I’m joined today by my good friend Cliff Barnes. Cliff, as you might recall, was a longtime criminal defense lawyer in town and spent way too many years as a county court judge here in Fort Pierce. Now, he’s back in the saddle, defending the wrongly accused, and sometimes the rightly accused.
Cliff’s going to help us out today and talk about the law of self defense.
CB: I’m not going to talk about self defense. I’m going to talk about how you win with self defense in a criminal case.
MK: Tell you what. You tell us how we win and I’ll tell you about one we didn’t.
CB: In a self defense case, it’s usually a good policy, if you’re in a fight or a skirmish, that if it’s a fist fight, you don’t bring a weapon, because the law doesn’t take kindly to people using weapons when there’s no reason to use a weapon.
CB: So, in one of my cases, my client did just that. He was basically in a fist fight. He pulled out a knife and emptied the attacker’s onto the ground in front of him. He was charged with aggravated battery. We went to trial, of course. They weren’t going to offer anything. I had a good client and I had confidence in him.
CB: So, we go to trial and, of course, the State makes the argument that just because the attacker hit my client with his fists and cursed him, that my client had no right to immediately pull out a knife and slice him from side to side.
CB: It all started at a barbecue, as so many skirmishes in Fort Pierce, Florida do. Good friends, good family. My client was an older gentleman. Probably my age that I am now, so a real old guy, and he was assigned the task of cutting up the chicken for the barbecue, so he’s got to bring his super-sharp knife. He was cutting up the chicken. And somehow, some way, he raised the ire of one of the party-goers, who physically attacked him, punched him, cursed him. And my guy’s response was to do to him what he was doing to the chicken – separate it.
CB: So, with one swoop of the knife, he cut the man’s gut open from side to side. The testimony was that they had to take him to the hospital. Of course, it had to be a pick up truck, right? He’s in the passenger side holding his intestines back in his belly, gets to the hospital. They suture him up and he was, for all intents and purposes, pretty fine when he came to trial, except that he had this huge scar across his belly.
CB: So, how do you defend a case when your client takes what appears to be a smaller aggression and turns it into a real injurious situation?
MK: Prosecutors like to use the word “escalate”.
CB: Escalate! With a weapon instead of his fists.
CB: Well, as you know, the law doesn’t require someone to bring a fist to a fist fight if the other party has way more abilities, is bigger, stronger, younger. So that’s what I focused on in trial. I had the accuser stand in front of the jury. He was a big man. Meanwhile, I dressed my older gentleman in a nice coat and tie. I made him go out and get glasses so he looked older than he really was. He looked like he was a professor, peaceful, even though he had a criminal record.
CB: The accuser was very happy with my cross-examination because I had him stand in front of the jury and flex his muscles, turn around, see his back muscles. Describe your height, your weight. Wouldn’t you agree you’re much bigger, much stronger? What do you do for a living? “Oh, I’m a body man in an auto shop.”
MK: And he was proud of his physique. I remember that.
CB: He was proud of his muscles. I had him show the jury his enormous hands that were calloused and scarred from years of working body shop. I said, “Those are strong hands. You could really hurt somebody with those hands, couldn’t you?”
CB: He said, “Oh, yeah.”
CB: “Show the jury when you ball up your hand into a fist. That’s pretty much a dangerous weapon. Wouldn’t you agree?”
CB: “Oh, yeah!” he said He was just so happy to tell the jury how strong and bad he was. I think I actually had him admit that if he put enough force behind one of those fists that he could kill somebody with one blow.
CB: Meanwhile, the jury’s looking over at my professor who’s sitting calmly and serenely, and has his glasses on. Had a sportcoat on with one of those little ties that the cowboys wear. A string tie. He just looked like…well, not like an angry, violent man, but like a victim.
CB: I stressed to the jury in closing that what we had was a case of justifiable defense. He could have been killed by that big man, and he did not have to wait until he was almost dead to use that knife. He was not the aggressor; the other gentleman was the aggressor. He had a right to defend himself with what he had. There was no premeditation in that he went to the truck to get the knife. It was in the heat of the moment.
MK: What the lawyer would say is he used the amount of force that was necessary to protect himself or defend himself against imminent physical harm.
CB: Thank you! And once the man went down, he didn’t keep stabbing him. Then one of those things that pops into your head in closing argument when you’re standing there all proud of yourself, and I said, “Furthermore, Mr. So-and-So (the accuser) will probably go about life bragging about this scar and by the time it’s all said and done, he’ll have everyone believing he was in an alligator fight. He’ll wear that scar as a badge of courage his whole life.
MK: And he does.
CB: And he does, because that’s all he got out of his confrontation with my client was a scar. The funny thing in this case was, back then we had newspaper reporters following a lot of the cases and they would ask you at the end of the trial if you were surprised by the verdict and why did you think the jury did what they did.
