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Old April 22, 2011, 03:07 PM   #26
Technosavant
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Quote:
I know that a number of my colleagues made a good deal of their money trying to sort out messes for folks who never worried about lawyers or courts -- messes, and legal expenses, that perhaps could have been avoided or minimized with a little care or attention. But at least that lack of care and attention helped enrich my colleagues.
I've said this before, but it's this general idea that is the deciding factor to me. While funky ammo is not likely to be an issue in the vast majority of incidents, in those rare times when it is, the cost of a few hundred rounds of premium self defense ammo from a reputable maker is cheaper than the hours of time a lawyer would spend having to explain it.

Everyone must make their own decisions, but from all the discussions it appears that the ammo is not going to turn a "good" shoot (there's no such thing as a good one, but I mean one considered legally justifiable) into a "bad" one. However, if the facts of the event are in serious dispute and can be equivocal, your freedom might well hinge on such things.
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Old April 22, 2011, 03:36 PM   #27
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Interesting thread. I suppose a good question at this point would be, does anyone have any knowledge of any SD cases that GSR was looked at?

Why does it matter if GSR was looked at in a suicide/homicide? The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. Self defense is a much different event than finding a family member dead at home. Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..
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Old April 22, 2011, 04:14 PM   #28
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Quote:
Originally Posted by Edward429451
. . . .Why does it matter if GSR was looked at in a suicide/homicide? The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. . . . .
The same rules of evidence apply to suicides, homicides, self-defense, criminal charges, etc. That makes Bias applicable.

Quote:
Originally Posted by Edward429451
Self defense is a much different event than finding a family member dead at home. Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..
Unfortunately, bad guys don't make reservations. You don't know that there will be witnesses, or that the bad guy will use a weapon that can be identified and connected to him.

The GSR "splatter," which is what we're talking about, can be used to help in determining the distance from the muzzle to the target. Hypothetical: I work late one night, and am confronted by a homeless man with a stick between my office and my car. The homeless guy threatens me with his stick, and takes a swing at my head. I shoot him from a distance of 3.5 feet. I'm a terrible shot and the stress of the encounter takes its toll on my shooting, so I wind up putting one bullet through his knee. He goes down. Threat ended, I quit shooting, and back away. Police show up and he tells them that he was at least 15 feet away. No useful prints on the stick, and no witnesses.

This is the kind of situation in which that GSR evidence could be very important, as I could face aggravated assault, or even attempted murder charges.
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Old April 22, 2011, 04:27 PM   #29
Bartholomew Roberts
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Quote:
Interesting thread. I suppose a good question at this point would be, does anyone have any knowledge of any SD cases that GSR was looked at?
I know Marty Hayes has testified on that issue in at least one case (and fiddletown has already linked to that post). In addition, I know that GSR evidence was an issue in the Mark Abshire case as well. Abshire's second shot struck one of his six attackers in the back. Abshire's attackers alleged his second shot was fired at one of the men as he crawled away on the ground. Abshire alleged it happened as the man was on top of him after he jerked away from the first shot.

Quote:
Why does it matter if GSR was looked at in a suicide/homicide?
The issue is not that GSR evidence was looked at; but that the expert testimony on it was denied in a situation where it likely would have been allowed if it had been factory ammunition. Whether Bias is guilty, not-guilty, whether it was a suicide, whether aliens flew in from planet Mars and shot the wife are all irrelevant to the discussion we are having. The only thing we are concerned about is "If I use handloads in self defense will I be able to have GSR testimony by my expert witness admitted into testimony?"

To date, it looks like the answer to that question is "No."


Quote:
The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. Self defense is a much different event than finding a family member dead at home.
Every time I discuss this issue, people have a hard time understanding this point, because while it seems real clear to a lawyer, it doesn't always make sense to someone not acquainted with the system. So just to emphasize the point again, the issue is the Rules of Evidence. A side issue of the Bias case was about whether GSR tests of handloads could be admitted into evidence. The judge in that case ruled that it could not.

Given what the Rules of Evidence are for the admission of expert testimony, it appears that it would be exceedingly difficult to establish a proper foundation to the degree a court would allow such evidence. The problem is that the key factor in the investigation (your handloads) have been totally under your control, and you are on trial - making your claims suspect at best.

