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Old November 22, 2011, 02:27 PM   #1
Bartholomew Roberts
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Jesus Gonzalez, WI Open Carry Activist, Sentenced to 20yrs in Shooting

Recently, Jesus Gonzalez was sentenced to 20 years in prison (which due to WI's "Truth in Sentencing" laws means an actual 20 years for the charge of first degree reckless homicide. The verdict was the result of a shooting that Gonzalez claimed happened in self-defense. Gonzalez shot two men, both of whom had past criminal records, who he claimed assaulted him as he attempted to move his car.

Here is the criminal complaint regarding the shooting.
The court docket for the trial is here.

What is interesting about this case is we don't really know what happened from the shooter's perspective; because other than making a 911 call, he declined to give any statement to police and did not testify in defense of himself. With that important exception though, the case is actually well-documented online. Also problematic for Gonzalez was that although he claimed to have been in the process of moving his car when he was assaulted, his car was actually located in the opposite direction.

I thought the case was interesting in that on the surface, it seems like a winnable case. The people he shot both had criminal records, including charges of battery. Both of the men he shot were way over the legal limit and had recently been thrown out of a nearby bar just 75 feet away from the shooting. The story told by one of the people shot seemed to lack credibility. However, it seems Gonzalez's decision not to tell his side of the story had an impact on how the jury saw the facts.
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Old November 22, 2011, 03:07 PM   #2
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Juries are funny things you never really know how they will respond to testimony. Regardless of how justified the shooting may have been a dead victim’s family and paralyzed victim are heavy visuals for a Jury. Also, it sounds like the Defendant was not the most sympathetic person to begin with.
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Old November 22, 2011, 03:08 PM   #3
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The very end of the complaint is interesting, at least from a technical point of view. The handgun was identified by the state investigator as a "CZ firearm", chambered in 9mm Makarov, but loaded with 9mm Ultra.

The investigator said that the CZ had a "smooth bore" barrel.

Did Gonzalez really have 9mm Ultra rounds loaded in a 9mm Makarov handgun? I realize that the 9mm Ultra is supposed to have greater stopping power than the 9mm Mak, but, really? A .356" bullet in a .364" barrel? Maybe that's the question that he didn't want to have to answer - the prosecution certainly could have bent fact against him.

Also, my usual statement holds: You can't call the bullet back.
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Old November 22, 2011, 04:02 PM   #4
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IIRC, there was testimony that one of the assailants was shot while in his car around the corner from where Gonzalez claimed the shooting occurred. This whole thing was a mess, and it could be that Gonzalez' attorney told him to keep quiet.
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Old November 22, 2011, 06:19 PM   #5
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That would be my guess as well. Gonzalez appeared less dirty by not testifying than he would by testifying.
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Old November 22, 2011, 06:41 PM   #6
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I expect a different approach and result on appeal.
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Old November 22, 2011, 08:12 PM   #7
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Well, if nothing else, it shows that claiming self-defense without testifying or making a statement can be a tough case to make.
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Old November 22, 2011, 10:15 PM   #8
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The only people who've seen all the evidence are the jury, and they felt that it proved Gonzalez' culpability beyond a reasonable doubt.

There's a parallel to the Olofson case here. I'll admit it: we're predisposed, on some subtle level, to side with someone who identifies as one of our own. But what we know and what was presented to the jury could very well be two different things.

It worries me a bit when guys like this are labeled gun advocates by the media.
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Old November 22, 2011, 11:06 PM   #9
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Well, if nothing else, it shows that claiming self-defense without testifying or making a statement can be a tough case to make.
Right, if there are no other witnesses other than a survivor of the shooting that saw the event occur, making such a case may be difficult.

Of course, he may just be guilty.
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Old November 23, 2011, 09:35 AM   #10
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When the evidence does not support your side of the story, as this case seems to imply, it presents a few problems.

