Including... • Affiliated Attorney Tells Story of Gun Owner Case (Part 1) • Rangemaster's East Coast Tactical Conference Report • Network Affiliated Attorneys Answer Question About Cost of Felony Defense
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by Penny Dean and Gila Hayes
On Oct. 19, 2007, Network affiliated attorney Penny Dean took a phone call from Dave Wheeler, asking her help for a friend who was facing big problems. Wheeler told her that one of his close friends was being pushed by his attorney to plead guilty to charges stemming from an incident occurring nearly a year earlier.
With pretrial hearings only 15 days away and a jury trial to commence on Nov. 13th a mere 11 days thereafter, Dean was alarmed by the shortness of time. She had her assistant start cancelling all her appointments and spent the day and evening interviewing Milford, NH resident Stuart Howard Urie, a tall, gangling digital design engineer in his mid-40s. The story Urie told her was incredible but the attorney heard the ring of truth in his words. “What he said made sense to me,” Dean explains, so she agreed to take over Urie’s defense. At times over the following year, that task must have felt impossible time and time again!
In addition to her vocation as an attorney, Dean is an avid shooter and a committed gun rights activist. She shares the story of this case with journal readers in an effort to help other gun owners be better prepared for unexpected events that can so easily snowball out of control with very bad results.
The Underlying Incident
The sun has already set on Dec. 22, 2006 as Stuart Urie pulls a fleece jacket over his tank-top shirt and denim shorts and steps outside to cool off. He has spent the day remodeling one of the apartments in the building he owns and operates with his girlfriend, Darlene Morgan. Though he has stopped taping sheet rock seams for the day, he is still dressed for the 85-degree heat required to dry the sheet rocking “mud” inside the apartment.
Now, as he waits for Morgan to get home from work, his clothing may look a little odd in the 46-degree weather of a December evening, but it is easy to imagine how refreshing the chill must feel after working in the heat. Urie and Morgan, who will later marry, have jointly owned the old apartment building for more than a decade, improving their investment through their own hard work.
Immediately adjacent to the building stands Stoney’s Sunoco, a gas station and auto repair shop. On this evening, Brent Stone who operates the family-owned service station approaches the apartment building’s porch. Stone is accompanied by four of the men who often gather after work at the service station to drink and socialize.
Until only recently, Urie and Stone have maintained a civil working relationship, with Stone continuing a practice started by one of Stone’s former mechanics of using Urie’s front lawn in a lucrative used car selling scheme.
One car or truck would be marked for sale with Stone’s phone number and left in the front yard, where passers by, thinking it a private party sale, would stop to look at it and call for details.
For his part, Urie had given the mechanic the keys to the apartments so Stone could let a furnace repairman in and lock up when he was done while Urie was away at work. Stone was also friendly with some of the tenants in the apartments and he did automotive repairs on the couple’s cars and snowploughed some of the drive and parking area between the two buildings, as well. Urie was aware, however, of crimes of which Stone and some of his friends had been convicted and he says that some of his tenants told him that Stone could be violent when drunk.
Non-confrontational to the core of his nature, Urie had wanted only to distance himself from Stone, having asked for the return of the keys to the apartments 11 days earlier. Stone, however, wanted to continue the lucrative cooperative relationship and later admitted to calling Urie a number of times after Urie took back his keys. While Stone said he left messages asking what was wrong, Urie reports receiving one angry phone message, plus a series of calls he answered while he was at work during which no one spoke.
Urie’s decision to distance himself from his neighbor stemmed from a confluence of incidents. Not only were potential car buyers disruptive when they came on Urie’s property, but Urie was very disturbed by an earlier incident involving his classic 1999 Mustang Cobra while Stone had it in for repairs. In short, Urie had become uncomfortable with his neighbor.
On this evening, Stone approaches, pointing pugnaciously at Urie. The sun sets early this time of year in New Hampshire and in the full darkness, Urie sees Stone only when his approach trips a motion sensor light on Urie’s porch. Urie also senses the dark shapes of other men spreading out to flank him, their location revealed by the noise of their movement. In later testing by Attorney Dean and her investigators, it was found that the light produced by the motion sensor system extended less than seven yards beyond the edge of the porch and beyond its beam, conditions were very dark indeed.
As Stone and his friends close around him, Urie’s alarm spikes when one of Stone’s companions steps between him and the door leading inside. Urie can’t clearly see all of the men, only those who have come close enough to the porch to be revealed by the light. Among those he can see, Urie recognizes Stone’s friends from the garage, and he knows that some have a criminal history. Stone has felony drug and criminal mischief convictions, and several of the others have been found guilty of various crimes involving drugs, alcohol and theft. Though these elements increase the danger as the men surround Urie, these facts will not be allowed in the subsequent court proceedings, though attorney Penny Dean did her best to alert those trying the cases to the real threat of violence Urie faced that night.
Urie later reports that he had lost sight of the men to Stone’s right, but knew they were very close. Describing the scene later, Urie admits that he is so frightened that for a moment, his legs feel frozen and though he tries, he cannot rise to his feet.
Stone will later claim that he approached Urie that night to ask why he wanted to abandon their arrangements. Urie reports that Stone said, “I want to f***cking talk to you,” accompanied by aggressive body language, and backed up by four angry, drunken men. In court documents, Urie says he responded, “Yah, you and your four f***cking friends. Well, I’ve got friends too.” Then Urie yelled, “Don’t move,” the document attests.
