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PostPosted: Mon Oct 14, 2002 9:58 pm 
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Hello there!

When last we discussed the topic, the Forums were on a different server.

It appears that sending replies to threads begun on the old server gives the new server indigestion...hence, I figured the easiest thing to do was to carryover to a new thread.

So... let me summarize.

In order to defend a self-defense case successfully:

The attorney must know the law.
Just a glance at the instructions in this case show you how complicated it can be.

The attorney must know the facts of the case intimately. Preparation, preparation, preparation. Investigation, interviews, checking the records of the witnesses, checking the records of the police, medical records, jail records, probable cause hearings, suppression hearings, grand jury records. Never interview without a witness (or a tape), else you have no way to prove what was originally said.

The attorney must understand the physiology of fear and self-defense.
Grossman, Farnham, Siddle, Cooper, Blauer, MacYoung, Goleman, Laur, Dmitri, Quinn, Thompson, Franco, Ayoob, Canna...your attorney need not recognize all of those names...but if he doesn't recognize any of them, he is behind the learning curve for self-defense and will need to play considerable catch-up.
Knowing these things are not enough! You still have to have some witness testify and explain it to the jury! The attorney may not testify! (Of course, with good cross-examination.... Image )

The attorney must know how to elicit facts from the witnesses that will aid the defense.
Examplas Gratias, in the aforementioned case I elicited:

1) that no one claimed that my client hit first (elicited through testimony from: 'victim," detective, ineffectual man, "victim's" friend);

2) that my client was knocked down repeatedly by the victim, who kept hitting her in the face ("victim," ineffectual man, "victim's" friend, client, client's friend, client's medical and jail records.

3) that my client was injured (medical records, photographs, detective, jail records, client...had the other witness shown up and testified I would have elicited that she told my investigator that she had been "afraid someone was going to die."

(Note that she did not say that she was afraid 'victim' would die; that someone would die. In Closing Argument I would have argued that the only reasonable inference is that she also was woried that my client might die from the ferocity of "victim's" attack....)

4) that my client was reasonably afraid that the unarmed "victim" was using deadly physical force against her (medical records, client's friend, client, detective's testimony re: adrenaline).

5) that my client had not provoked the fight with the intent to trap the "victim" with deadly physical force (All witnesses agreed that my client left the bar while "victim" was in the bathroom, if my client had intended to trap "victim" why did she absorb an unknown number of blows before using the knife, why did she not have the knife from the beginning, why did she only stab and connect 3 times in 60-300 seconds?)

6) that adrenaline will wreak havoc with time preception, fine motor control, vision, and will also enhance strenght and pain threshold (detective, client).

7) that an adrenalized opponent is dangerous until subdued, even if wounded (detective, client),

8) that "victim" did not stop fighting until she saw her own blood, despite multiple stab wounds ("victim,", "victim's friemd, ineffectual male. client).

9) that client stopped fighting immediately upon "victim's withdrawing from the fight (client, "victim," "victim's" friend; in effectual male's testimony was substantially different - so different from everyone else's that the jury simpy disregarded him entirely).

I think that we've beat this horse nearly to death now.

Comments?

Questions?

Murray/student


[This message has been edited by student (edited October 15, 2002).]


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PostPosted: Tue Oct 15, 2002 9:54 pm 
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Excellent summation, Counsellor. And you will be teaching defense proceedure at UK when, exactly? Image

Kind regards,

Lee Darrow, C.Ht.


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PostPosted: Wed Oct 16, 2002 4:25 pm 
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Wonderful presentation of the Law of Self-Defense, Murray.

I am just astounded by the plethora of jury instructions, but I am dismayed at the extent of the instructions which appear to define each segment of the thought process, and what constitutes "reasonableness", for one example.

It seems to be an exercise,all in good faith, to set to pen and ink all possible combinations of situations, the reaction of each party, and the linking of the criminal count to each.

This is like a giant dim sum table with so many choices you feel as if you have no choice or are confused.

Great for Murray, with his silver tongue, he can augment the fear of the jury that they have many doubts and only reasonable doubt is what they need for acquital.

I will have to say that since moderating this forum, I have read much Massachusetts Text, and many cases on self-defense inclding cases in other jurisdictions but have never seen the law of self-defense so codified, and the efforts of the judiciary so carefully presenting explanations, that total confusion is the result instead of clarification.

That is only my view, but if I had six months of study, I might understand a couple of the instructions.

Until then, I prefer the Kentucky specialty of fine bourbon and to enjoy the same while watching the Derby.

We can use your wit and wisdom on these forums, Murray; I hope you keep them coming.

Alan K


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PostPosted: Thu Oct 17, 2002 5:46 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:
Wonderful presentation of the Law of Self-Defense, Murray.<HR></BLOCKQUOTE>

Thank you, Alan.

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

I am just astounded by the plethora of jury instructions, but I am dismayed at the extent of the instructions which appear to define each segment of the thought process, and what constitutes "reasonableness", for one example.

