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Off-Duty Cop “Road Rage” Case: Cracks Appear in Prosecution Narrative

Off-Duty Cop “Road Rage” Case: Cracks Appear in Prosecution Narrative

Motion to dismiss indictment unlikely to succeed, but effectively degrades prosecution’s narrative of guilt

First, full disclosure: I was contacted personally by one of the lawyers for Joseph Walker, the New Jersey law enforcement officer charged with first degree murder by Maryland in the “road rage” shooting death of Joseph Dean Harvey, Jr.

Walker’s defense attorney Charles Curlett told me that he’d seen the coverage of the Walker trial here at Legal Insurrection, and offered to send me the motion to dismiss the indictment for first degree murder and the motion to allow into evidence Walker’s polygraph results, both of which had been submitted to the trial court yesterday. (For the record, I very much doubt that this is a matter of my being somehow special — now that the documents have been filed they are public record — but rather more likely reflects the fact that the “journalists” covering this story wouldn’t have much interest in either legal document).

(We covered the essential elements of this motion to dismiss, based just on news reports, in our last post on this trial:  Off-duty “Road Rage” Cop lawyer: Grand Jury given “materially false and misleading testimony”.)

Naturally I replied that I’d love to see them, and I had received them via email forthwith this afternoon.

The motion to dismiss the indictment, together with the attached exhibits, totals nearly 300 pages, and I’m afraid even I can’t move my way through 300 pages of legalese and witness interviews in a couple of hours. So far, I’ve made it through the motion itself, and the transcript of the first witness exhibit, that of Adam Pidel, the passenger riding with Joseph Dean Harvey, Jr. the night of the shooting.  Both of those documents are embedded below.

The Motion to Dismiss the Indictment

In brief summary, the Attorney Curlett makes a well-reasoned and seemingly well-supported case for the dismissal of the indictment, touching upon what appears to be a considerable quantity of purportedly “materially false and misleading testimony.” In the real world, however, different courts have very different levels of sensitivity to the kinds of testimony described, as well as to the way in which it was presented to the Grand Jury. Having never practiced in Maryland I don’t have a good sense of whether they would find the described “materially false and misleading testimony” adequate cause to dismiss an indictment. In most of the courts with which I’m familiar, with the advent of trial about to begin in mere weeks, I would not anticipate a dismissal.

Even if it does not result in a dismissal of the indictment, however, the motion to dismiss the indictment sheds considerable light — and negative light, at that — on the prosecution’s narrative of guilt. This allegedly “materially false and misleading testimony” is presumably the same fundament from which the prosecution would construct its compelling narrative of guilt for the trial jury.

But in the trial setting, this same testimony is subject to vigorous cross-examination, as well as contrary evidence produced by the defense, neither of which really occurs before the Grand Jury. The State may have been able to get this allegedly “materially false and misleading testimony” past the Grand Jury yet have little or no likelihood of having it accepted as credible by the trial jury.

Exhibit A: The Same-Night Testimony of Harvey’s Passenger, Adam Pidel

Perhaps even more favorable to the defense in terms of prospective impact on the trial jury is the same-night testimony of Harvey’s passenger, Adam Pidel, who describes Harvey as the kind of guy who “definitely finishes a fight,” describes him yelling and screaming at Walker, shouting racial epithets, fully expecting that Harvey intends to engage in a fight with Walker, and who observed Harvey advancing to within feet of the minivan before being shot.

Even more important than all of the above, however, may be a wrinkle of Maryland’s law of self-defense of which I’d been ignorant until pointed in the right direction by Attorney Curlett. As I’ve stated (quite correctly) innumerable times, Maryland is very much a duty-to-retreat state when it comes to self-defense. I’ve repeatedly pointed out that Walker’s failure to take advantage of a safe avenue of retreat would appear to doom his ability to claim the legal defense of self-defense as a matter of Maryland law.

Can Walker Get Past Maryland’s “Duty-to-Retreat”? Perhaps

It appears, however, that there remains a perfectly rational legal justification for Walker’s use of defensive force in which the issue of retreat is inconsequential under the facts of this case. I haven’t time at the moment to do a full post on the issue, but I will point all of you to the most relevant Maryland court decision on the matter, and see if anyone can correctly identify the specific issue to which I’m referring.

If anyone does correctly identify the issue, the first person to comment on it here (based on the system’s date and time-stamp) will win either a free autographed copy of “The Law of Self Defense, 2nd Edition,” or a snazzy Law of Self Defense baseball cap–your choice. Only one winner, I’m the sole judge, and my ruling is beyond appeal. 🙂

Here’s the case: Lee v. State, 996 A.2d 425 (MD Ct. Spec. App. 2010)

And here’s the promised embedded Motion to Dismiss the Indictment and Exhibit A: Adam Pidel’s same-night testimony to Maryland State Troopers:

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

Just FYI, let me just note that there appears to be an issue with me getting “unsubscribed” from the comments with some frequency. When this occurs my response time to new comments is obviously extended. Eventually I notice and resubscribe, and at that time catch up with the comments I missed in the interim.

