Audio of Podcast:
Shawn Vincent:
I’m Shawn Vincent. Thanks for joining the podcast today. We are on Lesson 3 of the 36 Lessons for armed defenders. This is “Understand the Legal Consequences of Self-Defense.” There’s nobody better to talk to about this than Don West. He’s National Trial Counsel for CCW Safe, and he’s been a criminal defense attorney for his entire career as a lawyer. There’s no one better to talk to you about this subject. We had about an hour-long chat not long ago. We cover everything from what to expect in the minutes and hours after a self-defense shooting, and then what the investigation process is going to look like—even for justifiable self-defense homicides—all the way to what some of the most severe criminal consequences can be for a bad case of self-defense, which could be the rest of your life in prison. It’s a must-know for anybody who assumes the responsibility of being an armed defender. I’m glad you’re here. Here’s my conversation with Don West about understanding the consequences of self-defense.
Shawn Vincent:
Do you remember back … the loud music trial? This was Michael Dunn for the shooting of Jordan Davis in Jacksonville. That was right … not long after we got the verdict in the Zimmerman case. So I think 2013. Dunn was … He had hired a private attorney. He had two trials, which is rare. But he had the first trial that mistried on the murder conviction, but they convicted him for some shots that he fired after the fatal shots for attempted murder. And then they went back a second time, and they charged him for the murder charge and got a conviction on that. And the second time, he was indigent, and essentially a public defender represented him.
The first time, he hired a private attorney named Cory Strolla who was underfunded but gave a zealous and passionate defense of Michael Dunn. And a lot of this was televised because Florida has cameras in the courtroom. And I remember watching his opening statements, and he told the jury, which ironically was a jury of six, because that’s how they do it in Florida, unless it’s a capital charge.
He said, “I’ve heard that it’s better to be tried by 12, judged by 12 than carried by six.” And the point is, you’re better to be alive in front of a jury in court than dead in a box. And even at that time, I had had enough experience watching people suffer through a criminal prosecution. I thought to myself, “Okay, that might be right, but not a lot better.”
Don West:
Yeah. There are certainly points as you take that journey from the beginning to the end of the criminal justice process that you may very well want to second-guess yourself on that decision.
Shawn Vincent:
There is a defendant who we both know, who was exonerated. Well, I consider it exonerated. They were found not guilty after a murder trial, but he ended up being out on bond, and he lost his job, but he was able to find another job that kind of understood his situation and had his back. And he would drive past the water tower to this job every day while his family was falling apart and his life was falling apart, and he’d see this water tower, and he thought, “I could just climb up that and jump off, and that would be better than what I’m going through.”
Don West:
Let’s go back to that for a second, Shawn. As you talk about carried by six, tried by 12, it’s really saying a lot more, I think, than we pointed out in this little brief discussion. Think about it for a second. Of course, the tried by 12 means that you have been charged probably with murder or some variation on criminal homicide of some sort, as opposed to carried by six which means that you lost the fight for your life and you have died as a result of being shot and killed by the attacker.
Shawn Vincent:
What Claude Warner calls a bad outcome. Yeah.
Don West:
Yeah. My goodness. It doesn’t get worse than that. But what we try to do, isn’t it? I mean, if we’re going to actually accomplish anything with the lessons and the discussions and just pointing things out is to help you better understand that moment when you have to decide whether you should and can use deadly force to defend yourself and where it is you’re clearly crossing those legal boundaries, in a sense, setting yourself up to be tried by 12. So you never want to lose that fight. On the other hand, the decision you make has to be informed and legally sound. And because we don’t want anybody to be carried by six, and frankly, we don’t want people to be tried by 12 either. We want them to navigate that path that is justifiable, justified homicide, self-defense. That’s where you are legally allowed to use deadly force upon an attacker.
Shawn Vincent:
You ever play slot cars, Don?
Don West:
I know of them. I did so many years ago. I’ve lost track.
Shawn Vincent:
Yeah. Yeah. I don’t think it’s a very popular hobby now, but I just remember not far from where I live growing up, there was a little strip mall for a while, and they had a little slot car hobby shop in there. They had a track in there. And the whole idea of slot cars for anyone who hasn’t played them is you’re racing, and you have a little … All you can do is control the speed. And if you go too slow, you lose the race. If you go too fast, you fly off the slot and lose the race. And I guess I may have come out hot with the doom and gloom of death, contemplating suicide while facing a criminal prosecution—but to your point there, you’re between two extraordinary consequences that are both considered losing, being prosecuted or being killed or maimed. So it’s a thin area there that takes a lot of finesse to navigate well.
And the whole point of this conversation is: I think armed defenders who’ve chosen a firearm for personal protection, and they’re willing to use deadly force to protect themselves or their families, they have contemplated being the victim of an assault or an attack by a violent criminal. And they’ve imagined that, and they decided, “I’m willing to defend myself against that.” That consequence of being a victim of crime is something they’ve considered deeply.
We both know that in the cases that we’ve been involved with, and in the cases that we’ve studied by doing this podcast, that there’s a whole range of self-defense confrontations that most armed defenders, when they make that choice to carry, to defend themselves, don’t consider as realistic possibilities. But we know
They come up over and over again as the most common types—road rage stuff, mistaken identity stuff. Somebody banging on your door in the middle of the night, who you think’s a criminal, but ends up just being somebody who’s drunk or crazy or both, right? And tragedies happen.
