Fantasy Land: Dealing With the Aftermath

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I was recently hired by a lawyer from USCCA’s Law Network who needed a use-of-force expert witness for a self-defense case. He explained that the defendant was not a USCCA member and that the compensation for the case was being handled through the public defender’s office.

The lawyer was taking the case as a favor to the defendant’s family. If he didn’t take the case, the defense would be left to a well-meaning but overworked (and likely overwhelmed) public defender.

As a deputy sheriff, I’ve seen many public defenders carry boxes of files into court, dig through them and hurriedly familiarize themselves with the cases they were about to plead that day; hardly the best option for legal defense.

The role of the expert witness is to look at the evidence and use his training and experience to present his findings as objectively as possible. In this business, reputation is everything, and I’m not some hired gun who will say whatever I’m paid to say. I also have no desire to help a guilty person go free. I told the lawyer that if I thought his client was guilty, I wouldn’t take the case. He agreed and sent me the case files.

The Background

The defendant was a young man I’ll call “Marcus” who was being held without bail. He was charged with attempted murder, attempted assault with a firearm and multiple counts of unlawful use of a firearm (one count for each round fired). Most of the police reports and witness statements didn’t shed any light on what happened.

The witnesses all said essentially the same thing: A group of young people was in a store getting custom T-shirts made. Some were in the store and some were in the parking lot. Someone ran in and said something, one of them ran out, and shots were fired. None of them knew who was shooting at whom. The only report that painted a full picture of the incident was from a detective.

There were security cameras that recorded the incident, and the detective used the recordings in his report. He described several men, including Marcus, waiting in the parking lot near their cars. It was early evening, and the streets were full of rush-hour commuters. A dark sedan approached.

Marcus and the driver of the sedan stared at each other like Old West gunfighters preparing for a showdown. Marcus calmly walked to his car, took up a position behind the engine block and pointed a gun at the sedan. The sedan drove closer; when it pulled abreast of the young men, the driver and Marcus started blasting at each other. Commuters had to scramble to avoid being hit by stray bullets. The sedan drove off, and Marcus and his friends drove away.

The first time I watched the video, I completely missed the shooting because I was looking for what the detective’s report and arrest affidavit described. It wasn’t there.

The first time I watched the video, I completely missed the shooting because I was looking for what the detective’s report and arrest affidavit described. It wasn’t there.

The Footage

I was a cop, my dad was a cop and an uncle was a cop, so I tend to look at things with the assumption the police did everything right, but something seemed odd with the arrest warrant affidavit. It was dated three weeks after the incident. The police knew Marcus’ identity the day of the shooting, so why wait three weeks to charge him? Also included in the evidence was a professionally produced demo hip-hop/R&B music video of Marcus and his friends. What evidentiary value would a music video have?

I loaded the security-camera video into my computer. The first time I watched the video, I completely missed the shooting because I was looking for what the detective’s report and arrest affidavit described.

It wasn’t there.

I replayed the video several times. I watched it frame by frame, taking detailed notes of what I saw.

What I didn’t see in the video were commuters trying to get out of the way. There were no pedestrians or bicyclists in view at any time.

The video showed some young men sitting in a pickup truck and an SUV. One of the men left the SUV and walked off frame. Another, Marcus, got out of the SUV and moved between the two vehicles. He was not visible. He briefly moved to the rear of the SUV, then back to where he came from, disappearing from view.

A dark sedan approached, and the driver pointed a gun at Marcus and his friends. Marcus took up a position behind the engine block, pointing a pistol across the hood. The driver of the sedan opened fire at Marcus and his friends. When the driver fired his fourth round, Marcus fired his first. When Marcus returned fire, the sedan accelerated and took off. Marcus and his friends drove off in the opposite direction.

What I didn’t see in the video were commuters trying to get out of the way. There were no pedestrians or bicyclists in view at any time. During the shooting, there was only one other moving car in view. It moved from a blind spot where Marcus couldn’t see it and passed the sedan on the far side just as Marcus fired. Except for that one car, Marcus had a clear background and backstop when he fired. Marcus was under fire when he fired his first round. To me, this was a clear-cut case of self-defense.

The Gaps

I had a pretty good idea of what happened. There had been a rash of unsolved gang-related shootings around this time. The driver of the sedan was never identified, so they couldn’t arrest him. There was pressure on the police to arrest somebody — and who it was didn’t really matter. The only shooter they could identify was Marcus, so three weeks after the shooting, this detective wrote up an arrest warrant affidavit.