–Andrew, @LawSelfDefense

If he wasn’t alone, then he can’t retreat. He is not required to retreat and leave another innocent person in danger as he “stands in the shoes” of the person he’s defending.

    I think you can argue that driving away from the site of the original altercation does consititute a retreat.

    He drove away until Harvey’s driving became so unpredictably dangerous that it risked his children’s lives to retreat further.

    “If he wasn’t alone, then he can’t retreat.”

    But of course, he COULD retreat–if Walker drives off in the minivan, his family inside naturally comes along for the ride.

    ” . . . as he “stands in the shoes” of the person he’s defending.”

    That hasn’t been the law in Maryland since at least 1982, Alexander v. State, 447 A.2d 880 (MD Ct. Spec. App. 1982), http://is.gd/OjasTd.

    Maryland now applies the “reasonable perception” standard, conditioned on the intervenor actually witnessing the assault he steps in to defend against.

    –Andrew, @LawSelfDefense

    If he wasn’t alone, then he can’t retreat. He is not required to retreat and leave another innocent person in danger as he “stands in the shoes” of the person he’s defending.

    This is much better than the case law in Massachusetts in the early ’80s, when a man was convicted for not retreating from his home and leaving his sleeping daughter to the depredations of a home invader, a case I followed in The Boston Globe. At least back then, the prosecutors, at least in the Boston area, and the state courts all the way up to their supreme court hated self-defense with a burning passion.

      Wow. Scary thought. He was expected to flee, leave his daughter to be raped or killed or both in her own bed, and not instead fight and perhaps kill the intruder of his home ?

      Sadly, that doesn’t even surprise me as ‘being the law’, especially in S***holes like MA.

        I think the case Lina Inverse is actually thinking of is Commonwealth v. Shaffer, 367 Mass. 508 (1975) (http://is.gd/hLCffp). The facts are even worse than described–abused mother with her two kids hiding in basement, abusive spouse threatening to come downstairs and kill her and the kids if she doesn’t come up voluntarily. She tells him she’ll shoot him if he comes down the stairs. He does, she does, He’s dead.

        She’s arrested, charged, indicted, convicted, affirmed on appeal.

        Worth reading the case.

        The response from the legislature was pretty quick though, passing a statute that explicitly removed the duty to retreat when inside one’s home, MA version of the Castle Doctrine. MA Ch. 278 §8A. Killing or injuring a person unlawfully in a dwelling; defense (http://is.gd/MAT5Al).

        It’s worth keeping in mind, however, that although every state has some version of the Castle Doctrine, numerous of them DO have an exception when the person attacking you is a co-dweller in the “castle”. In that case, both parties still have a duty to retreat–so, really, no Castle Doctrine in that co-dweller context.

        –Andrew, @LawSelfDefense

          Why wasn’t her retreat to the basement considered to have satisfied her duty to retreat? Moreover, once retreat is impossible (she can’t leave the basement) I thought that, even in MA, you no longer have a duty to retreat. What happened here?

          tom swift in reply to Andrew Branca. | February 27, 2014 at 3:36 pm

          Yes, Castle Doctrine does hinge on the idea that an intruder in your castle can be safely assumed to be up to no good. But that can’t apply to anyone else who is as entitled to be in the castle as you are, since he’s not an intruder.

          Lina Inverse in reply to Andrew Branca. | February 27, 2014 at 5:07 pm

          Ah ha! I had heard about that case, but as “a woman in basement apartment with high windows”, not the additional details.

          No, the case I’m referring to happened after the MA courts judicially nullified a law the legislature passed, maybe the very one passed in reaction to this atrocity (and was she released after the law was passed?). Or another; as I recall (my source for this would be the GOAL newsletter), the courts and the legislature went through several rounds of this, the last I remember was if your name wasn’t on an apartment lease, you had a duty to retreat from your dwelling.

          This case was most certainly in the ’80s, early ’80s as I recall, since that was when I was reading an office copy of The Boston Globe. The only further details I can remember is that I think he, a father, not a mother, was convicted of manslaughter (I’m a bit fuzzy on that), and he used a .22 LR rifle to defend himself and his daughter.

          Take this sort of thing seriously; you can be 100% morally and legally in the right, but if your judges are not friendly to self-defense, as my home state’s Missouri Plan selected judges aren’t, you may find yourself convicted even if the law is crystal clear. Also beware of bad prosecutors; for a time there was a Massachusetts county DA, maybe became the state AG, who it was reported always filed first degree murder charges in self-defense cases, “the jury will figure it out”. I think he was of the ones who abused the Amiraults….

