Molly and Robert Duncan were returning from breakfast one Wednesday morning in Grinnell, Ohio, with no reason to suspect trouble on a bright spring day. But trouble came anyway. Cheryl, Robert’s ex-wife, and Reed Sanders had stalked the Duncans for several hours without the Duncans’ knowledge. As Robert got out of the car to unlock the gate to their property, a masked man — Reed — approached, said something and then started shooting.

Robert returned fire with his lawfully carried concealed pistol, hitting and killing Reed. The advice always given by competent trainers — to look for additional threats — must have echoed in Robert’s mind when a car pulled up and a woman got out pointing a gun. He fired again, killing Cheryl. As this was happening, Molly was on the phone with 911 reporting the shooting. The date was Feb. 12, 2020. Police responded, and an investigation began.

Long Time Coming

For the next four-and-a-half months, Robert waited as the investigation dragged on. The Duncans had cooperated, but with COVID-19 affecting what seemed like everyone and everything, the investigation took until the end of June to complete. On July 1, 2020, the prosecuting attorney announced that the grand jury had concluded the episode was self-defense.

The investigation took a long time and was quite thorough, involving multiple law enforcement agencies. The presentation to the grand jury illustrated what the Duncans had faced.

When Molly and Robert had driven up to their gate that morning, the couple had no idea that their arrival was announced courtesy of two Wi-Fi cameras linked to a cellphone found in the Sanders’ car. (Investigators later found these items during the search of the vehicle.) This allowed the Sanders to observe the Duncans’ movements and to spring a trap. Other findings illustrated the attackers’ intent. Police learned that the Sanders were driving a car with counterfeit temporary Ohio plates. Further, Reed was carrying multiple forms of identification. Prosecutors concluded that the couple drove to Ohio with the specific intent to kill the Duncans. After a long and draining investigation, the Duncans could put the episode behind them.

When Molly and Robert had driven up to their gate that morning, the couple had no idea that their arrival was announced courtesy of two Wi-Fi cameras linked to a cellphone found in the Sanders’ car. This allowed the Sanders to observe the Duncans’ movements and to spring a trap.

The sad truth is that many people develop their understanding of the criminal justice system from television or popular fiction. These sources rarely communicate the reality of the way the criminal justice system works its way through a case — sometimes with grinding sloth. On television, a criminal is caught, taken to court, convicted and sentenced to prison all within the 42 minutes allotted for a network drama. In real life, it can take from a few days to five years before the final disposition of a criminal case is determined. And even then, “final” may not necessarily mean final.

Take, for example, the case of Darren Wilson, the Ferguson, Missouri, police officer who shot and killed Michael Brown after a close-quarters assault in 2014. Investigated originally by the St. Louis County Police, the Missouri Highway Patrol and the United States Department of Justice, Wilson was not charged after witnesses supported his self-defense claim. But in 2020, a new St. Louis County prosecutor reopened the case and sought to determine if murder charges could be brought based on a re-examination of the facts. Because Wilson was never charged in the first investigation — and as there is no statute of limitations on murder — Prosecutor Wesley Bell would have been within the limits of the law to seek an indictment had the evidence of criminal intent been there. It wasn’t, and he did not pursue Wilson. But Wilson continues to live under a legal Sword of Damocles.1 Nothing guarantees that a subsequent prosecutor won’t reopen the case at a later date.2

Tick … Tick … Tick…

In a self-defense situation, you may not know whether you will be charged for weeks or even months after the event, making for many sleepless nights and a racing heart every time you hear car doors slam outside your house. The uncertainty can be draining.

Jason Young lived under the dangling sword from October 2019 through June 2020. Young had called 911 at 7:36 a.m. and reported that he had shot someone with his .410 shotgun. When police arrived, officers found the individual Young had shot laying outside the home on the driveway, beyond resuscitation. Young was arrested because it appeared the attacker had been shot outside his home.

Young maintained that the man had made a violent and unwelcome entry into his house. But the location of the body convinced investigators, at least initially, that the shooting had been done outside the home and appeared to be unjustified. Young went through a preliminary hearing and was bound over for trial on charges of second-degree murder.

