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Jury Duty

Although I am a proponent of our judicial system (got anything better to offer?) I am also of a mind that people that sit on juries are usually too stupid to get out of jury duty. A promise of a jury of one’s peers is an easy order,  but to assume they will find anything resembling justice to always a crap shoot. One of the themes that was popular at the other site I wrote for was ,”What say you, jury?”, where we take an actual court case where the jury rendered a verdict, and dissect it a bit, either giving them accolades or raspberries. Sometimes we can’t be spot on, different laws in different states (what constitutes first degree murder may vary) and we are never privy to the jury instructions, the mutually agreed upon guidelines given to the jury by the judge as to what they are to consider, what definitions are important, and what hurdles must be jumped in order for a guilty verdict.

Today we examine a pharmacist who was robbed at gunpoint, but shot back, and was found guilty of first degree murder:

Over at livelink I found all 3 video feeds of the shooting, we can see much better from here exactly what happened.

Some things to consider, Oklahoma is one of a number of states that adhere to and recognize Castle Laws:

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine arising from English Common Law[1] that designates one’s place of residence (or, in some states, any place legally occupied, such as one’s car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his “castle“), and any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Ersland’s defense was simple, he was protecting himself and his several female employees within his castle from a violent robbery where  a gun was pointed at him. After downing one of the assailants (the one without the gun) and chasing the other out of the store, he returned but saw the downed robber (face down) still moving. He retrieved another (loaded) gun and felt still threatened by the downed man, either by movements or words ( he could not see the guy’s hands so was unsure if he had  a weapon), he then shot the robber 5 more times until he stopped moving. Notice that we can not see the downed robber during the second shooting spree, we don’t know what he was doing, we don’t know if words were exchanged (no audio). Ersland contends that the robber was trying to get up and was still a danger to him and his employees.

The main question before this jury (and you, the rightthinking jury) is whether the downed robber represented a sufficient threat to Ersland, was it reasonable to assume that he should still feel threatened? Under the law, the right to use deadly force ends at that instant that the menace has passed, the right to self defense does not include killing anyone who was rendered defenseless.

Ersland has become a hero within his community, even sparking new legislation to beef up self defense laws.

What separates murder from manslaughter is “malice aforthought:,  But first degree murder has a very high hurdle to clear:

In most states, first-degree murder is defined as an unlawful killing that is both willful and premeditated, meaning that it was committed after planning or “lying in wait” for the victim.

The jury deliberated for just over 3 hours, doesn’t seem very long to me, to come back with a first degree murder conviction so quickly, without being able to see the actions of the victim (was he a threat or not).

So there you are, was this a fair verdict, would you have voted for a lesser crime,  or even vote to acquit ?

One last thing before I send you all to the jury room for deliberations, drinkingwithbob has an opinion on the matter.

23 comments

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  1. Rann says:

    There was definitely not evidence for First Degree. That’s clearly just some hopped-up prosecutor who thought he’d make a name for himself. With just the evidence presented here, I’d have said Acquit to the charge of Murder in the First. If I was presented with some lesser charge or simply a civil case, I might feel differently… but popping premeditated killing on a shopkeeper who’s just had a gun waved in his face bespeaks of “the criminal’s rights come before the victim’s”.

    If I’d been presented with a case for Manslaughter, I might have said Guilty, and recommended counseling… the guy probably needs it anyway, but something to help him understand that shooting someone that’s down, even if you think they might still be a threat, five times is probably a little excessive. Ersland was probably a bit panicked himself, not thinking straight, just danger senses clicking all over the place, and forgot that a couple of punk kids are not insurgents pledged to die for Allah or guerrillas willing to fight to the death for the peoples’ glorious revolution.

    But trying to pin Murder One on him? I’m on that jury, I’d say he walks.

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  2. Seattle Outcast says:

    I would have pinned a medal on him, given him the key to the city, named a street after him, and held a BBQ in his honor.

