When Self Defense Becomes Murder

[sgtmac_46]

The Prosecutor did Jerome Ersland a favor by charging him with First Degree Murder.......there's no jury in Oklahoma that's going to convict him on such a draconian charge. If he had reduced it to felonious assault he'd have a better chance of a conviction......but then would face the wrath of certain special interest groups who want to see the charge as First Degree Murder.

I suspect the Prosecutor probably knows that, too, but if he pushes the First Degree murder charge, he can always blame the jury for the acquittal......he's hoping for a PLEA agreement, but he won't get one........Jerome Ersland is NOT going to run out of money defending himself, as he already has a sizable donation list.........an anonymous donar spotted him the $100,000 for bail! There are folks very interested in the outcome of this case.

As I pointed out this whole issue is going to hinge on a convoluted argument about which one was the fatal shot......the Prosecutor's medical examiner is going to say it was one of the five shots to the abdomen..........will he hold up to cross-examination? The Defense medical experts are going to call the head wound fatal. The prosecutors HOPE is to PROVE to a jury BEYOND A REASONABLE DOUBT that a head wound WAS NOT fatal, but one of five abdominal wounds WAS, with dueling medical experts arguing just the opposite......


The Prosecutor said as much himself......"If that first shot had been fatal, we wouldn't be here," Prosecutor David Prater


The problem is that a jury is going to see this dog and pony show over which shot was fatal, and the PROSECUTORS desire to hang a man's LIFE on that kind of hair splitting, as BS and simply ACQUIT!

 

[tellner]

sgt mac, it's probably impossible at this point to tell which killed him although the article mentioned that the second through sixth shots were fired while the deceased was "lying unconscious" on the floor.

It doesn't really affect the important point: Your right to self defense ends when you are no longer defending against an immediate threat. Any shots after that are crimes.

 

[sgtmac_46]

sgt mac, it's probably impossible at this point to tell which killed him although the article mentioned that the second through sixth shots were fired while the deceased was "lying unconscious" on the floor.

It doesn't really affect the important point: Your right to self defense ends when you are no longer defending against an immediate threat. Any shots after that are crimes.

There is no real 'right' to self-defense outside of what society will accept......just to make the point perfectly clear.

How do we know what society will accept? The jury will tell us in this case.......the JURY will determine if it was a 'crime'......we won't on this forum, argue though we might. But I can make a reasonable prediction based on my experience with juries and knowledge of such cases that in rural Oklahoma the jury won't find this to be a 'crime' at all.

As to the advisability of doing the same......it is clear that it is not advisable. The process through which this gentleman will have to go is not an enviable one......even though it will most likely end in his acquittal......it is nothing fun!


Not to belabor the issue of whether it's possible to tell which shot killed him......if it becomes IMPOSSIBLE to tell, then the Prosecution by proxy FAILS at it's task of PROVING it's case Beyond a Reasonable Doubt, as the burden falls on to THEM! And even the prosecutor admits that if the first shot were fatal, there would be no case........if it becomes impossible to tell, then the state doesn't meet it's burden.



It's a wonderful system that we have that no matter how clever the states argument against us as individuals......a jury made up of our peers can STILL find us Not Guilty using whatever logic they see fit....WHAT A COUNTRY!

 

[tellner]

"what society will accept" is embodied in the law as written in statute and applied in court decisions.

The law concerning self defense is very well established. There have been modifications in a number of jurisdictions. Oregon, for instance, used to have a duty to retreat. That was changed by the Legislature.

I'm betting that this guy will be convicted. There are many, many precedents. There's an established body of case law and statute. There are plenty of cases where a self-defense shooting turned into a murder or manslaughter conviction when the guy with the gun was not in immediate danger and kept shooting. This guy did exactly that.

No matter what you want or what you believe about "taking out the trash" or how much you'd like society to come around to your point of view that isn't where we are now. There have been plenty of cases like this. While a good lawyer might find a way out and nobody can tell what a jury will do the odds are very much against the alleged perp on this one.

 

[sgtmac_46]

"what society will accept" is embodied in the law as written in statute and applied in court decisions.

You're half right........statutes are made as general written rules by which we are to follow, rules in a free society made by representatives of the governed..........and when we are accused of VIOLATING those laws, we are judged NOT by ministers of the state, but representatives of the community in which we reside, a Jury of our peers who ALSO apply their community standards to their interpretation of the law and your actions.