Quote:
Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..
Well, look at the Abshire example... that case had at least 9 wtinesses (Abshire, his neighbor, Abshire's wife, and his six attackers). Unfortunately for investigators, none of the stories matched up perfectly. The forensic evidence they collected showed that either one of two general themes developed by witness testimony could be true. So a jury got to decide who was telling the truth...

Here is another good case to read on how the legal system works: Larry Hickey. Note that this took place in gun-friendly Arizona. In this case, Hickey chose to follow a popular Internet recommendation and exercise his right to remain silent. As a result, investigators at the scene missed many key details that would have helped them sort out which of the eyewitness stories was correct. Luckily for Hickey, they documented the evidence so well that most of it was still preserved when he went to trial; but he ended up going through two hung juries.

Note also that Hickey claimed he was attacked in his own driveway while his attackers claimed they were attacked by Hickey while standing in an alley. While it wasn't mentioned as a major issue in this trial (possibly because of the very close range of the shots and the use of factory ammo), you can easily see how the distance between the shooter and the shootee could become an issue.
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Old April 22, 2011, 04:33 PM   #30
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A little slightly OT side note:
The best way I know to avoid liability exposure is to train hard and safe, have great equipment, avoid situations that are likely to compromise my safety in the first place, and keep a clear mind and a fit body, so that I don't shoot someone accidentally or for the wrong reason in the first place.

Buy conducting my life that way, I have just exponentially reduced my risk of being sued. Not that it's impossible, just extremely unlikely.
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Old April 22, 2011, 06:38 PM   #31
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Hi fiddletown.
In fact I do know something about the legal system, and know what constitutes deadly force and what justifies it.
As long as I am within the legal guidlines for the use of deadly force, I am not going to spend time attempting to figure out the jots and tittles of what might happen if I have to use it.

I do not have a lot of confidence in lawyers, but have a lot of confidence in friends, at least one who is an internationally recognized expert on the subject.

It is my view that folks that write for the magazines, although maybe experts, just need something to write about, such as the handloads issue. If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.

The Fish case was a result of poor defense, and was overturned later. That was not about handloads, however.
The anticipated problems with handloads seem to center around the premise that the handloader must be a killer at heart and wants to load mankilling ammunition. Such stuff could be easily refuted. Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story.

I understand that there was once a problem as to powder burns and distance to the target, but I do not worry about such things either.

So let the lawyers "eat cake" when it comes to ammo and modifications that are not unsafe in themselves.

The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.


Regards,
Jerry
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Old April 22, 2011, 07:08 PM   #32
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Quote:
Originally Posted by JerryM
. . . . I do not have a lot of confidence in lawyers, but have a lot of confidence in friends, at least one who is an internationally recognized expert on the subject.
If I may ask, on which subject? There are several disciplines that come into play on this.

Quote:
Originally Posted by JerryM
. . . . If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.
Daniel Bias. His defense cost him years and boatloads of money that might have otherwise been unnecessary.

Quote:
Originally Posted by JerryM
. . . .The anticipated problems with handloads seem to center around the premise that the handloader must be a killer at heart and wants to load mankilling ammunition. Such stuff could be easily refuted.
I don't see it that way. The problem has nothing to do with the handloader trying to produce extra-deadly ammunition. It has to do with the fact that the handloader/shooter may lose potentially exculpatory evidence, simply because they are using handloads.

The problem comes when there is a dispute that could be resolved by the use of GSR evidence, but the handloader/shooter's expert is not allowed to testify.

Quote:
Originally Posted by JerryM
Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story.
The only relevance your jurisdiction has here is how your rules of evidence are written. What we're talking about here is a situation where some evidence is excluded from the trial and neither seen nor heard by the jury.

Quote:
Originally Posted by JerryM
The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.
Your call. As you point out, the odds of it becoming an issue for you are slim. I sincerely hope that you never have to put those odds to the test.
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Old April 22, 2011, 07:11 PM   #33
Bartholomew Roberts
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If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.
One of the links fiddletown posted is to a thread with 4 such cases, one of them being the Bias case.

And IMO, the evidentiary issues are the main problem. I don't really see the killer at heart claim as being a major issue; but it does highlight one of the disconnects that I think makes this difficult to explain - evidence can only be heard if the judge allows it. I think many people have this impression that they will be able to present all aspects of their side of the story; but that isn't necessarily the case. The Larry Hickey link above demonstrates that well.
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Old April 22, 2011, 07:17 PM   #34
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Here's part of what I posted in another thread on this subject. It is an attempt to lay the groundwork for this discussion, without writing a treatise on it.