It seems to be an exercise,all in good faith, to set to pen and ink all possible combinations of situations, the reaction of each party, and the linking of the criminal count to each. (Emphasis added - Murray)

<HR></BLOCKQUOTE>

EXACTLY!

Under Hager the court is obliged to consider all scenarios supported by any evidence, and submit instructions for all of them.

This underlines the importance of having a credible witness to explain to the jury what is reasonable to expect in a highly charged, adrenalized situation.

Murray/student


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PostPosted: Tue Oct 22, 2002 4:11 am 
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> The attorney must understand the physiology of fear and self-defense. <

Very true. Most of them don’t, and many of them are antigun. Be careful how you choose a defense attorney..

Also many martial artists have no clue either, due to their imagined “superiority” because of their style or their Asian sensei they studied under. For this reason if I were a defense attorney, I’d be very careful and wary of using a martial artist as an “expert.”

> Grossman, Farnam, Siddle, Cooper, Blauer, Mac Young, Goleman, Laur, Dimitri, Quinn, Thompson, Franco, Ayoob, Canna...your attorney need not recognize all of those names...but if he doesn't recognize any of them, he is behind the learning curve for self-defense and will need to play considerable catch-up. <

Thanks, student_ but I don’t feel I belong in the same illustrious company, I am merely a student not an expert. Yet it is imperative, as you say, that a good defense attorney [like you] does his homework by familiarizing himself with those proven concepts.

Ayoob, in particular, is a professional expert in these matters, having testified in many trials, even against the FBI once, very successfully. One guy to keep in mind.

> Knowing these things are not enough! You still have to have some witness testify and explain it to the jury! The attorney may not testify! (Of course, with good cross-examination]<

Someone like Ayoob__ a sure winner. But you need to be congratulated for having accomplished almost the same through the “back door” with your “cross” __

> This underlines the importance of having a credible witness to explain to the jury what is reasonable to expect in a highly charged, adrenalized situation. <

Just be sure you don’t pick any of the ones on these pages who don’t believe in the chemical cocktail effects, especially if they were “trained properly” as Rory indicated. Image


------------------
Van Canna

[This message has been edited by Van Canna (edited October 21, 2002).]


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PostPosted: Tue Oct 22, 2002 12:08 pm 
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Originally posted by Van Canna:
The attorney must understand the physiology of fear and self-defense.

Very true. Most of them don’t, and many of them are antigun. Be careful how you choose a defense attorney..


Unfortuantely true.
In one of my previous posts, I alluded to a man who felt he was being forced off the road and off a cliff, with his 3 year old step-son in the front seat. He tried to get the idiot driver to stop, he slowed down, he waived a pistol - finally fired a warning shot (I know, not a recommended tactic!).

The other driver was wounded - whether by a bullet fragment of glass we still don't know.

The defendant believed he acted in self-defense. His attorney never submitted a self-defense instruction, thus never giving the jury the option to agree with the defendant.

I'm still ticked off at that....

Also many martial artists have no clue either, due to their imagined “superiority” because of their style or their Asian sensei they studied under. For this reason if I were a defense attorney, I’d be very careful and wary of using a martial artist as an “expert.”


Again, true.

You're likely to get your expert cross-examined on the range of techniques and control the system promotes (Our public faces turning to bite us in the posterior....), and using that to "prove" that whatever force the defendant used must hav been a malicious, conscious choice.

Grossman, Farnam, Siddle, Cooper, Blauer, MacYoung, Goleman, Laur, Dimitri, Quinn, Thompson, Franco, Ayoob, Canna...your attorney need not recognize all of those names...but if he doesn't recognize any of them, he is behind the learning curve for self-defense and will need to play considerable catch-up.

Thanks, student_ but I don’t feel I belong in the same illustrious company, I am merely a student not an expert. Yet it is imperative, as you say, that a good defense attorney [like you] does his homework by familiarizing himself with those proven concepts.


And a lot of my homework was done on these Forums!

You're not published (to my knowledge, anyway), Van. You may not have some of the scientific credentials of some of the others (although the credentials you do have are rather impressive).

But you ask damned penetrating questions. You make people react...and if they're lucky, they also think.

Thank you.

Knowing these things are not enough! You still have to have some witness testify and explain it to the jury! The attorney may not testify! (Of course, with good cross-examination.... Image)


Someone like Ayoob__ a sure winner. But you need to be congratulated for having accomplished almost the same through the “back door” with your “cross” __


Thanks. I don't know, I haven't polled the jurors (although, with permission, I've sent them letters asking for feedback), but I suspect that my "expert's" being the state's own witness added credibility to his testimony, as opposed to my having a 'hired gun,' so to speak.


This underlines the importance of having a credible witness to explain to the jury what is reasonable to expect in a highly charged, adrenalized situation.

Just be sure you don’t pick any of the ones on these pages who don’t believe in the chemical cocktail effects, especially if they were “trained properly” as Rory indicated. Image



Van's referring to a comment in his own Forum (cf the thread The Savage Urges) made by Rory A. Miller, a corrections officer with beaucoup hamds-on (literally!) experience, concerning martial arts teachers with no practical experience of their own, on how 'proper training' in visualization will completely negate the biochemical cocktail effects. Right.... Image

(N.B., visualization is important! I'm in favor of it! I practice it.