And so I think because most armed defenders think that it’s going to be the first scenario where there’s a clear criminal aggressor and they’re the good guy, that they make that choice, they defend themselves, perhaps it ended in the death of the attacker, and then the detectives show up afterwards and it’s going to be a, “Hey, good job.” Right? Pat you on the back, you got the bad guy, you did the right thing, you’ve declared self-defense, it’s clear you’re an upstanding citizen, and this person was up to no good. Congratulations, and that’s that. But we know that even in the best case scenarios, even in the scenarios, Don, where there was a woman and probably a mother who’s seen a few of these, who was attacked by an estranged husband or some other man who could have physically overpowered them, and they shoot. Those are the only cases I’ve ever seen where, within hours or a day or so, not only is there an announcement that there are no charges, but that there’s a press conference about how courageous this person was. I know the Zach Peters case out of, I think it was Oklahoma, right? Where he shot the…
Don West:
Well, right. That’s the homeowner or the occupant of the home, where it’s a clear home invasion type crime, people forcefully breaking in. It was the middle of the day, wasn’t it, if I’m not mistaken?
Shawn Vincent:
Middle day … like one o’clock, he was taking a nap, and they were dressed in black. I mean, they’re almost like central casting for burglars, and he shot and killed a couple of them and I think it was about, I think it was four days. It was pretty quick. And then they announced that there was going to be no charges, and they publicly exonerated him. Those are the exceptions. There’s been a lot of other cases that were, I think, pretty clear-cut. We talked about Charles Dorsey. That was one of those drunk, crazy people at your door in the middle of the night. Mistaken. He was at the wrong house trying to get that …
Don West:
That was a cascade of issues, wasn’t it? The drunk … I guess he was visiting the neighbor next door…
Shawn Vincent:
He was at the pool all day, got drunk, came back to the wrong house. It looked very similar. And once he busted through the door, Charles Dorsey shot him once. It was fatal. When someone breaks into your house forcibly, that’s pretty clear-cut. That investigation lasted four weeks. Charles Dorsey had to get a lawyer to represent him. He lived four weeks, uncertain whether or not he was going to be charged for what seemed like a pretty clear-cut case of home defense.
Don West:
Most of that on video, a ring camera of some sort.
Shawn Vincent:
Right. And so I guess the very minimum, if you’re involved in a self-defense shooting, especially if it results in the fatality of the attacker, there’s going to be a homicide investigation, and it could last four hours on the very shortest—if you’re a mother alone with her children like Melinda Herman and the person came in with tattoos and the crowbar and busted through three doors. Or four days like Zach Peters, where he encountered home invaders, or four weeks like Charles Dorsey. You know that there are some investigations that are never formally closed and remain open for a year, and there’s no statute of limitations on homicide. So there are defenders out there that, as the months and years go on, live with a shadow that maybe some new evidence pops up and they get a knock on the door from a homicide detective.
Don West:
Well, I think you’ve illustrated well the uncertainty of the process. Even if things go really, really well and there’s very little question that you acted lawfully, then it’s still going to take a while. You’re still going to be subjected to the process. A lot of what’s happening may happen outside your immediate knowledge and understanding. They may simply decide not to arrest you that night after detaining you, collecting evidence, doing witness statements. You may have spent a few hours at the police station, even on the good cases. And ultimately, you’re let g,o and you go home. The investigation continues. There is no question that there will be forensic work done. Those results could take weeks or even months to finish. The prosecutor may consult with experts to get their take on things. Some of that will be what the witnesses say happened. Some of it will be what you’ve said was the scenario.
And everybody surveys for Ring doorbells and surveillance cameras. Half of our world is recorded these days. And if shots are fired, if someone is seriously injured or killed, that absolutely will be the process that you can’t control, that you can’t manage. You can help yourself by having counsel during this phase to interact with law enforcement, prosecutor, if they’ll let you, but it’s their call, their decision. And then at the end of that process, there’ll be a decision to prosecute or not to prosecute. And yet, as you pointed out, there are those cases where there’s no formal or official announcement. You just haven’t been arrested, and then days, weeks, months, even years go by, and you still don’t know the status of it. I’ve been involved in several cases personally that are technically still open because they’ve never told me they aren’t, but literally years, years have passed.
Shawn Vincent:
That’s funny. And when they don’t tell you that they aren’t, you’ve got to think real hard about calling them up and saying, “Hey guys, how about that homicide investigation you’re doing? You got any closure on that? Can I … “
Don West:
You don’t …
Shawn Vincent:
Want to remind them of it, right?
Don West:
It’s funny to think about that because that, in fact, can be part of the strategy on whether or not to try to find out. For example, what if there’s an active investigation, there’s stuff going on, and then there’s a big change in the prosecutor’s office? Those folks are typically elected. Somebody could come in, the prosecutor who was assigned to the case leaves, gets fired, quits, gets a better job somewhere. The file gets handed to somebody else and gets put back in the …
Shawn Vincent:
Texas, where the district attorney ran on prosecuting Daniel Perry. He hadn’t been charged. And the new prosecutor was like, “I’m going to prosecute him, elect me. “
Don West:
And he was elected, and he prosecuted … what, year and a half later? Something like that? So yeah, those little things that you really don’t know for sure you can’t control, you’re kind of exactly hesitant to call up and say, “Hey, remember that case from last year? What are you going to do with it?