Urie continues to order the men to back off, and as they continue to inch closer, Stone, who by now is very close, tells Urie, “This is between you and me.” Urie pulls his gun from his pocket. He points it toward the porch roof, though Stone and his companions will allege he pointed it at Stone and one of them. Stone then turns his head and covers his mouth, as if telling a companion something in confidence and Urie sees a chance to escape. He manages to rise and dash to his door, unlock it, and escape to the top-floor apartment he lives in, where he sits down to collect himself.
The five men return to Stoney’s Sunoco, and eventually Stone places a call to the Milford, NH police. While most would dial 9-1-1, Stone’s recorded dialogue with dispatch is dialed on the seven-digit number of the Milford Police Department, which automatically dials in to the area’s multi-jurisdictional police dispatch center. Oddly, at no time during the recorded call is Stone’s location or address asked, and Dean suggests that Stone may have telephoned an officer friend or called on an inside line at the Milford Police Department and was advised to call back on an official line. That will never be proven because Dean was denied access to the police station’s telephone call log for that time period, when the court refused to compel police to turn it over to her.
During the call, Stone relates a version of events that initiates a snowball of consequences Urie could never have anticipated. Stone tells the police dispatcher that Urie is drunk and sitting on his front porch, dressed in shorts, and that he has pulled a gun on Stone. Stone states that he is afraid to look out his window for fear of being shot, and several times repeats that he is afraid to approach the windows in the garage.
Officers responding to the “man with a gun” call apparently go directly after Urie without looking into the reliability of the complainants, Dean and her experts concluded. Only the dispatch operator has heard the noise of Stone’s drunken companions in the background during the call. During the lengthy call to dispatch, Stone plants several false ideas, including the suggestion that Urie and Morgan are at odds in their relationship, that Urie is “whacked out,” been drinking all day, and that their argument stems from jealousy about Stone and one of the female tenants of Urie’s apartments.
While independently investigating the circumstances of her client’s arrest, Penny Dean would further learn that Stone and his friends frequented the Milford, NH Veterans of Foreign Wars (VFW) post where it is thought they drank and socialized with some of the officers who arrested Urie that night. In addition, one officer responding to Stone’s call was a close enough friend to testify on Stone’s behalf in a child custody hearing, Dean details.
The Knock on the Door
The exterior doors to Urie’s apartment building are equipped with self-activating locks and Urie is certain that when he escaped from the porch the doors locked behind him. Although he changed the lock to his private apartment after retrieving his keys from Stone, he has not changed the lock to the exterior doors. Urie is upstairs, alone in the apartment he shares with Darlene Morgan, trying to regain his composure when he hears a key in the lock of the inside door to his third floor apartment. Urie believes his neighbor has come after him. He hollers and faintly hears the Milford Police Department officers announce themselves. He makes his way down the steep flight of stairs, and reaches to open the door. As he unbolts it, the door is jerked out of his hand. In response to the unexpected motion, Urie catches himself against the inside door casing.
Urie is confronted by two policemen who ask where the gun is. One officer tugs at the waistband of Urie’s shorts. Instinctively, Urie reaches to keep his shorts up, and police grab his arms and handcuff him, saying that he has resisted their efforts at arrest. Bare-footed and cuffed, Urie is taken to the backseat of one of the police cruisers where he is left unattended. He later alleges that while restrained in the back of the police car with the door open, Stone approaches and capers around in what Urie calls a “victory dance.” Dean charges that police lied about the location of the car in which Urie was left unattended, and she was able to prove its actual location on Stone’s property during trial.
Meanwhile, police officers climb the stairs to Urie’s apartment on the pretext of making sure his girlfriend is not inside and injured. While in the apartment, they decide to get a search warrant, citing guns found in the apartment. In their statements, however, both Urie and Morgan describe locked cabinets in which Urie’s firearms are stored. They suggest that access to the gun lockers may have been gained using keys taken from Urie’s attaché case, which Morgan noticed had been moved from its usual position when she was in the apartment after the officers’ initial entry.
Urie has later suggested that some suspicion may have arisen from empty gun boxes that were in plain view, and he denies that any guns were outside those cabinets. Conversely, police officers claim to find five handguns strewn around the apartment and they obtain a search warrant alleging that if he had access to guns, Urie posed a danger to Stone. At least a dozen firearms are seized later that night.
The couple also believe that police looked through Urie’s computer while inside the apartment, but initial attempts to discover any evidence of tampering actually destroyed it, according to a high-powered expert Penny Dean later hired to investigate those suspicions. Still, Urie reports that details that could only come from that computer were used in taunts and mocking he endured while jailed over the following four days.
How legal and how invasive was the initial police search of Urie’s home early that evening? Attorney Dean tried unsuccessfully to suppress admission of the gun evidence into the trial. She reports that rarely is even the most extensive and finely-crafted motion to suppress successful, and though driven to fight what she believes is illegally gathered evidence, her argument did not prevail. “Without evidence of any guns, you can’t have criminal threatening, right?” she asks rhetorically.
Meanwhile, Urie is taken to the police station, where he reports that during initial processing officers taunted him about “being a gun nut,” and whether or not he had enough money to post bail. Halfway through fingerprinting, the officer smears the prints and yells, “Are you resisting arrest?” “Are you resisting arrest?” the officer barks again and throws Urie against a wall where he catches his balance with his inky hands, a natural response to avoid slamming face-first into the wall. Ink from his fingers gets on the wall, spawning more charges: resisting arrest and damaging property in the booking room.
Dean characterizes the charges of criminal mischief (claiming that Urie damaged police property) as “throw aways” brought against Urie to increase anxiety and leverage a plea bargain. In this instance, these charges were dropped when Dean, who had managed to retrieve booking room surveillance footage minus the audio track, told the court she intended to hire a professional lip reader to generate a transcript of what was said during Urie’s booking ordeal. “The trial judge’s raised eyebrows and his questioning of the charge sure didn’t hurt,” Dean reminisces.