Quote:
Originally Posted by Spats McGee
The judge is the gatekeeper of evidence, and appellate courts typically afford the judge a high degree of deference when it comes to determining which evidence gets in, and which is excluded.

For purposes of this discussion, I'm going to stick with the Federal Rules of Evidence. I know that most of these cases come down on state law grounds, but I'd like to avoid veering off into discussions of one state's rules of evidence against another. Many states use the Federal Rules as a model, and they'll give us some common ground from which to work.

So, first off, relevance:
Quote:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Fed. R. Evid. 402
If it's relevant and not otherwise excluded, it gets in. If it's not relevant, it doesn't.

But (& this is a big but), GSR is specialized enough that it is considered "expert testimony. That means that Rule 702 governs it:
Quote:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702(emphasis supplied)
So, if scientific or specialized knowledge will help the jury, an expert's opinion is admissible if:
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.

You have to have all three to get the testimony of the shooter's expert in front of the jury. If the prosecutor files a Motion in Limine prior to trial, asking that it be excluded, he or she will simply argue that the opinion of the handloading defendant's expert is based on unreliable data. Specifically, what the prosecutor is saying is that because the data belongs to the defendant, it's inherently unreliable. I think there's a good chance that nobody was around when the cartridges were loaded, so there's no independent witness. If there is a witness, it's probably a good friend of the defendant. As a result, any data on which the opinion is based is suspect. The prosecutor may not argue with how the defendant's expert got from A to B, but what if A wasn't the right starting point? Then B becomes an unreliable conclusion. Anyway, if the motion in limine succeeds, there can be no mention of the defendant's expert at trial, and the jury will never hear about it.
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Old April 22, 2011, 08:03 PM   #35
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Hi Spats.
Lose all the sleep you want to. I am not concerned in the least about using handloads.

If that was the only issue I am 100% sure the case would not go to trial with the attitudes we have here in southern NM.

Lawyers never see black and white, but only shades of gray. But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?

Regards and out,
Jerry
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Old April 22, 2011, 09:00 PM   #36
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Hi, JerryM.

I'm not losing sleep. I'm comfortable with the risk assessment that I've done.

Cheers.
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Old April 22, 2011, 09:38 PM   #37
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Quote:
Originally Posted by JerryM
...In fact I do know something about the legal system, and know what constitutes deadly force and what justifies it. As long as I am within the legal guidlines for the use of deadly force,...
Quote:
Originally Posted by =JerryM
...Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story....
Really? Then consider the cases of --

Larry Hickey, in gun friendly Arizona thought he was justified. He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire in Oklahoma thought he was justified. Nonetheless, despite this happening on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish, also in gun friendly Arizona, thought he was justified. But he was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Three men familiar with the rules of the use of lethal force in self defense and in gun friendly States thought they were justified in using lethal force in self defense. And in fact each was ultimately vindicated. Nonetheless, each went through a long, arduous and very expensive ordeal before he was vindicated.

Quote:
Originally Posted by JerryM
...I do not have a lot of confidence in lawyers,...
Yet you write in post 10
Quote:
Originally Posted by JerryM, post 10
...I am persuaded that a good defense attorney can deflect those arguments...
Looks to me like you're placing a lot of confidence in lawyers.

Quote:
Originally Posted by JerryM
...The Fish case was a result of poor defense, and was overturned later. That was not about handloads, however....
If you read the court of appeals decision, it's clear that Fish's conviction was tossed because of certain erroneous evidentiary ruling by the trial judge. And Fish's lawyer made the proper objections at trial and preserved Fish's right to appeal on the bases of those errors of law. So I guess that Fish's lawyer did some things right.

And yes, handloads weren't an issue in Fish. But in a post verdict interview a juror did state that the jury was very troubled by Fish's use of JHP ammunition. And that illustrates that in a gun friendly State, ammunition used in a claimed self defense shooting can have an impact on how a jury evaluates the evidence. (And the OP's question concerned ammunition and types of guns in general, not just handloads.)

Quote:
Originally Posted by JerryM
...Lose all the sleep you want to. I am not concerned in the least about using handloads.

