Pt. 2 of an Interview with Attorney Jim Fleming
Interview by Gila Hayes
In last month’s journal, we started a lesson with Network Advisory Board member and attorney Jim Fleming. With nearly 38 years of work as an attorney after a law enforcement career, Fleming is uniquely positioned to teach about initial aggressor legal issues. A law-abiding citizen, claiming he or she was using force in self defense, can find their self-defense decisions are overshadowed by foregoing events to the extent that the criminal justice system will not allow the accused to cite self defense as the reason for injuring or killing an attacker.
Last month we discussed the effect of verbal threats, regaining the right to use force in self defense by a good-faith communication of withdrawal from the fight, and the responsibilities of the jury in weighing all these concerns. If you missed that installment, please browse to https://armedcitizensnetwork.org/initial-aggressor, absorb the details Jim discusses there, then return to this page for the second installment.
eJournal: You’ve introduced us to the technicalities of defending self defense last month as you’ve done that often in the past, as well. This is an issue into which we put a lot of time and invest a lot of funding and effort to make sure members understand. How in the world do you, a skilled and experienced defense attorney, make sure the jury shares the same understanding?
Fleming: You’ve heard the catch phrase, “I deserve a jury of my peers.” Really? Well, let’s think about that for a minute or two. At 3 o’clock on a summer morning, you’re awakened by sounds coming through your screen window and you go outside and you find this guy who is going through your car. You confront this individual and he comes boiling out of the car with a tool. I specifically say “tool” because I don’t want people thinking about this in terms of weapons versus non-weapons, so let’s say that he comes up out of the back of your car with a Pepsi bottle. Don’t freeze up trying to figure out, “Is that a weapon or is it a Pepsi?” No, you should ask yourself, “Is it a tool?” Yes, it is a tool that can be used to fracture your skull and kill you.
If this happens and you end up pulling the gun and shoot and stop this individual, maybe you’ll get charged because the prosecutor is over-zealous or because the prosecutor has a political motive because it is election year–who knows? How many of people filing in at the beginning of a trial to become part of the jury are your peers? How many of them have gone through that experience such that they will understand what you dealt with? The chances are extremely small that you are going to encounter anybody like that and if there is, the prosecutor will kick them out of that jury pool just as quick as they can because they don’t want people like that on the jury.
You are not going to get a jury of your peers, so part of the defense attorney’s job is to present the defense case in such a way that it turns jurors into a jury of your peers by creating an understanding of the issues and the actions and the decision. As part of the trial process, I’m trying to create an understanding in the minds of those jurors so that they can put themselves in the shoes of this person who has been accused and charged, to decide whether they were justified in what they were doing.
eJournal: Will a jury be encouraged to consider only that moment at which you drew your gun or are they going to be told to judge all of your decisions, from the moment you heard the noise that made you decide to go outside to see what was happening out there?
Fleming: The whole thing, but you can’t assume what the prosecutor will do. Look, in the course of my career of almost 38 years I have worked with a lot of prosecutors and the vast majority of them are good, principled people. Every so often, I have run across a few prosecutors that I realized that I could not trust, but that hasn’t happened very often.
The point is, you may get a prosecutor that, for tactical reasons, is going to try to get the jury to focus only on that split second. As the defense attorney, what I have got to do is help the jury understand that you have to analyze that split second, but you have to analyze it in the context of what went on before. If you don’t, you are blindfolded and have ahold of only the tail of the animal, and you are going to touch the tail, and sniff the tail, and taste the tail and from only that tail, you are going to try to decide what that animal looks like based only on that limited exposure that you have.
In order to truly understand the situation, you have got to understand what has happened before. Look at the extent to which they talked about wider things in the George Zimmerman trial. The prosecutor was trying to get them to focus on one tiny, frozen moment in time, and the defense would not let them do it. The defense brought up all of the different things that were part and parcel of what had taken place that night.
I think George was acquitted, #1, because he was innocent and he did not do what the prosecutor had charged him with doing, but I think that people suddenly came to the realization, “Wow! That could have been me! That could easily have been me.” That helped. George was not out on patrol that night; he was on his way to the grocery store, and this whole situation developed as a result. When the gun was fired, it was during a struggle for control of the gun between George and Trayvon Martin. At first, George’s biggest fear was that the shot had gone through the window of a home and had hit one of his neighbors. He did not realize it hit Martin. The defense helped the jury understand that whole situation as opposed to that frozen moment in time. You can’t let a prosecutor do that; you have got to fight for it.
eJournal: So many use of force incidents involve long-standing fights with neighbors or sometimes violent family disputes. Does previously acting as initial aggressor negate the ability to claim self defense in a later encounter? How much time would need to pass before an extended dispute is no longer part of the episode that just ended in use of force? What’s the role, if any, of past hostilities in judging an incident?
