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Old April 8, 2008, 01:55 PM   #26
Glenn E. Meyer
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I have a problem with taking advice from somebody who's existed in the New England culture. They're just not like the rest of us, when it comes to s.d.!!!

And which galaxy are you from? NH, VT, Maine - all have a reputation as pretty decent gun law states.

If you went to trial, you would need a good lawyer - but many plain old lawyers don't know the intricacies of gun usage. Don't you think writings like Mas have some informative value? Or is it better to rant.

The righteous shoot argument is just forum BS - if you are charged, someone thinks it isn't righteous. And there are plenty of cases with folks charged in SD incidents.
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Old April 8, 2008, 02:44 PM   #27
Marty Hayes
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Gee, it sounds like a voice of reason is required here, before this thread turns into a full-fledged Ayoob bashing.

First, I am the guy who has started www.armedcitizensnetwork.org. I do have a law degree, although I have not taken any bar, so I am not an attorney. But, having said that, I learned about 10 times more about self-defense law from Massad Ayoob and the Lethal Force Institute than I ever did in law school. Law school doesn't teach any attorney about defending justifiable homicides, so if an attorney wants to specialize in that field, they have to take additional training, (such as going to one of the gun-rag writers seminars). Having worked with Mas for almost 20 years now, and being an LFI staff instructor, I can say with some authority that each and every attorney who has taken the LFI courses when my training company, The Firearms Academy of Seattle, Inc. sponsored the course, felt they got a lot out of the training.

Ayoob has even taught Continuing Legal Eduacation courses for attorneys, and his LFI training is accepted as such in at least one state that I know of.

And, Ayoob himself will be the first to tell you not to give any statements about your actions to the police after a shooting, and to get your attorney there to interact with the police.

BTW, there is a distinct difference between legal education and legal advice. Legal education incompasses principals of law, and is generalized. For our purposes here, it would include when and when not to shoot in self-defense. Legal advice is specific to individual cases, (like when you actually shoot someone in self-defense). I took four years of legal education, but receive no legal advice. Most every gun school in American addresses the legalities of use of deadly force, some do it better than others, but in my opinion, none do it better than the Lethal Force Institute, my own company included.

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Old April 8, 2008, 05:20 PM   #28
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Tactics and training????
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Old April 8, 2008, 10:19 PM   #29
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It's amazing how many gun people talk about "sheeple" yet have the same wooly thinking.

The "sheep" says of the potential armed encounter, "That'll never happen to me! If it does, I'll worry about it then! All that matters is that I don't go looking for trouble."

And then someone smart enough to realize that trouble comes to us without us looking for it, smart enough to carry a gun and know how to use it, says of the predictable legal aftermath:

"That'll never happen to me! If it does, I'll worry about it then! All that matters is that the shoot was righteous!"

Same syndrome, just two different levels of the game.

When the street attack comes, you won't have time to go home and get a gun. That's why you carry one now.

When the legal attack almost inevitably follows the street attack, you won't have time to formulate a strategy; it's best to have already prepared yourself with one.

+1, by the way, for Armed Citizens' Network.
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Old April 8, 2008, 10:33 PM   #30
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So what makes for the most "legally benign" SD weapon?

A shotgun?

38 SPCL revolver?

I have an 1858 Remington in the garage. If I shoot some hoodlum trying to rob me in my driveway, will I stand accused of being a cowboy?
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Old April 8, 2008, 11:03 PM   #31
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I don't think the gun has too much to do with it. (Unless, of course it's a mac-10.. or something equally absurd or illegal).
The point of this thread is being prepared for the legal ramification of a shooting that someone may not find "justifiable".
The problem I'm having is how exactly to go about finding a good local lawyer for this defense.
I haven't checked out Mr. Ayoob's stuff (which I will), nor Armed Citizens Network (which I will), but I doubt they can hook me up with a lawyer in my hometown who can handle a case like this (maybe you can?). I doubt that very many lawyers in my area would be competent to handle something this important.
Do you go around to a bunch of attorneys and set up fake cases and ask how they would handle the defense? Then decide based on a book you read or something?
I know that may sound silly, but you see what I mean. How do you decide?
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Old April 9, 2008, 07:22 AM   #32
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ProtectedbyGlock, you might want to check with your local police department's or sheriff's office union or fraternal organization (FOP, PBA, etc.). Ask them who they, and other police groups in the area, hire on behalf of wrongly accused officers. That attorney almost certainly has a leg up on the dynamics of gunfights, and is thoroughly familiar with applicable law and local caselaw.