If that was the only issue I am 100% sure the case would not go to trial with the attitudes we have here in southern NM....
Of course a claimed self defense shooting won't go to trial anywhere if it was clear that the use of lethal force was justified and if handloads were the only issue. But maybe you'll be really unlucky and there will be multiple issues. Maybe the physical evidence is equivocal. Maybe the stories of one or more witnesses conflict with yours. Maybe there were not witnesses, and the guy you shot, who you thought was armed, wasn't.

So if you wind up on trial, your lawyer will have a number of issues to deal with. He wouldn't also have to deal with handloads if you didn't use them.

Now I don't lose any sleep about these things because I don't use handloads for self defense, nor do I use a heavily modified gun. I've taken these potential wild cards off the table, so there's no need for me to concern myself about them.

Quote:
Originally Posted by JerryM
...But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?...
The problem with that perspective is that we are stuck with the circumstances our clients have given us. We can only work with what we have. So if the conduct of our clients has given us bad facts and a losing situation, there's a good chance that no matter how good we are, our clients won't be happy with the outcome. We can only deal with reality; we're not magicians.

Last edited by Frank Ettin; April 23, 2011 at 09:18 AM.
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Old April 22, 2011, 09:44 PM   #38
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Fiddletown and Bart, thanks for the insight. I was aware of the Bias case, but not the others.

Taken on its own merits, I considered the Bias case to be an anomaly. In context, however, you've put forth a compelling argument.

Fortunately (?), I don't handload defensive ammunition any more, and as such, I carry factory ammo. Still, it lends credence to an old piece of advice I once got from a lawyer/shooter: "If you're going to carry a gun, carry the same ammunition the local cops carry."
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Old April 22, 2011, 09:58 PM   #39
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Quote:
Originally Posted by Tom Servo
...Taken on its own merits, I considered the Bias case to be an anomaly...
Looking at the case as a whole, and the overall confluence of circumstances, I would agree that Bias is unique. BUT, the evidentiary ruling, i. e., the judge's refusal to admit into evidence an expert opinion based on tests of handloaded ammunition that Bias claimed was identical to the round that was fired and killed his wife, is NOT an anomaly. It is completely consistent with common and accepted principles of evidence that apply to the admissibility of expert opinion based on scientific tests.

Forgive me for emphasizing that point. But I think this point bears emphasizing because, as Bart pointed out in post 29, folks seem to have difficulty separating the somewhat bizarre circumstance of Bias, and the ultimate conviction of Daniel Bias, from the evidentiary principles of general application that the case illustrates.
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Old April 23, 2011, 12:27 AM   #40
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Fiddletown, thanks for searching for that Pulins case, whatever it is (or isn't).
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Old April 23, 2011, 06:51 AM   #41
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But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?
I really got a good chuckle out of this one.

I have found out that if I follow my lawyers advice, I tend to not have to worry about going to court to begin with.
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Old April 23, 2011, 07:04 AM   #42
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I don't see the advantage to handloads for carry.

I see a huge theoretical advantage to making handloads for range use that have similar recoil and POI to whatever commercial SD loads I carry, for those guns I have in which I would use reloads. (I say theoretical because I am only just getting into handloading, so it will probably be a while before I have the full setup, plus the skill to come close to duplicating a load.)

It's not like one has to buy tons of SD ammo. A box or two, every now and then, aside from the initial function testing, is all one needs.

Range ammo is something else.

So, I guess the question I have is: Even though the legal risks are small, what would I gain by carrying handloads for SD?

This is not to say I follow every bit of advice out there, even when it's not bad. The magazine disconnect safety has been removed from my BHP, but in that case I do see a clear advantage - the trigger is much smoother, and it's easier to hit the target and not hit things that are not the target. So while there may be some potential risk of being accused of not caring about safety, I feel there's a perfectly good counter argument for the safety of bystanders.

But like I said, I get a clear performance edge in that case, against a pretty low theoretical risk.

Given the quality of current SD ammo, I don't see what the performance edge would be for SD handloads that would offset the pretty low theoretical risk.

Just my $.02.
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Old April 23, 2011, 07:24 AM   #43
Bartholomew Roberts
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I realized that fiddletown has posted a lot of links, so here is a repost of the handload cases as well as their original source:

Quote:
Originally Posted by massad ayoob
Cases Where Handloads Caused Problems in Court
As promised, here are the sources for records for any who feel a need to confirm the cases I have referenced previously where handloaded ammunition caused problems for people in the aftermath of shootings.

