Self Defense/Mitigating Factor

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Self Defense/Mitigating Factor

Postby Norm Abrahamson » Thu Oct 18, 2007 5:28 pm

Hi Folks,

The Appeals Court of Massachusetts issued a decision this week in the case of Commonwealth v. Arcangel Morales, Appeals Ct. No. 06-P-961, that clarifies an important self defense issue. The Defendant was convicted of second degree murder as a result of a stabbing that occurred during a fight. The Defendant admitted that he stabbed the victim, but claimed that he acted in self defense because the victim and two other men backed him up against a wall, and aggressively threatened him, while a woman with them encouraged them to beat up Morales. Morales testified he was afraid for his life. The evidence at trial was disputed as to whether the victim struck first or attempted to strike first.

During deliberations, the jury asked the judge if the victim attempted to strike Morales, but missed, could that be sufficient provocation to be a mitigating factor. The trial judge gave the following instruction to the jury in response to that question: "For there to be reasonable provocation, either sudden provocation or sudden combat, there would need to be physical contact. Even a single blow would be enough, but words and verbal abuse, [] no matter how insulting or obscene, is not enough."

The question before the Appeals Court, was whether the instruction that physical contact is necessary to constitute a mitigating factor (to reduce the crime to manslaughter) was erroneous. Unlike the Massachusetts Castle Law case that was discussed elsewhere on this forum, the Appeals Court reversed the conviction. The trial court was incorrect to focus on whether there was actual physical contact. The Appeals Court found that "[a] properly instructed jury could have concluded that a reasonable person in the defendant's position would have felt an 'immediate and intense' threat and responded as he did." The conviction was reversed and remanded for a new trial.

My reading of this is that the focus in determining whether a person reacts appropriately is whether "A REASONABLE" person would have "felt an immediate and intense threat" at the time he reacted. You can see the obvious trap here. Who is to say what is reasonable? A jury, that's who. You might feel an intense threat near the beginning of a "street interview" by criminal. But what will the jury hear about? An innocuous question? A badgering tone of voice? A refusal to get away from you? Perhaps your martial arts training and intense reading on the subject has made you an UNREASONABLE PERSON in the eyes of the law.

Although the decision seems to bolster self defense at first glance, I wouldn't be too sanguine about that conclusion. The way I see it, this is even more of a reason to exercise your rights to silence and counsel in the event you are ever questioned after a physical confrontation.


Norm Abrahamson
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Postby Van Canna » Mon Oct 22, 2007 3:27 am

Good post Norm.

Perhaps your martial arts training and intense reading on the subject has made you an UNREASONABLE PERSON in the eyes of the law.

There is always this chance because juries are unpredictable and most of the jurors would have no idea of confrontation/fighting/defensive dynamics.

Here is where an attorney well versed in self defense law is worth his weight in gold if able to present the proper arguments reflecting the reality of what a person develops in the study of martial arts and in his intense reading of defensive dynamics.

I am a firm believer that emotional intelligence, as per Goleman, affects our ability to perceive and respond successfully /appropriately to danger¹s warning signs and to danger itself.

The correct study of martial arts, must include a study of violence dynamics _ plus an in depth study [reading] of various related subjects_

This results in the sharpening of emotional intelligence as it will relate to the ‘reasonableness factor’ _

The really skilled practitioner knows well that danger signs [violence pre-indicators] come to us first through our auto response system, because of the emotionally charged nature of the situation.

Serious danger and low level boundary violations alike create an adrenaline response and accompanying emotions that make it hard to access cognitive information.

Daniel Goleman's wonderfully clear and informational book Emotional Intelligence outlines concepts I discussed at great length here on this forum years back.

The biggest hurdle to overcome in any confrontational situation in the making or already in progress, is the managing one’s emotions. This requires much training and study.

In the context of personal safety and judicious tactical response action, this entails being able to think, analyze a situation and make a reasoned, effective, decisive and appropriate response to dangerous situations almost subconsciously, something only attainable by in depth study and to a certain extent practice hands on via scenarios or visualization, and most certainly by the knowledge of the many ramifications.

This is what we learned at the Lethal force Institute, and Mas Ayoob explains that once one is able to document this ‘learning process’ it will go a long way in a court of law to conform with the reasonable man standard.

This ‘specialized knowledge, includes the ability to reframe the emotion(s) being experienced so that they don¹t prevent us from acting effectively, and reasonably under the circumstances.

For example, transforming fear into anger ¬ an emotion that can fuel action instead of freezing us.

But one further note: being emotionally upset takes away cognitive function space! Being able to feel without flooding leaves us room to keep thinking. We need brain power to create unique, finely tuned reactions that are responsive to the particular situation in front of us.

It means being able to identify someone with good intentions vs. dangerous ones. It also includes the ability to read verbal and non verbal signals to identify whether an assailant is angry, scared, jittery, under the influence of chemicals, mentally unstable, etc.

How successful our chosen game plan will be depends in part on how well matched it is to the specific circumstances we face. This requires in depth study and knowledge we do not get in a typical dojo workout.

Mistakes here will cost dearly in physical, emotional, legal and financial ways.

The tactical aspect of a martial arts study with binary subjects will enhance underlying ‘tooling’ skills and sharpen your ability to find solutions and lead yourself out of the problem, hone your ability to find your own openings and opportunities; create a plan of action; and determine split-second strategies in chaotic situations.

This is what a good defense attorney must be able to argue in support of the reasonable man standard in the given situation with the person under scrutiny for specialized skills/knowledge as pointed by Norm.
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Expert Witness

Postby Norm Abrahamson » Mon Oct 22, 2007 9:03 pm


Your comments point out the need for an expert witness regarding what a confrontation does to the body as well as reading the likely intent of the predator that becomes the prey. For instance: Attacker reaches out and puts a hand on prey while moving forward aggresively. Prey reacts by putting predator on the floor and following up with a kick, knee, elbow, or punch that does serious damage. It would be easy for a prosecutor to argue that EVEN IF the prey was reasonable in reacting to the initial touch, he should never have continued to strike the "helpless and defenseless" predator on the ground. He had time to reflect and chose to become the attacker.

Certain words are charged. What really constitutes "defenseless?" If you leave somebody alone, he can get up and attack you again. That can be a hard sell to a "civilized" juror. Especially if the predator/victim doesn't have a record or his record is not admissable at trial. How do you prove that the belief the initial attacker would attack again was reasonable? You could need expert testimony.

Remember the Pring-Lewis (?) case in Boston or Cambridge within the past few years. The grad student who stabbed a streetwise kid giving him a hard time was initially convicted.

In court, nothing is black and white. There are always arguments to be made on both sides, and the jury doesn't always believe or recognize the truth.


Norm Abrahamson
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