best,
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Old April 9, 2008, 09:14 AM   #33
grymster2007
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I don't think the gun has too much to do with it. (Unless, of course it's a mac-10.. or something equally absurd or illegal).
I understand that being prepared with legal council is the main topic here (and I am prepared in that sense), but I'm thinking the lawyers might have a tougher time defending someone that utilized a Desert Eagle in .50AE as opposed to an S&W Model 36.
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Old April 9, 2008, 09:17 AM   #34
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I haven't checked out Mr. Ayoob's stuff (which I will), nor Armed Citizens Network (which I will), but I doubt they can hook me up with a lawyer in my hometown who can handle a case like this (maybe you can?). I doubt that very many lawyers in my area would be competent to handle something this important.
One of the benefits from the Armed Citizens' Network is that they will have experienced self-defense lawyers and knowledgeable expert witnesses available for their members' lawyers to contact immediately after an incident. What this means is, even if there are no experienced self-defense lawyers in your area (and if you live in a quiet area there might not be), you may simply find yourself a decent trial lawyer instead, and then the Network can put him directly in touch with people who do have the experience of defending self-defense cases to help him figure out the best legal strategy in your particular case.

Down the road, the Network will have an attorneys' referral list for members, a list they're building right now. But even before that is in place or is extensive, the members will benefit from having access to resources which will help them educate otherwise-good but inexperienced lawyers about strategies specific to self-defense cases. That's a huge value right there.

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Old April 9, 2008, 09:28 AM   #35
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Finding a Good Lawyer: 101.

Another question people always ask me is, "How do you go about finding a good lawyer?" And, I'm glad it was asked on this thread, because it's actually REALLY EASY to find a good lawyer! You just have to know how the business works.

As a general rule, you can find a good lawyer the same way you would find a good doctor: By referral from another person in the profession. When you go looking for a brain surgeon, for example, you do not simply look at an ad in the phone book. And, you'd be STUPID to follow some TV ad to the nearest brain surgeon in your area. No! If you wanted a good brain surgeon, you'd go to your family doctor (or one in your neighborhood) and ask, "Can you recommend a good brain surgeon?"

Lawyers work the SAME WAY! The best way to find a good criminal defense lawyer is to look up the phone number for a divorce lawyer, or a real estate lawyer, or a corporate lawyer, in your area. Call them first, and explain to them, "I'm trying to get a referral to a good criminal defense attorney in this area. I know that you are much more familiar with the legal practice in this area than I am, and I was hoping you could recommend someone." They will (usually) give you the names of at least 2 or 3 good lawyers in your town.

It's that simple!!!

Then, call the recommended lawyer, explain who you are and what you're into, and ask if you can come by their office and pick up a business card, in case you ever need them. Most criminal defense attorneys will be THRILLED to shake hands with you and let you have their card. After you get the card, follow the instructions in my previous post in this thread.

Remember: Shop for lawyers by referral from other lawyers!
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Old April 16, 2008, 08:25 PM   #36
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"ProtectedbyGlock, you might want to check with your local police department's or sheriff's office union or fraternal organization (FOP, PBA, etc.). Ask them who they, and other police groups in the area, hire on behalf of wrongly accused officers. That attorney almost certainly has a leg up on the dynamics of gunfights, and is thoroughly familiar with applicable law and local caselaw.

best,
Mas"

Mas, I read some of your work and am familar with what you teach in your classes-great stuff. However, I am very skeptical regarding this use of an expert witness in non-leo self-defense shootings. The need for an expert in such matters is, in my opinion, very rare. Most such shoots are may need such experts are incidents between bad guys, i.e., such as drug dealer rippoffs, spouse/significant other shooting the other.

I would appreciate if you would explain in very general terms such cases that went to trial that you were involved in. Again, non-leo self-defense shootings that didn't involve both the shooter and victim involved in criminal activity or a relationship.

Note I have never read that you espoused otherwise.

But again, I just don't see these situations happening.

Also, I see alot of this notion you should have an attorney on retainer that will come down immediately upon your arrest.