The law concerning self defense is very well established. There have been modifications in a number of jurisdictions. Oregon, for instance, used to have a duty to retreat. That was changed by the Legislature.

The laws and your alleged violation of the same are interpreted by a jury of your peers........and you won't find 12 people in Oklahoma who will convict this guy......end of story.

I'm betting that this guy will be convicted. There are many, many precedents. There's an established body of case law and statute. There are plenty of cases where a self-defense shooting turned into a murder or manslaughter conviction when the guy with the gun was not in immediate danger and kept shooting. This guy did exactly that.

I'll take that bet.........name your price! http://seattletimes.nwsource.com/html/nationworld/2008210107_snack28.html

No matter what you want or what you believe about "taking out the trash" or how much you'd like society to come around to your point of view that isn't where we are now. There have been plenty of cases like this. While a good lawyer might find a way out and nobody can tell what a jury will do the odds are very much against the alleged perp on this one.

Bet you.........name your price! Not a snowball's chance in hell he gets convicted of First Degree Murder in Oklahoma!

There have been PLENTY of cases like this......and almost ALL OF THEM END IN ACQUITAL in the south and the mid-west!

Wishful thinking is on on your end.......though why you wish for those who find themselves, of no choice of their own, thrust in to a violent situation tried for First Degree Murder is beyond me.......but people think and do weird things........but you won't get your wish in this case.


I've had this argument, time and time again, with folks like yourselves who PROGNOSTICATE a CONVICTION by an imaginary jury who would agree with them......in the Joe Horn case ('slam dunk conviction' as far as folks like yourself predicted) ACQUITTED!

in the Jose Luis Gonzalez case ('NO BRAINER!' 'He EXECUTED THAT BOY' 'NO WAY THIS GUY GETS ACQUITTED' according to arguments along the line of yours) Verdict? ACQUITTED!

Numerous cases exist where the jury did NOTHING like folks like yourself predicted. I've been in front of juries, i've been in jury trials. They apply community standards in cases like this.......and IF you're in NEW YORK CITY or Los Angeles this guy might be in trouble.........HIS JURY POOL, however, will be made up of rural Oklahomans!

In my home town a few years back we had a college kid who shot a high school kid over stealing a keg......shot him in the BACK.......AFTER he left the house and was fleeing.........Prosecutor charged the guy with first degree murder.......Jury Verdict........ACQUITTED!


In all three of the examples I provided, they were ALL examples where folks had gone too far......and in the Gonzalez case WAY, WAY too far.........but the Jury in EVERY SINGLE CASE erred on the side of otherwise law abiding citizens in the face of criminals........take a poll of Oklahomans and you'll find, even with the media version of this being predominant, not even the defense's arguments.......that most folks side with this guy.......yet you think you're going to find 12 people to convict him of First Degree Murder in that state? :rofl:



They'll get a change of venue from OKC (no brainer because of the local publicity) they'll move it a rural area, pick a rural jury.......and the defense will use it's selection power to get sympathetic jurors.......in this case older male combat veterans who live in a rural setting.......doesn't have to be the entire jury either........it takes 12 jurors to convict! 11 to 1 is a mistrial.

 

[BLACK LION]

BL, I sincerely hope you do not have students. Your complete lack of regard for the law will put one of them in jail if they're foolish enough to take your advice. And if you are ever in a self defense situation I earnestly pray that the prosecutor has the smarts to look through martialtalk's archives. You have just sunk your future claim to self defense by bragging about how you'd go out of your way to kill someone even when you didn't need to.

You obviously dont understand my point and I dont think you read my posts well at all. Instead of asking for a more cordial exlpaination you flog my integrity and or character. You should be more respectful and professional. My opinion on here or any other form of conversation does not constitute moral or legal advice nor does it advocate such behavior as you may concieve. If I am in a situation in which my life or anyone elses is in danger then it is my job to be a professional. Any one I train with and anyone who knows me understands that. I am a saved and convicted man who who follows the LORDS laws above all else. Any action on my part if ever any must always be JUST and RIGHT.


He crossed the line and made a mess which was not very professional in my opinion but he did act in a situation where most wouldnt budge and I commend him for that.

None of us were there with them.