          Moving out of that fever swamp back to home, our Castle Doctrine has been judicially nullified, per the Vilos’ Self Defense Laws of All 50 States. As of the 1st edition of that invaluable book, the law was so weird you could use lethal force in Castle Doctrine style while someone was forcing their way into your home, but once they got in normal self-defense rules applied. And per that book, we’d best to assume Missouri is a duty to retreat one, again due to the law and case law being a muddle.

I’m going to go with the imperfect defense of others. His duty to retreat was reduced by the fact that he was defending his family, and not solely himself.

Defense of another person is a complete defense, and you are required to find the defendant not guilty, if all of the following four factors are present:

(1) the defendant actually believed that the person defended was in immediate and imminent danger of death or serious bodily harm;
(2) the defendant’s belief was reasonable;
(3) the defendant used no more force than was reasonably necessary to defend the person defended in light of the threatened or actual force; and
(4) the defendant’s purpose in using force was to aid the person defended.

In order to convict the defendant of murder, the State must prove that defense of another person does not apply in this case. This means that you are required to find the defendant not guilty, unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of complete defense of another person was absent.

Jury instructions obviously.

Humphrey's Executor | February 27, 2014 at 7:56 am

If the jury finds he had a subjective honest belief of that he needed to protect others, that is “imperfect” defense of others and reduces a murder charge to voluntary manslaughter.

The defendant has the burden to produce “some evidence” of self-defense. I would guess that is the key phrase.

Richard Aubrey | February 27, 2014 at 8:09 am

Seems to me that, if driving off is a valid avenue of retreat, it would also defend his family who are in the car. So he’s not leaving anybody behind.
Or, if not, not.

The only possibly relevant factor is defense of others, which I blew because only after an hour of reading (and reviewing the comments) did I realize the shooter was not travelling alone.

Except it can’t be that – wasn’t the attacker unarmed? He doesn’t really pose a threat to a locked car with the keys and a potential driver in it.

Not only that, but it’s a pretty clear case where it’s almost a mutual-combatant situation, since the shooter and the attacker both stopped by the side of the road after several aggressive interactions.

So my though is either Sean wins or we’re getting trolled. =P

Richard Aubrey | February 27, 2014 at 8:38 am

JWB. My question is whether it is reasonable to think driving off is a valid avenue of retreat since Fat Guy also has a car which he has used with near-murderous recklessness.
Say, for example, Fat Guy gets out of the car and advances twenty feet before the cop thinks there’s a problem. Cop jumps into his van and off he goes. Fat Guy has to retrace his twenty feet–no time at all–to get back in his car. So now they’re going fifty miles an hour in ton-plus vehicles.
How does that prospect strike the cop as a valid avenue of retreat? More to the point, the jury….
Now, let’s presume Fat Guy gets a lot closer before the cop decides there’s a threat and tries to get into the car and get going. How long is that going to take–seconds–compared to how long until Fat Guy is on him?
Figure that going forward is the nearly instinctive thing, but Fat Guy is in the way and avoiding pedestrians is also nearly instinctive. So there’s an instant’s hesitation before he reverses, hoping not to hit anybody or swerve into traffic, a function of how he left the wheels cocked when he stopped.
He either takes time from his fleeing/retreating to find the proper button to lock the doors–Fat Guy gets closer and maybe before the cop gets the doors locked–or he starts off and the doors aren’t locked automatically for a couple of hundred yards so Fat Guy, should the car be slowed for something, can open the door.
In the latter case, presuming Fat Guy is defeated by the speed of the cop’s hypothetical move, he has to run back maybe fifty yards to regain his vehicle and presumably–the cop may reasonably think–continue the deadly road duel.
IOW, no indication that attempting to drive off would absolutely work, and no indication that successfully driving off would end the problem.

    Vancomycin in reply to Richard Aubrey. | February 27, 2014 at 8:48 am

    Further, driving off in that manner endangers not just the cop and his family, but anyone else on the road near them *and* the fat guy. That’s a no-win situation.

      Phillep Harding in reply to Vancomycin. | February 27, 2014 at 3:04 pm

      Sounds likely. Can’t understand the down thumb.

      Could whoever down thumbed the comment explain why, please?

        I can’t speak for the “downees”, but it does seem that the idea that Harvey should be shot to death because he might in future cause a traffic accident is not an easy one to take seriously.

        Particularly when Walker himself doesn’t seem to have been a candidate for “Safe Driver of the Month”.

          Phillep Harding in reply to tom swift. | February 28, 2014 at 3:46 pm

          Endanger those near by: I took to mean those in cars going by the scene, especially if Walker was distracted by Harvey trying to jump in front of Walker. The previous poster also mentioned Harvey being endangered by Walker trying to drive away (in a forward direction). Hey, the cops nail people for it.