As I have noted in this thread earlier, and as the attorneys who have responded to this matter have confirmed, local trials and results are not usually available on-line. However, in each case, I have included the location where the physical records of the trials are archived.

NH v. Kennedy

James Kennedy, a sergeant on the Hampton, NH police force, pursued a drunk driver whose reckless operation of the vehicle had forced other motorists off the road. The suspect ended up in a ditch, stalled and trying to get underway again. Advised by radio that responding backup officers were still a distance away, and fearing that the man would get back on the road and kill himself and others, Kennedy approached the vehicle. At the driver’s door, the suspect grabbed Kennedy’s Colt .45 auto and pulled it towards himself. It discharged in his face, causing massive injury.

The reload in the gun was a 200 grain Speer JHP, loaded to duplicate the 1000 fps from a 5” barrel then advertised by Speer for the same bullet in loaded cartridge configuration.

This was the first case where I saw the argument, “Why wasn’t regular ammunition deadly enough for you,” used by opposing counsel. They charged Kennedy with aggravated assault. They made a large issue out of his use of handloads, suggesting that they were indicative of a reckless man obsessed with causing maximum damage.

Defense counsel hired the expert I suggested, Jim Cirillo, who did a splendid job of demolishing that argument and other bogus arguments against Kennedy at trial, and Kennedy was acquitted.

This case dates back to the late 1970s. The local courts tell me that the case documentation will be on file at Rockingham County Superior Court, PO Box 1258, Kingston, NH 03843. File search time is billed at $25 per hour for cases such as this that date back prior to 1988.

NJ V. Bias

This is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way. On the night of 2/26/89, Danny Bias entered the master bedroom of his home to find his wife Lise holding the family home defense revolver, a 6” S&W 686, to her head. He told police that knowing that she had a history of suicidal ideation, he attempted to grab the gun, which discharged, killing her. The gun was loaded with four handloaded lead SWC cartridges headstamped Federal .38 Special +P.

Autopsy showed no GSR. The medical examiner determined that Lise Bias had a reach of 30”, and the NJSP Crime Lab in Trenton determined that the gun in question would deposit GSR to a distance of 50” or more with either factory Federal 158 grain SWC +P .38 Special, or handloads taken from his home under warrant for testing after Danny told them about the reloads. However, the reloads that were taken and tested had Remington-Peters headstamps on the casings and were obviously not from the same batch.

Danny had loaded 50 rounds into the Federal cases of 2.3, 2.6, and 2.9 grains of Bullseye, with Winchester primers, under an unusually light 115 grain SWC that he had cast himself, seeking a very light load that his recoil sensitive wife could handle. The gun had been loaded at random from that box of 50 and there was no way of knowing which of the three recipes was in the chamber from which the fatal bullet was launched.

We duplicated that load, and determined that with all of them and particularly the 2.3 grain load, GSR distribution was so light that it could not be reliably gathered or recovered, from distances as short as 24”. Unfortunately, the remaining rounds in the gun could not be disassembled for testing as they were the property of the court, and there is no forensic artifact that can determine the exact powder charge that was fired from a given spent cartridge.

According to an attorney who represented him later, police originally believed the death to be a suicide. However, the forensic evidence testing indicated that was not possible, and it was listed as suspicious death. Based largely on the GSR evidence, as they perceived it, the Warren County prosecutor’s office presented the case to the grand jury, which indicted Danny Bias for Murder in the First Degree in the death of his wife.

Attorney John Lanza represented Danny very effectively at his first trial, which ended in a hung jury. Legal fees exceeded $100,000, bankrupting Danny; Attorney Lanza, who believed then and now in his client’s innocence, swallowed some $90,000 worth of legal work for which he was never paid.

For his second trial, Bias was assigned attorney Elisabeth Smith by the Public Defender’s office. Challenging the quality of evidence collection, she was able to weaken the prosecution’s allegation that the GSR factor equaled murder, but because the GSR issue was so muddled by the handloaded ammo factor, she could not present concrete evidence that the circumstances were consistent with suicide, and the second trial ended with a hung jury in 1992. At this point, the prosecution having twice failed to convince a jury beyond a reasonable doubt, the judge threw out the murder charge.