Shawn Vincent:
Oh yeah, but we need to get around to that. Yeah, we got some new DNA evidence back. Yeah, sure. So that’s funny.
Don West:
So there is that cloud we’re talking about. Well,
Shawn Vincent:
That’s the cloud. That’s the cloud. Yeah. And part of listening to in these podcast series for the 36 Lessons, we were talking about an expert world-class shooter that we know who was smart enough to avoid a shooting because he knew he was fast enough to where he could give it a little bit more time before he had to react to this person. And we were joking a little bit about how he also knew enough about the legal consequences to know what a pain in the ass it would have been for him to even justifiably face this person who was threatening him with a firearm. And I mean, just the amount of paperwork it involves to have to deal with your insurance company after a minor offender bender is enough to really sort of ruin your week, right? And then we’re talking about a homicide investigation. So I think some people think that they’re going to have a few hours with police and then go back to their life and it’s going to turn everything upside down, even in the best case scenario.
Don West:
And it’s rare that law enforcement would make a significant decision, even that night at that point. They’re going to bring on a prosecutor, someone, maybe a duty prosecutor. They may have a homicide level prosecutor on duty to deal with these things. And then law enforcement’s going to collect their preliminary evidence. They’re going to sort of assess things, bring the prosecutor. And typically, you may not see the prosecutor, likely won’t, but they’re consulting in the background, helping them make decisions, maybe when to get a warrant for certain things, and they may also direct whether to take the person into custody that night, whether to actually make an arrest or not. And there are strategic reasons for that, not based solely on whether they think the guy’s guilty or not. I’ll give you a quick example. In most jurisdictions, an arrest starts a procedural clock. You’ve heard of speedy trial, typically it changes from state to state, but as an example, it might be six months that the case has to be brought to trial—roughly within six months— and that date starts or that time starts upon an arrest.
Well, six months goes by a lot quicker than people think when you’re submitting evidence to a forensic lab for analysis, when you’re collecting witnesses, statements, people may have moved, and tracking them down. You’re doing an extensive deep dive on social media, and where all
Shawn Vincent:
Of that case- Getting cell
Don West:
Phone data. Yeah. Yeah. And you may have to subpoena records to get that. It can be a very timely, detailed, and slow process. So it’s probably not to the prosecutor’s advantage, or to the law enforcement’s advantage, to arrest somebody and start that clock if they don’t think they need to be arrested. So how would they evaluate that? It’s probably they’re going to look at whether they have a prior record, whether they view that person as a danger to society, or is this more like a one-off, if it’s a self-defense kind of case, that this isn’t the career criminal who’s out there robbing banks, and you can’t take the chance. If you let them go, they’ll go rob another one. And…
Shawn Vincent:
The more connections they have, the family they have around, and their connection … ties to the community. The work they do takes some consideration.
Don West:
So you look at the danger aspect, and then you also look at the ties to the community for whether they’re a flight risk. If they think the guy’s going to get up tomorrow and go to work, support his family, and not take off for Argentina, that’s another reason not to make an arrest, because that buys time for the prosecutor to get their case together. It’s not a favor necessarily to the accused, to the defendant. It’s really a part of the strategy in being able to more effectively prepare the case. And that’s because there are ways in many jurisdictions that the accused can force the case to go. And sometimes that’s a tactical advantage. You force the prosecutor to try the case when they’re not ready. When they’re not quite ready. Sure.
Shawn Vincent:
Yeah. That’s interesting. So I’ve often seen … Well, famously in Zimmerman, it was 45 days before an arrest came. I know the Ted Wafer case up in Dearborn, it was weeks. In fact, I know from my research in that case that they brought it to the prosecutor to charge, and she said, “Go out and get me a little bit more before I go ahead and make this charge.” They wanted to get it right. They weren’t afraid that he was going to leave. And so during that time, you may be in or out of jail. So if they do decide to detain you or arrest right away, you’ll be brought in, you’ll be booked, you’ll be handcuffed, you’ll be in the cell for a couple of days until your first appearance or arraignment, or you have a lawyer who can come and argue for bond. And if you make bond, great. If not, you might be in jail for the duration of what it takes to get you to trial. And if you lose that trial, you’ll be sent to prison, and you’ll spend a long time there. But even if you make bond and you can afford it, it’s not a great lifestyle either. And maybe you can talk a little bit about that and that process there.
Don West:
Well, a serious crime and any homicide that’s being evaluated whether to prosecute criminally is a serious crime. An injury caused by a firearm discharge is going to be a serious crime. Many of those carry mandatory minimum prison sentences or the risk of lengthy prison sentences on conviction, which is another way to say the system takes those very seriously as they should. So they’re worried about people taking off and not coming back. They’re worried about them being a danger to the community. So if there are conditions of release imposed, they’re usually very strict, almost onerous.
It may include a high monetary amount. There may be what is typically known as bail. You have to put up half a million dollars or a million dollars, either through a bail bondsman, sometimes all of that or part of it in cash with the court, but that’s typically not all. It’s often accompanied by other specific conditions. There may be a geographic restriction. You can’t leave the county. Sometimes you can’t leave your house. You may be on a GPS monitor and have a curfew, maybe allowed to go to work or grocery shopping, but that’s about it. It’s not the sort of thing that you just post your bond, and you’re free to go for two and a half years until your case comes around.
