Armed Citizen: Oklahoma Pharmacist Defends Employees from Robbers

[DeltaB]

Ersland chose to not enter a plea today. Preliminary hearing is September 3, 2009. Out on 100,000.00 bond.

[G-man 26]

Yes, that was a few hours of reading, and that's just getting here from the middle.

Box told the judge he has accepted other unusual payments in the past, including comic books.

Have we found a defence atty for playboy should he (God forbid) get into trouble?

Mr. Ersland will be asked every which way from Sunday what he was thinking and why he did what he did. And the jury will decide as to his guilt or innocence.

And based on his prior performance, he will give every which way till Sunday an answer. He has not been reliable up to this point, and I don’t see that changing.

Our pharmacist is a liar of the most low life type that claim active duty battle experience when it never happened! I have 5 expletives to describe this puke but I like my membership here! Any human that claims US military active duty battle experience that did not happen is 3 rungs lower than a crack dealer to me!

Yes, nail, meet hammer, could not have said it better. I am never willing to ignore evidence, as has been suggested. I would look at all presented evidence with a very liberal view for a war veteran who swears the kid moved. I would take the word of the only witness (off camera) to the last five shots if his word were good, but I tend to become very conservative in the presence of liars, thieves, and murderers. Being as he has met one of the three...

I have to agree, rye toast, and the third one met as well.

[PT111]

Ersland chose to not enter a plea today. Preliminary hearing is September 3, 2009. Out on 100,000.00 bond.

Mr. Ersland may be better off skipping the country and taking his chances with Dog the Bounty Hunter than the buddies at the Graybar Hotel. Having read all 30+ pages of this thread plus other's I think he is toast.

[Re4mer]

No comment on this one? Was he going for the gun? Was he up? Could the pharmacist have subdued him without this additional use of deadly force? Was the threat over?

If he was shot on the ground, with a gun no where near him, would you all still be applauding? Could he in fact have been acting with an animus and have simply executed this young man?

As we dont have all the facts here, could it be that the protesters were right? Do they know something the press isnt telling us?

Honestly Alaska is there any situation possible in which a man defends his life and the lives of others with a gun that you wont find fault with what they did? Every time somebody on this forum posts any story about a citizen defending him or herself with a firearm you seem to always find some obscure way to criticize what they did or how they did it.

1) The robbers had guns.
2) The robbers had already shot at the victim several times.
3) The victim was recovering from back surgery and virtually defenseless without his gun.
4) It doesn't matter if the guy was down at one point in the gun fight he was getting up again and in that situation since he had already shot once it was too risky to let him get back up and possibly continue fighting.
5) Finally, when a group criminals come into a store with guns blazing they are the ones in the wrong not the person who defends himself.

There is also something wrong with these protesters calling a man racist for simply defending himself against an assailant who happened to be of another ethnic background. What blatant hypocrisy from all of them. I seriously doubt that if these thugs would have busted into their work places with guns blazing that they would not fought back.

[MLeake]

Re4mer,

Forensic evidence and video don't support the claim that the BG's fired any shots.

The pharmacist was not wounded.

The dead kid never had a gun, just a mask.

The kid with the gun never fired, and ran away when shooting started.

Pharmacist lied about several details. Or, giving him the benefit of the doubt, his memories were wrong due to stress, adrenaline, whatever.

Pharmacist definitely lied about being a combat vet.

Pharmacist had chemical dependency issues that would have disqualified him from carrying a firearm.

Video from pharmacy shows pharmacist calmly turning back on dead BG while getting other gun, then calmly walking back and shooting him.

[PT111]

Are you talking about the Ersland case with these comments?

1) The robbers had guns.

They had one gun.

2) The robbers had already shot at the victim several times.

How did they shoot at him several time when there were no bullets in the gun and some have even reported that the mag was duct taped to the gun. Mr. Ersland was never shot at.

3) The victim was recovering from back surgery and virtually defenseless without his gun.

He was running pretty good getting out the door and chasing one of the robbers down the street.

4) It doesn't matter if the guy was down at one point in the gun fight he was getting up again and in that situation since he had already shot once it was too risky to let him get back up and possibly continue fighting.

The one lying on the ground had not shot once or at any time. He never had a gun. The one with the gun had long gone.


5) Finally, when a group criminals come into a store with guns blazing they are the ones in the wrong not the person who defends himself.

I agreee with that but with guns blazing doesn't apply in this case at all.