    I wouldn’t have cared if they had video of him giving the robber a summary execution with his hands tied behind his back – justice was served.

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  3. Kimpost says:

    Wanna know what I think? I think he executed the guy.

    But that wasn’t really the question. What would I do in a jury? No audio, huh? And the women didn’t overhear any threats? I must admit that it looks weird running after guy 2, after having shot guy 1. He appears to be clear headed enough to look at guy 1 before running out. Appears as if he concluded that the guy was out, and it was safe to chase guy 2 outside, even if that meant leaving the women with what was left of guy 1.

    When he came back in he walked in, passed guy 1, either changed guns or reloaded, and shot the guy another five times. He couldn’t have watched him at gunpoint? I wish we would have had audio, or another camera angle. Or witness reports from either of the women.

    Damn. I don’t know what to do. But I’m not going to let that stop me from doing something anyway. ;) Based on the evidence presented I say he walks on Murder One. He should serve time for manslaughter, though. Counselling is not enough. I still believe he executed the guy. Leaving the store with the downed guy and the women, changing weapons and immediately thereafter walking up and shooting the guy, both support that notion.

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  4. InsipiD says:

    Pretty much this. I couldn’t in good conscience say he’s innocent when it comes to the killing, but it falls far short of 1st degree murder. Does anyone have any basis to say that he wanted to do that? The guy doesn’t seem likely to get up, but stranger things have happened. He could roll over and empty a magazine with the last he had in him. If 1st degree murder is the only possible consideration, I say not guilty. I wouldn’t be afraid of him at all just on the basis of this, and I wouldn’t assume him to be a bad neighbor or a hardened criminal, but he “shouldn’t have done that.” If some variant of manslaughter that would allow him probation or something were an option, I’d be ok with that, but he shouldn’t spend life in prison.

    The cop that taught my carry permit class did warn of overzealous gun-snatching DAs that would love to pull stunts like this. One had prosecuted because he felt that a .357 was such a powerful weapon that the person who wanted to carry it must’ve wanted to kill people and waited for an excuse to do it. Honestly, by the time drawing a gun seems to be a solution to the situation, even going to jail for doing it should start sounding like an ok idea. If someone breaks in my place, I hope they’re ready to get shot, because that’s probably what’s going to happen. If I get a little legal trouble out of it, it’s better than dying or losing all my stuff.

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  5. richtaylor365 says:

    The difficulty with these exercises is since we were not on the real jury, we did not hear ALL the evidence put forth. Such as, did an ME ever take the stand and give expert testimony regarding the initial head shot and whether he could have been conscious before the other 5 shots. I think your point about him leaving to chase the other guy is compelling, obviously at that point he did not view the downed robber as a threat, so what changed?

    Although the pharmacist made a big point about him being disabled, he looked pretty spry running down the street after the other guy.

    For me, there is no way I can come down with a first degree charge, there is no way I can discount his defense of a moving, possible rising, assailant, so anything premeditated goes right out the window. If there was expert testimony entered that a man with that type of head wound was unconscious and not moving then I would have to factor that in, and would make me consider a lesser charge. But since this was a first degree murder charge, I would have to acquit, and blame the prosecutor for setting the bar too high, he should come in with something he can prove.

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  6. richtaylor365 says:

    One had prosecuted because he felt that a .357 was such a powerful weapon that the person who wanted to carry it must’ve wanted to kill people and waited for an excuse to do it

    That is just lunacy. The idea is that if you ever need to use a gun, you want to put him down right away, not just piss him off.

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  7. InsipiD says:

    But not a bit unusual, I bet. Since there are lawmakers that would like to have gun owners’ homes searchable just for owning guns, I’m sure there are DAs that would sit and think of something to charge someone with just for having a gun. Add a few cooperative cops and it gets really bad. There’s a county sheriff two counties from here who arrested someone at a gas station because he could see their concealed gun briefly when they flipped their jacket up to reach their wallet. His thinking was that the permit mandates concealment of the weapon (it doesn’t in this state).

