This will come as a shock I’m sure, but lawyers are not always the most punctual people in the world. Over the course of the last 25 years, I have worked with hundreds of lawyers. And almost none of them ever got work done unless it was seconds before a deadline. Perhaps it’s because a deadline sharpens the mind, or maybe it’s because lawyers are terrible about asking for extensions. Whatever the cause, lawyers tend to dawdle, and they often fail to prepare until the last minute.
Several years ago, while a physician was cutting some mutant growth off of me and the anesthesia had not yet kicked in, I grumbled, “That hurt.” The doctor looked at me quite calmly and replied, “Oh really? It didn’t hurt me.” I realized, at that moment, that professionals, and especially lawyers, often act that way. They sometimes forget that it is their clients who suffer, not them, when they act irresponsibly. Waiting until the last minute to do things is rarely a good idea, but in the legal world it is unfortunately very common.
This can be maddening if you’re waiting on a legal opinion or wondering where your personal injury or divorce case is and how it’s doing. But it can be sheer torture when you’re charged with a felony and sitting in jail waiting for a trial date.
This is partly due to the rules of court. Either party can ask for a continuance of a case, and if they ask, in most cases, it is granted. In civil cases, it is not uncommon for it to take between 18 months and four years to get to trial. In fact, I am currently involved in the second appeal in a case that was filed 12 years ago. But courts have to be careful about granting continuances in criminal cases because continuances carry a real risk of reversal.
That is due to the U.S. Constitution’s Sixth Amendment, which says:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
But what is a “speedy and public” trial? The framers did not specify, and even the U.S. Supreme Court has waffled a bit on the subject. If the state asks for a continuance, does that affect the speedy trial right? What about if the defendant requests it? In at least one state, the speedy trial right is defined by statute.
The Ohio speedy trial statute says a person accused of a felony is entitled to a jury trial within 270 days. There is a catch in that speedy trial statute, however, that says that for purposes of computing time, each day during which the accused is held in jail instead of being free on bail is counted as three days. A felony suspect, then, who refuses to waive his or her speedy trial right must be brought to trial within 90 days. This can be used to his or her advantage. Take, for example, the case of an Ohioan charged with murder for defending himself during a brutal beating.
An Exchange Turned Sour
Nehemiah Martin arranged to pick up his twin boys from his ex-wife. The exchange was set for Jan. 22, 2021, around 8 p.m., at a local Shell gas station. He had his 8-year-old daughter in the car and was picking up his twin sons. He also had his concealed pistol license and was carrying his firearm that day.
The former Mrs. Martin showed up accompanied by her 31-year-old boyfriend. They met at the agreed-upon location, and Martin went to remove the boys from their car seats in order to get them moved into his car. The boyfriend, however, had something sinister in mind. He waited until Martin was engaged with the seat belts, then ran around the car and violently attacked him.
It seems that Mrs. Martin’s taste in men had degraded significantly since separating from Mr. Martin. She had traded in the quiet and unassuming Nehemiah for a criminal. Her boyfriend was four months out of state prison after serving six years on a kidnapping conviction in Franklin County, Ohio.
The boyfriend beat Nehemiah Martin so savagely that he was afraid he might lose consciousness and that the man would get to his firearm. Martin drew and fired one shot, hitting his assailant in the stomach, which stopped the attack. His ex-wife called 911, and police and paramedics responded. Martin felt unsafe and went to his mother’s house, where he called 911. The boyfriend was taken to a local hospital by paramedics and listed in critical condition.1
Mrs. Martin made the first call and was therefore considered the victim. As might be expected, the police, operating only on the word of a vengeful ex-spouse, initially arrested Martin for felonious assault.
There was no question that the boyfriend had assaulted Nehemiah Martin. Martin’s booking photo shows a large bandage on his forehead along with a laceration on the left side of his cheek. Still, when his attacker died the next morning, Martin’s charges were upgraded to murder.
Sadly, it appears that the police reached the conclusion that Martin was guilty of murder on the statements of his ex-wife. They did not consider, for example, that Martin was attacked first or that his assailant had several ounces of crack cocaine in his pocket when he arrived at the hospital. The forensics were minimal. It is sad but true that too often a case that probably should be resolved in favor of self-defense is instead resolved by trial because prosecutors overcharge the defendant as a means of forcing that person to take a plea to a lesser charge. (Look no further than Luke Wirkkala’s account in Concealed Carry Magazine to hear from someone who lived it.)
It works well with defendants who are actually guilty but screams injustice to those who are factually innocent like Martin. A plea deal is no “deal” if you are not guilty. Martin had done everything right: He got his license, he carried responsibly, he fired only when threatened with imminent, unavoidable death or great bodily harm, and he stopped firing when his attacker stopped beating him. But that failure to make the first 911 call seems to have been the catalyst for a miscarriage of justice.