There is also something wrong with these protesters calling a man racist for simply defending himself against an assailant who happened to be of another ethnic background. What blatant hypocrisy from all of them. I seriously doubt that if these thugs would have busted into their work places with guns blazing that they would not fought back.

I haven't heard anyone on here try to say anything about it being a racist thing but some in the public media have. Is totally a non-factor.

[pax]

Ah, several people just getting here, I see. :cool: It's a long thread, so here are the important bits of information you need to have in order to discuss this intelligently:

Here's the initial news report: http://newsok.com/pharmacist-is-glad-he-defended-store/article/3371710 ("Man Has No Regrets Defending Pharmacy") Pay attention to what he says in that interview, and then watch the videos below with his words in mind. (This is what he said before he was charged.)

Here's the raw surveillance camera footage: http://newsok.com/multimedia/video/24432753001

Here's the affadavit of probable cause: http://s3.amazonaws.com/content.newsok.com/documents/pharmdoc0001.pdf

Here's a short, edited version of an interview with the prosecuting DA, which includes a few statements from Ersland's defense attorney: http://newsok.com/multimedia/video/24432794001

Here's the extended interview with the DA, uncut. It is hard to hear in spots, and it is WELL worth the 20 minutes it takes to view: http://www.news9.com/Global/category.asp?C=116601&autoStart=true&topVideoCatNo=default&clipId=3804065

And here's an article about this DA's view of the 2nd Amendment: http://newsok.com/self-defense-allowed-by-law-oklahoma-county-da-says/article/3373148 (The money quote: "I do not want the charging of Jerome Ersland with first-degree murder to have a chilling effect on any person legitimately in a position to defend themselves from an assailant,” ... the decision should not cause anyone to hesitate to use appropriate force if faced by the "imminent threat of serious injury or death from another person.”)

Interestingly, at the bail hearing, the DA (prosecutor) strongly objected to the judge's order forbidding the defendant to own firearms until after the case was resolved. See http://newsok.com/pharmacist-in-fatal-oklahoma-city-shooting-released-on-100000-bail/article/3373194 for that whole story.

This link (http://newsok.com/druggist-jerome-ersland-says-he-feared-for-life-during-shooting/article/3374434) reports on the O'Reilly interview which happened after he was charged with murder.

There's also a good page here (http://www.newsok.com/pharmacyshootings) with ongoing local coverage of the situation.

And finally, here's a link to the best in-depth analysis article I've yet seen: here. (www.okgazette.com/p/12776/a/4098/Default.aspx?ReturnUrl=LwBEAGUAZgBhAHUAbAB0AC4AYQBzAHAAeAAslashAHAAPQAxADIANwAyADkA)

If you're joining this discussion and don't want to read through over 700 posts, I don't blame you. I haven't read all of them myself.

But that doesn't mean you can join a conversation in progress and not concern yourself with what has already been discussed.

So for your convenience, here is a summary. This, coupled the links in post 726, will allow you to participate without looking like an idiot.

Undisputed Facts:

Two men enter a pharmacy store with the intent to rob it. One robber is armed and displaying a gun. Jerome Ersland, a pharmacist, draws a gun and shoots the other robber, Antwun Parker, in the head. The armed robber flees. Ersland gives chase but then returns to the store. He walks past the prostrate Parker in an unconcerned manner. Ersland retrieves a second gun and walks back to Parker. Ersland fires five shots into the abdomen of Parker, killing him.

Ersland's Defense

Ersland's principal defense (and what we have been discussing) is a claim of self-defense.

The DA charges Ersland with murder. The DA expressly declares the the first shooting by Ersland, the one where Parker was shot in the head, was justified. The murder charge is ONLY for the five additional shots fired into Parker.

It does not matter legally whether Parker would have survived the head wound. The ME says yes, but it's irrelevant. The only legal issue is whether Parker was alive, and the ME's opinion that he was in fact alive at the time of the second shooting and that the five shots to the abdomen were fatal is probably going to be conclusive on that issue.

No one on TFL claims that the first shooting by Ersland is at issue. The ONLY issue is whether Ersland was justified in shooting Parker an additional five times.

Inculpatory Facts

Facts against Ersland that are apparent from viewing the surveillance video:

He goes past Parker, exposing his back, as he chases the other robber outside the store.

He returns to the store, again going past Parker and exposing his back to Parker as he goes behind the counter.

He retrieves a second gun and with seeming nonchalance walks over to Parker and bends over and shoots Parker five times.

