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PostPosted: Mon Dec 18, 2000 7:05 pm 
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A post on this forum by Student and the intense interst in this subject matter demonstrated in Canna Sensei's forums, prompted me to make some comments.

A particular homacide case was alluded to in the topic of De-myth-tified posted by Panther.

My comments on this case are strictly from my memory, both of the trial and conviction, and the appelate process.

Massachusetts law applied the so called "reaonable man" theory in cases of justifiable homacide.

A divorced woman resided with her children in a house that she owned. She had recently "broken up" with a gentleman friend, who had a past record, was abusive, and had threatend to kill her and her children many times.

One day he forced his way into the house and in a drunken rage told her he was going to kill her and her children.

He came after her and she retreated, first taking her children with her, and then grabing a rifle.

They retreated to the basement of her home pursued by the ex-paramor who screamed at her that he was going to kill them all.

She held up the rifle and told him to cease and desist to no avail and continued down the basement stairs cussing and threatening, until he was killed by a single shot from the rifle.

She was found guilty of second degree homacide and sentenced to state prison.

Her appeals ended in the Supreme Judicial Court of the Commonwealth of Massachusetts, when that court ruled that the conviction was proper because the evidence of the facts justified the conviction.

The only fact that was important to the case, at this point was that the basement had a door leading to the outside.

The Court in effect ruled that she had not exhausted her duty to retreat, and that her use of deadly force was not reaonable in the circumstance of availability of the basment door egress!

What prompted my interest in this case was the fact that the law had been interpreted in a manner exceeding the strictest application of the Code of Bushido relative to the equation of deadly force versus the need to retreat.

As stated by Panther, Governor Dukakis, would not grant a pardon, a great upheaval prompted by the bizare circumstances of the case prompted a change in legislation, but the woman remained in jail until pardoned by Governor Edward King.

The requirement of the use of reasonable force is still an necessary element of a successful defense.

The theory of the myth that a "man's home is his castle", nevertheless persists; the change enacted by the legislature does not permit the killing of a person who has commited the felony of Breaking and Entering, without the further justification of the action taken to stop the felonious conduct of the perpertrator.

I think that I like the attiude of the Commonwealth of Kentucky in these matters, as quoted in this forum by Student.

We will develop this subject further.


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PostPosted: Mon Dec 18, 2000 8:31 pm 
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I remember the case and also remember discussing it with you over a beer. Obviously, the woman told the truth to the police who arrived at the scene. I don't think the woman would have received the sentence had she simply kept her mouth shut and asked to speak with her attorney.

What advice do you have to offer anyone who finds themselves in an accident or fight regarding talking to anyone, prior to seeing an attorney?

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PostPosted: Mon Dec 18, 2000 10:03 pm 
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The castle doctrine is currently still the law in Massachusetts. Unfortunately, judges try to undermine it every time it comes up.

Since the case in question is well-known in the pro-self-defense political activist circles within Massachusetts, I'll add what I can to shed some light on the case of Commonwealth vs. Shaffer.

I don't claim to have any personal knowledge of the case. So the items that are not part of the public record come to me through a friend who was fortunate enough to have known and worked with the arresting officer, the late Chief Al Horan.

After Gloria Shaffer was convicted of murder (some accounts said manslaughter, but it was 2nd murder), she was subsequently looked on as a martyr and the Massachusetts legislature passed the law allowing us to defend ourselves and our families in our homes. Prior to the Dukakis administration, the castle doctrine had not been a law because it was thought to be "common sense". Over the years with more liberal and socialist judges in Massachusetts, this right (that is even in the Massachusetts Constitution) was gradually eroded... and finally lost when Mike Dukakis became governor. Under his strong-arm statist tactics, the law became fundamentally, no right to self-defense... PERIOD. During this time, we were obligated to flee our own home and flee our attackers, it wasn't legal to defend yourself or family!

Gloria Shaffer was a battered wife who was separated from her husband. I don't know what their exact legal status was, except that they were not living together when this happened. Apparently he had assaulted her a number of times and threatened her and their children's lives. This particular evening he broke into the house while Gloria was home and threatened to burn the house down with them in it "some evening while they slept". Gloria grabbed a shotgun and told him to leave. This enraged him further and he followed as she retreated into the basement with the children and locked the door. He still refused to leave, broke open the basement door and basically dared her to stop him... she shot him. (In a hollywierd movie, the cheers would rise, the audience would applaud and she'd live happily ever after... but this was reality and worse, it was during the Dukakis administration in Massachusetts.)