The California Department of Justice, however, continued to investigate. It conducted forensic testing on the curtains inside Young’s home and found the decedent’s blood. This established that the shooting had occurred inside the home. The local prosecutor dropped the murder charges based on the forensic evidence. Because the charges were on file in Young’s case, the district attorney’s decision to dismiss the case with prejudice means Young will not be subject to arrest or to re-examination at a later time.

When police arrived, officers found the individual Young had shot laying outside the home on the driveway, beyond resuscitation. Young was arrested because it appeared the attacker had been shot outside his home.

John Noonan also had a six-month experience with the criminal justice system under circumstances where the facts all appeared solidly on his side. On Jan. 4, 2020, Noonan found a 38-year-old man he did not know inside his home and armed with a baseball bat. When the man attacked him, Noonan fired three times from his lawfully owned firearm, killing the intruder.

Police were called, and investigators did a painstakingly thorough investigation of both men, determining they did not know each other and that whatever happened had not arisen out of some personal issue. The investigation continued through the end of June 2020, in large part because the police searched the social media records of both individuals.3 Noonan’s attacker was the subject of an emergency detention order issued mere hours before the shooting. Police had attempted to arrest and detain him, but he refused to admit them. Police then simply walked away.

The next morning, the man left his house, armed with a baseball bat, and his life ended in gunfire after he attacked Noonan. Even given the obvious mental health issues of the attacker, the investigation clearing Noonan took a long time to complete. Like with Young, the evidence in Noonan’s case supported a finding of self-defense, and the prosecutor’s determination not to pursue the matter was a good result. However, just as in the case involving Darren Wilson, a later prosecutor with additional evidence might well be permitted to reopen the case.

Even when a shooting involves repelling criminal behavior, delays and long periods of uncertainty are common. Ernesto Gillen spent three months in legal limbo after being arrested for murder as a result of a self-defense shooting involving a home invasion. The U.S. Customs and Border Patrol agent worked in Laredo, Texas, and was visiting a female friend at her residence. Gillen witnessed the friend receive multiple text messages and a phone call where she told the man on the other end to stay away from her. When her estranged husband showed up later, he kicked in the door, forcing his way inside.

Gillen drew his service weapon and ordered the man to the ground. A struggle ensued, and Gillen was unable to defend against blows to his head and neck because the woman was between him and the man attacking him. At some point, Gillen holstered his weapon.

The attacker continued to strike Gillen, injuring Gillen’s arm. Then the man threw Gillen to the ground. Beaten and fearing he might black out, Gillen, still on the ground, drew his firearm and ordered his attacker back numerous times. The man continued to advance, and Gillen shot him. Because the attacker was unarmed, and because Gillen had shot the husband of the woman he was visiting, police arrested Gillen.

When her estranged husband showed up later, he kicked in the door, forcing his way inside. Gillen drew his service weapon and ordered the man to the ground. A struggle ensued, and Gillen was unable to defend against blows to his head and neck because the woman was between him and the man attacking him.

Like the Duncans, Gillen benefited from a unique feature of American law: the grand jury. The Fifth Amendment requires that a prosecution for a capital crime be initiated by indictment by a grand jury.4 Grand juries are an integral part of the criminal justice system in many states.5 One purpose of the grand jury is to screen cases; by requiring the government to present its case to a panel of citizens at an early stage in the process, and in giving these citizens the ultimate charging authority, the grand jury has been called a shield against improper prosecution.6 Empowered by law both to investigate and charge crimes, grand juries have substantial power.

After an extensive investigation and a presentation to the grand jury, that body returned a “no true bill,” and Gillen’s charges were dismissed. However, a later grand jury, with new or different evidence, could still render an indictment should it decide to do so. Thus, even being cleared by a grand jury is not necessarily a clean disposition of a criminal matter.

While each of these cases demonstrates that a case involving self-defense does not always proceed quickly — or even reach finality — those who find themselves in similar situations can take solace in the fact that investigations are often as thorough in these matters as when a suspect is unknown. Sometimes, however, it doesn’t matter how capable the investigation is or even how competent the lawyers are; the legal system itself can create the worst kind of uncertainty.