Fleming: That’s a lot of questions right there. It would not negate the ability to claim self defense. However, it would very likely be ruled to be a “prior bad act,” which under the Rules of Evidence can be introduced by the prosecution.
Rule 404(b) of the Rules of Evidence as commonly stated says—
Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
So, if the prosecution can get it in under one of the exceptions, there is virtually no way to assure that the jury will not consider it as evidence of a propensity to act irresponsibly, which can be just as damaging, and virtually impossible to correct. [For important, additional details, we direct our readers to Jim Fleming’s instruction on character evidence in our February 2018 eJournal https://armedcitizensnetwork.org/introducing-character-evidence.]
eJournal: Do initial aggressor issues negate a claim of self defense if people are involved in a mutually-agreed upon fight that changes in severity mid-stream. Let’s say one combatant is losing the fight–maybe additional opponents pile on or the other person increases the force from fists to a deadly weapon? Maybe there’s no opportunity to safely express good-faith expression withdrawal from the fight due to escalation by both sides.
Fleming: Tremendously complicated questions. In general terms, mutual combat is simply the idea that if two people consent to engage in some type of physical altercation–a fist fight, a wrestling match, something of that nature–an individual later, when they realize that they are losing, cannot suddenly pull out the knife or the gun or the club and kill or severely wound their opponent. Because they agreed to engage in a fight, they cannot do that simply because they are losing.
Mutual combat is treated as a limit placed on self defense. Essentially, a person who engages in mutual combat only has a right to use self defense if he stops fighting, indicates that he or she wants to stop fighting, and gave his or her opponent a chance to stop fighting. Mutual combat is where a fight begins because of mutual consent or agreement whether implied or expressed.
Now, the way that you defeat an accusation of mutual combat is to be able to say, “I articulated to this individual, ‘I am no longer going to be involved in the fight, I am not consenting to fight any more, I am giving up the fight and I am walking away from the fight.’” You made it very clear to them by your actions and your words, “I’m done! I am not fighting anymore. We are done here,” and you start to walk away.
If the individual continues to fight in such a way that you begin to apprehend that you could end up dead or severely injured as a result of this situation and then you apply deadly force in self defense, you will be alright. That doesn’t mean that the prosecutor is not going to argue the point, but it means that under the law the burden has shifted back to the prosecutor.
This is an important concept that you have got to understand! Everybody talks about the burden of proof and says, “Well, in a criminal case, the burden of proof is always with the prosecution.” Well, that is not true! Not always! Typically, it is not in the non-stand-your-ground states, for example.
The reason has to do with the way the stand-your-ground states articulate the protections that are afforded the self defender, so let’s set those states aside. Now we are talking about what is commonly referred to as a Castle Doctrine state. People get this wrong all the time because the Castle Doctrine simply states that inside your own home you have no duty to retreat before you use deadly force IF it is otherwise justified. The converse of that is if you are out on the street and away from your home, then you have a duty to retreat before using deadly force IF you can do so safely.
Do you see all the jury questions that are exploding like landmines in those words?
You have the initial burden in that Castle Doctrine state to provide some evidence supporting your claim of self defense. You don’t have to lay out your whole dog and pony show, but you have got to provide some evidence. Once you have done that to the judge’s satisfaction, then the judge will rule that you are entitled to a self-defense instruction.
That is incredibly important and people don’t understand it because it is that self-defense instruction that you are going to get at the end of the trial that allows the defense attorney to bring in all of the evidence that relates to self defense. After the self-defense instruction is given, then they can make the argument in their closing arguments about how the facts that have come out support the argument of self defense.
There is an initial burden on the part of the defendant to provide some evidence so that they can get their instruction and then the burden shifts back to the state to try to overcome that. Having said that, now let’s return to mutual combat. With mutual combat you are going to say, “Wait a minute! I shot this guy in self defense” and the state comes back and says, “No, you didn’t–this was mutual combat.” Now, you have the burden of showing that it was not mutual combat.
How do you do that? You have to bring in evidence to show that you articulated through your words AND your actions that whereas it might have started as mutual combat, you desisted; you stopped. You said, “I’m done. I’m not going to fight with you anymore. I’m walking away from this. Leave me alone, I don’t want to fight with you anymore,” however you word it, but be sure you have said that.
