A day at the courthouse
So I'm sitting at the prosecutor's table over at the Justice Center, waiting for the judge to show up. I'd trudged over to the jail first to see the client I'd just been appointed to represent. A mental health docket case, and he'd called me the day before asking for a visit. "I've heard good things about you," he said. Probably heard it from the voices inside his head, but at least they weren't telling him, "Kill Bensing, kill Bensing." Yet. He did impart one gem of wisdom. He was charged with failure to comply -- the old fleeing and eluding -- and told me that he'd checked the statute, and it says that for a defendant to be convicted, the police chase has to be at least four miles long. "I think they've amended the law since you looked it up," I said gently.
I'm a half hour into my wait for the robed one when another lawyer sits down next to me and says, "Can I run something past you?" Since I had my netbook open to the stock page, watching the market start off on its way to its fifth straight day of losses, further imperiling my retirement plans -- which at this point consist of repeating the phrase, "Welcome to Wal-Mart!" into my mid-70's -- I figured I could tear myself away. "Sure, what's up?"
"You know anything about the castle doctrine?"
"Does the Pope wear funny hats?" I replied. "Which castle doctrine are we talking about?"
She blanched. "There's more than one?"
"Yep." There's the old one, I explained. Normally, in order to claim self-defense for the use of deadly force, you have to show that you didn't violate any duty to retreat. There was an exception to that at common law: you didn't need to retreat if you were in your own home. When the new, improved, extra-strength castle doctrine was enacted -- more on that in a minute -- the old castle doctrine was also codified at RC 2901.09(B). The new one is under RC 2905.01(B). Normally, the defendant has the burden of proving self-defense by a preponderance of the evidence. The new statute shifts the burden: it creates a rebuttable presumption that the a defendant acted in self-defense if he used deadly force against a person who'd unlawfully entered his home or car.
"That's the one," she says. "Here's my situation. Another guy comes to my client's house and threatens him. My client tells him to go away. The other guy comes up on the porch, my client steps inside and gets his shotgun, leaves it pointed at the floor while the other guy keeps yelling, finally lifts the gun and points it at the other guy, who leaves. My client's charged with felonious assault."
"Well," I say, "You got some other stuff going on there besides the castle doctrine. Just pointing a gun at somebody isn't felonious assault; it has to be accompanied by threats or other indications that the offender intends to use the weapon. Don't know if they can make it that in this case, since your client apparently just used the gun to scare the guy. That's aggravated menacing, at most, and although it's not actually a lesser included of felonious, you might ask for a charge-down anyway. Also ask for an instruction on the lesser included of attempted discharge of a firearm into a public nuisance."
"Is that even a crime?" she asked.
"Would be if I was running the country."
"Let's stick to the castle doctrine. I think my main problem is that the guy never tried to come into the house."
I shook my head. "No problem. An attached porch falls within the definition of a 'dwelling.' Yard doesn't count, driveway doesn't count, but porch does. So you're entitled to the presumption that your client was acting in self-defense."
"What about the fact that the other guy didn't have a weapon?"
"Normally, that'd be a problem. A prosecutor might argue, and a judge might hold, that you're not entitled to claim self-defense at all; you can't use deadly force unless you're in fear of death or great bodily harm, and that's a tough sell when the other guy doesn't have any kind of weapon. But the statute doesn't make that distinction: you're presumed to have acted in self-defense if you use deadly force against someone who's unlawfully entered your property. Doesn't matter if the someone has a weapon or not."
"But the presumption's rebuttable, isn't it?"
"Sure, but that's where the fun starts. Take a look at the jury instructions on it." I pulled up OJI on the netbook, tearing myself away from the stocks page, noting absently that the market, not twenty minutes after its open, had already plunged 80 points. Well, maybe until my late 70's, I thought... "Here's the instruction on how the presumption can be rebutted":
PRESUMPTION - REBUTTABLE. The state claims the presumption that the defendant acted in (self defense) (defense of another) when using defensive force that was (intended) (likely) to cause death or great bodily harm to another does not apply. This presumption does not apply if the state proves by the greater weight of the evidence that
(A) the person against whom the defensive force was used (had a right to be in) (was a lawful resident of) the (residence) (vehicle).
(B) the defendant used the defensive force while in a (residence) (vehicle) and he/she was unlawfully, and without privilege to be, in that (residence) (vehicle).
"See what it does? Although it's titled 'presumption: rebuttable,' it doesn't tell the jury that the presumption's rebuttable, it simply says that the presumption doesn't apply in the two situations listed. Essentially, the instructions say that the presumption can be rebutted only by showing that it shouldn't apply in the first place. Normally, the presumption could be rebutted by showing that the defendant wasn't in fear of death or great bodily harm, or that he used excessive force, but the jury isn't told that. In your case, you're going to argue that your client was presumed to be acting in self-defense unless the state can prove that the other guy was entitled to be in the house, or that your client wasn't. There's no way they can prove that, which means that for all intents and purposes the presumption is conclusive."
She stood up and beamed. "Great! I'm glad I talked to you."
"Not many people are," I said, and I could tell from the look on her face that she was beginning to understand why. I returned to the stock page, left to wonder three things: when the judge was going to show up, how I'd look in that nifty blue smock, and why other lawyers gets cases like that and I get cases where my client thinks he gets a free pass for running his car into somebody's house because the police only chased him three miles instead of four before he did it.