Refusing to Waive His Right
Fortunately for Martin, he was able to retain Sam Shamansky, a veteran Columbus, Ohio, criminal defense lawyer, to assist him. Shamansky requested reasonable bail. The prosecutor opposed, and the judge sided with the state. The bond set was more than Martin could afford. He was remanded until trial. But while that is bad news in terms of the gourmet diet he was forced to consume while incarcerated in the local correctional center, in this case, it worked out for Martin. At Shamansky’s urging, he refused to waive his speedy trial right. That meant that the state would have to bring Martin to trial no later than April 23, 2021. Nevertheless, he would be facing life in prison if convicted, and that was a serious weight on the father of three.
This is where the strategy of not waiving the speedy trial paid off. As mentioned, many lawyers are deadline-resistant and often don’t start preparing for trial until a few days before. This is particularly true with both state prosecutors with large caseloads and public defenders who may have dozens of cases going to trial in any given month. There simply are not enough hours in the day.
It takes a lot of time to prepare for trial. Questions for the prospective jurors have to be prepared, testing, for example, their beliefs about divorce, child custody, self-defense, guns and race. The prosecutor has to know the sequence of events. His or her witnesses have to tell a consistent story. The witnesses have to be called, in a certain order, to lay proper foundations for other evidence. And the prosecutor must be able to ask open-ended questions. He or she has to understand the witnesses’ vulnerabilities, then prepare them to testify. In addition, the prosecutor has to interview or depose witnesses who may be appearing for the defendant and develop lines of cross-examination. All of this takes time. Sam Shamansky knew this. And he took advantage of it.
“They did a very sloppy investigation,” Shamansky stated when referring to Martin’s case. “They were unprepared. They had charged [Martin] with murder, slapped him in jail with a sky-high bond and didn’t give him any way out but through the courthouse.”
Almost from the opening, the state’s case lay in shambles.
“They clearly were not ready,” he continued. “They had not even considered [the assailant]’s violent history, and fought against the drugs found at the hospital coming into evidence.”
The state’s only testifying witness, other than the police who conducted that sloppy investigation, was Martin’s ex-wife. On cross-examination, she had to admit her boyfriend was a felon with a violent history and a conviction for kidnapping.
The major problem for the state was that the law had changed in 2019, placing the burden of proof on the state on self-defense issues. If there was evidence that supported a claim of self-defense, the state had to prove an exception to the general rule that self-defense was allowed. The Ohio Jury Instructions, given to juries to help them decide how to resolve cases, read as follows:
The defendant is allowed to use deadly force in self-defense. Evidence was presented that tends to support a finding that the defendant used deadly force in self-defense. In order to prove that the defendant did not act in self-defense, the state must prove beyond a reasonable doubt at least one of the following:
(A) the defendant was at fault in creating the situation giving rise to (describe the event in which the use of deadly force occurred); or
(B) the defendant did not have reasonable grounds to believe and an honest belief, even if mistaken, that he/she was in (imminent) (immediate) danger of death or great bodily harm; or
(C) the defendant violated a duty to (retreat) (escape) to avoid the danger; or
(D) the defendant did not use reasonable force.
By the time the case went to trial, Ohio Senate Bill 175 had gone into effect on April 6, 2021, and that statute abolished the duty to retreat prior to using deadly force. However, even if the statute had not abolished this, Martin was knocked to the ground, being beaten by a much larger person, and could not have retreated under attack.
The jury was apparently moved by the photos of Martin’s injuries and unmoved by his ex-wife’s testimony. It took the jury only three hours to find Martin not guilty.2
Food for Thought
While the case illustrates that the system worked for Martin, concealed carriers with domestic-relations issues need to think long and hard about where these kinds of exchanges of children for visitation ought to take place. While a gas station might seem like an excellent, well-lit place, there are much better options that ensure the safety of all parties.
A carrier with any doubt about the good faith of an ex-spouse or a soon-to-be-ex should consider an exchange in front of the local police station. If there is even a whiff of a domestic-relations issue in the mix, the police will naturally assume the concealed carrier — who armed himself or herself prior to the encounter — went there looking for trouble. Similarly, if a spouse or ex-spouse is violent or abusive and demands visitation, there is no safer location for you or your children than in front of a police station.
If an individual will not meet you on such neutral ground, buy a GoPro camera, put it on a chest harness and use it to record interactions. Such a video can go a long way toward modifying the behavior of the other party and the ultimate decision of the judge. If you are attacked and must defend yourself and your loved ones, that video could mean the difference between your release and your standing trial.
(1) “Man dies from gunshot injury after altercation in east Columbus,” NBC4I.com, Jan. 25, 2021, NBC4I.com/news/altercation-leads-to-shooting-in-east-columbus.
(2) John Futty, “Concealed-carry permit holder acquitted in fatal shooting at Far East Side gas station,” The Columbus Dispatch, April 30, 2021, Dispatch.com/story/news/courts/2021/04/30/franklincounty-jury-acquits-man-murder-shooting-gas-station/4890907001.