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Old May 20, 2009, 08:48 AM   #26
zukiphile
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Erich wrote the following summary of this issue some months ago.

The topic Erich doesn't spend much time on is the degree to which juries are a gamble. An influential juror can fasten on a single irrelevent detail, ignore the substance of a case, and provide a decision that literally has nothing to do with the case. (The other side of that coin is that a jury can sometimes look past lots of the mind-numbing detail that fascinates attorneys and judges, and come to a sort of common sense conclusion. Which you think a jury did in a specific instance usually depends on whether you prevailed.)

Erich's summary:

Quote:
Originally Posted by Erich
Former prosecutor, longtime defense lawyer here.

First of all, I'm not able to see your photo on this machine and thus am commenting in general and not on your specific weapon.

It depends on who catches the case. Some cops are offended by "tactical" weapons, as are some prosecutors and grand jurors. The attitude of the cops and prosecutors involved in reviewing your shooting will certainly be reflected in the treatment that your case receives. Your appearance, the part of town in which you live, your connection to the person who was shot, the weapon that you used, your profession, your employment status, your attitude, and all the information about the person shot - these are all things that will be in the background when the state actors review your case and decide how to handle it. So will the overall political climate of your locale - this will also affect how the grand jury views your case after the shooting.

Your use of a "tactical" gun is not likely to affect a defensive shooting case in which Charles Manson bursts into your five-year-old's birthday party in the middle of the afternoon wielding an RPG and singing "Helter Skelter." But, in my considerable experience working on homicide cases, things are rarely so clear. Like Mas Ayoob advises regarding the use of handloads in defensive weapons, it behooves one to think before adding in another potentially detrimental variable.



I own EBR-type things, but my "house rifle" is a lovely walnut-stocked Navy Arms 92 short rifle levergun . . . a "cowboy gun." Concern over appearances played a part in my selecting that gun for that role, even though I'm in a fairly gun-friendly area and defensive shootings with AK-47s have been no-billed by local grand juries. You may come to a different conclusion, but you are wise to consider this issue in making your determination of what's right for you.

As far as "how to deal with the issue in a hypothetical homicide trial"? No one can answer that, as the relevant variables in play aren't yet before us. You are wise to have the ability to coherently and reasonably explain the need for any additions to your base gear and your rationale for selecting that base gear. You would be wise to be prepared with the contact information for a good criminal defense attorney (how to find this has been discussed here many times) in the event that - God forbid - you would ever need one.
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Old May 20, 2009, 08:56 AM   #27
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Yet how many times have you ever heard of a DA failing to get a grand jury indictment and still pursuing a murder case against the accused? I'm fairly certain that it is NOT the norm in American jurisprudence for the Office of the District Attorney to disregard the findings of a convened grand jury and press ahead with an indictment anyway.
???

A Grand Jury returned an indictment of second degree murder.

Quote:
That sounds less like pursuing justice and a lot more like advancing an agenda. Too much of that usually finds a DA in the same boat as Mike Nifong.
Do not confuse prosecutorial zeal with wrong doing such as withholding material information.

Quote:
Lessler made Fish out to be an vigilante assassin of sorts just itching to unload on some unsuspecting Joe because he was carrying a 10mm with JHP rounds.
If you still believe that that is an exception and not the rule, you are not very familiar with the trial process. Prosecutors routinely paint decent citizens who have, through poor judgment, ignorance, or simple oversight, run afoul of a tax filing or accounting classification issue in public financial reporting as evil, greedy, dishonest, people having deliberately committed fraud. And busy people whose recollection five years after the fact differs from or omits a very minor detail somewhere in four thousand pounds of documents are made out to be completely dishonest liars.

That's the way the system works.

And the Muh's defense team will likely portray them as responsible, upstanding, decent citizens of the republic who somehow misjudged what they reasonably thought to be a terrifying invasion by dangerous persons.

If you are ever on trial, you can expect to be described in a manner that you would never expect, and it will likely change the way you are seen by a lot of people.