He then, again with seeming nonchalance, walks behind the counter and picks up a phone to call the police

Additional facts against Ersland (which come from the initial article "Man has no regrets defending Oklahoma City pharmacy"):

He claimed to be a veteran of the Gulf War and to have been injured in the war. But he was discharged before the Gulf War began.

He claimed that he was shot at during the robbery, but according to the police, Ersland was the only who fired a shot.

He claimed that a robber grabbed his hand, but the video shows neither of the robbers was anywhere close enough to grab his hand.

He claimed that he got the second gun before the second robber fled, but the video shows that he retrieved the second gun after he chased the robber down the street and returned to the store.

He claimed that as he started to chase after the second robber, he looked back to see Parker getting up again. Ersland said he then emptied the .380 into Parker's chest as Erlsand kept going after the second robber. The video shows that Ersland did not look back as he chased the second robber and that he did not keep his eye on Parker when he returned to store and went behind the counter to get the second gun.

Additional evidence, in the form of opinion, will be the ME's testimony that Parker was alive but unconscious when Ersland pumped the five rounds into his abdomen.

Exculpatory Facts

In Ersland's defense:

1. This never would have happened if Parker and his accomplice had not tried to rob the store.

2. Participants in high-stress situations often mangle the facts in the retelling.

3. According to at least one post by an EMT in this thread, even dead men can twitch. So it is possible that Parker twitched or otherwise moved even though unconscious. The versions of the video that I have seen do not show Parker on the floor.

The Basic Issue

The issue is not whether a store employee is justified in shooting a robber. Please don't waste everyone's time with that. We all know it.

And if you believe that once a robber enters a store, his life is forfeit and he becomes your personal property even if he ceases to be a threat, well, think what you like, but that's not the law and that's not how most people think.

The questions to be decided by the jury in connection with self-defense are:

1. Whether Ersland truly feared for his life (or feared great bodily injury). If not, there's no self-defense.

AND

2. Whether Ersland's fear for his life (or great bodily injury) was reasonable under the circumstances. If not, there's no self-defense.

This is sometimes referred to as the subjective and the objective tests for self-defense. BOTH must be present to carry the day with a self-defense claim.

An "imperfect" self-defense can reduce a charge from murder. So if Erlsland truly believed that death or great bodily injury were imminent, but his belief was unreasonable, that can reduce the severity of the offense to murder 2 or manslaughter.

pax

[Beentown71]

Look at Pax work:D Thanks for the third quarter recap to keep things on track. Plus it is a nice refresher.

Beentown

[PT111]

Thanks to both Pax for the recap and RickyB for creating that part of the recap. In a case like this people get all upset and in some cases riots may break out ets. all because of half-truths or even down right lies being spread. Only one side of the story is often told on Internet boards and leads to problems. Thankfully we have a few on here that tend to keep us straight.

[Farmland]

Intense situation to find your self in. An even more intense case to sit on the jury. The finer point of this case is that everyone should feel safe from prosecution when they do have to defend themselves and take deadly force. even the DA supports this.

The second part that really has everyone in disagreement is how far can you take that deadly force. If you outright kill the bad guy on the first shot your pretty safe, however once that person is down but not dead then there is a fine line between defensive action and murder.

I have thought about what I would have done in this robbery. I know if I had to I would have tired to defend my self and take deadly action. I probably would not have gone after the robber who left the store. In addition I would have kept my gun on the victim who was down just in case he made a aggressive move. Since everything went so fast I probably would not have known if he had a gun or not but after seeing one gun I would have assumed he was armed.

If the guy on the floor started to get up I would have probably shot him again since I would have considered him armed and dangerous. However if he was just groaning and moving a little I would have just kept him covered until the police arrived. I know that I would not have walked by him or up to him since I would have considered him a threat.

However that's me and I would have to assume that I would remain calm along with keeping a reasonable thought process after I just fired my gun and actualy shot someone. What I do know is that I couldn't walk up to a person who is down and not a threat and shoot him again.

While the video may looking damning it still doesn't show what the bad guy was doing on the floor. Unfortunately there is no sound to go with the video.

When I think of this case I know if a bad guy is down and not a threat we don't give policemen the green light to end their life. So this case will hinge around a jury that will have to figure out if the pharmacist still was in fear of his life. And to be honest from watching both angles of video I see no evidence to support that defense one way or the other. I simple can't see what the young man was doing on the floor. For all I know he was motionless on the floor or trying to get up and maybe had his hands under his body looking for a gun.