Shawn Vincent:
And let’s talk about that bond real quick too, because if someone’s smart enough to be a CCW Safe member, and they meet the threshold, and they have a claim of self-defense, and they’ve got you and the CCW Safe team on their side, and they can make that bond, that’s one thing. But I have literally seen families come together with credit cards and a stack of cash, and somebody puts a mortgage on their house to get together. A million-dollar bond can require a hundred grand, and then plus collateral for the balance. So that means you as a defender, as the defendant, are going to all your friends and family often and asking them, “Do you have $1,000 that they can help with this? We have a property that we can put up against my bail bond to scare-” Yeah,
Don West:
So let’s talk about that for just a second, because sometimes you can put up or have to put up all of the cash with the court. Sometimes the court will give you a percentage to put up. And we’ve done that as CCW Safe on behalf of a member where the bond was a million dollars, but it required 10% cash to be posted with the court. That’s $100,000. If you use a bail bond company and the bond is a million dollars, they charge a fee to post the bond, and roughly it’s going to be in the neighborhood of 10%. So if it’s a million-dollar bond and they put up that million dollars with the court, their fee will be in the neighborhood of $100,000. And when I say fee, I mean fee. That’s what they get paid. You don’t get that back at the end of the case.
So you’ve got to come up with $100,000 just to get out of jail. You’ll also have to have, whether it’s family members or your house or whatever you can put together, not only perhaps to pay the fee, but then to be the collateral, the rest of the money that the court would try to get or the bail bondsmen would try to get if you violated your conditions. So I think that underscores the value of having CCW save or a program similar to where you have the peace of mind knowing that someone else is going to pay those fees and will also, in addition to those fees for the bail bond, will also be there to pay legal fees. So if you didn’t have something like that and you had a million-dollar bond, your first $100,000 goes to getting you out of jail. You still haven’t hired a lawyer, you still haven’t hired an investigator or an expert, and you’re already $100,000 in the hole.
If you can’t pay that or you don’t want to pay it because that’s all the money you’ve got, you’re going to have to make some very difficult choices.
Shawn Vincent:
Sure. We’ve worked with defendants who weren’t part of the CCW Safe Network, who, in the end, had to go ahead and turn themselves in because they couldn’t get a job, because if anyone looked them up, they saw the event, and they wouldn’t hire them. They just couldn’t afford to live and pay the money they needed to pay for being out on bond, and they’re like, “Well, I guess I have to go to jail.” And they spent the rest of the time leading up to …
Don West:
Yeah, the pretrial phase. Yeah.
Shawn Vincent:
In jail, because that’s the best option for them at the time. Those are bad choices to make. Those bad choices. There’s a whole lot of embarrassing phone calls to make if you need help. “Can you lend me some money? I was justified, but I killed somebody.”
Don West:
Yeah. So that says two things, right? It says, “Don’t ever put yourself in that situation if there are ways to avoid it.” And of course, if there are ways to avoid the deadly encounter, you want to do that first and foremost. And then secondly, if you are in that situation because there’s nothing you could have done other than to use deadly force that results in the loss of life, you can’t control whether you’ll be prosecuted. You can do lots of things that will improve your chances either of not being prosecuted or not being convicted, but that is not a decision you get to make. And what you then want to do, of course, is put yourself in the best possible position for an acquittal. And that could be a couple of years down the road at least. And of course, you want to have some way to pay for the best defense possible because no one could say they wouldn’t spend all the money they have if they thought it could make the difference between being convicted or acquitted of murder. So I mean, it’s not a difficult analysis at the end of the day.
Shawn Vincent:
Yeah. And so even if you can afford your bond and you can afford the defense, I think a lot of folks who have a profession and work for somebody else might find that they lose their job if they’re in the news for a homicide and they’ve been charged with it. They’re not welcome to work there anymore. And that’s a really awkward point. We’ve talked to people who have been on interviews, and it gets to the point, well, oh, we ran a background check on you, and we’re withdrawing the offer, right? And you’re like, “Well, yeah, I know a couple people talked about how they would bring it up early on. Listen, we got along pretty well here. Here’s something you need to know. I’m going to tell you myself so you don’t find it out, and you’ll have to decide if that’s something.” It’s hard to find a job anyway, but if I killed somebody, and I’m pending murder for it or manslaughter or something is a harder conversation to have with an employer who then has to decide whether you’re so talented that they can’t live without you, that they’re willing to deal with that specter hanging over you.
Don West:
We’ve had those conversations recently with actual real people who are out on bond but can’t work, haven’t been able to get a job and a couple of years go by, and they’re still not able to get a job and they’re stuck sort of at home hoping that they have the resources that they can live on until this thing gets resolved.
Shawn Vincent:
I hope you like to read. Or you end up taking a type of work that you never imagined that you’d have to take, maybe something you haven’t done since you were a kid, that you have to get your mind around.
Shawn Vincent:
A lot of doom and gloom.
Don West:
Doom and gloom today, aren’t we?
Shawn Vincent:
Well, yeah, I guess that’s the idea. The real thing is just have a real sense of what the consequences are because you and I see it all the time. And we have people that we … When you work with these folks, even when they’re defenders who’ve made mistakes, it’s hard not to develop … You have a relationship with them. You’re with them for a long time. You work together, especially if they’re not in jail for sure.