If it was truly a self-defense case (and if may have been) then I would think putting Mr. Gonzalez on the stand to explain why he felt threatened would have been the smart thing to do.
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Old November 23, 2011, 11:16 AM   #11
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Doesn't an appeal have to be based on some legal/technical error? It's not a do-over if you lose. Or so I thought.
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Old November 23, 2011, 11:27 AM   #12
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Quote:
Originally Posted by Glenn E. Meyer
Doesn't an appeal have to be based on some legal/technical error? It's not a do-over if you lose. Or so I thought.
Technically, yes, but . . . I haven't seen a notice of appeal in this case, but the defendant/appellant can claim that some of the following were errors:
1) The verdict is not supported by the evidence;
2) That his trial counsel was deficient in his or her performance;
3) That the judge committed reversible error in excluding evidence, denying a motion for directed verdict, etc.

So, no, it's not a do-over, not unless he wins on some point that gets him a new trial. On appeal, he will have to take the evidence that was adduced at trial, and argue from there.

Edited to add: I'll have to go look at WI statutes, but in many states, SD is an affirmative defense. That puts the burden of proving it on the defendant, which makes it all the more puzzling that Gonzales did not testify.
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Old November 23, 2011, 11:40 AM   #13
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"The investigator said that the CZ had a "smooth bore" barrel."

This has been like a bad song stuck in my head. It had a what?

Assuming this is an accurate quote by the reporter, did the barrel need cleaning or had it been filed smooth for some bizarre reason?

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Old November 23, 2011, 11:59 AM   #14
Bartholomew Roberts
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Quote:
Edited to add: I'll have to go look at WI statutes, but in many states, SD is an affirmative defense. That puts the burden of proving it on the defendant, which makes it all the more puzzling that Gonzales did not testify.
I know the prosecutor objected to the jury instruction for self-defense on the grounds that Gonzalez hadn't met the burden of proof for such an instruction based on the scant testimony. The judge overruled him and granted Gonzalez the self-defense instruction anyway saying the jury had enough to choose to disbelieve the shootee's version of events.

So, any appeal won't be based on the lack of that jury instruction anyway.

I'm kind of puzzled myself. I don't know why you would admit all the elements of a homicide and then clam up on the self-defense claim. Obviously with the 911 call, you have already admitted the elements of the homicide, so that horse had left the barn; but I don't understand not testifying or even making a statement afterwards - especially with an affirmative defense.

Part of me wonders if Gonzalez had a defense attorney who was more accustomed to criminals and didn't know how to approach a self-defense case?
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Old November 23, 2011, 01:21 PM   #15
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Gonzalez talked to the cops too much during the investigation. Then he didn't take the stand, keep his lies straight and testify on his own behalf to make an affirmative defense to the charges. Perhaps he couldn't on account of what the told the cops initially. Once an affirmative defense is made, it is extremely difficult for the prosecution to debunk it beyond reasonable doubt if there is even a shred of credibility in the defendant's story. Without reliable witnesses to make his case, it fell to Gonzales to do so, and he capitulated. The guy did everything wrong.
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Old November 23, 2011, 02:46 PM   #16
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I'm kind of puzzled myself. I don't know why you would admit all the elements of a homicide and then clam up on the self-defense claim. Obviously with the 911 call, you have already admitted the elements of the homicide, so that horse had left the barn; but I don't understand not testifying or even making a statement afterwards - especially with an affirmative defense.
If Gonzalez testified, he would be open to questioning from the prosecution about all the events leading up to the shooting, during, and after. Apparently the real version of the story that would come out would not frame Gonzalez as just shooting in self defense.

It isn't out of the question for killers to call 911 and report incidents in the hopes of doing so will help make it look like they are the victims when they were not.
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Old November 23, 2011, 03:12 PM   #17
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The only people who've seen all the evidence are the jury, and they felt that it proved Gonzalez' culpability beyond a reasonable doubt.

Well, they've seen the evidence that was presented. There is obviously more since Gonzalez decided not to testify. Whether or not more evidence would have helped him is uncertain but choosing not to provide it does seem strange.
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Old November 23, 2011, 03:46 PM   #18
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Originally Posted by secret agent man
Gonzalez talked to the cops too much during the investigation.
In all of the accounts I've read, the only statement Gonzalez ever made to police was his initial 911 call. Even the criminal complaint, which has testimony from the bartender who served the shootees, and testimony from three of Gonzalez's relatives, doesn't have anything but the 911 call.