CB: The jury was out about a half hour and the reporter asked if I was surprised by the verdict. I said, “No, I was only surprised that it took them so long to deliver it.”
CB: Later that week we got a phone call from one of the jury persons who told my secretary that she’d read in the paper that I was surprised by how long they were out and she just wanted me to know that it only took them five minutes to decide the verdict, but they thought they should at least spend more time in there just to make it look like they weren’t rushing things, to respect the court and the jury deliberation requirements.
MK: I remember that case. I remember when you tried it because I tend to look at the entertainment in some of these cases. It was funny to watch you cross-examine that guy and have the supposed victim in the case couldn’t wait to agree with whatever you were going to ask him next because he was really, really proud. And one of the legal lessons we learned from that is you were able to win that case in part because your client only wounded him once. He didn’t continue to stab him.
MK: You and I, a long time ago, helped a young public defender prep a case that looked like self defense, and that was the defense that was going to be used at trial, but it didn’t really work out.
MK: This was a case involving a shootout at the Sunrise Ford car dealership, when it used to be north of town. It was two young punks shooting at each other while they each ducked behind cars. Eventually, the person who became known as the defendant shot and wounded the other guy, and he fell out into the open. The soon-to-be defendant walked out from behind a car and finished him off with a few more shots.
MK: As we’re helping this young public defender prep his case, he had to deal with why did the defendant kept shooting. We got him to prep his client that he kept shooting because the wounded man kept going for his gun. When he fell out into the open, the gun fell a few feet away. Why did you keep shooting? He kept moving for his gun.
MK: The case goes to trial and we were in the audience, too late to help the public defender or his client, and he gets to that point in the story and the public defender asks his client, “Well, once he was down and dropped the gun, why did you keep shooting?”
MK: And his client answered, “Because he kept moving.”
MK: It was funny, but we quickly translated the legal explanation is he continued to use deadly force when it was no longer necessary to defend himself.
MK: Can you think of any other examples of self defense cases you’ve been involved with?
CB: One of my favorite cases, I was actually in my second term with the public defender’s office, I was chief assistant, so I had the responsibility to do most of the first degree murder cases.
CB: As a lawyer, when I ask for advice on a case, I don’t ask other lawyers about the facts and what would you do in that case. I ask regular people – friends, family – because I know they’re going to give me an honest answer, and I know they’re going to give me an answer based on what they think is fair, which you and I agree is the most important consideration that juries have. They listen to the law; they listen to the argument. But at the root of everything, they want to return a verdict that’s fair. If you can get a jury to believe that the prosecutor is being unfair, or that the facts would be unfair to convict your client of this crime, you’re way ahead of the game, and very rarely will you lose.
CB: My case involved a young woman, probably in her twenties, who had a boyfriend (surprise, right? That there was a fight among lovers). Her boyfriend was probably a little bit older, but about three times her size. They didn’t have a lot of money and they lived in a small apartment. There was a history between them, as you might imagine, where the man (who was three times as big) had a violent disposition and my client had been taken to the emergency room and to doctors many times over the course of the two or three years that they’d had their relationship.
CB: So, my client walks in one evening after working to find her boyfriend working on another girlfriend on the living room couch. She raced to the kitchen. The only witness, other than my client, who could testify, was the girlfriend who was being worked on by the boyfriend. She testified that my client ran to the kitchen, she heard the rattle of silverware, appliances in the kitchen. She couldn’t tell what was going on, but she heard the drawer opening. She heard the rattle of implements colliding with each other, making a racket.
CB: Just about the time my client hit the kitchen, her big boyfriend ran in behind her, and then they disappeared out of view of the girlfriend on the couch. The only person to make it out of the kitchen alive was my client with a knife covered with the boyfriend’s blood. And she threw the knife down and ran. When the police caught her, I believe she told the police, thank God, that he attacked her with the knife and she was able to take it away from him and stab him.
CB: Well, the State didn’t believe that. How are you going to take a knife away from this huge, strong man and then stab him without him taking it back or throwing you down and rendering you defenseless?
MK: Sounds like a fair question.
CB: It was, and all my friends (my non-legal friends) told me, “You’re not going to win the case because this is a clear case of jealousy. She came in and found her boyfriend cheating on her with another woman, right there on the couch in front of her, so she ran to the kitchen to get a knife to kill him.”
CB: You know, we’ll never know because he’s dead and her story was that he attacked her with the knife and she was able, by a miracle, to get it away from him, stabbed him many times and he bled to death on the kitchen floor.