If I saw evidence that the pharmacist pumped 5 rounds into a unconscious person on the floor then I would have to find him guilty. That is the way the law reads and I agree with it. However if there is not 100% clear evidence of this then there would be a shade of doubt and I could not convict the pharmacist.

[Playboypenguin]

While the video may looking damning it still doesn't show what the bad guy was doing on the floor. Unfortunately there is no sound to go with the video.
Actually, the motions of the shooter and the forensics evidence gathered at the scene can give a very good idea of what the perp was doing.

As for trying to say to myself "what would I do in the same situation?"; that is a bit hard. I am not sure what I would have done but I sure hope I would have done better than this guy.

[PT111]

As for trying to say to myself "what would I do in the same situation?"; that is a bit hard. I am not sure what I would have done but I sure hope I would have done better than this guy.

I hope that all of us would do better. No one knows what they will do until such time comes and usually it is much different that you thought it would be.

[Playboypenguin]

I hope that all of us would do better. No one knows what they will do until such time comes and usually it is much different that you thought it would be.
I am pretty sure my reaction would involve a whole lot less chasing and shooting and a great deal more cowering and pants wetting while throwing whatever drugs over the counter at them that I felt would make them happy. :)

[peetzakilla]

I am pretty sure my reaction would involve a whole lot less chasing and shooting and a great deal more cowering and pants wetting while throwing whatever drugs over the counter at them that I felt would make them happy.

LOL Truth be told, I would guess the reaction of most of us would be the same. I may add some nonsensical babbling in there, just for good effect, but you're definitely close.:D

[hogdogs]

I am a bit of a hard nosed McGruff the crime dog but I have a bit more of the pitbull bloodline in me. I would refuse to give up anything and would try to get a gun involved but from the time I re-enter my place I would know I had several Hi-def cameras running and would not go doing anything like blatant murder in front of them.
Brent

[OuTcAsT]

It would appear that the Medical examiner has concluded that the fatal shots were the ones to the abdomen;

http://www.newsok.com/gut-shots-claimed-oklahoma-city-pharmacy-robber/article/3387040


Toast.

[Wildalaska]

Graze wound from pellets, huh?:eek: .410 from a judge for self defense:rolleyes:

WildicantastethesteakAlaska ™

[PT111]

Sounds exactly like what I would expect of a .410 Judge. Now if had just kept the Judge instead of trading it for the low power, weak P3AT he would be in a lot less trouble.

[Lost Sheep]

Sounds exactly like what I would expect of a .410 Judge. Now if had just kept the Judge instead of trading it for the low power, weak P3AT he would be in a lot less trouble.
Please explain. I don't understand how Mr. Ersland would be in less trouble for killing Mr. Parker if he had used the Judge instead of the P3AT. Dead is dead, and at the range of the final shots, either gun would have done the job throughly.

Lost Sheep

[hogdogs]

Lost, he is implying that the judge would have continued to cause grazing wounds rather than causing death like the .380 did. Me thinks that was the meaning.

Brent

[DeltaB]

The ME's department has completed their findings and it has been found conclusively that the suspect was still alive when Ersland walked back to him and unloaded the last 5 shots.

Also, the service records were released to the DA's office and it isn't looking good for Ersland's testimony. (as we already knew)

http://newsok.com/oklahoma-city-druggist-jerome-erslands-record-in-doubt/article/3388041?custom_click=lead_story_photo

[PT111]

From Mr. Ersland's statements as i recall he said that he had fired several times at the robbers so the Judge should have been empty by then. By changing the weapon he evidently wans't going to shoot any more with the Judge so if he had just kept it then he wouldn't have shot any more. In addition I don't have as much faith in the .410 as a "fully" lethal weapon as the .380 but both are lethal. It sure appears to me that he exchanged guns to finish the fellow off rather than just a defensive shooting, why else would he have changed guns? I think it has been determined that he only fired the Judge once so had four more shots. If when he walked back in he had looked at the boy on the floor and shot hin right there he would have a much more convincing case.

[DeltaB]

To be just brutally honest, everything from Ersland's mouth from his report of the beginning elements that the robbers waited for an exiting customer to gain access through the door, rather than the truth of the employees giving access, everything from that point forward is simply delusional lies.

[OuTcAsT]

everything from Ersland's mouth from his report of the beginning elements that the robbers waited for an exiting customer to gain access through the door, rather than the truth of the employees giving access, everything from that point forward is simply delusional lies.