After booking, Urie is taken to the Valley Street jail, where, from Dec. 22 to 26, he is sequestered in the jail’s isolation unit, given only a hospital gown to wear, denied bedding in which to sleep and his prescription eyeglasses taken away. Without witnesses from the general jail population, it is hard to know exactly what happened over those four days. More than a year after the ordeal, when Dean began requesting records, only paper duty logs remained, with any video and audio recordings from that unit already destroyed.
Dean’s main expert on the case, Robert Meegan, told her that the decision to isolate Urie, ostensibly on suicide watch, was completely out of character with procedures he knew very well from his 28-year police career, during which people he arrested were booked into that very facility, as well as another position that included inspecting correctional facilities. Dean relates that Meegan told her that what he found in the paper trail “absolutely was not right,” but there was not enough evidence for use at trial. In the end, the judge did not allow Meegan to testify anyway. Still, Dean made good use of his expertise, seeking his advice on various elements of the trial, including jury selection.
When this story continues in the next edition of this journal, we’ll learn the details of Penny Dean’s defense of Stuart Howard Urie. That work included a number of pleadings and actions taken on a variety of fronts. Initially, the State moved to consolidate all the charges against Urie into one trial, but once on the case, Dean objected and the charges were tried separately. As noted earlier, her advocacy also backed the State down from prosecuting the charges (nolle prosequi) stemming from what happened in the booking room. Dean won a not guilty jury verdict for the charge of resisting arrest in Urie’s home.
Not surprisingly, however, the worst battle was over the charges of criminal threatening, pitting conflicting testimony from the police and Stone and his buddies against the word of Stuart and Darlene Urie, who had married by the time of trial.
In the December edition of the journal, Attorney Penny Dean will tell the rest of this story. •
Disclaimer: Legal information as presented here is not the same as legal advice, which is the application of law to an individual’s specific circumstances. Although I go to great lengths to make sure this information is accurate and useful, I recommend you consult a lawyer if you want professional assurance that this information, and your interpretation of it, is appropriate, accurate and complete with respect to your particular situation. The recitation of this event has been prepared for informational purposes only with no warranty as to accuracy or applicability to a particular set of circumstances. The information is not intended as and should not be considered to be legal advice and its availability on this site does not create an attorneyclient relationship with any reader. Readers should not act upon any content on this site without obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction. Your situation may differ in important respects, perhaps in ways that are not apparent, and in some instances the differences could make the difference between a lawful act and an unlawful one. In closing, I am providing legal information NOT legal advice.
About the author: For more information about Attorney Dean’s law practice go to http://www.pennydean.com or email her at penny@ pennydean.com
As I write this, there is one week left in the mudslinging season. I am referring to the mid-term elections. When it is all over, I will be glad to simply watch TV ads about Chia pets. At least they have some redeeming social value. I, for one, am praying for gridlock once again, so nothing bad can happen for the next two years.
An interesting thing happened to me this week. I was testifying as an expert witness in a first-degree murder case. The prosecutor was raking me over the coals about being President of the Armed Citizens’ Legal Defense Network, insinuating that my main purpose in life was to prevent people from being convicted of murder. I had to tell her several times that the Network exists to prevent unmeritorious prosecutions and that if a member is wrongfully charged, then we go to work. Well, I have to admit she lead me down the primrose path. After a few minutes of verbal exchange, she asked, “Like when a prosecutor’s office attacks an armed citizen?” I replied, “I wouldn’t necessarily use those words,” at which point she said, “Oh really?” and pulled out a copy of an interview I did with Kathy Jackson of Concealed Carry Magazine, where I did use those words.
I smiled and said, “Well, I guess you got me.” In retrospect, I should have said something witty like, “When a prosecutor’s office goes after an innocent citizen, I suspect that citizen feels like he or she is under attack,” but I didn’t have that quick retort ready. Live and learn. I don’t think it hurt the defendant’s case, and in fact, as I type this, the jury is into its’ second day of deliberations.
I am heartened to see that prosecutors will check out the Armed Citizens’ Legal Defense Network when I am involved in a case. Maybe it will give a prosecutor pause before going forward to court on a case where the defendant asserts self defense, and that defendant is a member of the Armed Citizens’ Legal Defense Network, LLC. And, to clarify, the defendant in this particular case is not a member of the Network, but because my association with the Network is part of my professional Curriculum Vitae, the Network was discussed in court.
Now, the moral of this story: if the prosecutor can take the time to find an obscure line from an interview with an expert witness, will they take the time to do a Google search of the defendant? Especially if that defendant is somewhat of a high-profile individual in the community? Of course, they will. In fact, just recently in my home county, the prosecutor obtained a search warrant for a defendant’s computer to see if the defendant made any e-mail or other electronic references to the possibility of committing a specific crime with which he was eventually charged.
Forewarned is forearmed. Don’t say anything on the Internet or in any e-mail communications that you would not want repeated in a court of law.
The Network continues to get good nationwide publicity for its efforts. Tomorrow I fly out to Tulsa to meet Michael Bane and the crew of Best Defense, an Outdoor Channel TV show. The plan was to film three segments for the show to air next season, but now it appears we will film a short segment for each episode, drawing from the principles spelled out in the Network’s booklet What Every Gun Owner Needs to Know About Self-Defense Law, which I authored. I enjoy working with Michael and the Outdoor Channel and am looking forward to the event. In my next column, I will let you know how it went.
