the defender’s story, right? You’ve told me before that in self-defense cases video can be a double edged sword because video has varying levels of quality. It only shows what it shows, and it doesn’t always show things from the defender’s point of view.

Don West:

Sure.

Shawn Vincent:

And this case is a good example. The video in this case shows everything from the intruder’s point of view, because the Ring video is pointed outside. We see Gary. We don’t see Dorsey until the end when he’s being handcuffed by police and being detained. It’s lucky for Dorsey that Espinoza’s behaviors are interpreted as misunderstanding as they were and that everything falls into place for Dorsey, but that’s not always the case. And it makes me think of the Maddox Case, right? Maddox is a CCW Safe member; he’s outspoken about his case. He encourages us to speak about it …

Don West:

Yes, yes.

Shawn Vincent:

… to give other defenders the lessons from his case. But you had an issue working on that case where there was a conflict between the timestamps on these videos and the prosecution was trying to use it to make Maddox look like a liar, right?

Don West:

Absolutely. For months and months the prosecution theory that Maddox was lying about what happened and consequently then guilty of first degree murder was tied to these two videos or three separate. . . well there were three separate incidents and there were a couple of video clips taken from different cameras within the area where the incident took place that in law enforcement’s mind absolutely proved that one of the confrontations that Maddox talked about could not have happened because if it had happened it would have been captured on this video. And what wasn’t realized until almost the time of trial was that the timestamps on the cameras were not synchronized and they were more than a couple of minutes apart. So you could not get any accurate assessment of what was going on in any given place in time by looking at the two cameras synced up with the time.

Don West:

And frankly because of the way the system was designed, the company who ran the system didn’t really care, that wasn’t an important issue for them. They had no way of anticipating that might be important, but by the time it was all figured out, the original recordings were gone. So there was no way then forensically to go back and sync them up. The Maddox Case is a valuable case to talk about in terms of that perspective because of assumptions that were made by looking at video or the absence of video. I’m wondering in some ways if you think to the handicap parking place, the Michael Drejka shooting.

Shawn Vincent:

The Michael Drejka case, yeah.

Don West:

There was a store video camera that had a pretty good view of many of the events, but none of them showed what transpired in a sense, through Drejka’s eyes. And what I think is important to remember is that the jury’s perspective is going to be: Were the defenders actions reasonable given all of the things that the defender knew and has seen through their eyes in that frame of reference, in that perspective?

Shawn Vincent:

Yeah. Well I love that you mentioned that case because what you see from the security camera in the Drejka Case is you see Markeis McGlockton come up, shove him to the ground, he falls backwards and then Markeis McGlockton steps towards Michael Drejka, Michael Drejka pulls out his pistol and then we can actually see, from our point of view, McGlockton take a couple steps backwards. And I think I remember him wearing these white sneakers and it’s real easy to see his steps going backwards, but I promise you that Michael Drejka was not looking at this man’s feet, right?

Shawn Vincent:

He’s looking at this really big guy standing above him and he told investigators that the guy steps towards him and there’s video of him in the interrogation room and the investigators tell him that that’s not what the video shows. And Drejka admits that, if the guy was stepping backwards I wouldn’t be justified. We find out after the verdict from a juror who talked to a reporter that the jury watched those few seconds of video hundreds of times before they made their decision. They saw it from the camera’s point of view, not from Drejka’s point of view.

Don West:

Yes, yes. And I thought that although he was accused of lying by the prosecution in that interview, that was not what struck me. And some of it was awkward and some of it was inappropriate and he certainly should not have subjected himself to a detailed, lengthy interrogation without the benefit of counsel, but he seemed to me to be genuine when he explained that he believed that McGlockton was coming at him and that he in a sense explained how important that perception was because he acknowledged that if in fact McGlockton had been retreating as the video seems to suggest, that he would not have been justified. So if he didn’t actually believe that there’s no reason to talk about it. Certainly not to try to come up with some sort of story that is ultimately disputed by the videotape.