I tend to agree, and I believe that his credibility is going to be his most damning factor, he is truly his own worst enemy.

All other evidence aside, Ersland is the only "witness" to the last few seconds of Parker's life, and if a jury is not convinced that there was a threat (by Ersland's testimony) then it will not bode well.

The thing I find most astounding is that his own attorney knows the prosecution has his service records, and knows his client has lied, yet continues to let him make these un-truthful statements to the media ! Things that make you go "Hmmm"

[MLeake]

... aside from the security camera.

[Glenn E. Meyer]

I think this case says it all about making things up to cover your tush in an incident. We get that suggestion here every once in awhile.

Certainly not a poster child for the Armed Citizen. :barf:

[hogdogs]

Certainly not a poster child for the Armed Citizen.
Do mods qualify for the understatement of the day awards?:D:rolleyes:
Did this case make the AC page?
Brent

[Ricky B]

The thing I find most astounding is that his own attorney knows the prosecution has his service records, and knows his client has lied, yet continues to let him make these un-truthful statements to the media !

I suspect his attorney has told him not to talk but that Ersland is a bit of a loose cannon. We've all known people like that. You tell them to shut up (for their own good) and they keep on babbling about their troubles. Just look at the governor of South Carolina.

[DeltaB]

Now it seems Ersland will once again purger himself a 3rd time with testimony...

http://newsok.com/druggist-jerome-erslands-story-varies/article/3389847?custom_click=lead_story_photo


Copy of the OSBI letter after being notified his CCW was being suspended.

http://s3.amazonaws.com/content.newsok.com/documents/y31pharmletter0001.pdf

[PT111]

When you find yourself at the bottom of a deep hole quit digging. I am afraid that very soon Mr. Ersland will not have to worry about any kind of CCW permit.

[OuTcAsT]

I suspect his attorney has told him not to talk but that Ersland is a bit of a loose cannon.



This might be true....but I'm not so sure. I have a hard time convincing myself that Mr. Box would not require that every word the defendant spoke, or wrote, would go through his office. Now he has sent an almost incoherent, rambling, written full statement to the OSBI, apparently in hopes of keeping his CCW permit. This begs the question why? He now has no guns, of what use is the permit ? The only way I can see that he will ever be allowed to even own a gun is in the extremely unlikely event he is fully exonerated.

The second thing that occurs to me is; If I were going to write such a letter, I would likely have my attorney write it, or at least peruse it. It appears that didn't happen, or did it ?

Could be that Mr. Box will use these ramblings, and lies to his advantage, to show some sort of diminished capacity, in the hope of mitigating mens rea. It leads me to one of two conclusions, Mr. Box is either very wise, or very incompetent. As for the "loose cannon" He would either shut up, or find a new attorney. (Unless I planned for him to look like a lunatic) ;)

[Glenn E. Meyer]

Dear God - what a read. Thanks for the update. Who knows what is going on in this man's mind.

I guess he won't be making commercials or testimonials for the Judge though.

This should be a required text for permit holders.

[DeltaB]

Oklahoma statutes dictate that anyone charged with a felony will have their CCW suspended until the outcome is decided. I'm not too sure his attorney knew of this letter. If in fact he did, I would certainly agree with OuTcAsT in the position his attorney is asleep at the wheel....

[Cincy_Ron]

He certainly has a different way of looking at things doesn't he?

[Ricky B]

Box may be a fox.

None of the letter can come into evidence at trial unless all of it comes in. If the DA takes the bait, he allows Ersland to present his side of the story without Ersland having to take the stand.

The letter presents the following "facts" favorable to Ersland:


The pharmacy had been robbed four times before (probably true)
The pharmacy employees had been threatened with death by robbers (probably true)
Ersland knew all this (probably true)
Ersland had recently had back surgery (probably true)
Ersland was wearing a double back brace (true)
Ersland was a "cripple"
Ersland was a former Lt. Col. in the armed forces (probably true)
Erlsand is a member of the DAV (probably true)
The robbers used four-letter words--the robbers threatened to kill Ersland and the employees if they didn't hand over drugs and money (probably true)
Ersland had never been in any sort of trouble before (probably true)
Ersland felt a bee-like sting on his hand (which Box could use to argue why Ersland thought he had been shot--Box can argue that it was the watch band on Ersland's "$133 Stauer watch that got caught on something and that made Ersland legitimately think he had been shot on the wrist) (might be true)
Ersland merely "grazed" the second robber in the head
Ersland did not shoot a black man because "he posed no immediate threat to me" even though this black man "raised a shotgun up" (and if you believe that, then you will believe that Ersland would not have shot the robber in the pharmacy unless he posed an immediate threat and you will believe that Ersland is not prejudiced)
Ersland goes back to the pharmacy and hears statements that lead him to believe that one of his co-workers had been shot and killed (might be true that he heard the co-worker saying I'm so sorry repeatedly)
Ersland switches guns only because he was out of ammo (might be true)
Ersland has Meniere's Disease and will one day go deaf (and even if the co-worker doesn't testify that she kept saying what Ersland says in the letter, well, Ersland is hard of hearing because of his Meniere's Disease) (might be true)
A third party (the guy in the green car) said "he's getting up."
Parker was approximately 6 feet tall (probably true)
Parker was getting up
Ersland thought the other robbers were coming back to finish him off (a sentiment, BTW, not infrequently expressed here on TFL by posters who seek to justify shooting someone-they might come back with their buddies)
Not only was the robber getting up, but he shouted an epithet at Ersland
Ersland has no idea of how many times he fired (might be true--there are many experts who could testify that this is a common occurrence with police officers)
Ersland was pumped up with adrenalin (no doubt true)
Ersland was reponsible for keeping 20,000 doses of narcotics from going out on the street.
Ersland was reponsible for keeping thousands of dollars out of the hands of "murderers"
Ersland had some kind of wound on his wrist that others sought to treat (might be true)
The wound was a "simple graze" (and could have been a scratch that Ersland took for a bullet wound in all the chaos)
Ersland threw his Stauer watch into the trash (so don't expect him to produce it a trial to show why he thought it was hit by a bullet)
He threw his Stauer watch into the trash only after he was told by the authorities that there was no chance he would be charged with a crime (and therefore no need to preserve this evidence)
Ersland is a gentleman in allowing his female co-workers to be interviewed first (the police choose who to interview first and would probably want to interview non-shooter witnesses first so they can be prepared for discrepancies when they interview the shooter but this spins it so Ersland is chivalrous)
Ersland is all alone in the world, with only a Pug to keep him company


If the DA tries to introduce into evidence any statement in the letter, the defense is entitled to introduce the entire letter. Ersland can not be cross-examined about this letter (or anything that he previously said) unless he takes the stand, and of course, a defendant is not required to testify. With this letter in evidence, Ersland would have no need to take the stand. Defense counsel can argue all the statements in the letter are facts the jury should take into account.

Will Prater take the bait? I don't think so.

Will the judge allow Fox to introduce the letter? I don't think so.

If the letter never comes into evidence, does it do any good? Yes. It presents Ersland's side of the case to the public. If the letter never comes into evidence, does it do any harm? None that I can see.

Did Box have a hand in writing the letter? I suspect he did. Is Fox incompetent? I think not.

Am I Donald Rumsfeld in disguise? No, but I think I'm starting to sound like him.

[Wildalaska]

From the news article:

"He said, "That night, I did give some inaccurate information but, at the time, I thought it was the truth.”

Bwaaaaaaaaaaaaaaaaaaaaaaaahahahahahahahahaha

Does anyone in the class want to try...o gawd talk about loading the gun!

I hope the DA has some smarts! That one should be good for an hour if Ersland testifies :)

WildsizzleAlaska TM

[OuTcAsT]

None of the letter can come into evidence at trial unless all of it comes in. If the DA takes the bait, he allows Ersland to present his side of the story without Ersland having to take the stand.


Did Box have a hand in writing the letter? I suspect he did.

This is my suspicion as well, and for some of the same reasons you cited. I would hope Prater is intelligent enough to see through this sly little attempt, but a nice angle none the less.

if Ersland testifies


Given his penchant for flapping his lips at anyone who will listen, I think it is almost a foregone conclusion that Ersland will, regardless of advice from counsel, take the stand. It will be like "Joe Isuzu" testifying. :D He may be the first man in the US to get convicted of "Capital Perjury"

[hogdogs]

This case should be a precedent we refer every TFl member to that states that "dead man tell no lies" mentality!
As for the letter... Doesn't it also play into the hand of the DA as it shows yet another set of discrepancies? The BS about treating a non existent GSW being a blatant lie unless it is a hammer or slide wound he got from not knowing how to handle either gun...
Brent

[OuTcAsT]

As for the letter... Doesn't it also play into the hand of the DA as it shows yet another set of discrepancies?