The first-degree murder statute states a person commits murder (or its attempt) if he “intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being.” In order to arrest Marcus, the police and district attorney had to establish probable cause. They needed to show he acted “knowingly, recklessly or with criminal negligence.”

The detective wrote it up that Marcus had plenty of time to avoid the fight but chose not to. Instead, he claimed that Marcus knowingly engaged in a gun-battle on a crowded street and recklessly endangered innocent lives. The detective said Marcus was a gang member but never said exactly how he knew that to be true. All the police had in evidence was a music video of Marcus and his friends dressed like most hip-hop artists. (I guess they figured that was close enough to scare the jury, even though it had nothing to do with the charges.)

There were elements in this case that, as a former law enforcement officer, I found disturbing. In his report and in the arrest warrant affidavit, the detective made several statements that were not factually correct or were embellished. He stated in his report, “I noticed [Marcus] staring intently in the direction of that vehicle as if it caught his interest.” Marcus’ head was visible for 2.7 seconds. He stopped for 0.20 seconds before turning around, and he did not even reach the rear of the SUV (and the suspect’s car wasn’t even visible at this time). What the video showed did not match the detective’s description.

This shooting occurred on a warm and sunny Monday evening on a busy thoroughfare during rush-hour traffic, when many uninvolved residents/commuters were in the area.

The report stated: “I observed [Marcus] position himself behind the SUV and duck down as if taking cover from the dark sedan. [Marcus] appeared very calm and collected, as if this was something he was expecting and prepared to handle.” During this period, Marcus was visible for less than three seconds — and only from the rear. His face was not clearly shown, as he was facing away from the camera. His body was not shown except for a brief glimpse of his right shoulder. It is impossible to know from Marcus’ expression or body language what his state of mind was. I know of no police training that would enable the detective to make a reasonable judgment as to Marcus’ state of mind just from that brief glimpse of the back of his head.

The detective stated, “I observed vehicles stop in the middle of traffic to avoid being hit by the bullets.” According to the video, this is an untrue statement. The suspect’s vehicle stopped at a stop sign prior to turning. A green hatchback stopped with its right turn signal on before making a right-hand turn approximately 27 seconds after the shooting was over. No other vehicles stopped. The detective had the advantage of taking notes as he viewed the video and of watching the video multiple times. I find it highly unlikely that his untrue statement was a result of faulty memory.

He stated in the affidavit: “This shooting occurred on a warm and sunny Monday evening on a busy thoroughfare during rush-hour traffic, when many uninvolved residents/commuters were in the area.” The video showed no pedestrians and no bicycles. The only two moving vehicles visible during the shooting were the suspect’s vehicle and the car passing the suspect’s vehicle.

They needed to show Marcus acted recklessly or with criminal negligence, so the detective filled the affidavit with what was needed for an arrest. The detective’s false statements and embellishments painted a very different picture of what happened than what the video showed. Without those embellishments, I don’t think probable cause would have been met for the arrest warrant. I wrote my report and pointed out everything wrong with the detective’s affidavit.

Taking a Deal

This detective’s career was going to be hit by a freight train if this went to trial. He would have to get on the witness stand and justify every stretch of the truth and outright lie he wrote. Any halfway decent lawyer would be able to get the detective to admit he perjured himself when he swore the affidavit was true. He was destined for what’s known as “the Brady List,” a list of cops who are found to have been untruthful in the performance of their duties, which is given to defense lawyers. It effectively ends a cop’s career.

The prosecutors knew it too. There was little chance they’d win in court, so they offered Marcus a deal: If he pleaded guilty to a minor charge, he would get released that day. The DA would still get a conviction to keep his stats up, the detective would keep his job, and Marcus could go home. He took the deal and was home by dinner.

I absolutely believe Marcus acted within the law. If this story were a movie, Marcus would have gone to trial and been acquitted. Unfortunately, this wasn’t a movie, and we don’t have a justice system; we have a legal system. You can’t blame a young man who has been sitting in jail for five months facing life in prison for taking a deal that lets him go home.

As I write this, I imagine the devastation five months in jail would have on my life. I think about my future being left to a public defender who might not even know my name. I train regularly in firearms and first aid to be able to survive a shooting. I’m a USCCA member to survive the aftermath.