It was after this that I personally lost track of the case. However, I’ve learned this past week that the case of NJ v. Daniel Bias was tried a third time in the mid-1990s, resulting in his being acquitted of Aggravated Manslaughter but convicted of Reckless Manslaughter. The appellate division of the Public Defender’s office handled his post-conviction relief and won him a fourth trial. The fourth trial, more than a decade after the shooting, ended with Danny Bias again convicted of Reckless Manslaughter. By now, the state had changed its theory and was suggesting that Danny had pointed the gun at her head to frighten her, thinking one of the two empty chambers would come up under the firing pin, but instead discharging the gun. Danny Bias was sentenced to six years in the penitentiary, and served three before being paroled. He remains a convicted felon who cannot own a firearm.

It is interesting to hear the advice of the attorneys who actually tried this case. John Lanza wrote, “When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target.”

He adds, “With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load. With a hand load, you have no such uniformity. Also, the prosecution may utilize either standard loads or a different hand load in its testing. The result would be distorted and could be prejudicial to the defendant. Whether or not the judge would allow such a scientific test to be used at trial, is another issue, which, if allowed, would be devastating for the defense. From a strictly forensic standpoint, I would not recommend the use of hand loads because of the inherent lack of uniformity and the risk of unreliable test results. Once the jury hears the proof of an otherwise unreliable test, it can be very difficult to ‘unring the bell.’”

Ms. Smith had this to say, after defending Danny Bias through his last three trials. I asked her, “Is it safe to say that factory ammunition, with consistently replicable gunshot residue characteristics, (would) have proven that the gun was within reach of Lise’s head in her own hand, and kept the case from escalating as it did?”

She replied, “You’re certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, “It couldn’t have happened the way he said it did’.”

The records on the Bias trials should be available through:
The Superior Court of New Jersey
Warren County
313 Second Street
PO Box 900
Belvedere, NJ 07823

Those who wish to follow the appellate track of this case will find it in the Atlantic Reporter.

142 N.J. 572, 667 A.2d 190 (Table)

Supreme Court of New Jersey
State
v.
Daniel N. Bias
NOS. C-188 SEPT.TERM 1995, 40,813
Oct 03, 1995
Disposition: Cross-pet. Denied.
N.J. 1995.
State v. Bias
142 N>J> 572, 667 A.2d 190 (Table)


TN v. Barnes

The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

The records of TN v. Barnes are archived under case number 87297015 at:

Criminal Justice Center
201 Poplar
Suite 401
Memphis, TN 38103

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.

A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

This is now absolutely, and I hope finally, refuted.

Respectfully submitted,
Massad Ayoob
Source
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Old April 23, 2011, 11:43 AM   #44
OldMarksman
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Quote:
Posted by JerryM: I understand that there was once a problem as to powder burns and distance to the target, but I do not worry about such things either.
Should a question about the distance to the target become pivotal in a trial outcome, it might become a source of considerable worry.

Quote:
The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.
The question really is one of what would happen in the unlikely event that you did have to defend yourself. It's a matter of conditional probability.

The real question is, if one did have to employ deadly force to defend oneself, might the evidence available after the fact and the testimony given at trial raise sufficient question about the justification? From that follows the OP's question: might the equipment used by the shooter have an influence on the outcome of a trial?

For example,
  • had the shooter used a pistol grip shotgun with an extended magazine, night sights, and accessory rails, or perhaps an AR type carbine with combat accessories, might the sinister appearance of the alleged "murder weapon" influence any of the jurors aadversely, even if the prosecutor makes no comment about the weapon, or
  • if the distance of the shooting were to come into in question, might GSR evidence prove useful in establshing the distance and substantiating the shooter's account of the incident, thus strengthening his credibility,and if so,
  • will that evidence be disallowed for reasons having to due with the rules of evidence?

Quote:
But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?
In any case that goes to trial, one side loses.

The outcome will depend upon a number of things other than whether the attorney "knew what they were talking about", including
  • what evidence is available after the fact;
  • whether scientific forensic evidence proves critical, and whether it meets the the rules of admissibility;
  • jurors' impressions of the defendant and of witnesses who testify;
  • any underlying sympathy felt by any of the jurors for the alleged victim;
  • any adverse impressions that the type of weapon used may have upon the jurors, as discussed in the study by Glenn Meyer that has been cited in this thread; and
  • other things.

If a self defense shooting occurs indoors in a castle doctrine jurisdiction, and there is clear physical evidence of forced entry, and there is no forensic evidence or other indication that the resident fired when it was not necessary, and there is no prior connection between the shooter and the person shot, none of those issues are likely to arise.

