Working on self-defense cases brings me into contact with a lot of attorneys on both sides of the criminal justice fence. I’ve talked to prosecutors who completed their careers certain that they had never accused an innocent person, and to defense attorneys who said sadly they didn’t believe they had ever defended a totally innocent client. I am certain of the sincerity of their beliefs. The system works, by and large. The very fact that most of the accused are guilty leads those “in the business” to the conscious or subconscious conclusion that “If you are accused, you must be guilty.” Unfortunately, that’s simply not the case.

Wrongful Accusations
Sometimes, yes, it’s political. Consider Case One, Texas v. Blake Hubbard. Blake was the first Houston-area cop in at least 20 years to be charged with murder after a line-of-duty shooting. He and his partner received a call from citizens terrified of a maniac with a knife who was threatening everyone in sight. The first two responding officers confronted the suspect at gunpoint, but he refused to drop his weapon. The cops had no Tasers; one hosed him with pepper foam, which had no effect. That officer then tried to disarm him with his baton; that failed, too, and the knife-wielder lunged at him. It was at this point that the other officer, Blake Hubbard, fired two shots from his .40 pistol into the assailant’s chest. The attacker collapsed, dying, before he could sink his knife into the first policeman.

Johnny Cochran, who before the OJ case made a large part of his practice suing police, flew to the city to intervene. There were demonstrations. Soon, Officer Hubbard was charged with murder.

I was one of those who spoke for the officer, called by able defense lawyer John Read. We established that the officer Hubbard fired to protect, Patrolman Barry Fletcher, was in immediate, otherwise unavoidable danger of death or great bodily harm from the man he shot. This standard is what the history of deadly force trial law shows must be met in order to win on a plea of justifiability.

That in turn requires the defense to satisfy a three-pronged test, as adjudged by the jury. The three elements are most commonly called Ability, Opportunity, and Jeopardy.

Ability means the opponent had the power to kill or cripple. That can arise from a disparity of force—force of numbers, for example, or an overpowering positional advantage such as the opponent’s being in a martial arts mount and bashing the defendant’s head against a sidewalk—but is most commonly found in the opponent’s wielding of an actual weapon. In this case, the opponent’s knife certainly filled the bill.

Opportunity means that the person who was shot was immediately capable of employing his ability to kill or cripple. That is, he was close enough to do physical harm, with nothing impeding his ability. In this case, within touching distance of the brother officer trying to knock the knife away from him with a baton, the defendant certainly had the opportunity. Third, the Jeopardy factor: The opponent must be manifesting through words and/or actions an obvious intent to use deadly force. The suspect’s lunge with the knife clearly established that.

Finally, there’s that part about “otherwise unavoidable.” Police officers have no duty to retreat from violent criminal suspects; indeed, the officer is obligated to contain and neutralize the threat. In a private citizen shooting case, the citizen is never required to retreat unless he or she can do so in complete safety to themselves and other innocent persons. In this set of circumstances, such a retreat would obviously not have been feasible.

This is the legal prism through which the jury looked at the facts in evidence and found Blake Hubbard not guilty.

Reasonable People
The yardstick of judgment in these matters is the ancient common law’s Doctrine of the Reasonable Man. The jury must ask themselves, “What would a reasonable and prudent person have done (prong 1), in the exact same circumstances (prong 2), knowing what the defendant knew at the time he or she pulled the trigger (prong 3).” In Case Two, a civilian who had graduated from a training class I had taught was charged with manslaughter after killing a knife-wielder in self-defense. I was put on the stand as a material witness to testify as to the training I had given him. From that perspective, I was able to tell the jury that I had personally trained him in how deadly knife wounds could be, how quickly a man with a knife could kill him if not immediately stopped, and more. The defendant was acquitted for the shooting, and there is no doubt in my mind that my testimony brought home to the jury how quickly my graduate could have been killed or maimed had he not fired when he did.

Telling The Whole Story
We live in a time when the news media sensationalizes self-defense cases, and in a country where attorneys learn in law school, “Never try your cases in the press.” These two facts result in people who shot in self-defense being tried in the court of public opinion, with no lawyer’s voice raised in that court speaking in their defense.

In 2007, in Pasadena, Texas, Joe Horn (Case Three) phoned 911 to report two men burgling a home next door. Against the advice of the dispatcher, Horn went outside to confront the men and attempt a citizen’s arrest. Three shots were heard over the open line: The burglars were killed by the buckshot from Horn’s 12-gauge shotgun. The 911 tape was played incessantly on national television, inciting cries of “bloodthirsty vigilante.” Those accusations only increased when a grand jury returned no true bill, exonerating Horn.

What the mass media largely ignored was what swayed the grand jury: A plainclothes officer had arrived at the scene in an unmarked car in time to witness the shooting. The cop testified that the two men had rushed at Horn, one of them wielding a bludgeon. It had been self-defense, not vigilante justice. Harris County District Attorney Ken Magidson told reporters, “In Texas, a person has a right to use deadly force in certain circumstances to protect property.” Straight-up self-defense played an important part, too.

Can a shot in the back of the deceased have been fired in self-defense? Certainly. The defense simply brings in expert witness testimony to explain the intersecting timelines of the factors involved. The shooter, believing he’s about to be killed, fires as fast as he can; the suspect, seeing the gun come up, turns away suddenly, faster than the shooter can react to this unanticipated action and stop shooting.

Affirmative Defense
Self-defense is an affirmative defense strategy. The defense is stipulating that the defendant shot the deceased, but is maintaining that he or she was correct in doing so. Historically, this has shifted the burden of proof from accuser to accused, by a preponderance of evidence standard. While some states expressly require that the prosecution prove beyond a reasonable doubt that it wasn’t self-defense, the reality of juror psychology is that defense counsel pretty much has to convince the jury that if they had been where the defendant was, they would have shot the deceased, too. Thus, for all practical purposes, the reality of trial is that the burden of proving that force was used in self-defense really does fall upon the defendant.

The good news is, if the defendant has done the right thing, a skilled and well-prepared defense lawyer will be able to carry that burden successfully to a full acquittal.


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