(I don't delude myself that I will have no biochemical cocktail effects. Hell, I get them during trial, which has got to be less stressful than actual physical combat...most times.... Image

(But, like physical combat training, the more prepared I am for trial;, the less the effects affect me.)

The attorney does not want to ask questions to which either he does not know the answer or the answer can hurt his case. That's why I researched the topic and the officer. Image

Murray/student



[This message has been edited by student (edited October 22, 2002).]


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PostPosted: Wed Oct 23, 2002 3:04 am 
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A Post Script:

I am a correspondence student of Tony Blauer's. On several of his tapes, Tony talks about what you need to give yourself permission to act in self-defense, He has you make a list of the things you would lose if you did not defend yourself against serious attack - these things must be personal, passionate, and present. (My own list includes dancing at my children's weddings, which is not present, but is still very personal and passionate.)

Knowing that one had to have some trigger to permit the act of self-defense, I asked my client during the investigatory stage what went through her mind to permit her to fight.

She reminded me that she was a single parent. Her minor child's father never paid support, and in fact was on his way to the penitentiary. If she died on that gravel parking lot behind a bar, someone else would raise her child. She was not going to let that happen.

I had hit paydirt for the jury. The prosecutor objected at trial that I was trying to make my client look sympathetic. I was certainly aware of the sympathy value, but I didn't make anything up nor ask my client to make anything up. It was absolutely relevant as to her state of mind as to self-defense, and without Tony's training I might not have thought of asking her that question.

Thanks, Tony.

Murray/student

[This message has been edited by student (edited October 25, 2002).]


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PostPosted: Wed Oct 23, 2002 5:24 am 
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It would indeed be difficult for any attorney to handle self-defense cases without any personal knowledge of what emotional, physical experience the accused was exposed to.

After, WW II, Korea and Nam, there were many lawyers leaving the military with a plethora of actual hands on experience and exposure to weapons, line of duty, self-defense issues and who had experienced the chemical cocktail of fear.

On TDY in Korea, I experienced some incoming now and then for a period of not much more than six weeks. The cadre and equipment operators (combat engineers) in the batalion had long periods of exposure to mortars and snipers.

Attorneys who are pro-gun are fewer and far between these days and lack that experience, but I must say that those who practice martial arts are in larger numbers.

Heck, even movie stars have to experience even contrived set up situations if they are to play roles such as military, bad guy, good guy or whatever.

The civil attorney must know a lot about his client's business if he is to be effective.

Let's take a lawyer who represents building contractors. He had better know the lingo, and have been on jobsites to be effective, and understand building agreements and contracts of all sorts.

The criminal attorney must be even more keen, for the loss could result in prison for the client or even worse; a bigger loss than dollars and cents.

By gosh I think I just said my two cents worth.

Murray, Van is not only eloquent with words, but can really show you how TC works.

Alan K


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PostPosted: Sun Jan 26, 2003 7:10 pm 
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As I have said several times, you may live by the sword, but you are judged by the pen. Your skill and knowledge in the field of Law, witness management, pre-trail investigation, courtroom procedure, and more importantly the reality of self-protection is what made the difference to your client’s freedom. You took personal ownership of this case and did not allow the lure of money to blind your quest for the truth. IMHO, this thread should be a blueprint that all lawyers should study and follow if defending a client who used force appropriately and reasonably to defend themselves.

Strength and Honor

Darren Laur

PS: I’m glad that some of my work was able to help both you and your client. If it’s not to much to ask, what information of mine was valuable to you in this case ?


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PostPosted: Mon Jan 27, 2003 3:27 pm 
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Thanks Darren for reviving a valuable post.

It is one that should be absorbed by all martial artists as a guide-line for the practical application of the laws of self defense related by a criminal defense attorney.

You can read applicable statutes, cases, and text which will instill the elements of the law, which is like a book on how to play golf.

Murray's presentation gives one the insight in a particular difficult to defend case and through this, while following the facts, the law, the physcology and strategy, one can begin to see what is needed to defend the case, and to prepare one to defend.

Yes, you MA's are well trained in physical self defense, and we even have a nice forum on verbal self-defense. This treatise allows the reader to see the case unfold through the eyes and mind of a defendant's attorney able to verbaliize the process, and to gain insight to pracitcal application of the law and legal procedure.

Alan K

_________________
"The Goddess of Justice is Blind"


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PostPosted: Mon Jan 27, 2003 3:48 pm 
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Darren Laur wrote:

Strength and Honor

Darren Laur

PS: I’m glad that some of my work was able to help both you and your client. If it’s not to much to ask, what information of mine was valuable to you in this case ?


See my post of 9 October, 2002 in Anatomy Or A Self-Defense Trial, Part I,; much of the cross examination of the lead detective was based on his training, concerning the Tueller drill, effects of adrenaline, etc. Much of that information came from Van's Forum; some of it from your posts. I don't think I could be any more specific than that, though; sorry.

Again, thanks.

Murray/student


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