In closing, may I suggest that you pick up a copy of Ann Rule’s latest book In the Still of the Night if you want to read a fascinating story? It is now on the NY Times Best Seller list and is being sold in bookstores in hardback. This book details the story of the death of Ronda Reynolds (which I have discussed in this column several times over the years) and the efforts of a small handful of people committed to learning the truth about her death.
This eJournal previously shared information about the Annual Tactical Conference sponsored by Rangemaster. As a reminder to members and for the benefit of others exploring the eJournal, Rangemaster is operated by Tom Givens and is located in Memphis, TN. Tom is a member of the Foundation’s Advisory Board and has presented the Tactical Conference for 12 years. The annual conference is normally held each spring, originally in Memphis but now at the US Shooting Academy. This year Tom added a similar conference on the east coast. Marty attended and lectured at the April conference in Tulsa and I represented the Network at the Virginia conference last month. The conference, regardless of the location, is a combination of classroom lectures, hands-on mat work and range exercises. These educational and training options are presented in specific blocks of time, usually two or four hours each, and repeated during the two-day event. Participants select the activity they want to attend and head off to the classroom, mat or range at the appropriate time.
The conference I attended was held at a private range tucked into the rolling hills near Culpeper, VA, which is about 70 miles southwest of Washington, D.C. This is a very scenic area with much of the nation’s history created nearby. In fact, a 17-year old George Washington was commissioned to survey and plot the town and county in 1749. Culpeper’s strategic location made it a highly prized position for both the Union and Confederacy. Culpeper saw more action during the Civil War than any other place in the nation. Even General Custer was there and had his horse shot out from under him during one skirmish in town. Of course, that’s nothing compared to the day he had out n Montana about a decade later.
Getting to Culpeper required a cross-country flight for me and then a drive from Reagan National Airport. After checking my maps and the suggested Mapquest route, I noticed I would pass by the NRA Headquarters in Fairfax, VA on I-66. I had to stop in.
The two white towers with blue tinted glass house the NRA staff, the National Firearms Museum, a museum store, the NRA Café, which is open to the public, and the NRA firing range, also open to the public. I spent my time in the museum, although I did have lunch in the café, where NRA members are given a discount, and I visited the range. The museum contains impressive and diverse displays representing the strong history and heritage of America’s proud shooting traditions. This history starts with an Italian wheellock carbine brought to America on the Mayflower. Annie Oakley’s shotgun and pistol with mother-ofpearl grips are displayed as examples of the firearms used by early performers. The Law Enforcement Section sadly includes a Smith & Wesson J-frame damaged while being carried by a police officer killed at the World Trade Center on 9-11. A portion of actor Tom Selleck’s gun collection is there, including the Shiloh Sharps .45- 110 used in the movie, Quigley Down Under. The new Robert E. Petersen Gallery had just opened. Mr. Petersen was the publisher of numerous magazines, including Guns & Ammo. There are about 400 of his guns on display from his extensive collection ranging from an Evans side-by-side shotgun with an offset stock to accommodate a shooter’s cross-dominant eye to rifles, shotguns and handguns, many of these masterpieces with beautiful inlays and engraving.
The Hollywood Guns Section was particularly fascinating. One can see the Smith & Wesson .44 magnum Model 29 used by Clint Eastwood playing Detective Callahan in Dirty Harry, the Rossi 12 gauge shotgun held by Sean Connery when he was shot in the movie The Untouchables, Lorne Greene’s Winchester .44-40 carbine used in the television series Bonanza, and even one of the prop light sabers used in the Star Wars saga, caliber unknown. Admission to the museum is free. OK, back to the tactical conference. The roster of quality instructors was typical of a Rangemaster event – one great topic and instructor after another. The major problem for the participant is selecting what to attend over the two-day period. I selected some classroom courses and a couple of range events. I left the hands-on mat work to the young at heart. Tom Givens is one of the “top five” handgun/self defense instructors that I’ve had the opportunity to experience. He can tell it like it is, offer specific help to each shooter on the line, and provide real-life examples of why he suggests specific shooting techniques. It rarely gets better than that. His four-hour Advanced Pistol Skills class at the conference covered just about everything you need to know about how to become better in a self-defense situation. He covered marksmanship, manipulation, and shooting and reaction nuances, to name a few topics. Tom knows his stuff and I suspect any one seeking self-defense classes would benefi t from one of his training events.
My other range event was a two-hour snubby class presented by Michael de Bethencourt (www.snubtraining.com). I don’t know about you, but I rarely take a course dedicated to the snubby revolver. Maybe that’s because so few classes are offered. But, don’t you agree that we often place a snubby in our pocket, especially in the summer, and head off on our next personal or family mission. We all know that we can’t plan when we will need to defend ourself, so why not learn something about the snubby’s limitations, how to shoot it, how to reload it, and how to deal with a malfunction, like we do our “main” carry gun? Michael presents all of that.
He reminded me of a Robin Williams on steroids, never stopping, never taking a deep breath and never letting us take the easy way out. He reminded us that range work is not gun fi ghting and when we are practicing for the need to go mano-a-mano during a self-defense situation, it becomes clear that we best have our act together. Michael showed us how to do that and bushwacked us on occasion when we did something wrong, which presented numerous teaching moments for everyone in the class.
Concluding this month’s column, let me say two things. One, the Rangemaster conference is a must-attend for anyone interested in perfecting their self-defense skills and knowledge. Check out the Rangemaster web site and follow the links for the 2011 tactical conference schedule and locations. Two, if you live near or visit the D.C. area, spend some time at the NRA Headquarters. It’s worth the time and adds to any member’s appreciation of what the NRA stands for.