They come to the office, you spend a lot of time. And I don’t think anyone gets into criminal defense work because they aren’t compassionate about people. They are empathetic toward people, and they don’t like to see people suffering. I mean, I think there’s something inherent in that, or else you’d go be a corporate defense attorney and make lots of money denying insurance claims. I have an opinion about that. But yeah, so you don’t want to see good people, especially. It’s one thing to see a criminal have to face charges that are beyond what, maybe, they deserve or face punishment that’s beyond what they deserve, but they might deserve something. But when it’s really a good-natured person, a family man, a mom who thought they were doing the right thing to protect themselves or their family, and they make some mistakes, and then now they’re facing this, those are the worst.
And I guess that’s why I come on hot when we have these conversations, Don, because I just want people … I don’t think they really grasp what’s on the other end of firing that trigger. They’ve never seen it. I couldn’t know unless I’ve seen it firsthand so many times, you just can’t know.
Don West:
Yeah. And I think that as people become more and more aware of what this process would mean if they wound up in the middle of it, what the standards are, what the roles of the participants are, what an incredible, overwhelming responsibility it is to carry a gun and what decisions you’re faced with when you’re in a confrontation of some sort, that you have to have the right mindset, you have to have the right training, you have to be able to make good decisions under stress. You have to know when to use a firearm and when not to, and what to do in between, and those kinds of things that are dynamic and stressful and overwhelming. It’s obvious and easy to figure out why people make bad decisions in that moment.
And we want to do everything we can to help them get through that process as well as they can. We don’t make up the facts. We don’t change the facts. We help you deal in the most successful way with the facts. That’s what the lawyer does. The lawyer’s not going to be able to make up new information or create facts that don’t exist. Hopefully, though, when you’ve thought this through, when you’ve gotten some training, tactical stuff, so you’re more confident with the way … I wish … if we were to ask our colleague Steve Moses about these things, the idea of tactical training gives you more options. It gives you more time. Your decisions are more sound. You’re more confident as you’re making those decisions. And then, of course, what we’re talking about today, some of the legal issues, the boundaries that you have to honor and respect, because if you don’t, you’ve basically provided an invitation to be prosecuted.
Shawn Vincent:
Let’s talk about …. you’re in that period, we talked a little bit about there’s evidence collection, there’s phone records, there’s subpoenas, there’s sometimes depositions, if you’re allowed. There are certainly investigations into potential witnesses and things that all takes months and months and months. It can be … Once you’ve had the bond set and some preliminary hearings, then the discovery phase starts, and that can last months. And then you start getting close to where a trial date may have been docketed, and a trial date’s sort of like a due date when you’re expecting a baby. It’s almost guaranteed that’s not the day the trial’s going to be, right? There’s going to be stuff that comes up. It gets continued regularly. I remember in the Zimmerman case, I used to get annoyed with the press when they’d say, “Oh, there’s another delay in the case.” And there’s not a delay. They just made up a number and said, “Here’s where the trial date is.” And then we move for a continuance, and they granted it. We’re not delaying anything. It wasn’t ever actually going to happen on that day. We do that. The court knew that. The prosecutor knew that.
Don West:
Yeah. The judges routinely schedule status conferences, even if they’re not called that, where the lawyers go in, and they may need the judge’s help addressing certain issues and talk about things that can be resolved or that are going to take longer than they thought. And then they eventually come up with a date that’s realistic.
Shawn Vincent:
About the fastest I’ve ever seen a reasonably funded murder case with a self-defense claim go to trial is a year, maybe just shy of a year is about the fastest I’ve seen it. 18 months is pretty common. Two years plus happens commonly enough for that to be a reality that I think an armed defender would have to consider—where if they are actually facing prosecution, that means hold on tight, the next year or two of your life is going to be suspended while you work on this. And this is probably the only thing that you think about, except for, as you say so often, the first two blissful seconds after you wake up in the morning, before you remember what you’re facing, right?
Don West:
What you’re dealing with sure. And the best laid plans, as they say, you could have that 18-month period, and everybody’s working diligently and they have a realistic trial date, and then two weeks before trial, an expert witness is no longer available, or somebody gets sick and they have to, for no one’s fault, they have to reschedule the case and you don’t reschedule it till the next week typically, because subpoenas have already been issued and you have to redo all of that stuff. So you’re going to be six months probably. And then if there’s another problem and everybody has all these people they’re trying to herd along the way and be sure they’re available for this two-week period at some point in time, something else happens, and now another six months. So a case that in all good faith and expectation was going to be tried in June, could very well wind up being tried the following February or March or what have you. And if you’re out on bond, you’re still out on bond, you’re still not working probably, and you’re not enjoying life the way you used to. And if you’re in jail, you’ve just got another six to 10 months of dealing with that.
Shawn Vincent:
That’s why it’s best if you’re an avid reader, keep you occupied during that time.
Don West:
I don’t think you can have a Kindle or your phone in jail. No,
Shawn Vincent:
If you go old school with whatever they got in a library or whatever, someone’s good enough to send you. Let’s just talk about some of the things that somebody might get charged with in a self-defense shooting, and this is how these get charged and what they call even different types of murder or manslaughter are different from state to state, from jurisdiction to jurisdiction, as are the penalty ranges associated with them and even whether it’s the jury who’s going to choose that or the judge who’s going to choose the penalty range and whether there’s mandatory minimums involved with those. But if someone was not killed but either hurt or sometimes not hurt at all, these could be anywhere from assault to attempted murder charges, right?