          But, if Walker started backing and Harvey turned to get back to his car, Walker could put the van in drive and get by while Harvey isn’t looking. Probably.

    tom swift in reply to Richard Aubrey. | February 28, 2014 at 6:40 am

    IOW, no indication that attempting to drive off would absolutely work, and no indication that successfully driving off would end the problem.

    You seem to be reasoning that, as there was no guarantee that retreat would resolve the entire situation, it was reasonable for Walker to shoot Harvey to death.

    I don’t think one has to be in Maryland to find that train of thought unconvincing.

    For one thing, no long-term solution is implicit in the concept of retreat. Retreat is a merely tactical move, an immediate response to a immediate threat of serious bodily harm.

These all apply in this case; the defendant would have reason to believe his family would be left in danger were he to have retreated:

1) the defendant actually believed that the person defended was in immediate and imminent danger of death or serious bodily harm;
(2) the defendant’s belief was reasonable;
(3) the defendant used no more force than was reasonably necessary to defend the person defended in light of the threatened or actual force; and
(4) the defendant’s purpose in using force was to aid the person defended.

    tom swift in reply to Weisbrot. | February 27, 2014 at 10:03 am

    Harvey may well have been terminally peeved at Walker. That in no way implies that he was even annoyed with anyone else. It’s not reasonable to assume a deadly threat was imminent to anyone except, possibly, Walker.

I guess he could say he was in imminent peril.

“[I]f the peril of the defendant was imminent, he did not have to retreat but had a right to stand his ground and to defend and protect himself.” Bruce v. State

The off duty cop pulled over but the big boy continued his aggression. With a choice between a personal altercation (in which the officer has the upper hand because of his gun), and getting back in the car to continue jousting with the big fella and his buddy (putting his family at risk), his decision to shoot makes a little more sense.

Seems to me, that the hypothetical “reasonable person”, would do well to stay the hell away from Maryland.

I do think that’s the teachable moment in all this.

You’re welcome! 🙂

I think Walker’s attorneys gave this to Andrew so they could take advantage of all the excellent points made on LI. I imagine many of these points will be made during the trial. Not being a lawyer my reaction to the “duty to retreat” is an order to act like a coward and not defend one’s family. Didn’t Harvey have duty to retreat, also?

    Oh, of course. Defense attorney Curlett was quite explicit about their interest in the comments to these posts, as well as the posts themselves, as they felt it gave them insight into how non-lawyers (e.g., a jury) might perceive the facts and law.

    Naturally the State prosecutors are also welcome to peruse Legal Insurrection for insight into how a jury might think. 🙂

    As for Harvey’s “duty to retreat,” its irrelevant in this context. It is Walker who is on trial and seeks to make use of the defense of self-defense, which in MD carries the legal duty to retreat.

    Harvey, as we know, will not be coming down for breakfast.

    –Andrew, @LawSelfDefense

[I]n order to justify or excuse the killing of another on the ground of self defense, it is necessary to establish that the defendant
* * *
believed at the time he was, or a person close to him or some close relative, was in immediate danger of losing his or her life, or suffering serious bodily harm and believed it necessary in the protection of that life of another to save that person . . . .

Don’t see anything in there about any of those others (family or not) needing to retreat.

    “Don’t see anything in there about any of those others (family or not) needing to retreat.”

    Close, but not there yet.

    None of the passengers in the minivan would have had a legal duty to retreat in any case, as none of them used or contemplated the imminent use of deadly defensive force against another, which is what triggers the duty.

    –Andrew, @LawSelfDefense

      Walker’s duty to retreat ended when the actions necessary to continue retreat rose to the level of immediate fear of death or serious bodily injury to his family. Further flight in his vehicle would have put them in possible lethal danger, a fact that would have been known to Walker as a police officer. A large number of vehicle chases end in death or serious bodily injury to the participants and to innocent bystanders. Walker retreated as far as was practical and then fought only when held at bay by the aggressor.

        How would Walker driving away from a Harvey and Pidel afoot be any more dangerous than any other kind of driving? It’s just driving, no? I seriously doubt either of them could maintain a pace on foot of even 15 mph over any meaningful distance.

        Are you presuming that Harvey would have returned to his car and resumed the vehicular pursuit? But that’s just speculation, right?

        An attacker can ALWAYS hypothetically resume their pursuit of the person retreating, but such speculative possibilities don’t keep MD from imposing a duty-to-retreat.

        –Andrew

          Andrew, what about the situation where the pursuit no longer is hypothetical, but actual. For example, a person is in the process of retreating from the dangerous situation, but the aggressor continues pursuit. Now that person has fulfilled their duty to retreat, but the situation, being pressed by the aggressor, now requires action on the part of the defender to end the pursuit in a manner which protects themselves, and any third party they fear are in danger. Would this qualify as meeting the standard, yet still enable the self defense claim?

          “Now that person has fulfilled their duty to retreat, but the situation, being pressed by the aggressor, now requires action on the part of the defender to end the pursuit in a manner which protects themselves, and any third party they fear are in danger. Would this qualify as meeting the standard, yet still enable the self defense claim?”