Shawn Vincent:

Yeah. One other shooting caught on video that I thought I’d mention is, and we’ve talked about this before, is that case out of Indiana where that firefighter had that dispute with his next door neighbor.

Don West:

Mm-hmm (affirmative).

Shawn Vincent:

And they’re over this fence, we’ve got some good full-colored with audio video of it, the neighbor casts some insults to the firefighter, the firefighter casts some insults back, the neighbor gets on his riding lawnmower, goes off frame. He comes back in frame and he’s waving a revolver in the air. When the firefighter sees this he pulls out a pistol that he had holstered and fires, I count 16 rounds, at the guy. The guy fires some back. The prosecutor sees this video, he sees that the guy brandished a weapon, a deadly weapon that was loaded. We find out it’s justified shooting, he had reason to fear this guy meant him harm.

Shawn Vincent:

But my point is is that the video, the defender is standing in between the camera and the assailant, and as it turns out, there’s only a couple of frames where you can see the assailant brandishing the revolver, which means if the defender had been standing, I don’t know, two steps to the left, you never would’ve seen that gun on the video. And now instead of a guy responding to a brandishing incident, being threatened with a gun, it looks like he just spontaneously pulls out his pistol and unloads on this guy and there’s nothing but “he said, she said” from two guys who have a history of violence against each other. So the video only captures what it captures and it can change perspective of a whole incident from supporting you to being against you.

Don West:

Which I think underscores the value of having a thorough law enforcement investigation and that we don’t want people to jump to conclusions even by something that might seem as obvious and as clear cut as an incident on video. It may have taken five weeks to clear Mr. Dorsey to some degree because they looked at additional forensic stuff. The prosecutor and the police may have wanted to know if there was a way to determine the muzzle distance. How far was Mr. Dorsey away from Espinoza when he came through that door? Was there blood splatter? Were there some things that would corroborate what Dorsey’s explanation would be or corroborate what was on the video? Those kinds of things are obviously important and they take some time. That stuff doesn’t happen overnight.

Shawn Vincent:

Yeah. And I bring that up, I think there’s two lessons you get from this conversation about the video, right? And one is we always say don’t give detailed statements to law enforcement until you have the advice from an attorney, right?

Don West:

Yes.

Shawn Vincent:

And that’s because your perception of what happened will be, firstly, altered by the trauma of the experience that you’ve been through, but also you can easily misspeak or misrepresent something, even accidentally, that then doesn’t fit the rest of the evidence, including the video evidence, which wouldn’t have captured everything from your point of view and now you’ve got a prosecutor who thinks you’re a liar and is going to prosecute you aggressively and you have things to explain to a jury whereas otherwise you might not have.

Don West:

And that doesn’t mean that there wouldn’t be those circumstances, may be somewhat rare, but there certainly are circumstances where after the benefit of consulting with a lawyer and understanding better the interrogation, the questioning process that you wouldn’t decide to have a more detailed statement to sit and answer questions. Especially if you are confident and your lawyer’s confident that you’re able to do it, that you’re able to provide an accurate and a somewhat more detailed statement and that they would assess all sorts of things including whether they thought that law enforcement was going to give you a fair shot or whether they thought maybe they had already decided that you were guilty and they wanted to do more of an interrogation to catch you saying something as opposed to genuinely wanting to find out more.

Shawn Vincent:

So you said the lawyer’s going to get a sense on whether law enforcement generally believes you and it is looking to dot their I’s and cross their T’s to close the case or whether they’re looking to trip you up and get more evidence for the case.

Don West:

Yeah, and can confirm their theory of your guilt.

Shawn Vincent:

Yeah, that’s what happened with Maddox, right?