We are delighted that, with the support of our affiliated attorney members, we can continue this column designed to introduce our members to our affiliated attorneys. Our goal with this column is to demystify aspects of the legal system for our readers. This month, we posed the following question to our Network affiliated attorneys—
When you put on a legal defense for someone charged with a serious felony, what do you estimate is the average amount it costs your client? What are the factors influencing how much work (and hence expense) is needed to defend the client?
Erik R. Guenther
Hurley, Burish & Stantonyn, S.C.
33 East Main Street, #400 Madison, WI 53701-1528
Every case is individual, so I do not have set fees for specific types of criminal cases. I do not set fees without talking with an individual interested in hiring me. The first meeting is free; I do not charge for an initial meeting with someone considering hiring me. In that meeting, it is important for me to learn about the individual’s background, the expected evidence and the individual’s goals.
In determining costs, I am interested in the nature of the charge(s), the need for expert witnesses and investigators, the client’s goals and the amount and strength of the evidence. Depending on these factors, the fees for a felony case can range from $5,000 to $10,000 to $100,000 or more. Unfortunately, the legal process is often most expensive for someone who maintains legal or factual innocence and who holds the government to its proof.
Individuals who need a criminal defense lawyer should try to answer three questions before hiring an attorney:
1) Am I confident in the attorney’s expertise in this area of law?
2) Can I afford the attorney?
3) Do I like the attorney and feel comfortable with the attorney?
Additionally, one should hire a criminal defense attorney early in the process. It is a mistake to wait until the police try to contact you or try to search your home or to wait until charges are filed. There is a lot that a good attorney can do early in the process. It is a big mistake to “wait and see” before hiring a criminal defense lawyer.
Debbe Von Blumenstein
154 SW Oak Street, Dallas, OR 97338
I take into account how many charges and what county it is in. Then I consider if this will most likely settle or most likely go to trial. I start with the presumption that it will be a jury trial and that may change as we go along. The DA attorney and Judge selected are factors, as well.
I offer an hourly rate ($200/hour) or a flat fee. (Think of this like a cell phone with either pay-as-you-go or unlimited minutes). Most people want a flat fee.
No two cases are alike. Without having very specific data I would ballpark a trial to cost a minimum of $5,000- $10,000 at a flat fee rate. Costs above that include an investigator, evaluations, polygraphs, trial aids (charts, pictures, etc.), discovery (reports, audio, video), BPSST records (Oregon’s Board of Public Safety Standards and Training), background checks, expert witness fees/consultations, site inspections, re-tests on labs, testing on evidence, travel/lodging and subpoenas.
Of Counsel Schulman, LeRoy & Bennett 501 Union St., 7th Floor, Nashville, TN 37219
(615) 244-6670 Ext. 11–http://www.slblawfirm.com/
I handled a self-defense shooting case that proceeded as a felony charge of assault with a deadly weapon through trial about four years ago. Charge to the client was approximately $30,000 at discounted rates. I would estimate at current rates it would be closer to $50,000.
I am working on a civil defense now for property owners regarding a shooting on their property involving third persons. The initial budget on that case is $15,000 to handle up through the anticipated motion to dismiss. If that fails, we will have a budget of $35,000 to $40,000.
Timothy A. Forshey
Timothy A. Forshey, P.C. 1650 North First Avenue, Phoenix, AZ 85003
From the prospective client’s perspective, this is one of the most important questions they face. Attorneys are expensive, particularly in cases involving the use or display of a firearm. This may well be the second largest (after a mortgage) and most important expenditure the client has ever faced. Unfortunately, a blanket answer is impossible to give. The amount will vary widely.
The only variable the attorney should be considering is the amount of work believed to be required to obtain the best result for the client–not the client’s perceived ability to pay. What a lot of folks don’t understand is that an attorney who appears in court on a client’s behalf may only be able to leave the case after its conclusion, even if their client can no longer afford to pay them at some point during the defense. This is why the “advance deposit” toward the fee (most attorneys no longer call it a retainer) is so large. Attorneys know it may well be the only payment they receive, thus they will get the money “while the tears are hot”–that is, while the client is in jail, needing help to lower their bond, find a bondsman, strategize a self-defense justification, etc. They are desperate and will likely find a way to pay their attorney.
Two months later, when the client is out on bond and their trial is 12 months away, their MasterCard bill may become more important than paying their attorney. Attorneys know this, and know they may not be able to get the judge to allow them to withdraw just because their client owes them money. This is why attorneys ask for so much up front, “on the barrel head.”
To avoid having to ask clients for such an exorbitant advance, I try to write into the initial contract that I will do all that I can to get the charge(s) reduced to some “acceptable” plea, but that I am not being hired to try the case at that juncture. The client can “re-hire” me if a trial becomes necessary, and they’d like to do so, at a price that I will then be much better able to predict, having by then seen the State’s case against my client. If the client cannot then afford the fee to try the case, the court is bound to allow me to withdraw since my anticipated withdrawal was written into the original contract. I can then assist the client in obtaining a Public Defender (PD), and even assist, from a non-primary role, with the trial if the client and PD wish me to do so.
I have done this where the client can’t afford private counsel and the PD doesn’t “speak” self-defense or firearms as well as we’d like. In this way I can often get my client out of jail and obtain an acceptable plea for under $10,000. If there is no such thing as an acceptable plea, and the case requires a trial, the fee will likely be $40,000 to $100,000, not including the cost of expert witnesses such as Mr. Ayoob, who are worth their weight in gold, and who may easily and appropriately add another $10,000 to the tab.