 

[sgtmac_46]

You obviously dont understand my point and I dont think you read my posts well at all. Instead of asking for a more cordial exlpaination you flog my integrity and or character. You should be more respectful and professional. My opinion on here or any other form of conversation does not constitute moral or legal advice nor does it advocate such behavior as you may concieve. If I am in a situation in which my life or anyone elses is in danger then it is my job to be a professional. Any one I train with and anyone who knows me understands that. I am a saved and convicted man who who follows the LORDS laws above all else. Any action on my part if ever any must always be JUST and RIGHT.


He crossed the line and made a mess which was not very professional in my opinion but he did act in a situation where most wouldnt budge and I commend him for that.

None of us were there with them.

Quite right! And it bears repeating that he did not CREATE the crisis situation he found himself thrust in to. I believe that the standard being applied to him by the Prosecutor (for political reasons) and some here is inherently unfair......AND I have zero doubt that a jury of his peers will see it that way as well and acquit him of the charges against him and end this nightmare.

Anyone who would seek to convert that statement or yours as condoning his behavior are doing so fallaciously and with malicious intent to distort that meaning........so i'll make it simple........His actions were ill advised......but DO NOT rise to the level of First Degree Murder! He responded to a situation thrust upon him by the robbers.

 

[MJS]

One of the things good self defense and firearms instructors stress is that you can't keep using force once the threat is gone. This story illustrates the point nicely.

Yes, its certainly tempting to get in a few more licks when the threat is over, but I'm thinking that is probably not the best thing to do. I can just hear the lawyers now....

"So, Mr. -----, my client was no longer a threat to you, yet you repeatedly kicked him in the head 10 more times, causing a permanent brain injury."

Temporarily snapping, after this guy just tried to rape your wife....yup, I'd be lying if I said that I wouldn't snap too, but I think that we should always assess whats going on, so as to not jam ourselves up later on.

 

[sgtmac_46]

Yes, its certainly tempting to get in a few more licks when the threat is over, but I'm thinking that is probably not the best thing to do. I can just hear the lawyers now....

"So, Mr. -----, my client was no longer a threat to you, yet you repeatedly kicked him in the head 10 more times, causing a permanent brain injury."

Temporarily snapping, after this guy just tried to rape your wife....yup, I'd be lying if I said that I wouldn't snap too, but I think that we should always assess whats going on, so as to not jam ourselves up later on.

While YES it is good advice not to exceed what you reasonably think to be necessary to defend yourself or others..........one should be careful about simply accepting the standard argued by trial lawyers trying to cash in with a client as in the above scenario the attorney in question would consider ANY use of force against his client 'Unreasonable' regardless of his clients actions.........he is an advocate seeking monetary gain.......therefore, it is unwise to accept their premise in the first place.

 

[sgtmac_46]

I need to make it clear one more time that I don't recommend to anyone that they fire extra rounds in to the unconscious robber.....ESPECIALLY on camera.

That having been said, I vigorously support this gentleman and believe he should be acquitted.......those positions aren't contradictory........in fact, they are rational positions for anyone interested in self-defense.

Here's why......jury decisions to acquit, like we've seen, set the bar at a rational and safe level........you fire extra rounds, and you may end up in court, but juries have time after time ACQUITTED folks who have done so......and THAT is WONDERFUL! Prosecutors eventually get the message that juries aren't going to convict on these cases, and stop wasting VALUABLE and LIMITED prosecutorial resources on them!

'But I wouldn't go that far, so I wouldn't have anything to worry about.....' Yes, that's true......which is EXACTLY why many of you should be hoping for an acquittal..........

Because THIS sets the bar well ABOVE the reasonable level........you don't want the bar for prosecuting a case like this changed from 'You fired at an unconscious robber who was no longer a threat'.

Because the next step is.....'You fired at a man who wasn't actually pointing his gun at you' or 'How did you actually KNOW his gun was loaded?' or 'It's obvious from the video that his gun began dropping a microsecond and a half BEFORE you began firing......so you MURDERED MY CLIENT!'

If juries declare shooting an unconscious robber ACCEPTABLE, even if Prosecutors do not.........THAT MEANS you have ZERO TO FEAR from reasonable self-defense measures.........You don't have to worry about Prosecutors going on fishing expeditions to appease some community groups using the above scenarios, as they know if Prosecuting the guy who shot an UNCONSCIOUS robber was an exercise in futility, he's not going to waste time arguing that you didn't know 'For Sure' that the robbers gun was loaded, or even real!