The thing to take away from the Fish case, in my opinion, is that absent the existence of favorable evidence or corroborating testimony or both, what is seen by the "good guy" as a "good shoot" (LEO jargon, I think, and I do not like it for civilian application) may not be seen that way by investigating officers, the charging authority, the county prosecutor, a grand jury, or a trial court jury, or perhaps all of the foregoing.

Think about it. One citizen shoots another. That fact is not in question. He then contends that he reasonably believed that he was in imminent danger of death or serious bodily injury, and that the use of deadly force was immediately necessary as his only means of protecting himself.

Won't every killer be expected to make that claim? Why should he be believed? Well, under the system, it is his duty to provide evidence showing that his actions were justified under the law. His version of what happened is unlikely to suffice.

That's why Mas Ayoob recommends being the first to call the police, pointing out the evidence and the witnesses, and making no statements at the time.

And if there are no witnesses? Well, it just might be--probably will be--best to run, not walk, from trouble, even if no retreat is legally required in the jurisdiction at hand.
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Old May 20, 2009, 11:03 AM   #28
David Armstrong
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Quote:
There are but a few places where so much emphasis is put on the weapon and ammo choice so as to color the jury's opinion of the defendant. It's like character assassination.
I think you are misunderstanding the issue. It doesn't have to be much emphasis. Some trials are won or lost on one or two big issues. Many more are one or lost on an accumulation of little issues, all of which color the jury's opinion of the defendant. Attorny's will often tell their clients who to dress, what color tie to wear, how to cut their hair, whether to wear glasses or not, coach them on when to smile, and so on. All little things, but things that can make a difference in the outcome of the trial, especially a civil trial. The caliber, the type of ammo, the gun used, things like that will never be the item that gets a conviction. Can they be a part of the process? You bet, and they are a part that is easy to control to your advantage instead of disadvantage with no real loss of safety.

Last edited by David Armstrong; May 21, 2009 at 06:42 PM.
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Old May 21, 2009, 01:21 PM   #29
Jim March
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The HUGE set of questions Fish and his attorneys missed, that could have been aimed at any cop, is:

Q: So you're saying that the 700ft/lbs of energy in Mr. Fish's 10mm handgun was excessive?

A: Yes.

Q: And your department would never use that sort of excessive force?

A: No.

Q: Exactly how much energy is in each round of the 12ga shotgun shells in each of your cruisers (answer: well over 1,400ft/lbs) or the .223s your SWAT department has (even more, esp. if they have 3-rd burst!), or...etc.

In other words, when the cops said the 10mm was "outside the norm" for police use, they were flat-out lying and should have been caught at it.

The fact is, the FBI *tried* to go to the 10mm in the early 80s and it was too much gun for some officers, causing them to back down to the horsepower level now known as the 40S&W.

I live in Pima County AZ where Mr. Fish was prosecuted. I carry a 357 daily, loaded with rounds approaching 800ft/lbs energy...
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Old May 21, 2009, 04:44 PM   #30
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As noted before. I don't think Mr. Fish was convicted based on the gun or ammunition he used. It might have been a factor (as it could be in any case)but based on what I have read from the jurors that was not the main reason they convicted him.
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Old May 21, 2009, 05:24 PM   #31
MrNiceGuy
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Quote:
And maybe if Fish had been a little more laid back, he'd be the dead guy. Then what? Send Kuenzli to prison?
no, Kuenzli would have been justified... after all, fish was armed


It comes down to the fact that fish didnt let Kuenzli beat him to within an inch of his life. For allot of people, a gun should only be used when you are literally seconds away from sure death. That means you need to let the attacker running at you with a knife stab you before you can shoot him. Otherwise, who's to know what would have happened in that last 5'. Maybe the attacker would have had a change of heart. Maybe he had carpel tunnel and a peg leg and you would have been able to disarm him without the use of the gun. There's always "what if's" and "could have been"'s. For some people there's just no reason to ever use a gun.