This is why all that money and time spent at LFI or Thunder Ranch is such a wise investment: it vastly reduces the chances that you’ll ever need to expose yourself to such a nightmare in the first place by teaching you your limitations (as you attempt to reduce them) and expanding your options to allow you to better avoid or delay the need to employ a firearm in the first place. Any married man reading this knows how immeasurably much better it is to stay out of trouble than get out of trouble! •
We appreciate the contributions our affiliated attorneys make to the Network, including their interesting responses to questions in this column. Contact information for our Network affiliated attorneys is linked at www.armedcitizensnetwork.org. Member log in required.
One of the Network’s great strengths is its affiliation with firearms instructors and attorneys. With the goal of introducing more of these professionals to Network members, in this edition, we are delighted to continue the Question of the Month feature for instructors with this question:
Now that summer is over, many students of shooting who trained this summer, may be facing a slow down in classes and competition as winter’s cold looms. Many patronize indoor gun ranges where they can work on pure shooting, but are usually prevented from drawing from a holster or even shooting faster than a glacial shot-per-minute rate. When students ask you how they can keep defensive shooting skills sharp, what advice do you give?
No Nonsense Self-Defense, LLC
200 S. Wilcox St., #124, Castle Rock, CO 80104
Even though I have experience both being shot at and shooting back, I’m not necessarily the person to ask about combat shooting training. There are a lot more knowledgeable people than I when it comes to shooting. But, I can suggest another way to help you better your self-defense skills when the weather outside is frightful.
Every time I hear roars of outrage about someone who is being prosecuted for defending themselves, I ask: Why?
When I look, there’s usually a good reason for the prosecution. Do the same thing I do, sit down and review the case yourself and ask, “Why is the person being prosecuted?”
You can learn a LOT from other people’s mistakes. For example, a few years ago there were seven kinds of uproar in the self-defense world about someone who was the victim of a home invasion. The outrage was about him being charged for defending himself with a samurai sword. Worse, those who felt it was such an outrage claimed they (the aggressors) had broken into his home and tied him up and threatened him. Yet, he was being wrongly prosecuted for valiantly defending himself using a katana against these home invaders.
Right there is something that should make you go, “Hmmmmm.” If he was tied up, how’d he defend himself using a sword?
Well, it turned out that he’d freed himself immediately after they’d left his apartment. Then he valiantly grabbed his sword and chased after them. He caught them in the hallway waiting for the elevator and fatally injured one of them. They fled down the stairs and he chased them – out into the streets. That’s where the injured man died.
Oh, yeah, and did I mention that the homeowner was a drug dealer and that the robbers were stealing his stash? See, these little details make a difference. Things like attacking after the immediate threat has passed will just get you into all kinds of trouble. While I’m not implying that you’re a drug dealer who is going to chase robbers down the street, four important things can be learned by reviewing cases like this.
1) What are the common mistakes people make under adrenaline and in the heat of the moment?
2) What are the issues that will cause the DA to decide you crossed the line from self defense into aggravated assault?
3) Exactly how ignorant a) most attorneys, b) the press and c) the public are about both use of force and what is and isn’t self defense.
4) How not to make the same mistakes yourself if you ever – God forbid – end up in such a situation.
There’s a very good reason I’m not only a member of the Armed Citizen’s Legal Defense Network, but also a big-time promoter of it. There is enough illegal violence out there that DAs and police tend to unconsciously assume you’re one of “those guys.” If you make these common mistakes, you have crossed the line from self defense into aggravated assault/assault with a deadly weapon/homicide. If you are going to carry a firearm you’d better know–
1) How to articulate why you needed to pull it in the first place and 2) When to stop pulling the trigger.
Physically pulling the trigger is easy. Knowing when to pull it is hard.
Salem, OR (503) 307-9746–http://www.grantcunningham.com
The question presupposes that “all trigger time is good.” I don’t subscribe to that philosophy, so the recommendations to my students don’t change just because the seasons do.
Defensive shooting skills are contextual, in that they have a specific purpose that is related to a specific kind of event. In order to develop or maintain those skills, they need to be practiced in context–in the manner that they will actually be used. At its core, defensive shooting is placing rapid, multiple, combat accurate shots on target. That’s the context, and if you’re not doing all of those things, you’re not practicing defensive shooting.
If you can’t do that at the range you’ve chosen to use, then you need to go someplace else. Sorry to sound harsh, but that’s just reality!
Doing this might entail making a long drive out to a gravel pit where you can move, draw, and realistically engage threats without running afoul of arbitrary range rules. It might mean spending the money to join a private gun club where you can do those things. During winter here in the Pacific Northwest, it might well involve going out in the cold rain, or even snow, to practice those skills. There are no lesser alternatives, at least as far as defensive shooting s concerned.
People who are serious about golf don’t go to an indoor mini-golf range when the weather goes downhill, because they know that there is only a superficial resemblance between that and the real game. Those who are serious about defensive preparations need to understand the same thing. Self defense is a far more important and serious matter than golf, but for some reason people expect that the shooting equivalent of putt-putt golf is sufficient to advance their skills. Isn’t that a little odd?
If you really want to keep up your defensive shooting skills, you’ll probably need to make some sacrifice in terms of effort, time, comfort, or money to be able to do so. I can’t in good conscience suggest anything less.
