No Typical Self-Defense Prosecution

The many paths of justice after a self-defense shooting

For those uninitiated with the criminal justice system, the legal ramifications of a self-defense shooting can seem pretty cut and dried: either police will arrive at a scene where the use of deadly force is shown to be a self-evident necessity, or the cops will push the shooter into the back of a patrol car and speed them on their way to a murder trial in some wood-paneled courtroom. Neither of these scenarios is accurate, and the reality is far more complicated. The road to justice rarely runs in a straight line.

The multitude of self-defense cases we have explored demonstrate a number of potential fates for an armed defender in the wake of a shooting: some shooters were praised by police for their heroism, and others were dragged to jail. Some shooters managed to post bail, while others waited behind bars for the wheels of justice to slowly grind. Some were acquitted at trial, some were convicted and sent to prison, and some submitted to a complicated plea deal and reluctantly accepted punishment for a crime they believe they did not commit.

What’s important for concealed carriers to remember is that any self-defense shooting that results in a death is a homicide. When law enforcement arrives, a homicide investigation will begin, and there is no telling how long that investigation may take.

It took Wagoner County Assistant District Attorney Jack Thorp less than a week to publicly clear Zach Peters for shooting armed intruders, clad in black, who broke into his home by shattering a sliding glass door. Charles Dorsey, who fatally shot a man who broke through his front door late at night, endured a five-week investigation before Howard County State Attorney Rich Gibson declared publicly that there was “no criminal violation.”

When Ted Wafer shot Renisha McBride on the porch of his home after she had been pounding wildly on his front door around four in the morning, the “Dearborn Heights police department hadn’t inconvenienced him with even a trip to their station for questions,” according to a report in Ebony magazine. Despite not being taken into custody immediately after the shooting, two weeks later, after mounting public pressure for an arrest, prosecutors filed second-degree murder charges which ultimately led to a conviction (to further demonstrate the long, winding nature of the criminal justice system, there are still active appeals pending in the Wafer case, eight years after the November 2, 2013 shooting).

After Pinellas County Sheriff Bob Gualtieri announced that Florida’s Stand Your Ground law prevented him from arresting Michael Drejka for the shooting of Markis McGlockton, the State Attorney continued his investigation, nonetheless, and charged Drejka with manslaughter nearly a month later.

Other shooters have been arrested immediately. Deputies quickly arrested David Byron Smith after discovering the bodies of two teenaged intruders wrapped in tarps in his basement. Michael Dunn was arrested at the conclusion of an interrogation by homicide detectives who chased him after he fled the scene.

Despite the different results, the conclusion of the investigations for Peters, Dorsey, Wafer, Drejka, Smith, and Dunn came relatively quickly — within hours, days, or weeks. Criminal defense attorney and CCW Safe National Trial Counsel Don West, however, reminds us that prosecutors have no obligation to close an investigation or make a formal determination that a self-defense shooting was justified. They can choose to keep an investigation open indefinitely, reserving the right to charge the shooter in the future should some new evidence present itself, thus suspending the defender in a legal limbo, left to live under the perpetual shadow of a potential prosecution.

Once charged, some defenders are able to bond out of jail while others wait for justice behind bars. Don West says that armed defenders who have been charged with a crime related to a shooting can expect to spend at least several days or even a couple of weeks in jail while lawyers haggle with prosecutors and try to convince a judge that the defendant is not a flight risk, poses no threat to the community, and deserves to be released on bond. Michael Dunn was denied bond, twice, for the shooting of Jordan Davis, and he lived in a cell while awaiting trial. Ted Wafer bonded out for $250,000. Ronald Gasser faced a $750,000 bond for the shooting of Joe McKnight (and in a strange legal drama, he’s hoping to post bond again, years after the shooting, now that his manslaughter conviction has been vacated thanks to a Supreme Court decision). In some murder cases, a defendant’s bond can exceed $1,000,000.

Once granted, the bond can be revoked if the defendant violates the conditions — which could include wearing an electronic monitor and having their movements restricted to a specific county. In the high-profile Michael Drejka case, the defendant’s lawyers asked the court to allow him to move to a neighboring county because he was unable to find a landlord in his home county willing to rent to him. Just because a defendant is out on bond doesn’t mean they are free.     

Most people can’t afford post bond on their own, and typically, that means they must find a bail bondsman who is willing to stake them. In order to do this, the defendant usually has to give the bondsman 10% of the bond amount (which is non-refundable, even in the case of an acquittal), and they must produce enough collateral to guarantee the balance of the bond, which the bondsman must pay if the defendant flees. Some defendants simply cannot meet the terms of their bond, and so they wait for their day in court from behind bars.

And there’s no telling how long that wait is going to be. The Constitution provides defendants the right to a speedy trial, but the Founding Fathers didn’t bother to specifically define “speedy.” Different jurisdictions calculate “speedy” on their own terms, but the result is that most murder and manslaughter cases typically take one to two years to get to trial.

Markus Kaarma faced a jury only seven months after shooting a teenager who had entered his garage. Michael Drejka was in the middle of trial on the anniversary of his arrest for the shooting of Markis McGlockton. Michael Dunn went to trial 14 months after the shooting of Jordan Davis, and thanks to a mistrial on a key charge, he faced trial again seven months later and was convicted after having already spent nearly two years in jail.

Not every case is judged by a jury. Some defendants plea to lesser charges before trial. Legally, self-defense is often an all-or-nothing proposition: the defender either acted justifiably or they are guilty of one of the most serious crimes known to the criminal justice system — crimes that carry prison sentences measured in decades or lifetimes. In some cases, prosecutors may make an offer of a lesser charge in exchange for the promise of a more lenient sentence.

Veteran Marine sniper and retired professional mixed martial arts fighter Gerald Strebendt shot an unarmed motorist after a nighttime automobile collision. Despite a 9-1-1 recording of Strebendt pleading with the angry motorist to stay back, prosecutors charged the defender with murder, partly because of a string of bad prior bad acts by the shooter that colored their interpretation of his motives. Denied bond, Strebendt had been in jail for 14 months, and due to complicated evidentiary issues, his lawyer believed it would likely be another year before Strebent would get a trial. That’s when prosecutors proposed a reduced charge of criminally negligent homicide in exchange for a sentence of 58 months. Even if a jury acquitted Strebendt at trial, he would have already spent nearly half that time behind bars. If he was convicted, he likely faced a minimum of twenty years — probably a lot more. It was a gamble: serve an extra two years, or risk half a lifetime. Strebent took the deal.

The lesson for concealed carriers is that there is no typical prosecution in the wake of a self-defense shooting. If you’re willing to take someone’s life to protect yourself or your family, it is important to properly understand the legal risk you are accepting when you choose to use deadly force. You will be the subject of a homicide investigation, but there’s no way of knowing whether it will be long or short, or if it will end in exoneration or a prosecution — or neither. You won’t know if you’ll be granted bond, or if you’ll wait for your day in court from behind bars. You won’t know if you’ll be convicted or acquitted at trial. If you understand all these unknowns, then you’ll also understand how important it is to immediately seek legal counsel in the wake of a self-defense shooting, even if you are not immediately charged — no matter how justified you feel.      

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