Before you get the chance to reach your attorney, they will already have attempted to get a statement from you.

It is not like the movies, where you and your attorney meet with the investigators and discuss the incident. I am a practicing criminal defense attorney and your response would be appreciated. Thanks.
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Old April 16, 2008, 09:57 PM   #37
Mas Ayoob
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RR, in my opinion, the only person who needs to keep a criminal defense lawyer on retainer is a professional criminal. However, it doesn't hurt to know who you're going to hire if you're in trouble, and pay him or her for an hour of their time to explain to you the "mood of the courts" (which is largely the mood of the prosecutor's office) as regards defensive shootings in your particular jurisdiction. That's an entirely different thing from having one on retainer.

While not every case needs an expert, many do. Rules of engagement as generally taught and practiced; speed of action/reaction and similar paradigms (explaining why an attacker might have been hit in the back, for instance), explaining why a suspect might have taken multiple hits and still presented a threat, demonstrating how quickly the defendant might have been killed if he or she had not fired, etc. The only difference between civilians and cops in this regard is that the police generally have more of their own trainers who can be brought in by the defense as material witnesses to explain why the officer was taught to do as he did.

For you, or anyone else who's interested in how the whole expert witness thing works, I can recommend Adam Kasanof's book "How to be an Expert Witness" (Ulpian Press, Arlington, VA, 2006). Adam is an attorney, a retired member of the NYPD, and a gunfight survivor, and he learned at the knee of his father, the late Bob Kasanof, whom I worked with back in the '80s and who was one of NYC's great defense lawyers.
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Old April 16, 2008, 11:31 PM   #38
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"While not every case needs an expert, many do."

Thank you for your response.

I have worked with many experts. There are many areas where an expert is used in a firearms case. For example, the last expert I used involving a firearm involved the type and firing rate of a small automatic pistol. Another area is whether the shot(s) caused the death etc. But the use of an expert to testify regarding whether the use of force, or the level of force used was justified involving a self-defense shooting? Leo shooting, not uncommon. But a civilian shooting??? Not a bar fight where one party was injured or a stabbing.

I am an active member of the criminal defense bar. I have many years of experience. I am a practicing criminal defense attorney. I receive notices of all criminal defense decisions in all of my State's higher courts. However, again, I have not seen what you see, i.e., many civilian self-defense shootings where an expert was used to give an opinion as to whether the force used was justified and or whether the civilian shooter's training with the firearm was called into question. Nor am I aware of many civil suits where the same issue was called into question, in fact I cannot recall a single case.

Again, I would appreciate if you would explain in very general terms such cases that went to trial that you were involved in. Again, non-leo self-defense shootings that didn't involve both the shooter and victim involved in criminal activity or a relationship. Cases where the civilian's use of force, or level of force used, or the shooter's training, was called into question. Thank you.
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Old April 17, 2008, 12:13 AM   #39
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the ultimate battle field _ in a court of law
You should fight just as hard in the legal system as you did for your life. But, the first step is always to be alive for the court proceedings. Don't be worrying about lawyers at the moment of truth.

Afterwards, "Officer, I was in fear of my life. Now I would like to speak with my attorney before I answer any further questions."

And that is coming from a police officer. I want to hear this response from a law abiding citizen and would honor his wishes immediately. Why, because the shoe could always be on my foot. Police officers have to fight for their lives in the courtroom just as hard as citizens. There is always someone wanting to find flaw in your deadly force decision.
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Old April 17, 2008, 12:24 AM   #40
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Again, non-leo self-defense shooting...
Curious about your reasons for limiting this to non-leo shootings. Are you of the opinion/does your experience show that LEOs generally have a more difficult time justifying their actions in court than non-LEOs do? I would have thought just the reverse.
Quote:
However, again, I have not seen what you see, i.e., many civilian self-defense shootings where an expert was used to give an opinion...
Given that you're drawing an LEO/non-LEO line here I'll continue in that vein.

Wouldn't it be highly likely that the reason an LEO would call an expert witness is because those resources are available to him at the department's expense and because the department has ready access to such resources while a civilian is unlikely to have either of these advantages?