THIS IS PROACTIVE SELF-DEFENSE in a LEGAL SENSE on a Larger Scale! I can live with a couple dead robbers under somewhat questionable circumstances FAR MORE than I can live with runaway prosecutors appeasing 'Community Activists' by Prosecuting law abiding citizens confronted by violent criminals who happen to apparently have a labor union!

 

[Guardian]

We can debate this all day, that's for sure. I agree, he walked past the dude on the floor, he obviously wasn't concerned with him. He went to make sure the other guy was gone, he was stable at that point, he walked by this dude lying there again not worried, retrieved a 2nd gun and pumped 5? more into him.

He was wrong pure and simple. Will he do time, I agree with SgtMac, I don't think so, not in OK or down here. That doesn't make him right, but it isn't a question of right or wrong now, it's a question of will the jury send him away now, I don't think so.

 

[BLACK LION]

Quite right! And it bears repeating that he did not CREATE the crisis situation he found himself thrust in to. I believe that the standard being applied to him by the Prosecutor (for political reasons) and some here is inherently unfair......AND I have zero doubt that a jury of his peers will see it that way as well and acquit him of the charges against him and end this nightmare.

Anyone who would seek to convert that statement or yours as condoning his behavior are doing so fallaciously and with malicious intent to distort that meaning........so i'll make it simple........His actions were ill advised......but DO NOT rise to the level of First Degree Murder! He responded to a situation thrust upon him by the robbers.

Well said!!!

 

[BLACK LION]

I need to make it clear one more time that I don't recommend to anyone that they fire extra rounds in to the unconscious robber.....ESPECIALLY on camera.

That having been said, I vigorously support this gentleman and believe he should be acquitted.......those positions aren't contradictory........in fact, they are rational positions for anyone interested in self-defense.

Here's why......jury decisions to acquit, like we've seen, set the bar at a rational and safe level........you fire extra rounds, and you may end up in court, but juries have time after time ACQUITTED folks who have done so......and THAT is WONDERFUL! Prosecutors eventually get the message that juries aren't going to convict on these cases, and stop wasting VALUABLE and LIMITED prosecutorial resources on them!

'But I wouldn't go that far, so I wouldn't have anything to worry about.....' Yes, that's true......which is EXACTLY why many of you should be hoping for an acquittal..........

Because THIS sets the bar well ABOVE the reasonable level........you don't want the bar for prosecuting a case like this changed from 'You fired at an unconscious robber who was no longer a threat'.

Because the next step is.....'You fired at a man who wasn't actually pointing his gun at you' or 'How did you actually KNOW his gun was loaded?' or 'It's obvious from the video that his gun began dropping a microsecond and a half BEFORE you began firing......so you MURDERED MY CLIENT!'

If juries declare shooting an unconscious robber ACCEPTABLE, even if Prosecutors do not.........THAT MEANS you have ZERO TO FEAR from reasonable self-defense measures.........You don't have to worry about Prosecutors going on fishing expeditions to appease some community groups using the above scenarios, as they know if Prosecuting the guy who shot an UNCONSCIOUS robber was an exercise in futility, he's not going to waste time arguing that you didn't know 'For Sure' that the robbers gun was loaded, or even real!

THIS IS PROACTIVE SELF-DEFENSE in a LEGAL SENSE on a Larger Scale! I can live with a couple dead robbers under somewhat questionable circumstances FAR MORE than I can live with runaway prosecutors appeasing 'Community Activists' by Prosecuting law abiding citizens confronted by violent criminals who happen to apparently have a labor union!

SGT.
I couldnt agree more. Well said again! You have actually made some very profound points regarding this topic and I appreciate your position displayed here. You afforded me the opportunity to see it from a couple different angles that I did not perceive before.
Very good post.
Thank you

 

[Bill Mattocks]

I couldnt agree more. Well said again!

I guess it should be OK to murder abortion providers too. Since we're playing judge, jury, and executioner here. After all, the doctor got what he deserved, just like the robber in this story, right? It's not about obeying the law, it's about justice. Or are they somehow different?

 

[tellner]

Bill, here's the difference:

People like ME (it doesn't matter who "ME" is) deserve understanding and mercy even if the blind stupid law doesn't agree.

People like THEM (it doesn't matter who "THEM" is) deserve the harshest possible treatment even if the blind stupid law doesn't allow it.

 

[Archangel M]

I think the case is going to boil down to if the robber was alive or dead after the initial (and justified) head shot....

If he does manage to get convicted, I highly doubt it will be for 1st degree murder....