Don West:
Yeah. Some states call assault what other states call battery, and that’s when someone is injured through the discharge of a firearm. Merely the pointing of a firearm at someone in an intentional way to frighten them or threaten them is often called aggravated assault, and that can also be a very serious crime in and of itself, standing alone without any injury, without any shots being fired. And sometimes that’s the difference between somebody knowing when they can display a firearm legally in self-defense, a defensive display, as opposed to when you’re pointing a gun at somebody to win an argument or to prove that you’re the better driver or what have you. I mean, we see all that display, brandishing, and aggravated assault.
Shawn Vincent:
No, you cut me off. Yeah.
Don West:
Yeah. And then you pull the trigger. We often talk about warning shots. People say, “I wasn’t trying to hurt the person. I just was firing the gun as a warning that I would if they didn’t stop.” We know that’s a pretty bad decision virtually every time because once you’ve discharged a firearm, you have now used deadly force. What is your warning shot may be attempted murder to somebody else. You can clearly …
Shawn Vincent:
Do Angela Corey, for instance, in Georgia or in Florida. Marissa?
Don West:
Marissa Alexander, I think, was the case you’re talking about. Absolutely. Yeah. And that had a 20-year mandatory minimum on that case, and she was convicted.
Shawn Vincent:
Times three people who she didn’t shoot. Served consecutively. So she was facing up the 60 years for not shooting someone, a warning shot.
Don West:
Yeah. So let’s circle back though, because we have to compartmentalize the idea of the criminal offenses that could be charged out of various scenarios as set against self-defense, which would be a lawful defense to any of those charges. In the self-defense context, justifiable use of force. But first of all, the prosecutor has to identify and then plead and then ultimately prove the underlying crime, whether it’s first-degree murder, second, manslaughter, all the way down to lessers of aggravated battery or aggravated assault. Each crime will have elements. It’ll be broken down to two, three, or four things that the prosecutor must prove beyond a reasonable doubt. And if the jury’s convinced the evidence supports each of those elements, then the proper verdict would be guilty.
One often thinks of first-degree murder as requiring premeditation, the so-called cold-blooded aspect of it, and that’s often true. Not every state requires that exactly. There are other ways to be convicted of first-degree murder, felony murder, in a lot of jurisdictions, for example. But nonetheless, a prosecutor will have to allege and then ultimately prove those elements. Second degree murder, rather than the cold, calculated style of, I’m going to kill this guy, instead about doing it and in fact doing it, which would be first degree murder in most places.
Second-degree murder is often a different kind of intent. People call that depraved mind or depraved heart, where … It’s usually combined with some sort of spite or evil intent or something more than just heat of passion. Second-degree murder, I’ll use Florida as an example, is a very, very serious crime, often carries life in prison, especially if there’s a firearm involved. So that’s no bargain, typically. Just because you’ve been charged with second degree as opposed to first doesn’t mean that you’ll gain much practically if that’s what you can get convicted of.
Lesser offenses might be voluntary or involuntary manslaughter, all of which involve a death. There’s an interesting thing people call imperfect self-defense, which is fascinating to me. Some states recognize it, some don’t, but in a way, it typically comes into a self-defense case for the jury to decide under scenarios where there’s been a self-defense incident of some sort, and the jury concludes yes, that the person acted in what they perceived to be self-defense. There was a threat, they responded, but they may conclude that the response was so disproportionate or that the threat was not nearly imminent or something that makes their response unreasonable.
Shawn Vincent:
Unreasonable.
Don West:
Objectively unreasonable. So even if you did it in your own mind, you believed you were threatened and needed to act. If the jury doesn’t agree that your conduct was reasonable, then in some jurisdictions it would be a lesser included, but a very serious crime that would be sort of called imperfect self-defense. It may reduce it from first-degree to manslaughter or second-degree to manslaughter. In some places, it may stand alone, but the bottom line is that it’s still a crime. Even if you’ve alleged and attempted to show self-defense, if the jury doesn’t think that your conduct is reasonable. So just to say then, to close the circle on all of these offenses, self-defense is a valid defense. And if the prosecutor cannot overcome your claim of self-defense, then the proper verdict is not guilty. But all that really does, I think, is shift the focus away from a crime that the prosecutor has to prove anyway, to then they have to prove it, and then they have to show that it wasn’t in self-defense.
Shawn Vincent:
Sure. When they prove it, they have to prove that it happened, that you did it. And in self-defense, you’re saying, “Yes, it did happen, and I did it. I was justified because …
Don West:
So that’s the thing. You can’t really claim an alibi and self-defense. You’ve got to pick and …
Shawn Vincent:
It’s all in.
Don West:
And so the prosecutor really doesn’t have to prove the identity of who was it. It’s usually, Was a crime committed? And do they have the right person? If you said, “Yeah, I’m the one that did it. I pulled the trigger. I shot him on purpose. I’m sorry that he died, but it was him or me and it was going to be him.” You’ve already accomplished two-thirds of what a prosecutor would have to typically prove to get it in front of a jury. So it’s an all-in kind of thing.
Shawn Vincent:
I want to talk about sentencing ranges because sometimes, depending on where you’re at, there’s no real difference between a sentence for first-degree murder that’s not a capital case and second-degree murder. And sometimes, manslaughter convictions can be so long that, depending on how old you are, they might as well be a life sentence. I mean, if you’re, let’s just say 55 or older, whether it’s first-degree, second-degree, or manslaughter, you’re probably spending the rest of your life in prison if you’re convicted.