    Add to it that a lot of people have some mistaken ideas about the power of pistol rounds and it can get really scary (but based on ignorance) quick. My dad even thought that a “.45 can knock someone down,” until I recently straightened him out. For one, every action has an equal and opposite reaction, but it didn’t knock down the person who shot the .45. My thinking on pistols is that it’s incredibly hard to kill someone with a handgun round unless it was an accident. Someone shoots 50 Cent 9 times on purpose and he’s all too alive. Marvin Gaye’s dad plugs him once thinking he’s a burglar and he’s dead.

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  8. Rann says:

    Case of too many people thinking that movies don’t do shit just because it’s awesome.

    (And it is awesome. Last Man Standing is still one of my favorite Bruce Willis movies ever. It’s unrealistic bordering on parody, but that’s what makes it enjoyable. If he was just walking into a room and shooting guys and it was realistic, where they jerked in their chairs and fell over and started bleeding all over themselves, he’d look like a monster. When he shoots some guy and he goes flying out a window and across the street, he looks like a superhero.)

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  9. HARLEY says:

    oh boy.

    As i see it shooting the man after he had been disabled, nothing in what you stated gives me reason to believe that the man was armed, if so that would be in evidence. Shooting a man who is unarmed and already wounded, and not a active threat, to me is murder.
    Given the circumstances and that active threat at the time of the shooting,I probably would go for manslaughter, but not first degree murder.

    Now if he had a weapon and was trying to use it, then yes i would have been fine with him shooting him again.

    It comes down to this,
    IF YOU, through a course of action, which deprives someone of their Life, Liberty or Property, take a lethal weapon,Gun, knife, whatever and threaten to use it in a way to cause direct harm, or the potential to cause harm, to someone, then by all rights, well in my eyes, you lose any right you have to your life. it is forfeit.

    How ever that does not give one the right to kill a person that has been disarmed, incapable of offensive action, or fleeing ,without a weapon.

    am i missing anything?

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  10. HARLEY says:

    “.45 can knock someone down,” until I recently straightened him out. For one, every action has an equal and opposite reaction, but it didn’t knock down the person who shot the .45. My thinking on pistols is that it’s incredibly hard to kill someone with a handgun round unless it was an accident. Someone shoots 50 Cent 9 times on purpose and he’s all too alive. Marvin Gaye’s dad plugs him once thinking he’s a burglar and he’s dead.

    Location Location Location, is a buzz word for shooting as well as the retail business.
    well, caliber, and bullet type play a major role too.
    FMJ bullets, which are required load for military forces, have a bad habit of over penetrating, that is going right through a target with minimum tissue disruption.Hollowpoint, and softnose bullets, expand on impact decelerating the bullet, delivering a larger wound cavity and more kinetic induced trauma, the real man killer. blood-loss and shock from these, are much more significant.

    As for 50 Cent, unless he was shot with a nerf gun, id say hes full of shit. 9 rounds even from a 22 cal will fuck your world up, maybe not fatal, but the scaring and damage would be severe.

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  11. HARLEY says:

    One had prosecuted because he felt that a .357 was such a powerful weapon that the person who wanted to carry it must’ve wanted to kill people and waited for an excuse to do it

    When i “consult” people on fire arms for self defense, i caution them NOT to use any handloads for self defense, but go with the ammo that the local or state police use.
    the reasoning is thus, when a DA decided to ream your ass on this, he will point out that you took the time to manufacture a more powerful and maiming round for your gun, to maximize damage. There for you intending to kill someone with it.
    I know silly, but jury’s have bought that line before.

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  12. InsipiD says:

    Not silly at all. Sound advice.

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  13. InsipiD says:

    Location is pretty hard to do precisely with a handgun at any distance, particularly in a real stress situation. When it’s an accident, though, you can bet it would be perfect shot.