IMO the verdict came down to a bad pick of jurors.
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Old May 21, 2009, 05:58 PM   #32
hogdogs
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http://www.google.com/search?q=Kuenz...ient=firefox-a

Quote:
McDonald also said the jury was prevented from hearing evidence and expert testimony about Kuenzli's psychiatric condition and history of violent behavior, including two suicide attempts and an alleged strangling attempt of a man visiting a woman Kuenzli had been stalking.
Not a normal fella...

Quote:
The prosecution's contention that Kuenzli was unarmed was not accurate, McDonald said, adding that Kuenzli had a large screwdriver in his back pocket. This information was not presented to the jury and will be part of the basis of a motion for new trial and an appeal, he said.
The guy was ARMED!
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Old May 21, 2009, 06:14 PM   #33
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Quote:
Originally Posted by MrNiceGuy
It comes down to the fact that fish didnt let Kuenzli beat him to within an inch of his life. For allot of people, a gun should only be used when you are literally seconds away from sure death.
The first part of your statement is pure speculation. Kuenzli never laid a hand on Fish. I think I can say this with great confidence; if an unarmed man runs at you and there is not a clear force disparity present and you shoot and kill him without him laying a hand on you then the chances are great that you will soon be needing soap on a rope for your showers. Most juries I feel confident will convict you. I would for sure.

Quote:
Originally Posted by MrNiceGuy
IMO the verdict came down to a bad pick of jurors.
And it is probably the same type jury you would get as well. I don't think too many from TFL would be there to help you.

Quote:
Originally Posted by hogdogs
Not a normal fella...
Inadmissable as evidence unless Fish knew of his violent past. That is standard law. You can't kill somebody right now because of their past transgressions.

Quote:
Originally Posted by hogdogs
The guy was ARMED!
Brent, the screwdriver was in his pocket and presented no threat to Fish. Even if it were a knife or a gun in his pocket and Fish didn't know that or see it, then it would do him no good as a defense. Kuenzli was not attempting to use that tool against Fish. It's the law buddy, and you might not like it but there it is.
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Old May 21, 2009, 06:33 PM   #34
hogdogs
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The gun in the waist band of a thug "mexican carry" is not a threat? we do not know if he were going to grab the screwdriver or not. His posturing aggressively against an armed old man cost him his life. As I see it, the only thing that got him convicted was the differences in statements regarding the timeline from shots fired and call for help. The pistol caliber and bullet type would have likely been minuscule mention had Mr.Fish fired then ran for help... whether or not he asked for an attorney previous to flappin' off at the ol' cake grinder.
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Old May 21, 2009, 06:46 PM   #35
David Armstrong
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Quote:
The gun in the waist band of a thug "mexican carry" is not a threat? we do not know if he were going to grab the screwdriver or not.
Then you can't use it either for or against. You don't get to use "we do not know" as a fact issue in court. If the guy did not threaten with it, you don't get to say 'well, he might have..." and use it for anything in court.

Last edited by David Armstrong; May 22, 2009 at 10:07 AM.
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Old May 21, 2009, 06:49 PM   #36
MrNiceGuy
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Quote:
I think I can say this with great confidence; if an unarmed man runs at you and there is not a clear force disparity present blah blah blah
The disparity of force, not force disparity, is subjective.

If a larger, fitter, and younger man was running at an older, weaker man who was obviously armed, his intentions are obviously malicious.... There's just no alternative. The disparity of force was clear and present from my perspective.


You are confusing the disparity of force, and the actual use of force. The disparity of force must be present so that YOU DO NOT HAVE TO WAIT until you are in the process of being beaten to death to defend yourself.

I still feel that a proper jury would have been able to realize this.


However, you've made some comments that make me wonder where you're getting your information.
Quote:
I'm thinking Fish, who appeared to be a rather arrogant fellow got mad, shot at the dogs and then got ****** when Kuenzli came up to him and shot him. I think he overreacted and now a man lost his life.
I just have to wonder what you're basing that off of.
Kuenzli "who appeared to be a rather arrogant fellow" has a history of overreacting and becoming enraged when he feels his dogs are suffering an injustice.
It seems that your POV comes from the fact that fish didnt fight off the dogs with a stick... which IMO is asinine.