Don West:
Well, a pretty good chance of it. I don’t think that anyone’s going to want to spend those years there. They’re harder than anywhere else you could be spending them, frankly. So
15 years in prison is a lot more than 15 years at home, but yeah, you’re right, you’re right. A lot of those sentences that can accompany those kinds of crimes, even though they’re considered lesser than first-degree murders, still often have a very long prison sentence. And sometimes it’s beyond the judge’s control because of the use of a firearm may result in a mandatory minimum sentence. Sometimes, just the crime itself has a mandatory minimum as well as a maximum. And some states still have parole systems where you might be able to get out, and the judge can even give you an indeterminate sentence of some sort, but a lot of places have abolished parole. You get a 20-year sentence, you would be expected to serve 85% of it. You get a little off for good time and such, but it’s almost real time. And if there’s a mandatory minimum firearm offense, it’s usually day for day on the calendar.
Shawn Vincent:
Yeah. And I think in most places where I’ve been involved in criminal trials, the jury is not allowed to know what the sentencing range is for the verdict that they’re going to render, which means, if you think that you’re a sympathetic defendan,t and you’re going to face this trial, but if a jury, maybe they feel like you messed up a little bit, but they feel sorry for some things and they might, maybe they’ll give you a softball, something less. Often, jurors are surprised, and they find out what the sentence associated with their verdict is, and you won’t have that chance. It’s really, you’re really putting your life in their hands.
Don West:
Yeah. I think it’s pretty rare for the jurors to be instructed on what the minimum and maximum range is. In fact, typically, the prosecutor takes great pains to prevent the jury from knowing what the sentence is actually likely to be. They wouldn’t necessarily know if there’s a mandatory minimum and such. And you’re talking a little bit about compromise verdicts or jury nullification that in large part are uninformed. I’m thinking of a scenario where the prosecutor may actually have a technically legitimate case. Nobody likes it because maybe it’s stupid or it seems unfair or overreaching, but technically, they can bring it into the courtroom, and the jury sees it, and they know that technically, maybe there was proof on each of the elements, so they could lawfully convict, but they just don’t want any part of it. That’s beyond their role as jurors to let the government get away with that.
So there may be a nullification, and sometimes lawyers will try to make a nullification argument if they can get away with it, basically convincing the jury it’s not fair for this guy to be convicted under this set of circumstances. In some degree, I think there’s an idea if the jury really knew what he or she was going to get, that might affect the verdict, which is supposed to be based upon the facts and the law for which they’re instructed.
Shawn Vincent:
Yeah. Those are relatively rare. You don’t want to be in a position where you’re betting on that.
Don West:
I don’t know if you want to talk about the sandwich case, but that’s an example of something that could be viewed as a jury nullification, or it could be viewed as the government simply didn’t prove its case. But you know the history of the guy throwing the sandwich at the I.C.E. agent?
Shawn Vincent:
Right, right. It was a wrapped Subway sandwich that … Yeah. And so I guess technically throwing a sandwich at somebody is battery, But they just thought you so overplayed your hand. Overplaying your hand as a prosecutor is something that we faced a lot, and where something that was manslaughter at best, if it wasn’t self-defense, was charged as second-degree or first-degree murder. And I think nationwide, in a lot of these cases I’ve seen over the last 10 years, prosecutors have gotten smarter and they’ll charge serious cases as manslaughter, which means they’re presenting to the jury not, “Oh, this person had it out for this other person and they wanted to, let’s say, create a circumstance where they felt justified in shooting, that they just were unreasonable. They got too scared compared to the threat that they faced at the moment, and they just made a deadly mistake, and we’re calling that manslaughter. It’s an easier conviction to get.
Don West:
It’s still curious. Just like I pointed out before, the prosecutor has to prove each element of the crime that they’ve alleged. They’re also what I would call several elements of self-defense. And while the prosecutor has to disprove self-defense beyond a reasonable doubt, they really only have to disprove one of the elements beyond a reasonable doubt because if they can get the jury to believe the use of force was disproportional or that the threat was not imminent, even though it was life-threatening, that would crumble self-defense. So I think sometimes you’re right, the prosecutors are a little overzealous and they charge a crime that they really can’t support. And I don’t know if that’s because they think there’s an advantage to take a run at it, or sometimes maybe they think they’ll get a compromised verdict, which is where some jurors might want the big charge, some jurors might want the lesser charge or no charge, and then they settle on something in the middle, having no idea what the actual outcome to be accused would be.
Shawn Vincent:
And there’s very little difference in the sentencing, right? And I got to tell you, it’s a real thing. If they’re still there on a Friday night at 7:30 and they don’t want to come back on Monday morning to start this deliberation again, sometimes people will give up their convictions and convict if they didn’t think so otherwise.
Don West:
Well, and I think they assume that somebody else can fix it. If they got it wrong, the judge can fix it. Or what I think is the greatest misunderstanding of the process is it’ll be fixed on appeal, that they’ll appeal it, and the appellate judges will get in and take a good look at this and realize that something bad happened and fix it, which isn’t the way that works either.