But otherwise, any of them could help determine the shooter's future.

An attorney cannot create evidence that he does not have, or use evidence that cannot be admitted, or change history to correct things that his client may have done to put himself in a less than favorable light.
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Old April 23, 2011, 12:14 PM   #45
Don P
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Quote:
I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition
Curious as to what the cost of a GOOD defense lawyer is and what the cost of the EXPERTS would be when factory ammo takes that aspect of a SD shooting out of the equation.
I'll take what Mas. has posted to heart on this subject
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Old April 23, 2011, 12:15 PM   #46
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This Abshire thing keeps cropping up on this forum. Abshire played self appointed traffic cop: When a driver refused to slow down; Abshire went into his home, got a gun, came back outside and confronted folks by yelling and shining a light into a car. Abshire could have stayed in the house and called the cops. The police report states that Abshire had been drinking.

Abshire is not a role model for a righteous self defense case. Yep, Abshire was found not guilty in criminal court. It also broke him financially.


Quote:
According to Rogers County deputies, when the motorist refused to slow down in response to Abshire’s verbal efforts, Abshire decided to try a different approach, went into his home retrieving a hand gun and chemical spray and waited for the driver to return.

Allegedly when the motorist returned, Abshire attempted to confront the driver, one thing led to another and Abshire shot the alleged speeder a couple of times which would obviously slow him down, at least for a while.

The shooting certainly slowed Abshire down for a while, as he’s cooling his heels in jail. No word on the condition of the shooting victim, although he was apparently not killed.

The Rogers County Sheriff’s offices says both men may have used alcohol and that may have played a factor in the incident…
http://bubbaworld.com/2007/09/04/shooting-speeders/
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Old April 23, 2011, 01:27 PM   #47
Frank Ettin
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Quote:
Originally Posted by thallub
...Abshire is not a role model for a righteous self defense case. Yep, Abshire was found not guilty in criminal court. It also broke him financially....
This is neither the time nor place to re-try Mark Abshire. The points for our purposes are that he was acquitted (which means that as far as his jury was concerned he made out a prima facie case of self defense that the prosecution was unable to overcome), and it destroyed him financially.

Anyone interested, can follow the links posted in this thread (posts 37 and 46) and decide for himself.

Last edited by Frank Ettin; April 23, 2011 at 02:39 PM.
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Old April 23, 2011, 01:41 PM   #48
Frank Ettin
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Bart, thanks for post 43 with that lengthy quote from Massad Ayoob. I'd like to take the liberty of focusing on part of Mas' write up on Iowa v. Cpl. Randy Willems because it focuses on how GSR test data could be vital in a self defense case. Mas wrote, in pertinent part (emphasis added):
Quote:
Originally Posted by massad ayoob
Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, ... Willems shot him during the third disarming attempt, ... with one hit to the abdomen from a department issue factory round ... The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges....

... this case ...is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations ....
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Old April 23, 2011, 02:35 PM   #49
Bartholomew Roberts
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Thallub, Abshire keeps cropping up not as a "model for a righteous self defense shoot" but as an example of someone whose self-defense shoot came at great personal cost even though he was found "not guilty."

Abshire was attacked on his own lawn by six men. He was knocked into a ditch and one man pummeled him while another kicked him. Only after having his front teeth cracked did he draw and use a gun. Last time I looked, the penalty in Oklahoma law for yelling and shining a light at a car wasn't any of those things. I'd agree it could have been handled smarter - and that is one reason it comes up in self-defense discussion a lot - there are a lot of lessons to learn from it precisely because while it was ultimately a good self-defense shoot, it isn't "the model of a righteous shoot."
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Old April 23, 2011, 03:35 PM   #50
Glenn E. Meyer
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Quote:
I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition
How much would you have to save by handloading to pay for an expert. I know experts and unless you have some deal with them - they cost a fortune.

How much 9mm handloads does it take to save up $5000 for example?

Same old arguments, BTW - as I thought. Thanks for the rational folks who point out the logic and evidence for avoiding court risks for little real world gain.

Also, thanks for blowing holes in the old chestnut about finding cases given the way legal databases work and I wonder why good lawyers read the simulation research and there are journals and newsletters for them. Of course, if you don't read that because you know better and will also have a GOOD shoot - let your appropriate deity shine over you.

Also, if you have an expert - cite that mysterious genius by name - that's how real research works.
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