          There seems to be a notion that the duty-to-retreat is a check-box–once it’s been done it’s taken care of, the duty has been meet, and retreat is no longer required.

          That’s not how it works. So long as there is a continuously available avenue of safe retreat you are required to take advantage of that avenue of safe retreat before you use deadly force against another in self-defense (in a duty-to-retreat state, of course).

          The duty-to-retreat is a policy statement by the jurisdiction that the are going to force you to retreat before they will sanction your use of deadly defensive force. Period.

          Naturally, the circumstances could change such that an avenue of retreat that was once safe no longer is. You may grow physically weary, for example, or twist an ankle or encounter an obstacle, or your attacker may put on a burst of speed you can’t match, or any number of things that would result in the lose of your safe avenue of retreat.

          And once the safe avenue of retreat is gone, so is your duty to retreat.

          But as long as that safe avenue of retreat exists, so does your duty to take advantage of it before using deadly force in self-defense.

          –Andrew, @LawSelfDefense

        A large number of vehicle chases end in death or serious bodily injury to the participants and to innocent bystanders.

        But not as many as close-range gunfire.

          Yes, but that’s the dead guy’s problem. It is not Walker’s duty to preserve his life at the immediately apprehended danger of death or serious bodily injury to himself, his family, or innocent bystanders.

          Of course, Maryland appears to believe the reverse. Remind me to stay out of that state. Can’t someone appeal to the federal courts and get a federal ruling against forced retreat? Stand your ground is settled federal case law.

          tom swift in reply to tom swift. | February 27, 2014 at 10:51 am

          Of course, Maryland appears to believe the reverse.

          Yes, and that’s the whole point. Speculations about how it might be somewhere else, or how it might be in some imaginary Maryland, are of no significance so far as this case is concerned.

          Stand your ground is settled federal case law.

          ???

          Yes, didn’t you know? Duty to retreat was never part of Common Law. It was an abberation dragged into law by the Model Penal Code. Stand your ground was affirmed in 1921, in Brown vs. United States. There were earlier cases that said the same thing.

          The charged crimes against which someone would raise a legal defense of self-defense–meaning murder, manslaughter, assault, battery, brandishing, etc.–almost always arise under state law, not Federal law.

          So few cases of self-defense arise under Federal law, and generally only to such rarified classes of people, that I don’t even bother covering it.

          –Andrew, @LawSelfDefense

      The 3-year old in Walker’s SUV can’t drive away. Probably can’t even close the door to the SUV. Certainly has no chance of physically subduing Harvey. Harvey has made “physical threats” against the 3-year old, and is approaching the driverless SUV in a threatening manner. Would the 3-year old be reasonably justified in defending himself? If so, then the defendant can assert defense of another, and his own duty to retreat goes out the window.

        “The 3-year old in Walker’s SUV can’t drive away. Probably can’t even close the door to the SUV. Certainly has no chance of physically subduing Harvey. Harvey has made “physical threats” against the 3-year old, and is approaching the driverless SUV in a threatening manner. Would the 3-year old be reasonably justified in defending himself? If so, then the defendant can assert defense of another, and his own duty to retreat goes out the window.”

        Ding-ding-ding! This one is close enough to be the winner, although the rationale is overly complicated, the bottom line conclusion is correct.

        Walker can, indeed, “assert defense of another, and his own duty to retreat goes out the window.”

        The reason isn’t a complicated one based on the particular facts of this case, however, but a simple one based on state law.

        Simply put, although Maryland includes the legal duty to retreat as an element of “defense of self”, it does NOT include the legal duty to retreat as an element of “defense of others”. As a matter of law then, to the extent that Walker used deadly defense against Harvey in defense of his family (the “others”) he had no legal duty to retreat.

        Now, that does NOT mean that his failure to retreat can not be used against him. Not having a legal duty to do something doesn’t mean that your failure to nevertheless do it wasn’t terribly unreasonable. A jury could well decide that Walker had the opportunity to avoid the use of deadly force, and that his use of deadly force was therefore unnecessary and unreasonable.

        While defense of others may not include the duty to retreat as an element, it certainly does include reasonableness as an element, and a failure on reasonableness would doom the defense of others claim just as would a failure on retreat doom the self-defense claim.

        In the context of the legal duty to retreat, however, the jury would have been told that if Walker failed to take advantage of a safe avenue of retreat they MUST NOT CONSIDER his use of force as self-defense. Absent the duty, the issue of retreat is just another among many issues that the jury can consider and give whatever weight they decide is appropriate.

        OK, cjparks, get me a mailing address and let me know whether you prefer the autographed LOSD book or the snazzy LOSD ball cap. 🙂 If you are on Twitter let me know your handle and we can DM address info that way. Alternatively, I’m open to suggestions.