Again, I don't really see the point of trying to eliminate LEO cases. Isn't it instructive to use those cases to see how an expert witness can be of benefit to a defendant?
Quote:
I am an active member of the criminal defense bar. I have many years of experience. I am a practicing criminal defense attorney. I receive notices of all criminal defense decisions in all of my State's higher courts. However, again, I have not seen what you see, i.e., many civilian self-defense shootings...
I'm not sure how these cases are classified, but would they really be referred to as "self-defense shootings" when the defendant is convicted? I would think that in order to answer the question it would be necessary for an expert to review all the homicide convictions to see which defendants might have had a chance of prevailing had they had the benefit of expert testimony.
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Old April 17, 2008, 04:43 AM   #41
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"I'm not sure how these cases are classified, but would they really be referred to as "self-defense shootings" when the defendant is convicted? I would think that in order to answer the question it would be necessary for an expert to review all the homicide convictions to see which defendants might have had a chance of prevailing had they had the benefit of expert testimony. "

No. The vast majority of all cases where a shooter is charged with a crime involve mutual criminal activity, the shooter engaged in criminal activity, i.e., robbery/homicide, members of the same household, the shooter and victim know each other, or are gang related.

Eliminate the above, and you have a very very small pool of charged shootings to look at. Specifically, where the shooter shot someone to protect life and or property, and the shooter was charged with a crime.

Given the above, how many charged shootings nationwide do you have?

Of these shootings, how many do you think the shooters' firearms training was at issue or could even remotely be put at issue? Modifications to the shooter's firearm? Factory vs. reloaded ammunition? Actual cases.

I receive a weekly summary of all decisions from our higher courts, civil and criminal, in addition to the usual criminal defense publications, email lists, etc. I read them. I cannot recall one case in at least the past ten years in my State where the shooter's firearms training was at issue or could even remotely be put at issue-nothing even close. Maybe one or two at the most where the level of force used by the shooter was or could even be put at issue, but I cannot recall the specific facts of the cases and this was criminal not a civil suit.

Such cases do exist. NY subway shooter-Goetz. Mas has actual experience with these cases. I do not. That is why I asked. What happened? What was the outcome? How many such cases is he actually seeing out there?
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Old April 17, 2008, 05:43 AM   #42
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Specifically, where the shooter shot someone to protect life and or property...
This is begging the question. If the shooting was clearly about protecting life then there's obviously no need for an expert witness. If one truly desires to accurately assess which cases might have benefited from the services of an expert witness, I don't think it's possible nor reasonable to take such a simplistic approach.
Quote:
Given the above, how many charged shootings nationwide do you have?

Of these shootings, how many do you think the shooters' firearms training was at issue or could even remotely be put at issue? Modifications to the shooter's firearm? Factory vs. reloaded ammunition? Actual cases.
It seems to me that you have made an excellent case for using the experiences garnered from LEO trials given that you believe civilian cases are so rare.

Why is it that you wish to eliminate LEO trials from consideration? Unless one can show that an LEO would have a more difficult time being exonerated than a typical citizen (and therefore would have more need of resources such as expert witnesses), it would seem that this knowledge base would be quite applicable to the questions you have.
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Old April 17, 2008, 07:37 AM   #43
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"This is begging the question. If the shooting was clearly about protecting life then there's obviously no need for an expert witness."

John I cannot follow your line of thought here. Not even a little.

When a civilian intentionally shoots someone, why else would they have fired except for to protect life or property. Intense dislike? Target practice? The victim voted for Hillary? Sorry, can't follow what you are saying John.
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Old April 17, 2008, 08:59 AM   #44
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RR, like John, I've found that there's little difference in the dynamics of LEO v. private citizen self-defense shootings.

I'm not clear on the cause of your confusion. It's obvious from your posts that you don't have much if any experience in wrongful death claims, criminal or civil, arising out of legitimate self-defense shootings. (I don't do "scumbag versus scumbag" cases.)

Experts are brought in to show things like time-frames and relative danger posed by various weapons, such as knives, to the defendant (TN v. Robert Barnes, for example). Or why a decedent might have been shot many times (TX v. John Allen Curtis). Or why shots striking the decedent in the back could be fired in self-defense (FL v. Mary Hopkin), or why a citizen might be carrying two guns and shoot an unarmed man attempting to disarm him, unless he was a Rambo looking to kill someone (FL v. Zane Britt).

All four of those citizens were freed by the jury after being tried for murder (or, in Mary's case, manslaughter). I was happy to have some small part in helping to regain their freedom.