CB: I had to fight then the “common sense” that would tell you she’d been an angry, vindictive woman, and I think the history between them, which showed that he had attacked her many a-time and injured her, not only made the jury maybe put less credence in the jealousy element. They may have agreed with me when I told them some people deserve to die.
CB: I said, “He attacked her as has been the pattern in their relationship, and she was able to get the knife and he deserved to die, because if she wasn’t accused here today, he would be on trial here today for killing her.”
CB: We got a jury verdict of not guilty. This was a first degree murder, with mandatory life in prison. I was so proud of her. Sometimes, we want our clients to take what we feel is in their best interest. The plea deal, I think they offered her a really generous plea deal, if you think it was first degree murder, where she would have been out of prison in a couple of years, followed by probation, and she refused. She knew better than I did.
MK: Sounds like justice was done.
MK: I had a case, not as dramatic as that, but similar to that, very early in my career. I had a client that had two roommates, two other guys, and one of them was just huge and a bully, and he picked on the other two roommates just mercilessly.
MK: My guy came home one day and the bully was picking on the third roommate, and my client said something to him, just in passing, and went on into the kitchen. The bully charged after him and pushed him from behind, knocking him over into the sink area, where there just happened to be a big butcher knife. My guy picked up the knife and turned around and, like the woman said in the movie “Chicago”, “He ran into my knife.” Only it was just the one time, and not ten times like in the movie.
MK: But he ran into the knife and bled out. My guy ended up being charged initially with first degree murder, and then when the depositions, including the deposition of the extra roommate, bore out what my guy had told the police had happened just like that, a very sensible prosecutor decided to not even take it to a jury trial. No plea offer. He just outright dismissed it.
CB: There you go, justice.
MK: Justice was done and, unlike your case, my client wasn’t forced to choose to risk his life in trial.
CB: That’s a heckuva choice, even if you have the best case.
MK: And you never know what a jury’s going to do.You never do.
MK: Let me tell you about another funny one that I did just a couple of years ago, when you were busy being a judge. This was in somebody else’s courtroom.
MK: I had a client that got in a fight one afternoon on the sunny streets of Fort Pierce. My client and the guy he got in a fight with were both graduates of the Florida Department of Corrections (they’d both been to prison). They were sort of cousins, but there was something, some bone of contention between them.
MK: Anyway, at about two o’clock on this one sunny afternoon, the two of them are standing about a half a block apart, each of them waiting for a school bus to pick up somebody else’s kid to guide them home.
MK: They’re talking trash to each other, and at one point, my client (the bigger of the two) kicks off his flip-flops and hands his watch and wallet to somebody else at the bus stop, which I guess was his way of saying, “Let’s go!”
MK: The other guy, who was a little bit smaller but was built like a prize fighter, reaches into his pocket and he pulls out a very sharp knife. He lets my client see it, and he’s basically saying without using words, “Okay, we can fight, but I’m using this.”
MK: My client charges him and gets stabbed in the belly for his trouble. People break up the fight. The shorter guy gets on his bicycle and rides home. My guy starts walking toward the hospital, holding his belly so his intestines wouldn’t fall out. Somebody picked him up, gave him a ride, saw him bleeding all over the place, takes him to the hospital.
MK: The police come to the hospital, interview the wounded man. They go and find the smaller guy on the bike. He still has the knife. He tells them the same story. They charge the guy in the hospital and don’t charge the guy with the knife, because they decided, “You started it. It’s your fault you got stabbed. Not only that, but we’re going to charge you with battery for starting the fight.”
MK: Because my client had a prior battery among his long list of other priors, it became a felony charge.
CB: That sounds fair to me.
MK: A veteran prosecutor who should have known better decided this case needed to go to trial.
MK: So, we’re in trial, and I couldn’t use self defense, because my client started the fight, and my client didn’t escalate it after with a weapon, the other guy did that. My guy never did have a weapon. So, instead of self defense, I had to call it mutual combat – two grown men that agreed to fight.
MK: I’m giving my opening statement in front of the jury, and I say to the jury, “This is two grown men, fighting in the streets in broad daylight. This case doesn’t belong in criminal court.”
MK: I look to my right, sitting in the back row of the courtroom is the supposed victim who stabbed my client, and he’s nodding in agreement with me, vigorously. I never even cross-examined him. The prosecutor put him on the stand, and he’s telling her, “Ma’am, he’s got problems. I’ve got problems. We’re trying to work ‘em out. What’re you doing to us? We don’t belong here.”
MK: I didn’t even have to cross-examine him. The jury stayed out ten minutes because two people wanted to be foreperson. They came in quickly and did the right thing.
MK: We look at these cases and we always have to consider self defense. Sometimes, like in your case, it’ll work. Sometimes, you’ve gotta come somewhere close. And sometimes self defense isn’t going to work at all.