Once you have met that burden of showing what you did, the burden shifts back to the state to argue that it wasn’t self defense. Quite often people miss this concept of shifting burdens. They don’t realize that this shifting burden is there and that it has to be met, because if it is not, they can jump up and down and talk about self defense all they want but they ain’t going to be talking about it in that court room! The jury is never going to hear it.
eJournal: How uniform are mutual combat laws around the nation?
Fleming: In almost all jurisdictions, if a person started the fight using non-deadly force and the opponent suddenly escalated the fight to deadly force, the other person may defend himself or herself using deadly force. People v. Quach, 116 Cal.App.4th 294, 301-302 (2004) is such a case. The California court ruled that when substantial evidence supports a theory of mutual combat and self defense, the government has the burden of showing the act of mutual combat was not in self defense.
South Carolina is another jurisdiction with virtually identical rules. If the accused voluntarily participated in mutual combat for purposes other than protection, he cannot justify or excuse killing or injuring the opponent in the course of the fight on the grounds of self defense, regardless of what extremity or imminent peril he may be reduced to in the progress of the combat, unless, before the killing or injury occurs, he stopped fighting and made a good faith effort to refuse to carry on the fight, and, either by word or act, made that fact known to the victim.
Texas is very similar in that while mutual combat is seen as combat by consent, a person cannot consent, in any fashion, to be beaten severely or killed.
Can you see how completely fact dependent these things are? Who gets to decide what the facts of a case are at trial? The jury. A group of people who do not know you, have never in their lives themselves been involved in such a situation, and whose true attitudes, secret biases and agendas will never be known before they are called to sit in judgment of your actions.
eJournal: What about defense of a third party one fears is an innocent being harmed by a criminal? Does the person acting as rescuer risk an initial aggressor accusation?
Fleming: Defense of others involving deadly force requires that a threat of death or crippling injury to that person at the hands of another be perceived. That attacker is already using deadly force, to which you are simply reacting. Again, it’s about proportionality, and perceptions of fact.
If the third person was the initial aggressor and is suddenly losing, your use of deadly force to save their bacon will be extremely risky, and, of course, actions that happen in seconds will later be analyzed over weeks if not months by individuals who were not there and were not involved.
eJournal: Have you had or are you aware of someone who used force reasonably in self defense, but were denied a self-defense jury instruction or not allowed to present any arguments about self defense? What aspects of what they did was the most damaging?
Fleming: Every defense lawyer is aware of situations of this type, and the reports of appellate decisions are filled with them. The facts are so varied, you could fill up volumes upon volumes with the things they did wrong: everything from being a first aggressor, to not being able to prove a good faith belief of personal peril, to using force not in proportion to the threat perceived, failure to retreat where retreat was required and so many other factors.
Often times, people are undone by their failure to keep their mouths shut when confronted with first responders, failing to articulate their choice to remain silent until their attorney is present and giving well-intentioned statements are filled with inaccuracies as the result of adrenalized distortions of memory and perception of the event. As an investigator told one of my clients in the aftermath of a gun fight in which the client shot to save himself and his wife, “You have the right to remain silent. For God’s sake use it!”
eJournal: This is a big topic with a lot of facets that many of our readers, like me, may not have previously considered. Jim, what is the main take away from all the concerns we’ve discussed today?
Fleming: Based upon what it is you’re reacting to, you can see a difference between a normal reaction to a situation and actions that will almost undoubtedly be characterized as those of an initial aggressor. If you are reacting to the type of aggressive action and threat that could potentially carry with it the loss of your life or you sustaining some type of crippling injury, I am not going to guarantee you that a prosecutor isn’t going to try to cast you as an initial aggressor. As your defense attorney, I can’t prevent a prosecutor from attempting to make that argument. What the individual can do to defeat that is to make sure that what their actions or words are in response to is proportional to what they are dealing with.
Attorney and Network Advisory Board member Jim Fleming practices law in MN, an attorney of more than 37 years trial and appellate court experience in MN, NE and has argued both civil and criminal appellate cases in the State appellate courts as well as before the Eighth Circuit Court of Appeals. He is the author of several books: Aftermath: Lessons in Self-Defense and The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege. Jim and his wife Lynne Fleming operate the firearms training school Mid-Minnesota Self-Defense, Inc. where Jim is the lead instructor. Learn more about Fleming at http://www.authorjimfleming.com and his law practice website at http://www.jimfleminglaw.com/about-1.html.
To read more of this month's journal, please click here.