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  14. HARLEY says:

    I dont know about that, it is something that one can be trained to do, even under stress. Centermass of a man, and the vital areas are pretty big,and it is wise to use ammo that will be forgiving of lower accuracy at times like that. I prefer 45ACP 185 grn hollowpoints.

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  15. HARLEY says:

    well its silly one has to worry about such things.

    Oh and it seem that the Obama Crew, is working on some form of gun control “under the Radar”.
    So much for Not grabbing guns and transparency.

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  16. AlexInCT says:

    If I ever end up needing a jury I am screwed, because it’s not going to be of my peers. My peers have to work and will find a way out of jury duty. Just like I have every time some smart ass lawyer or annoying judge tried to play me.

    And as for this verdict, it sucks. These were criminals. That guys saved us tax payers all a lot of money by putting that bastard out of our misery instead of having him go live the high life in jail. They should ave given him a medal. Not this hassle and stupid trial.

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  17. Mississippi Yankee says:

    IMHO this DA got a lot more conviction then he ever thought possible. This is OK and a ‘Castle Doctrine’ state to boot. As SO has quipped about medals and the key to the city this you’d have thought must be the default setting.

    I believe this DA went for 1st degree murder thinking it would be reduced down even to Manslaughter BUT it still would have been a conviction none the less. As it may still may turn out on appeal. A win is a win in legal and political circles. A plus for his office, a personal jackpot for sure.

    The moral here, it seems, is never underestimate the stupidity of anyone… ever. Druggist and druggy alike.

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  18. Poosh says:

    I don’t know if this is legal or not. This is, however, justice that the state does not provide: the world is made better with the death of this criminal, it is a shame the other escaped. Legality does not link up to what is right or good.

    This is subjective but if I was the guy and had just taken down a criminal, I would be at least dubious of having to stand over the criminal’s downed body, watching him, as the police arrived. I say this because the criminal that got away might return – and he might return with others.

    However, the victim seems to have assessed the criminal as “not a threat” as he happily moves over his wounded body several times. I feel it’s immoral that a victim should be put in this confusing situation. As far as I’m concerned, you try to rob someone, you have jettisoned a great number of your rights.

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  19. Poosh says:

    I think another way of looking at it might be that he had disabled one of the Criminals and *if* that criminal was no longer a threat, then, the Victim, in shooting the Criminal five times, was making a judgement civilians are not entitled to make, i.e. he took the law into his own hands and dealt out a punishment not sanctioned by the state < some sort of argument like that maybe?

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  20. InsipiD says:

    I think it’s fair to assume a lot of “Murphy’s Law” when it comes to guns. That’s what I meant about shot placement, and it’s what I meant about DAs and politicians. If you’re using the same bullets that area law enforcement does, that’s one thing less for them to target during the later investigation. I’d advise against a “trigger job” for a defense weapon as well, for similar reason. Guns are an emotional issue, sometimes even more emotional for liberals than gun owners, because gun owners are more likely to take a reasoned and logical view of them. When liberals start talking about guns, they start thinking of Michael Douglas in “The American President,” and they think they’re going to heroically take the guns because people let them and want the guns to go, then feel shocked when a lot of people don’t.

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  21. InsipiD says:

    That’s exactly the point to charging him with 1st degree murder. Without the extra shots, he probably wasn’t guilty of anything in my eyes or in the eyes of the law. It’s the leaving, coming back, getting a different weapon and so on that gave him time for premeditation to figure into it, making it seem like a one-man execution. I wish he hadn’t done that, but I’m sure not crying or ready to call the robber a “victim,” either.

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  22. CM says:

    Yeah I don’t see how they came up with first degree murder. Which means it’s likely they were swayed by evidence that we haven’t got (and which prompted the prosecutor to go for first degree murder because he/she knew it was possible to get a guilty verdict). So it’s impossible to say they got it wrong, because I think it’s obvious that we don’t know enough. However I bet people that won’t stop people using this as an example to support their position…..;-)

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  23. HARLEY says:

    Agreed, coming back getting another gun and just shooting the guy was F-ing wrong.

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