Changing Circumstances in the Orange State

Clark Mayers was 40 years old when he took up the life of the Rainbow Family of the Living Light, described by The Gainesville Sun as “a loosely knit clan of social outcasts, whose only workload is to serve the needs of their nomadic entourage” and whose soujourns “have a reputation for being generally peaceable, although rarely strictly law-abiding.” Mayers lived alone in a travel trailer, following the group around and from time to time cleaning up after them.

He went to a gathering in Florida’s Apalachicola National Forest in 2015 and tried to put out a tire fire started by members of the group. He was attacked with a shovel by said members, retreated to his trailer and, with his back against the wall, shot two people — one of whom was armed with a machete — in self-defense. One of the attackers was killed, and the other paralyzed. As a result, members of the group attacked Mayers with a wood-splitting maul and sent him to the hospital for two months. When he got out, he found himself charged with murder. Mayers defended his actions under Florida’s “stand your ground” law.

One of the attackers was killed, and the other paralyzed. As a result, members of the group attacked Mayers with a wood-splitting maul and sent him to the hospital for two months.

Following the Trayvon Martin case, the Florida Legislature amended the statute in 2017. Prior to 2017, the law required the defender to prove by a preponderance of the evidence that he or she stood his or her ground. That meant that the defendant had to prove that it was more likely than not that the facts he or she relied upon were true. In Mayers’ case, the testimony from the surviving victim — and the fact that the other members of the group cleaned the crime scene, removing shell cases and other evidence, including the machete — supported his self-defense claims and made it unlikely he could have met the preponderance of the evidence standard. In 2017, that standard was changed to place the burden on the state to prove by clear and convincing evidence that the defendant’s actions were not covered by the statute.

Whether a statute is “procedural” or “substantive” determines whether it may be applied retroactively. A procedural change usually means a change in how the law is applied rather than the specifics of the statute. In Love v. State, a 2019 decision by the Florida Supreme Court, the change in the statute was applied retroactively to all immunity hearings conducted after the effective date of the new statute. Since the hearing in Mayers’ case occurred after the date of the statutory change (even though the shooting did not), Mayers got the benefit of the statute’s protections. But to get to that point took him more than five years, including two trips to the District Court of Appeals. He was not discharged from the prosecution and released from his conditions of bond until Aug. 19, 2020. Mayers lived under the suspended sword for five long years, unable to leave the area where the shooting took place.

Invest Wisely

Because an investigation may not be over in hours following an incident, legal counsel may have to be placed on retainer quickly and retained for as long as it takes for the prosecuting authority to determine whether charges are warranted. Since a represented person must be contacted through counsel, the defense lawyer may be involved in numerous conferences and telephone calls. And in those situations, where legal errors by the judge or prosecutor result in appeals, even greater expense is involved. For this reason, delay tends to make self-defense cases far more expensive than other types of criminal matters and can require a significant financial outlay. All of these realities point toward the wisdom of a U.S. Concealed Carry Association Membership.

Endnotes

(1) The Sword of Damocles is the story of a court sycophant who, while flattering a king with many enemies, is given the royal treatment of fine food and beverage. He soon realizes that a huge sword hangs just above him, suspended by a single horse hair.

(2) Lawyers routinely advise clients who are cleared by a prosecutor to never speak about the incident to anyone. Just because one prosecutor finds no basis to proceed doesn’t mean a different prosecutor won’t reach a different conclusion.

(3) This is one reason why it is unwise to post anything about what you might do in the event of an intruder on your social media accounts. Let your actions speak, not your words. In this instance, the full social media records of both men were never recovered.

(4) U.S. Constitution, Amendment V.

(5) 1 Wayne R. Lafave & Jerold H. Israel, Criminal Procedure § 8.4 (1984); 1 Sara Sun Beate & William C. Bryson, Grand Jury Law And Practice § 2:04 (1986).

(6) Andrew D. Leipold, “Why Grand Juries Do Not (and Cannot) Protect the Accused,” Cornell Law.