Last edited by MrNiceGuy; May 21, 2009 at 07:51 PM.
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Old May 21, 2009, 09:16 PM   #37
Tennessee Gentleman
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Quote:
Originally Posted by MrNiceGuy
The disparity of force, not force disparity, is subjective.
That is true but there are universally recognized criteria that a jury could use. Here is some from an old Massad Ayoob column http://findarticles.com/p/articles/m...7/ai_12462185/ and how the jury decides that subjectively determines where you get to spend a good part of the rest of your life. I do not think there was a disparity of force between Mr. Fish and Kuenzli and neither did the jury apprently. Fish was not a "weak old man" by any means. He was an avid hiker and from the photos and media clips I have seen of him a rather fit man. Maybe Kuenzli was stronger but not that much to create such a defense IMO.

Quote:
Originally Posted by MrNiceGuy
If a larger, fitter, and younger man was running at an older, weaker man who was obviously armed, his intentions are obviously malicious....
Pure speculation on your part. We don't know that Kuenzli ran at him OR threatened him. Even so, just because somebody runs up to you even if they are mad doesn't mean you can shoot them. We have no idea what Kuenzli's intentions were.

Quote:
Originally Posted by MrNiceGuy
I still feel that a proper jury would have been able to realize this
There was nothing "improper" about the jury or the case would have been thrown out on appeal. If you think you are going to get a jury of TFL gun nuts for your murder trial; think again. You will probably get a group that might not even own firearms and THEY will decide your fate. So it might behoove us all to thnk about when we might use deadly force and make sure it lines up with legal reality.

Quote:
Originally Posted by MrNiceGuy
I just have to wonder what you're basing that off of.
Statements I read from the Proscecutor, jurors and reading statements by Fish.

Quote:
Originally Posted by MrNiceGuy
has a history of overreacting and becoming enraged when he feels his dogs are suffering an injustice.
Also, irrelevant to your defense as stated earlier. History of violence may not be entered into evidence unless the accused had previous knowledge of it. You can't shoot someone because they are butt heads or have a checkered past.

Quote:
Originally Posted by MrNiceGuy
fact that fish didnt fight off the dogs with a stick... which IMO is asinine.
Maybe it's asinine, but Fish is rotting in jail for murder and probably will continue to. Maybe if he had used his "asinine" walking stick to shoo away the dogs he would be free today and Kuenzli would be alive? Can't know for sure but we DO know what happened when he decided to use his gun. Death and Prison. If I were you I would think that over some.
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Last edited by Tennessee Gentleman; May 22, 2009 at 08:56 AM. Reason: spelling
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Old May 22, 2009, 09:46 AM   #38
Glenn E. Meyer
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The evidence from Jury Simulation studies is pretty clear (including my own work as presented to the Polite Society for their perusal after its publication in the Journal of Applied Social Psychology) that weapons appearance issues can have an influence in firearms usage cases.

That issue is pretty much a moot point. One can argue against it but it is at your own peril.
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Old May 22, 2009, 09:56 AM   #39
Tennessee Gentleman
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Quote:
Originally Posted by Glenn E. Meyer
that weapons appearance issues can have an influence in firearms usage cases.
Glenn, 'yer a talkin' like one of them thar high flutin' perfessers. How about some shirt sleeve english for us dummies?

Are you saying that an otherwise justified SD shooting will be undone because of the type gun I use to defend myself?

For example, I legally own a FA weapon and Ted Bundy breaks into my house and I hose him down. Will I go to jail? I am sure there is more nuance but could you elaborate?

Are you saying Fish would have been exonerated had he used a .38 with ball ammo instead of the 10mm?
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Last edited by Tennessee Gentleman; May 22, 2009 at 10:01 AM. Reason: spelling
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