That's the catch Brent, as Ricky B said;

None of the letter can come into evidence at trial unless all of it comes in. If the DA takes the bait, he allows Ersland to present his side of the story without Ersland having to take the stand.

And;

Ersland can not be cross-examined about this letter (or anything that he previously said) unless he takes the stand, and of course, a defendant is not required to testify. With this letter in evidence, Ersland would have no need to take the stand. Defense counsel can argue all the statements in the letter are facts the jury should take into account.


For the DA, this letter could be bad juju, It would be like Ersland gets to testify, and not cross examined, But I doubt the judge would admit it, and I'm pretty sure the DA won't take that bait.

[DeltaB]

Ersland has no idea of how many times he fired (might be true--there are many experts who could testify that this is a common occurrence with police officers)

Well, in the initial investigative report of the homicide officer, Ersland stated...

"He said he shot at the subject on the ground (Parker) five times, and the running subject (Ingram) once in the store, and three outside. Ersland said he used the Kel-Tec on the subject on the ground (Parker), and the “Judge” on the running guy (Ingram). I asked Ersland for the total rounds he fired, and he said six from the Kel-Tec, and four from the “Judge”. Ersland said there were ten shots total that he fired from the two guns."

http://s3.amazonaws.com/content.newsok.com/documents/y31erslandinterview.doc

[Playboypenguin]

For the DA, this letter could be bad juju, It would be like Ersland gets to testify, and not cross examined, But I doubt the judge would admit it, and I'm pretty sure the DA won't take that bait.
Doesn't the letter being admitted open him up to cross examination since he is the author and available? I know when I worked for CPS if the author of any statement pro or con was available to the court that they could be cross examined.

[Ricky B]

The Fifth Amendment:
No person ... shall be compelled in any criminal case to be a witness against himself

[hogdogs]

Ricky, Would it not be against his fifth to be forced to testify about the validity of the contents of something he personally authored in regards to a pending case?
I am not very well versed in court proceedings so please expound on these particular details...

I would think that if it were presented as evidence regarding this particular case, I should be able to call the author (not as the defendant) to the stand to clear up my questions about the content...
Brent

[Ricky B]

if it were presented as evidence regarding this particular case, I should be able to call the author (not as the defendant) to the stand to clear up my questions about the content...


If it were a civil case, yes. But in a criminal case, we have that pesky Bill of Rights. The defendant does not have to take the stand unless he chooses to.

In some other countries, the defendant can make a statement to the court without being sworn. This was what I read about the case in Italy where an American girl is accused of murdering her roommate in a sex party gone bad scenario. (That'll get TFL'ers Googling, won't it.) She was allowed to present her story without being sworn. I don't know if she could be cross-examined about it.

[peetzakilla]

The defendant does not have to take the stand unless he chooses to.

It seems odd to me that the letter would not count as "taking the stand" and therefor qualify for cross-examination. Otherwise, it would seem as though the defense could present anything written by the defendant as evidence without the prosecutor having the ability to refute it.

[Playboypenguin]

It seems odd to me that the letter would not count as "taking the stand" and therefor qualify for cross-examination. Otherwise, it would seem as though the defense could present anything written by the defendant as evidence without the prosecutor having the ability to refute it.
I do believe that presenting the letter would open him up to cross examination. During that examination he could refuse to answer questions, but he would be doing so on the record in front of a jury who would most likely assume his refusal to answer is not a positive thing. I do not see any positive impact the letter could have on his trial.

[peetzakilla]

I do believe that presenting the letter would open him up to cross examination. During that examination he could refuse to answer questions, but he would be doing so on the record in front of a jury who would most likely assume his refusal to answer is not a positive thing.

It has always seemed to me that "I refuse to answer that question on the grounds that the answer may serve to incriminate me." was code speak for "Please, PLEASE, send me to jail."

[Ricky B]

It seems odd to me that the letter would not count as "taking the stand" and therefor qualify for cross-examination. Otherwise, it would seem as though the defense could present anything written by the defendant as evidence without the prosecutor having the ability to refute it.

What counts as "taking the stand" is taking the stand.

Where you are mistaken is the concept of "the defense could present anything written by the defendant as evidence." Absolutely not.