Certified Pistol Trainers
Grand Forks, ND
Being the owner of a private security company, I mandate at least one qualification outdoors around 3 a.m. when it is -20 degrees. The shooters also get used to night time muzzle flash and night blindness besides the cold and maintaining your gun to keep it working, too. 357s are fun at night! We do it at least once every winter. I have a private farm so we don’t bother anyone. Living in northern North Dakota requires we carry under those brutal conditions, so why not shoot under those conditions? After all, bad guys are out in the cold and dark, so why not get used to shooting under the same conditions we carry in? •
This question generated so many great suggestions that we’ll continue it in the December journal. We appreciate the contributions our affiliated instructors make to the Network and encourage you to train with them. See http://www.armedcitizensnetwork.org/instructors
The Traveler’s Gun & Knife Law Book
by David Wong, Esq.
©2010 Spartan Press, P O Box 1598, Nashua, NH 03061-1598 – www.spartanpressonline.com
ISBN 978-0-9826840-0-9 $14.95–318 pages, paperback
Reviewed by Gila Hayes
Many of our members travel more than I, but even so, I was deeply interested in the information and commentary about laws bearing on gun and knife possession in The Traveler’s Gun & Knife Law Book. The author is David Wong, an attorney and adjunct instructor at the Sig Sauer Academy, who explains that he was inspired to write the book as a result of his extensive cross-country travels.
I was impressed with the book’s beginning which, after a little pro-2A rhetoric, launched right into a great chapter defining pertinent terms, including shall issue and may issue, reciprocation and recognition of permits, open carry and concealed carry, preemption, a good explanation of the 1986 McClure-Volkmer Act, how different states define “loaded” and “unloaded,” and supplying good information about restrictions that apply even to the holder of a pistol permit. The language, despite being authored by an attorney, is clear and Wong answers many of the questions citizens frequently pose about gun laws.
A discussion of problems specific to travelers in motor homes or on motorcycles introduces a good review of the various state laws governing armed self defense. In these pages, the author briefly describes the circumstances justifying the use of deadly force in self defense, explains the affirmative defense, the reasonable and prudent person standard, laws defining the duty to retreat or the opposite, and warns that simply researching state statutes will not inform the reader about the all-important judicial decisions that also govern retreat requirements.
Wong also offers general advice on how to conduct yourself during traffic stops, including non-inflammatory verbiage that may prove helpful in declining a police request to search your vehicle. Wong’s brief discussion about interacting with law enforcement after acting in self defense is reminiscent of the five-point list offered by Massad Ayoob in July’s edition of this journal, and this attorney’s excellent articulation of the thorny issue of post-shooting statements gave me confidence in his other material.
An overview of knife laws, carry practices, blade lengths and provisions applying to federal facilities follows. Before detailing each State’s gun laws, the author also touches upon provisions for retired law enforcement going armed, open carry, carrying in national parks, national forests and on native American tribal lands, as well as restrictions and allowances for possession of guns on trains, planes and cruise ships.
Each State’s laws are then featured in a separate chapter, and each chapter has a grid listing a summary of firearms carry considerations, identifying any restrictions about carrying into restaurants and bars, churches, state parks and forests, inside a vehicle, notifying law enforcement officers during a traffic stop, any retreat requirements, preemption laws, open carry restrictions, any restrictions on the types of guns allowable, plus a reciprocity and recognition list. A similar grid about knife laws follows, as does a narrative explaining additional details of that state’s gun and knife laws as well as noteworthy city ordinances, primarily restricting possession of knives, since state preemption has generally not yet overridden local knife regulations, as it has gun laws. Finally, at the end of the chapter, a resources list gives addresses, phone numbers and website URLs for controlling government agencies in that state.
I enjoyed contrasting the different state gun laws, as Wong described them. The book’s description of Alaska’s permitless carry made me want to return for another visit to our 49th state. The information in The Traveler’s Gun & Knife Law Book is quite current, and the book comments on the passage of Arizona’s Constitutional carry law, too, and announces its effective date. The chapters that follow depict the interesting mishmash of gun laws across the nation, with some states allowing carry in bars, churches, schools, and parks while others prohibit one or another.
In skimming the chapters about the laws of various states, I was heartened to notice that more states than I’d realized recognize all other state-issued carry permits. Also fascinating was the lists of restrictions, including one that prohibited carrying a gun at a funeral or in a funeral procession!
The general nature of this law discussion appears to favor the most conservative interpretation. Readers may find small oversights, as in advice to travelers through Washington State that licensed concealed carry in a vehicle is restricted to on-body carry only. A little-known Attorney General’s finding from the 1960s disputes that reading of the black-letter law, but it is not realistic to expect a compendium in which only three to five pages is dedicated to each of the 50 states of the Union to delve into a topic in such detail. Further, this more conservative reading of the law goes far to protect unwary travelers who don’t want to wait to explain an AG’s finding to a judge, as doing so with the state trooper alongside the road is rarely productive.
Throughout the book, the author characterizes general attitudes toward carry of a firearm or knife using terms like “generally inhospitable” or “fairly permissive,” followed by specific details about carry, possession in a vehicle, and other particulars. The entries and subsequent resources will prove very useful to travelers. Since state laws are ever-changing, the reader can check the generalities against state law using the Internet or by contacting the state attorney general’s office using the contact information given.
This volume is a first edition. The challenge will be in keeping this excellent resource current. I hope the publisher and author can keep The Traveler’s Gun & Knife Law Book updated periodically, because it is a very useful book.
The Attorney Search
I frequently field questions by phone and email about the Network affiliated attorneys and their areas of specialization. It is a topic that comes up daily with different callers, so let me address it in this month’s column.
First, I suggest there are two different kinds of legal representation for two different segments of the potential problems for which Network members are preparing. When the armed citizen is looking for an attorney they can consult with as preparation in case they ever have to use a gun in self defense, the top concern deals with the hours and days immediately following a self defense shooting and not necessarily about a trial that, if those early days are mishandled, may follow a year later.