Chief Horan told my friend that it was personally upsetting to him to have to arrest her, but he was obligated to do so. (My personal opinion is that LEOs who enforce unConstitutional, unreasonable, or "bad" laws are despicable, but I digress...) After the trial, there was a groundswell of sympathy for Gloria and that got translated to a "home is our castle" law. Dukakis refused to pardon her, but part of Ed King's campaign was that he would pardon her... which he did. (One of the best Governor's the Commonwealth has ever had. Damn nice man, and a fine shot to boot. Image )

I only have one other comment on Alan K-san's initial post. The castle doctrine is not a myth. It is codified in MGL currently. There was a case, years earlier from PA (IIRC). In that case, a couple of officers drew weapons and shot a young black purse-snatcher. The crime committed by the perp was grabbing a woman's purse with all of ~$10 and change in it. When ordered to stop, the kid kept running and while scaling a chain-link fence, both officers shot him in the back. Even though the officers (as usual) were found "not guilty", it went to a Federal appeals court which stated that deadly force can not be used to protect property. The only "myth" is that some people still think they can protect their property with deadly force. There isn't a jurisdiction in the country (not even Kentucky, Texas, or Idaho) where that would fly. In every justified case, there must be the defense of self or other innocents. In that regard, you can't just shoot someone for breaking into your house (there are other reasons why it's unwise as well)... However, if that perp knows that people are at home and refuses to leave, then it can be assumed that the perp is willing to cause death or grave bodily harm. What the "home is my castle" law states in Massachusetts is that you are not obligated to retreat from your own home and can protect your family from the perp who refuses to leave. (Usually accepted as a threatening or hostile intent, but again being eroded by many socialist, activist judges.) That is why I have advocated the idea of a "safe room" to the members of these forums. Once the family is in the "safe room" you have done everything to separate yourself from the perp that is required by law... Additionally, if the perp makes the mistake of forcefully entering the "safe room", you have automatically established an "imminent threat of death or grave bodily harm". (Meeting the criteria for the use of deadly force in every state of the Union.) Under the current law in Massachusetts, there really isn't any difference than Kentucky. Neither one requires you to retreat. Where the difference lies is in the court's actions. In Kentucky, someone breaks into your house and your go confront them and inturn kill the perp, there is a greater than 50/50 likelihood that it will be deemed self-defense. In Massachusetts, while there is no requirement to retreat, if you go and confront the perp and inturn kill them, there is a greater than 99% likelihood that you will be arrested for murder. Then you have to prove self-defense. Kiss the house, job, and everything else you own good-bye to pay for a damn good lawyer. So, I recommend setting things up to maximize your family's safety and ensure that if the perp must be stopped that it's obvious that there was a threat of imminent death or grave bodily harm. (Yes, I word it that way specifically for a reason... that's a universally recognized legal criteria for the use of deadly force.) That's the difference.




[This message has been edited by Panther (edited December 18, 2000).]


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PostPosted: Mon Dec 18, 2000 10:44 pm 
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Excellent explanation Panther. A clear statement of fact that makes lots of sense.

All the points you raised regarding self-defense and lethal force aren't something you will be aware of as you hear broken glass or footsteps downstairs at 3 AM.

How in the hell can any court assume a citizen will have the presence of mind to follow guidelines that most people don't understand.

Hesitation at the critical moment while you try to remember what to do may cost you and/or family members their life. Best to have a plan before hand and the mindset to follow it, should the need arrise!

I'm still interested in knowing how important your choice of words are, to describe the incident. How important will your first statement be? Will the officers inform you of your rights? Will you be able to modify your statements?

Excellent thread!

------------------
GEM

[This message has been edited by gmattson (edited December 18, 2000).]