        –Andrew, @LawSelfDefense

          Ragspierre in reply to Andrew Branca. | February 27, 2014 at 12:05 pm

          But, given my reading of the cases cited in your citation, Andrew,…

          THAT is a very weak reed. Or “read”.

          Seems to me.

          It may, given all the circumstances, be all the defense has, however.

          Whippersnapper in reply to Andrew Branca. | February 27, 2014 at 2:08 pm

          I think it would be a stretch to convince a juror that the deceased individual was evidencing a desire to “kick the 3-year old child’s butt” (& thus creating the exception to the responsibility to retreat) instead of a desire to have words with or fight with the NJ cop driver.

          So, while this could be a theoretical “out” allowing self defense without the need to retreat in this case, as a practical matter it’s not going to fly.

          Ragspierre in reply to Andrew Branca. | February 27, 2014 at 2:23 pm

          You get to argue whatever the evidence supports.

          At this juncture, there is no evidence supporting this theory.

          Again, seems to me…

          tom swift in reply to Andrew Branca. | February 27, 2014 at 3:47 pm

          Oh man, when does the merely flimsy become outright sohpistry?

          Particularly when no 3-year-old was threatened. People who are enraged at lousy drivers are not generally enraged at 3-year-olds; certainly not 3-year-olds who aren’t driving.

          Well, sophistry isn’t the issue. The only issue is what will fly in Maryland.

          tom swift in reply to Andrew Branca. | February 27, 2014 at 3:49 pm

          “Sophistry”.

          Even spellcheck seems stunned by this reasoning.

          JackRussellTerrierist in reply to Andrew Branca. | February 27, 2014 at 9:10 pm

          If Walker could have retreated, then his family would have automatically done bin ‘retreated’ also. I think the circumstances in the case cited are distinctively different enough from the circumstances in the Walker case as to render it irrelevant.

          Holy cow! I never win anything!

          I sent my info to you via the “Contact Us” form on the LoSD web site. Hopefully that works.

          One thing I’m not really clear on is whether the prosecution can argue that by pulling over and getting out of the car, Walker put his family “in harm’s way”. Because his actions placed them in the scenario requiring him to come to their defense, does that somehow invalidate his claim to defense of others?

at this point I am actually a bit more interested in the motivation of the state trooper involved.
there any history between this trooper and this NJ cop or his office?

My reading of the Pidel statement tells me several things that REALLY don’t help our LEO. As I said the other day, he was not a “law-abiding citizen”.

And my reading of some of the comments tells me some of you have a bright career as fantasists ahead of you.

Gloryowski…!!!

As an aside, if this was brought before me as a juror, and there wasn’t clear evidence that Walker was completely at fault, it vote not guilty and damn what the law said.

You chase a man and his children and wife, put them in lethal danger, you deserve to catch a bullet. If the law says otherwise then the law is wrong.

    “You chase a man and his children and wife, put them in lethal danger, you deserve to catch a bullet. If the law says otherwise then the law is wrong.”

    And it’s your privilege to hold that opinion, which I’m sure is shared by many.

    Nevertheless, “wrong” laws put people in jail for long periods of time just as effectively as do “right” laws. I know, I get the letters.

    –Andrew, @LawSelfDefense

I don’t see much in there which might help Walker out.

To the contrary: Neither the judge(s) nor the jury seemed to find a violent and drug-soaked weirdo brandishing a knife to be an imminent deadly threat to anybody, at least of the sort which would justify forcible defense. It looks like when they say “imminent” in Maryland, they don’t mean a likely threat, they don’t mean an almost certain threat, they mean a threat which is a few milliseconds from becoming an actual, genuine, add-another-one-to-the-statistics deadly assault.

In Maryland, is the duty to retreat abrogated when the victim fails to retreat in a dangerous situation when the return to the scene as an aggressor?

“Before Loubier’s truck had come to a complete stop, Comploier ran up to it and opened the driver’s side door, yelling to Loubier that he needed his knife. Comploier grabbed Loubier’s three and one-half inch blade folding knife from the console next to the steering wheel and, with the knife in hand, started back toward Millender and the appellant.”

At this point in time, couldn’t Comploier have gotten in the truck, and had Loubier drive him away?

Instead, he returned to the scene as an aggressor. Would this mitigate Millender and the appellant from responsibility to retreat?

    Paul in reply to Paul. | February 27, 2014 at 10:21 am

    If so, wouldn’t this same principle apply in the Walker case, when Harvey didn’t retreat but became the aggressor?

    tom swift in reply to Paul. | February 27, 2014 at 11:00 am

    In Maryland, it appears that the only thing which removes the responsibility to retreat is the actual impossibility of retreat. In other words, if you can, you must.

This question may have been answered (sorry I haven’t had time to carefully read everything about this case you’ve written this time), but how can someone “retreat” on a one-way highway when the person or vehicle they have to retreat from is in front of them?