 

[Daniel Sullivan]

I guess it should be OK to murder abortion providers too. Since we're playing judge, jury, and executioner here. After all, the doctor got what he deserved, just like the robber in this story, right? It's not about obeying the law, it's about justice. Or are they somehow different?

This is a bad analogy and inapplicable here.

We are talking about self defense, not murdering someone we find distasteful. Whether or not you or I may like it, abortion is legal. Robbery is not. The main reason that people support the pharmacist is because he was robbed at gunpoint.

And following the law is not about justice anyway.

There is no issue of justice until a person is wronged or a law is broken. The pharmacist was wronged and rightly defended himself. Then he wronged the unconcious man on the ground, either by finishing him off or desacrating his corpse.

And yes, he has legal consequences to face for it. He must appear in court and defend his position. If he is acquitted, as some are rooting for, then you will have to be satisfied with the verdict. If he is not, then those rooting for his acquittal will have to be satisfied with the verdict.

I am not rooting for acquittal. The pharmacist should have been dialing 911 at that point. And if he truly believed the man to be alive and capable of waking up and presenting a threat, he should have disarmed him and restrained him; I am sure that he had duct tape on hand. Going back to get another gun and shoot the man was uncalled for.

I am rooting for him to get out early on parole, just like the armed robbers and other thugs do. Main difference is that he will likely go back to being a pharmacist and will not go out and prey upon others, while thugs will try to make up for lost time.

At the same time, I feel not one bit of sympathy for the robber: he provoked an unknown opponent (the pharmacist) and paid the price. People do stupid things, and sometimes, bad things happen to them as a result. The robber did a stupid thing (robbery) and a bad thing happened to him (the pharmacist went nuts).

This in no way justifies the pharmacist's actions.

Daniel

 

[Deaf Smith]

He was on Bill O'Rilley today. His story the women in the back screamed and, it turns out, the kid on the floor was talking (or mumbling) and he though the kid had hurt or killed the ladies in the back room.

It sounds believable.

His big mistake was talking to the police right after the incident. Being in shock you can easily get the timeline of the event in wrong order, or not remember everything. And thus the cops will go by that story and if later you see you were mistaken, well they will say you changed your story (and thus lied.)

This will all be played out in court.

Deaf

 

[Bill Mattocks]

This is a bad analogy and inapplicable here.

I think it is a good analogy.

Both describe a person 'getting what they have coming to them' according to the beliefs of someone else, and ignoring what the law says.

When we decide to exact our own brand of justice on a person we consider a 'bad guy', there is no real difference between a robber whom we dispatch rather than let the law deal with them, and a late-term abortionist whom we dispatch rather than let God deal with him. It's all about dealing him the justice we feel he ought to be getting.

Same thing, pretty much.

 

[MJS]

I guess it should be OK to murder abortion providers too. Since we're playing judge, jury, and executioner here. After all, the doctor got what he deserved, just like the robber in this story, right? It's not about obeying the law, it's about justice. Or are they somehow different?

I think it is a good analogy.

Both describe a person 'getting what they have coming to them' according to the beliefs of someone else, and ignoring what the law says.

When we decide to exact our own brand of justice on a person we consider a 'bad guy', there is no real difference between a robber whom we dispatch rather than let the law deal with them, and a late-term abortionist whom we dispatch rather than let God deal with him. It's all about dealing him the justice we feel he ought to be getting.

Same thing, pretty much.

The pharmacy robber was committing a crime. The guy who shot him was justified in the one shot, however, where it went south was when he shot him a few more times. BG shouldn't have done the crime. The 'justice' that was handed out, most likely a mistake on the shooters part, was not necessary.

I havent been following the other case, so I'm not sure of the crime he was committing. *I did read that he was doing abortions later than the norm. so perhaps that was the 'crime' that the shooter felt was worthy of taking a life. IMO, nothing wrong with abortion, as long as its in a legal establishment and done within the proper timeframe. The shooter in that case, IMO, premeditated the docs assassination. I get the impression that the shooter in this case is totally against abortion, and probably feels all docs that perform them, should be blown away.

I would most likely chalk the first case up to snapping.

*The Kansas doctor had been a lightning rod for abortion opponents for decades. The women's clinic he ran is one of three in the nation where abortions are performed after the 21st week of pregnancy, when the fetus is considered viable. It had been the site of repeated protests and was bombed in 1985.

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