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PostPosted: Tue Dec 19, 2000 2:54 pm 
We may not be able to count in Florida but at least we can shoot back. I think we are even aloud to shoot unruly houseguests, I'll have to look that up though. Image

Could you imagine if someone like Dukakis was elected president? How scary would that be? He would probably sign the deed back over to the Mother England. I'm sure it's not healthy to be this angry about something, but I can't help it. Image

Didn't Dukakis let a guy out of prison for a weekend and he killed a school bus full of children or something (slight exaggeration to make a point). What a winner this guy is. The real shame is that there are people who put these people in power. What in the hell are they thinking? Maybe it's me. Maybe I'm too uninformed to make a judgement on this. I don't think so. It's a simple matter of right and wrong. It is wrong to make laws that tell people they have to jump through hoops to do what comes natural..DEFENDING THEIR LIFE AND THE LIFE OF THEIR FAMILY!!!!! DUH. Am I not seeing the big picture here that is what they were saying, correct? If not please correct me. I'm sure panther will Image

I think the real reason people move to Florida isn't because of the weather. Its because they are tired of being victims of the $heet bags and the criminals. Just remember when you come down here bring extra ammo……and a calculator Image

THAT IS ALL


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"Before the beginning of great brilliance, there must be chaos. Before a Great person can begin something brilliant, they must look foolish to the crowd."--I Ching


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PostPosted: Tue Dec 19, 2000 3:58 pm 
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DavidT-san,

It was Willie Horton. Convicted rapist/murderer who was paroled/pardoned by Dukakis and then went on to skip out down to Maryland where he was apprehended after raping a woman, beating her husband and leaving them both for dead. Unfortunately for ole Willie, he didn't understand that it wasn't like Massachusetts, where "society" gets blamed for his lack of social skills. Image (Though, as bad as it sounds, I wish he'd have pulled that crap in VA, where people aren't disarmed and they had the death penalty at the time!)

You are correct... That is what they were saying. What were they thinking? They're thinking that people with guns are citizens and people without are subjects. They're thinking that you can't rule honest people, only criminals. So they make so many things a crime that it becomes impossible to live without breaking some law. Someday (probably when it's too late), people will realize that "gun control" isn't about guns, it's about control. Image

BTW, you can not just shoot an unruly guest in Florida! The same criteria applies... there must be a threat of imminent death or grave bodily harm (among other things). So, if it was me, I wouldn't try that... Image

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by gmattson:

I'm still interested in knowing how important your choice of words are, to describe the incident. How important will your first statement be?<HR></BLOCKQUOTE>

Extremely! That's why your first statement should be something along the lines of: "Officer, I am completely willing to discuss everything with you at a later time. You will get my full cooperation then, but I know you realize that this is a very traumatic event and I really need to take some time for myself right now, so I have nothing to say at this time." Then call a lawyer and shut up! Later, when things are set-up to your advantage, then you can make complete statements based on certain legal criteria. The criteria for self-defense includes (but is not limited to), the presence of an imminent threat of death or grave bodily harm. (Where each word has a critical meaning and contribute to the conditions that must be met before deadly force can be used. One caveat... IANALNDIPOOTV! == "I Am Not A Lawyer Nor Do I Play One On TV!") Image

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Will the officers inform you of your rights?


Only if you are being arrested and only those that are spelled out in Miranda. (Yes, there are others that people routinely give up without realizing it... know your rights or lose them.)

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Will you be able to modify your statements?


No. You can "amend", "recant", or "restate", but you can't modify what's in the record. You make a mistake with what you say in the beginning, you have to live with it... or get convicted with it. Even if you change your story, that will just be used against you. It is imperative that you get it right the first time. Image


[This message has been edited by Panther (edited December 19, 2000).]


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PostPosted: Tue Dec 19, 2000 8:27 pm 
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Thanks Panther:

I repeated my question in Al's new topic, before checking this one. You answered my question completely.


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PostPosted: Tue Dec 19, 2000 8:52 pm 
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Panther's advice as to what to say is excellent so far as it goes, but it needs amending in that you must tell the officer you want to speak with your lawyer first, before making any statements or answering any questions!

Trauma is explainable and silence is golden. Mis-statements, gallows' humor, seeming callousness is not to your benefit. The short-sighted (but understandable) view is to talk and get the police on your side to make it all go away.

The long view is to inoculate yourself against a successful prosecution by not giving the prosecution anymore to hang its hat upon. It is a sad but hard fact that virtually nothing you say at this point will help you and is more likely than not to hurt you.

"Officer: this has been very traumatic and I'm sure I'm in shock. I must speak first with my lawyer and will answer no questions until I do."

There is no admission to anything in that statement. You haven't even admitted you've done a thing - just that you have been subjected to a traumatic event, period.

Counselor Alan K, what sayeth the Massachusetts bar? Image

student

[This message has been edited by student (edited December 20, 2000).]


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