Prosecutors don't come out of law school with an understanding of the dynamics of violent encounters: speed of fire, disparity of force, action vis-a-vis reaction, etc. They sometimes assume a shot in the back is cowardly murder, that more than one or two shots constitute malice, etc. These things generally require an expert to explain. As you should know as a member of the criminal defense bar, the attorney can't testify, and the client's testimony in this regard is open to challenge as to lack of expertise, and would be seen as self-serving in any case.

RR, if you're a practicing criminal defense attorney, I'm sure you belong to the National Association of Criminal Defense Lawyers, as I do. Check the NACDL archives for the writings of Attorney Lisa Steele. You'll find them enlightening.

Best wishes,
Mas
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Old April 17, 2008, 09:39 AM   #45
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I cannot recall one case in at least the past ten years in my State where the shooter's firearms training was at issue or could even remotely be put at issue-nothing even close.
RR,

There are 49 other States to be considered.

One of the things I learned many years ago when I was a young federal narcotics agent was that while most State laws were fairly similar, attitudes in prosecution were not. And THAT is a self-defense shooter's worst nightmare--

The overzealous and/or politically aspiring prosecutor.

He/she has a limitless budget and limitless resources to bury you.

It is with those waste-products within our legal system that expert witnesses play a valuable role, all the moreso in front of a jury.

I will also give a huge +1 to Mr. Ayood's advice of "know which lawyer you want just as well as which gun you want" when it comes to potential self-defense situations.

Remember: Self-defense doesn't stop as soon as the bad guy goes down. In fact, many would say that is the point to where it is just beginning.

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Old April 17, 2008, 11:08 AM   #46
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Sorry, can't follow what you are saying John.
Begging the question is phrasing your premise and conclusion in such a way that they circularly support each other regardless of the validity of either.

For example, you eliminate anyone involved in a fight although being involved in a fight doesn't mean that a person can't legitimately claim self-defense. In fact, the first TX CHL shooting could accurately be described as a roadrage fistfight that ended in a fatal shooting. Yet the shooter was acquitted and rightfully so.

Had he been convicted, your screening process would have eliminated the case and therefore you would not have examined it to see if expert witness testimony might have made a difference in his case.

By also trying to eliminate LEO shootings from consideration, you further reduce the pool of shooting trials to draw on and the result is that your premise follows--there is no need (or only very rarely a need) for expert witnesses in self-defense shootings.

This is very similar to the technique used to paint gun ownership in a bad light by saying that a gun in the house is more likely to kill an occupant than to kill a criminal. Focusing only on situations where criminals are killed rules out all the cases in which a criminal is only frightened away or injured. The result is that the usefulness of guns in self-defense can be made to look quite minimal. The fact is that 80% (or more) of the time self-defense doesn't involve firing the gun and about 80% of the time when someone is shot with a handgun they survive. Which means that by virtue of how the question is couched, perhaps 95% (or more) of self-defense gun uses are eliminated from consideration and the premise (guns don't stop crime, they're a danger to the owners) seems to follow as a consequence.
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Old April 19, 2008, 07:59 PM   #47
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My oldest son is an attorney. I raised him. Sent him to school. I changed his diapers when he was a baby. He ended up with two b.s. degrees in psychology and economics. He then went back to college and got his law degree and then got his law license. I know him well and I love him dearly BUT as smart as he is, I wouldn't want him to represent me in court. I'm still thinking that I ought to run a DNA test on him just to make sure of his parentage or whatever... How could this happen to me???? I thought I raised him better than that!!
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Old April 19, 2008, 11:09 PM   #48
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I have represented a number of people who have used a weapon- a knife or firearm to defend themselves. While injuries inflicted involved 'grievous bodily harm' I have not represented someone in respect to a murder.

Only use a gun or knife to defend yourself or family against a perception that you or they are about to be injured. I would not use a firearm to protect against damage to property.

After the deed is done contact the Police. Do exactly as they tell you to ensure that you do not wind up becoming a shooting victim yourself.

They may arrest you. Do not make a statement. Request to speak to a lawyer, request bail. If placed in the cells resist the temptation to discuss what happened with anyone else- other occupants of cells will often try and get you to talk with view to trying to do a deal with the Police to improve their position in respect to their own case.