I don't think talking too much was the problem here - unless Gonzalez did something clearly illegal, in which case, making the 911 call didn't help his defense.
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Old November 23, 2011, 04:01 PM   #19
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If it was a CZ82 (which sounds like the case) it has polygonal rifling which at first glance appears to be a smooth bore.
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Old November 23, 2011, 04:42 PM   #20
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the only statement Gonzalez ever made to police was his initial 911 call
That's what I'm talking about. See page five of the incident report. He cooked his own goose right then and there.
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Old November 23, 2011, 10:01 PM   #21
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It isn't out of the question for killers to call 911 and report incidents in the hopes of doing so will help make it look like they are the victims when they were not.
I once got a good piece of self-defense from a former LEO and instructor: if you ever have to draw your gun, be the first one to call the police.

I once did, following a fender bender with an aggressive drunk. He threatened me (tire iron in hand) when I said I wanted to file a police report, then fled the scene when he learned I had a weapon. I phoned the police immediately and told them what happened. Good thing, too, since he called the following morning and claimed that he was sober, but that he'd left the scene of the accident because I was ranting and waving a gun around.

He attempted to use that defense at trial, and there was great hilarity.

The underlying lesson is that lethal force is a big deal, even when not deployed. You want to take every measure to make sure the police have a clear depiction of your side of the story. I'm not saying not to wait for a lawyer, but a proper statement should be given as soon as possible.

I can't see any reason for Gonzalez' lawyer to advise him to keep quiet straight through the entire trial unless there was some serious doubt as to his self-defense defense.

Not all gun owners are responsible people, and not all are good people. Sorry. It happens. Reading into the Gonzalez situation (and his prior history does suggest a confrontational streak), it's very possible he jumped the gun.
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Old November 24, 2011, 10:40 AM   #22
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There is obviously more since Gonzalez decided not to testify. Whether or not more evidence would have helped him is uncertain but choosing not to provide it does seem strange.
No, it is not strange at all if by testifying he is opened up to revealing aspects of the situation that would indicate his guilt. Admitting guilt of illegal acts is more likely to get you convicted than just letting the jury try to sort out the information and possibly decide you aren't guilty.

If on the stand, Gonzalez would have to explain why he was nowhere near his car that his lawyer said he had gone to move (was in the opposite direction from his vehicle) when he shot the two men he claimed to have been assaulted by, one of whom was in a vehicle and the other of whom was on foot. Note that Gonzalez said he shot out windows of a vehicle that drove by and never mentions shooting the guy who as on foot. There is a lot of rectification that needs to go on to make Gonzalez's story sound credible. Gonlzalez claimed in the 911 call that he was assaulted by the two men, but he apparently showed no injuries (not that you always will have them when assaulted, but confirmational evidence would have been nice) and apparently never pressed the police to charge the shootee's with assault.

In the words of Ricky Ricardo, "You gotta lotta 'splaining to do, Lucy" only Lucy (Jesus) didn't want to explain anything.
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Old November 24, 2011, 11:59 AM   #23
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What worries me most is that this case will be used as rhetorical ammunition by the opposition. And it will.
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Old November 24, 2011, 01:08 PM   #24
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The so-called OC activists I've seen on YouTube are nuts

I am sure there are some rational reasonable people who beleive in OC and work diligently and effectively to further that goal. I'd like the option to OC. i'd also like to live in a cluture where people don't freak out if they see someone with a holstered gun on their hip.

I think in some cases there are some egotists that are out-of-touch with reality. They see themselves as heroes and crusaders, and their goal is to get their 15 minutes of YouTube fame. They love making YouTube videos of the incidents that they themselves instigate.

Worse yet are the trigger-happy Bernhard Goetz types who really want to shoot someone. I get the sense from some of the people who post some of these "What would you do?" scenarios on this very forum, that they are eager to shoot a "bad guy", be the hero, get to post about their ordeal on the gun forums, and tell all their friends and relatives.

Gonzalez probably had the best scenario to do that - two guys who had been drinking all night and were intoxicated, had criminal records.

You can chalk it up to him having a bad lawyer, but I think that what happened was that he gunned those men down, and there was enough evidence to indicate it.

Last edited by C0untZer0; November 24, 2011 at 01:52 PM.
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Old November 24, 2011, 05:50 PM   #25
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You can chalk it up to him having a bad lawyer
I don't know if he's any good or not, but his lawyer was a gun-rights attorney from Georgia, not some public defender.
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