    Unless the path is blocked, an egress is available, in spite of traffic control signs.

    tom swift in reply to janitor. | February 27, 2014 at 10:55 am

    Most of the witnesses seem to have been driving past the scene of the incident either during or immediately after. If witness can get past two stopped cars, Walker would have been able to get past one.

      janitor in reply to tom swift. | February 27, 2014 at 11:50 am

      So he would have had to start his vehicle, then merge into traffic, and then drive toward and past an enraged a-hole who already threw something at his car — exposing passenger side windows with wife and kids to that person — in what would be an evasive action rather than a retreat? Is that the law? That “retreat” means clever evasive action? What if it was an elderly woman?

      Possibly, but can Walker merge into traffic and bypass both Harvey and his car “in complete safety” – i.e. without potentially causing a serious traffic collision. A “safe avenue of retreat” doesn’t just mean “safe from your attacker.”

      Bear in mind that it’s not just Walker’s safety at stake, but his wife’s and child’s who are in the car as well.

      Also, if Harvey were to simply step in front of Walker’s vehicle, that’d make the “retreat” action into attempted vehicular homicide. I imagine it’s decidedly harder to justify self-defense when you’re using a car as a defensive weapon against an unarmed man; no matter how much bigger than you he is, he’s not bigger than your car.

        tom swift in reply to Archer. | February 27, 2014 at 3:59 pm

        I imagine it’s decidedly harder to justify self-defense when you’re using a car as a defensive weapon against an unarmed man

        Can’t hold a candle to putting three bullets into him.

        Even if Harvey died of injuries caused by a low-speed collision, that would be a radically different trial from the one we’re seeing here.

      MouseTheLuckyDog in reply to tom swift. | February 27, 2014 at 3:44 pm

      You mean the witnesses that Harvey was not showing any aggression towards?
      So because vehicles that Harvey is ignoring can pass safely we are to assume that vehicle that Harbey is taking notice of can pass safely too?

        Maryland law doesn’t seem to specify that the line of retreat must be an easy. You can’t shoot somebody just because you would find it more convenient than retreating.

I note that both the referenced case and this case mention that the jury was not informed of the attacker’s inebriation/intoxication state. Is this the issue you are talking about?

    In the referenced case, that may have been a mitigating circumstance in the consideration of one’s duty to retreat. But I am not aware that intoxication was a factor in the Harvey/Walker case. Am I mistaken in this regard?

      rorschach256 in reply to Paul. | February 27, 2014 at 10:56 am

      He had been drinking all afternoon and If I recall correctly was well over .08 BAC at the time of his death.

        I agree with rorschach.

        JackRussellTerrierist in reply to rorschach256. | February 27, 2014 at 12:02 pm

        Is the defense saying Harvey had been drinking all day, or is there an admissible statement from Pidel (or someone else) saying this based on a BAC report from the ME?

        JackRussellTerrierist in reply to rorschach256. | February 28, 2014 at 12:53 pm

        The whole .08 thing is a one-size-fits-all legal construction fixing a level at which somebody is considered too intoxicated to safely operate a motor vehicle, large equipment, etc.. It doesn’t mean they are “drunk”. We all often call people who are charged with driving while intoxicated as having received a “drunk driving” charge, but that’s just popular shorthand for the charge. A seasoned drinker, who passes a roadside sobriety test but blows a .11 is probably a safer bet on the road than the little old lady at .04 after sipping her two little snifters of sherry at her Christmas bingo party or the 18 yr.old rocket jockey punk blowing a .06.

Walker did not have the option to retreat. Had an attempt made at that point of imminent danger, Walker likely would have been injured or killed by Harvey.

Id. at 681-82, 759 A.2d 764.

In the instant case, defense counsel’s argument that Comploier would have stabbed the appellant had he not defended himself clearly was permissible. The State did not object to this line of argument and the defense counsel made it at several times. The argument at issue, however, went one step farther and suggested that Comploier easily could have been the one charged with murder and the appellant’s family could have been grieving for him. We find no abuse of discretion in the court sustaining objections to this portion of closing argument. In any event, we agree with the State that no harm resulted as defense counsel continued to make the same argument, in slightly different form, after the court ruled.

V.

    JackRussellTerrierist in reply to benphillips. | February 27, 2014 at 12:37 pm

    Walker could have best retreated by not stopping at all. All he had to do was slow down and call 9-1-1. Pulling over and stopping, with Harvey still in such close proximity, sounds to me like somebody seeking an altercation. If he originally stated he wanted to check for damage from a thrown bottle, it doesn’t pass the smell test for somebody wanting to avoid trouble with Harvey still so close. Walker is a seasoned peace officer who knows how hot heads behave. Flashing his gun and badge tells me he was trying to intimidate/escalate. While that isn’t completely relevant to the shooting after they both were stopped, it tells me that Walker was not in a “retreat” mode relative to his state of mind when he stopped and then shot Walker.