Resist the temptation to yell abuse and vent. Remember your gaolers are probably taking notes.

The best way to find a lawyer is usually recommendation. This can be difficult if you are not of the 'criminal classes' and do not know anyone who can recommend someone to you. Talk to other lawyers and find out who is good in an area of practice. I would see who has recently given talks at continuing legal education training for lawyers and approach them. Often regional bars have referral mechanisms and if you explain the nature and seriousness of the matter they can arrange an appropriate referral.

Cases usually turn on the facts. It is therefore important if firearms were used that the Attorney understand how guns work. If he /she 'hates guns' they may not understand aspects of your defence.

I am a great fan of the Jury system. Unfortunately jurors include gun haters as well as owners. Try and use a type of gun that is common place and most people can understand you using- I would tend to choose a sporting firearm over a military firearm, and I would use common sporting ammunition.

I would seek to avoid doing anything that would lead to an inference being drawn that I had sought out or brought on the event.

Your position may be better if you used an improvised weapon such as a screwdriver to stab an intruder rather than a big knife.

I would avoid black semi automatic rifles, riot guns, firearms with silencers, ninja knives, rambo knives, knives with double sided blades that are clearly of an anti personnel rather than a hunting nature.
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Old April 20, 2008, 03:49 AM   #49
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"...what it actually takes to survive in a court of law..." The money to hire an experienced lawyer.
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Old April 24, 2008, 10:18 AM   #50
Marty Hayes
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Well, it's been a couple of weeks since I checked this thread, and see that it has been fleshed out a little. I'll try to address some of RR's concerns, regarding the use of expert witnesses in self-defense trials, along with why they are not reported in the case law.

First, only appeals are reported, so if a case ends at the trial court level, and no appeal, no record. I would postulate that most self-defense cases are not appealed, because the aggressive prosecutor has just lost the case, and wants to slink away and not loose it again a year later at the appellate court level. Besides, what is there to appeal? A self-defense case is settled at trial level, because typically, there are no rules of law broken in a self-defense trial, unless it is the prosecutor who proposes such, and the judge agrees, sending the defendant to jail over admitting inadmissable evidence, or improper jury instructions, or whatever. In any event, most self-defense cases do not go to appeal.

Secondly, most self-defense cases do not go to trial. The goal of a good self-defense "legal defense" is to get the case dismissed before trial, or even better, never charged. Consequently, if the defender's lawyer can interject the level of training the defender had prior to charges being pressed, then the prosecutor will be more likely to look at the case with a critical eye, understand that he can't win it because by looking at the case with that critical eye, realizes that the defender was right.

Third, the role of the expert in a self-defense case is not to explain why the defender was justified, in fact, he can't. That is the question for the jury, as they alone can determine if a person was justified in shooting, and if that is what the expert is supposed to do, he will not be allowed to testify, (if the judge rules correctly on the motion in limine). In fact, this is exactly what occured in the self-defense case written about here:

http://www.armedcitizensnetwork.org/EJournal.html

Go to the April edition of the E-journal, and then scroll down to page 8, (a Tale of Five Witnesses). In this particular instance, I was not allowed to testify, not because I didn't have information the jury should have heard, but because my gist of my testimony was presented to the judge wrong. The defendant, (acting pro se) didn't explain to the judge correctly why I should be allowed to testify, and thus I was excluded.

Lastly, where a defendant's self-defense training kicks in at a trial, is his ability to testify as to his mindset when he pulled the trigger, his mindset being a critical component to his self-defense claim. WHY DID HE FEEL HIS LIFE WAS IN DANGER? He can explain the training he has taken, and why that training led him to reasonably believe he was about to be killed. This is no different than a police officer justifying his use of deadly force in an officer involved shooting.

Hope this helps.

One more thing, Lawyer Daggit and RR. Our next move for the Armed Citizens' Legal Defense Network is to start putting together the Network Affiliated Attorney listings. If either of you (or any other attorneys reading this) are interested in serving as a resourse for armed citizens in your area, please e-mail me at mhayes@armedcitizensnetwork.org and I will forward you the appropriate information.

Thanks.
__________________
Marty Hayes, President
The Armed Citizens' Legal Defense Network, LLC.
www.armedcitizensnetwork.org

Last edited by Marty Hayes; April 24, 2008 at 10:20 AM. Reason: Spelling
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