Don West:

Yeah, yeah. That can happen in many different ways. How a lawyer might assess that. I say it’s somewhat rare because the lawyer wants to have some confidence that law enforcement are looking to get information that will help them make a decision rather than just looking for ways to trip you up. I know as a criminal defense lawyer, having tried lots of self-defense cases, that some of the most challenging evidence, if not the most challenging evidence, to overcome is a statement made by a client to law enforcement after the incident that isn’t well-considered, that is distorted or inaccurate perhaps because of the trauma of the incident or sometimes just the naivete and the gullibility of the defender not knowing why and what the questioner is getting at.

Shawn Vincent:

Right.

Don West:

So an answer may be incomplete, it may be inaccurate, and a lot of that has to do with you’re a sitting duck if you’re not represented with professional questioners and professional investigators.

Shawn Vincent:

Well you and I have both seen a case, too, where the investigators lied to the defender about the existence of video, saying that there was video of the whole thing hoping to trip up the testimony.

Don West:

Sure, yes.

Shawn Vincent:

So it’s legal for the police to lie to you about what’s there or not when they’re interrogating you.

Don West:

Yes. By legal meaning that it’s not a basis to have your statement excluded, that it is considered an illegal interrogation technique to misrepresent things in order to get the person to talk or to defend or to make admissions, sure.

Shawn Vincent:

Yes. I think a final point on the video conversation that ties into the grand theme to what we talk about in all these cases is that knowing that video evidence may or may not see things the way you saw them and may or may not be beneficial for your case, when we talked about avoidance, the more efforts that are made to avoid the conflict — you talked one time about how it’s almost buying yourself time. . . If the intruder is outside the door and you wait for them to come inside the door, you’ve bought yourself more time to really assess how big of a threat they are, what kind of threat they are and all of those things contribute into how the reasonableness of your actions are perceived.

Shawn Vincent:

So I mean video on top of this tragic misperception that led to this case is there’s so many things that as defenders, we don’t know when we go into making a life or death decision, and the more that we can slow down the circumstance, the more that we can practice, when it’s safe to do so, avoidance that buys us more time, that buys us hopefully more information and then when people scrutinize our actions, they become probably more and more reasonable under that scrutiny when we’ve taken all those efforts.

Don West:

Sure. I think that’s well said.

Shawn Vincent:

And I think that’s the lesson from this case is because Mr. Dorsey spent 13 minutes trying to avoid this confrontation when it ultimately happened. It was pretty easy for the prosecutors to dismiss this case and let him go on with his life.

Don West:

Yes, I think this was a relatively easy call for the prosecutor from a legal standpoint. First and foremost, it happened at Mr. Dorsey’s home. Secondly, the intruder, even though the circumstances that we’ve discussed was a tragic mistake by a confused and drunk guy thinking he was at a different location than he was, but he crossed the threshold of the door. He, in a sense, forced his way in and that Mr. Dorsey had the legal right at that point to defend himself and his wife under the castle doctrine. Did not have any duty to retreat, and no doubt it would have been the presumption of the threat merely by Espinoza crossing the threshold. Of course, that was accompanied by verbal threats and physical kinds of things too, so when you put all of that together, yeah, this was an easy call for the prosecutor. Again, lawful but awful.

Shawn Vincent:

Well, Don, we’re both working from our homes because of the COVID crisis and I can hear in the background some dinner plates being shuffled around, I think that’s my cue to wrap it up.

Don West:

Very good. All right.

Shawn Vincent:

I really appreciate your time Don.

Don West:

Thank you, Shawn. Look forward to talking with you again soon. Take care.

Shawn Vincent:

All right, stay safe.

Don West:

Stay safe. Buh-Bye.

Shawn Vincent:

All right, that’s the podcast, guys. Thanks for sticking around to the end. Next show we’re going to go to a duty to retreat state and visit the case of Andrew Weiss who has been tried twice and not convicted yet. It’s a complicated case, it’ll be lots of lessons for you. Until then, thanks for listening. Be smart. Stay safe.