Shawn Vincent:
We’re getting close to an hour here. So that might be a good way to start winding it down … is this whole idea of appeal. And what an appeal is, is that if you can make a case that there was some error during the trial and the defense made a record of that error, then there’s the chance that after a conviction, you can go to the appeals court and say, “This conviction should be vacated because of this error that we think was serious enough to impact the verdict.” And then the court doesn’t go re-litigate the whole case. The appeals court doesn’t just go look at all the facts and decide whether they think the verdict was correct. They just look at that one detail to decide was there error and was the error big enough to affect the outcome of the case. Did I get that right?
Don West:
Yeah. There’s going to be error in every case. So that’s the point you make that is the error harmless, meaning that it doesn’t rise to the level that it had, for lack of a better way to describe it, and impact on the outcome. And if it’s harmless error, the appellate courts can say that. Yeah, we agree, but we didn’t think it really matters at the end of the day. So it won’t be enough to get a new trial, which is the remedy that the appellate court provides. It might be an extra year or a year and a half after the conviction that you’re in jail while the case is on appeal. And then when they decide it, the choices are almost always either no sufficient error to warrant reversal, so it just gets affirmed, the conviction gets affirmed, or if there is sufficient error, then the case is remanded, not to have the accused go home, but it’s remanded to the trial court for a new trial to start over.
So now you’ve got that whole next phase to redo it, and that’s usually the way the appellate courts work. Let me point out though, there are certain kinds of errors that are almost always reversible if there’s significant enough. And then there’s others that just hardly ever make a difference. The ones that make a difference would be if there was an improper comment about an accused right to remain silent, for example, by a prosecutor or a police officer that just didn’t realize what they were doing or made a comment that, no, I asked him what happened, and he said,” I don’t want to talk to you without a lawyer,” or something like that. But the one I think that results in most reversals in self-defense cases are inadequate or improper jury instruction.
Shawn Vincent:
Jury instructions.
Don West:
Jury instructions, right. And that’s the set of instructions the jurors get at the end of the case to decide how they should apply the law to the facts and then render their verdict. And if the instructions are inadequate or misleading, then the appellate courts will often latch on to that and say, “You can’t say the case is fair that the error didn’t affect the outcome if the jury didn’t have the right rules to follow.”
Shawn Vincent:
Right, right. And still relatively rare.
Don West:
Oh yeah. The last thing you want to do is depend on getting a new trial on appeal. That’s the worst defense you could have.
Shawn Vincent:
Or hoping the governor of Texas will pardon you.
Don West:
Oh my goodness. Well, he weighed in early on that one.
Shawn Vincent:
He did. On that one. He did. That’s the Daniel Perry case.
Don West:
And people say, “Well, I’ll just take it all the way to the Supreme Court.” Good luck.
Shawn Vincent:
Good luck. For this conversation, I mean, we could talk for hours and hours, I’m sure, but anything broad strokes that we didn’t talk about, or you want to reinforce that an armed defender should know about what the criminal legal consequences are of using your firearm and self-defense?
Don West:
Well, in summary, I think it’s fair to conclude from our conversation and our experience collectively that there is likely to be a consequence of some sort. And the more serious the incident, meaning were shots were fired, people injured, where people were killed, is going to be more likely the seriousness of the investigation. The stakes get higher and higher and higher until if you’re in a lethal self-defense case, it’s going to be investigated thoroughly as a criminal homicide, as a murder, as a manslaughter, and they’re basically going to have to conclude, did this happen? And you’ve already told them you were the one that did it, and did you have legal justification? And they may simply decide not to weigh in on that and to let the case play out for months or even years until the jury decides whether their opinion it was self-defense.
So you help yourself by understanding what you can do right from the beginning to avoid being in it, to start with, that if you can’t avoid being in it, how to better improve your chances for dealing with law enforcement, how to get counsel involved early, how to navigate that pre-arrest and then pre-filing phase to improve your chances of not being charged or to set the stage for the best possible outcome. And then of course, being ready to have a good lawyer that’s getting paid to do his or her best for you, that’s adequately funded with experts and investigators and such, because you know the other side will be. The state has a virtually unlimited budget to get the necessary resources.
Shawn Vincent:
It’s a matter of their will in that regard.
Don West:
So you need the practical training that Steve talks about in other podcasts, and you really need a good understanding of the criminal justice system, and where those legal lines are that you have to be aware of, so you don’t cross.
Shawn Vincent:
We were at a conference not long ago, we were talking about some of these legal ramifications, and someone came up to us and was like, “Oh, you make me think about whether I want to carry or not.” And we sold them, that wasn’t really what we meant to express. You’ve made this decision. You understand that you’re a responsible gun owner, you know what’s right. I think where this conversation really helps is it reinforces our conclusion that we come back to you over and over again, which is if you’re in a situation like that, and you have any possible way to safely avoid it, that you can save yourself all this heartache and all this legal jeopardy and all this risk and potentially save a life, even if that life isn’t necessarily worthy of saving, right? But if you know what you’re bringing down on yourself, even if you’re one of the most clear-cut cases of self-defense and you had a chance to avoid it, you’re just going to kick yourself, maybe in jail, and maybe for the rest of your life, that you didn’t take that chance.
Don West:
But if you got to do what you got to do, then do it soberly and with all the knowledge.
Don West:
Yeah. I think that’s well said, Shawn. I think that we’re not trying to scare people from being able to make good, informed decisions at those critically important moments when they have to make them. We’re asking people to think about it beforehand and prepare themselves for that moment, both tactically and with an understanding of how you will be treated by the criminal justice system so you can best position yourself for the best possible outcome.