There are innumerable specialties within the practice of law. For the purposes of our discussion, let’s draw just two distinctions: a gun-friendly attorney with no particular specialization in trial work compared to an attorney who earns his or her daily bread arguing in court, defending people who are charged with crimes. The former may spend most of his or her time helping clients resolve business disputes, seeking equitable settlements from insurance companies, or perhaps helping parents negotiate healthy child custody arrangements, all with an eye to avoiding going to trial.
Paging Perry Mason!
People who call the Network – members and nonmembers alike – ask us for a criminal defense expert who will defend them if they are in a shooting. They ask for attorneys with courtroom experience defending self-defense shooting cases. Fortunately, cases involving justifiable shootings are not very common. Why do I say fortunately? It is fortunate, because that shows how infrequently armed citizens get in shootings and further reveals that not everyone who shoots in self defense receives the full-mealdeal from the criminal justice system. Such cases may not result in criminal charges being filed, or do not make it to trial owing to a number of factors, including the efforts of a skilled attorney discouraging the prosecution by laying out all the evidence showing why his or her client is not guilty, clearly communicating to the prosecutor that going to court is likely to end in a loss for the prosecution.
If you speak with an attorney who says he or she has not taken a self-defense shooting case to court, but has been successful in preventing such cases from going to trial, that attorney may well turn out to be a superb advocate for the armed citizen. Avoiding trial, if it can be done without compromising your rights, is what you want! Attaining that result requires skilled negotiating and a good working relationship with local prosecutors. These are the abilities that will better serve your best outcome.
Worst Case Scenario
Of course, sometimes the prosecution is Hell-bent upon taking a shooting case, any shooting case, to court, and you are the unfortunate citizen whose name is on the docket. Here, if the facts of the case do not make the state back down and it goes to trial, it may be necessary to add an expert trial attorney to the member’s defense team if the affiliated attorney first on the case does not do much trial work. An experienced trial attorney might be employed to advise on the case or to take the lead if that is the better alternative. If, in the opinion of the Network and our advisory board, the prosecution of the case is unmeritorious, the Network can also provide experts and advisors for the legal team if a trial is unavoidable, much as was done in Larry Hickey’s case (See September edition of this Journal or the special report PDF) in which a receptive public defender integrated advice from Network President Marty Hayes and Advisory Board Member Massad Ayoob into trial strategy. But that approach is required only if the case cannot be snuffed out before it gets into court, and we would strongly prefer to stop that train before it ever gets off the siding and starts down the track.
The Empathy Factor
So, what does the armed citizen need in their legal representation? You need an attorney who believes just as passionately as you and I do about the right to self defense, up to and including using deadly force if no other reasonable alternative exists. This is an attitude you will not find in every criminal defense attorney, owing in part, I suppose, to the daily exposure they endure defending the dregs of society who use force to do all kinds of awful things. After thousands of such clients, unless the attorney is first and foremost an armed citizen, you may not sense that they really believe with their entire heart and soul that you had a right to defend yourself with a gun.
The Network believes that members need attorneys who can put themselves in our member’s shoes, and say after hearing the member’s story, “That could have been me having to shoot to stop that home invasion.” One who voices that kind of empathy is the kind of attorney you need at your side during questioning by police–one that shares your righteous indignation at being forced to choose between your death and shooting to defend yourself.
You do not need a lawyer for whom attending yet one more prisoner’s interview with detectives equates to defending just one more criminal. Attorneys who regularly specialize in criminal defenses must daily invest their skills and energies toward attaining the best outcome for someone who has done wrong. They must become skilled in the compromises that earn a little consideration from the criminal justice system since three years in jail is usually far preferable to ten or twenty when some punishment is due.
Our Network President Marty Hayes has gone so far as to suggest that the armed citizen might be best served by an attorney who specializes in plaintiff’s cases, because he wants member–from their first post-shooting communication, their call to 9-1-1–to emphasize that the shooting occurred only because they became the unwitting victim of the violent criminal who attacked them. This approach dovetails with the affirmative defense in which the defendant asserts, “I did that of which I am accused—I shot another human being. I did it and I was allowed to do it, under the law of justifiable homicide or law of self defense.” This is just the opposite of most criminal defendants who first look for ways to deny that they committed the crime, and then try to minimize their actions, explaining perhaps, “What is the big deal? All I did was borrow that guy’s car; I didn’t really steal it.”
If an attorney suggests that you make a parallel argument, “I didn’t really mean to shoot him; I just pointed the gun at him and it went off,” you have a pretty clear indication that he or she intends to defend you as if you are a guilty criminal and may fail to lay the foundation for an affirmative defense, that exceedingly rare legal strategy reserved for the defendant for whom shooting was indeed justified. Every now and then a member calls to suggest that we affiliate the Network with the most famous criminal defense attorney in their city. “That guys has gotten lots of murder cases knocked down to manslaughter,” they rave. I have to ask, “Is that really what you want?”
I write this with no disrespect for attorneys and hope none will take offense. The Network’s strength is in our association with other gun owners, and likewise in our ties to gun-owning attorneys and legal experts. Lawyers who believe in the right to armed self defense as fervently as we do are as valuable as they are rare, and they are rare indeed.
As the Network continues to pursue affiliations with gun-owners who are also attorneys, we want to be sure that our members understand the criteria under which the Network affiliates with attorneys. An affiliate may well not be a famous criminal defense attorney in your region, but he or she will be a man or woman who clearly expressed that they share our bedrock belief that good, law abiding citizens should not go to jail after doing what it took to survive the attack of a violent criminal.