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Reflections on the Dunn trial

If you want to know the significance of jury instructions in a criminal trial, just ask Michael Dunn.

Last November, Dunn and his fiancée pulled into a gas station near Jacksonville.  He got into a heated argument over some loud music in a neighboring car, thought he saw one of the passengers with what looked like a shotgun barrel, grabbed the handgun he had a permit to carry, and pumped ten rounds into the car, killing the person he thought had a gun.

The case got play because Dunn was a 47-year-old white man, Jordan Davis, the victim, was a 17-year-old black kid.  It didn't get quite get the play that the George Zimmerman/Trayvon Martin case got, but that's because there was a legitimate argument of self-defense in the latter.  Doesn't mean you buy into it, but the question boils down to whether Zimmerman should've brought a gun to a fistfight. 

Here?  No gun or anything else that could be considered as a weapon was found in Davis' car.  Dunn didn't report the incident to the police, instead driving off with his fiancée, having dinner and staying with her overnight before he was arrested the next day.  And not once in all that time did he mention to her about seeing a gun. 

If you're a gun rights/self-defense booster, this is not the hill you want to die on.

The jury hung 9-3 for conviction on the charge of murdering Davis, but convicted Dunn of a count of attempted murder for each of the other three people in the car.  (None of them had been hit.)  That's a minimum twenty years for each count, and the judge can stack them.

That may very well have been the proper verdict.  It's not clear from the various accounts whether Dunn fired at the car as it was sitting there, or as it was fleeing.  If the latter, a jury could easily conclude that any threat to Dunn had passed.

But let's focus on three questions the jury posed: 

1) Is the defense of self-defense separate for each person in each count?

2) Are we determining if deadly force is justified against each person in each count?

3) If we determine deadly force is justified against one person, is it justified against the others?

The judge answered "yes" to the first two questions, and "no" to the latter, telling them "self-defense and justifiable use of deadly force applies separately for each count."

I have done squat in researching this -- like I told you, this is a blog, not a law review -- but I can't believe this is the law.

Picture this:  my client is minding his own business, just walking along, but because he's wearing the wrong colors in this neighborhood, a car pulls up, and somebody starts to poke a gun out.  My client, proud possessor of a concealed carry permit, pulls out his other prized possession, a Glock 40, and empties a clip into the car.  And that time on the target range pays off:  he kills the guy with the gun, but doesn't hit anybody else.

And you're telling me that even if my client is justified in using deadly force against the would-be shooter, to avoid getting convicted of attempted murder of the other people in the car, he has to show that each one posed a separate threat to him? 

Completely missing from the judge's answers is any concept of "group" threat.  A person claiming self-defense normally has to make a split-second decision about whether there is a threat.  If four people approach me on the street, and one starts to pull out a gun, I think it's unrealistic, let alone unfair, to require me to make careful distinctions about the exact level of threat posed by each of the four. 

At the end of the third day of deliberations, the jury in Dunn's trial indicated they were pretty much deadlocked.  On the morning of the fourth day, they asked the questions and got the judge's answers.  A few hours later, they came back with a guilty verdict on the attempted murders.

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