Remember I said that if the DA tries to introduce into evidence any statement in the letter, the defense is entitled to introduce the entire letter. I also said that the judge is unlikely to allow Box introduce the letter. Anything that a party says outside of court can be used against him in a court of law. You must have heard this statement hundreds of times watching TV shows. The key word is "against."

What a party says outside of court can not be introduced by him into evidence (except in certain instances not applicable here).

That's why Box has to hope that the DA tries to introduce a statement from the letter, which would allow Box to demand the entire letter be introduced into evidence. If the DA doesn't bite, the letter doesn't come in.

[Ricky B]

It has always seemed to me that "I refuse to answer that question on the grounds that the answer may serve to incriminate me." was code speak for "Please, PLEASE, send me to jail."

Which is one reason why the prosecution calling the defendant to the stand to testify so he can take the Fifth is considered compelling him to be a witness against himself. If it were actually to happen and the defendant were convicted, it would be a guaranteed reversal on appeal (and new trial).

[DeltaB]

In this month's episode of "Code 3 Cowboy" we find our self-appointed Marshal Ersland in hot pursuit of fleeing suspects, as he runs out of the Pharmacy. As he trots down the front of the store and comes around the corner, he's confronted by a shotgun toting black man, but not to fear, "I got the drop on him!" declares Marshal Ersland. Of course, he states he "feels no threat" by having a "Mossberg 500 or Maverick" pointed at him, he has his trusty "Judge"... But Marshal Ersland has more on his mind than simply hanging out with this armed man, he has fleeing suspects "to get" and starts "unloading on him" because he "has to get him before he hurt anybody else." But alas, Marshal Ersland now finds himself out of ammo, and must return for his other backup, and finish this job. Of course, before exiting the Pharmacy, in last month's episode, when Marshal Ersland said that’s why he had to “get him” with the Kel-Tec as he was running by in hot pursuit of the armed suspect out the door. He said "he shot at him five times, but he kept staying up”. But again, not to fear, Marshal Ersland knows he's "the guy I nailed.”

Will the suspect left inside the Pharmacy find his super-human powers able to overcome the prescription of 5 lead aspirins to care for his splitting headache given by our Marshal Ersland? Stay tuned for the next episode of "Code 3 Cowboy" and find out!

[Ricky B]

the prescription of 5 lead aspirins

Caution, Marshal, too many aspirins at one time can cause stomach bleeding!

Will the good Marshal argue that the bad guy simply died of a drug overdose?

[tighty whitey]

I know that Bernard Goetz spent a few years in jail for a very similar act. I can't recall if Goetz ended up killing his assailants, and I'm not even sure if he was convicted of a murder charge, but he did face prosecution for his actions. Likewise this man, who thankfully saved his life and those of his co-workers, needs to face charges because reasonable people can view his actions and find them to be criminal.

[Poseidon28]

Wonder if he's setting up diminished capacity, or an insanity defense?

[PT111]

I can't see the relationship between Benard Goetz and this case. Goetz did server time on a weapons charge but not for murder or assault. I can see how they started out similar but diverged very soon and far apart.

Wonder if he's setting up diminished capacity, or an insanity defense?

You would think so especially with him continuing to run his mouth but I doubt that it will fly.

[Vanya]

Wonder if he's setting up diminished capacity, or an insanity defense?
You would think so especially with him continuing to run his mouth but I doubt that it will fly.
I think the criterion for "diminished capacity" is being unable to tell right from wrong, not being unable to tell smart from stupid -- which is what Mr. Ersland's continuing verbal diarrhea seems to indicate...

[Al Norris]

Since we have wandered far away from the actual discussion of tactics and are now firmly into the legal aspect, I'm going to end this.

If you have new news or information, and wish to discuss the legal aspects (issues), open a new thread in L&CR.

[pax]

A few links for the curious:

http://s3.amazonaws.com/content.newsok.com/documents/y22pharmshootautopsy0001.pdf (Antwun Parker's autopsy report)

http://s3.amazonaws.com/content.newsok.com/documents/y31pharmletter0001.pdf (Jerome Ersland's letter to the OSBI protesting the revocation of his carry permit)

http://s3.amazonaws.com/content.newsok.com/documents/y31erslandinterview.doc (report from interviewing detective immediately after the shooting)

http://www.newsok.com/druggist-jerome-erslands-story-varies/article/3389847?custom_click=lead_story_title (August 2 news story outlining the different accounts Ersland has given since the shooting)

As Antipitas said, open a thread in L&P to discuss if you wish.

pax