      The initial reporting in the Annapolis, MD newspaper gave witness accounts of Walker being a participant in the road rage by swerving towards Zharvey ‘s car. A defensive move? Also this went on for a few miles before either stopped

        Ragspierre in reply to MarkS. | February 27, 2014 at 2:28 pm

        Again, you ignore the Piden statement.

        He was still within sight of the WaWa at which he and his driver had stopped.

          Believe me the nearest WaWa to the shooting scene is approx 1.5 miles away and would require the casual observer to have the ability to see through a hill and trees to gaze upon it. Why do you put Piden’s statement above all else?

          Ragspierre in reply to Ragspierre. | February 27, 2014 at 4:46 pm

          Dunno. Could be that he was there, the whole time. Sorta counts to me. Seemed to count with the defense team, since they used his statement liberally, if predictably selectively.

          He certainly seems a credible witness, though I am not imbuing him with infallibility.

      That’s been the thought that has been nagging me all along. Mr. Walker is a peace officer. I’ll presume that he’s a reasonably experienced driver. He slows down to a little below the speed limit, keeps the car in the middle of his lane, and calls — or has someone else in the car call — 911. He explains the situation and does as instructed by the dispatcher. He’s a peace officer, he knows how to talk with dispatchers.

      Do that and there’s very likely no confrontation. If there is a confrontation after all (the other guy drives up to cut him off, for example) then he’s been on the phone to the police, who are coming, and who are aware of at least part of the situation.

      Unfortunately, I read this whole situation on the evidence presented so far as two guys wanting a fight, and if I’m on the jury, I find the survivor guilty.

I’m going to say the issue in Lee was the defense of others — translating not to Walker’s family but to other drivers on the road. If he had retreated to his car and fled, Harvey may have resumed the pursuit and thereby endangered the lives of other people on the road, as he had already demonstrated he was willing to do. This, combined with Harvey’s intoxication, could relieve Walker of his duty to retreat.

We have Pidel’s description of Fat Guy as one who would finish a fight. That’s likely to be introduced, now that the prosecution has been forced to divulge it. (Did I say before that withholding exculpatory evidence should be a capital crime?)
So the idea that Fat Guy would get back in his car and continue the road duel is not far-fetched, considering he’d started it.
Whatever the law says, the prosecution jumping up and yelling “Speculation!” isn’t going to unring the bell, nor would it have to, the idea already occurring to the jurors.

    considering he’d started it.

    He did?

    There seems to be little dispute that the first instance of crappy and inappropriate driving in this miserable incident was Walker’s.

    JackRussellTerrierist in reply to Richard Aubrey. | February 27, 2014 at 1:17 pm

    And we know Harvey started…..how? By giving Walker the finger? We know Harvey started the swerving…..how? Or did Walker start it in response to be given the finger?

    We just don’t know. Harvey should have just let the incorrect turn Walker made in front of him go even though Walker’s turn forced him onto the shoulder. When Harvey caught up to Walker, all Walker had to do was wave, mouth “sorry” and all would have been well. For anyone to claim Walker didn’t participate in escalating the situation rather than defusing it as a professional peace officer would do is just wrong, IMO. Although that portion of the debacle isn’t completely germane to what happened next, jurors will look at his behaviors as they telegraph Walker’s state of mind when he fired, which is relevant.

Uh-oh, the Motion to Dismiss has some goodies, doesn’t it?

from the witness accounts it looks like Harvey dropped somewhere around thirty to fifty feet from Davis’s car. But the trooper reported about six feet. Defense wants the shorter distance to be the official or “factual” one, even while trying to rubbish the trooper’s other statements, and to claim that the witness estimates are “clearly factually incorrect.”

Witnesses can confuse a great many things, but confusing 6 and 30 foot distances is quite a stretch. I’m starting to suspect that Walker moved his car before the police arrived.

    tom swift in reply to tom swift. | February 27, 2014 at 4:07 pm

    Oh, even better. It looks like witnesses said 30 to 80 feet (approx). People are not too good at estimating distances, but this one isn’t hard. Six feet is the size of a bed, thirty feet is the size of a house. All the state has to do at trial is show the witnesses a crime scene photo of Harvey lying six feet from Walker’s car, ask them if that is what they saw … and Walker is cooked.

      tom swift in reply to tom swift. | February 27, 2014 at 5:53 pm

      Pidel’s statement says, variously, six, eight, or twelve feet, which certainly isn’t 30 or 50 or 80. But Pidel also said something about Walker retrieving the gun from the van when Harvey was about “half that distance”, but doesn’t really specify what distance he’s talking about. But in any case, he doesn’t verify the witnesses who talked about greater distances.

        JackRussellTerrierist in reply to tom swift. | February 28, 2014 at 3:47 am

        If the witness accounts are fairly consistent as the distances between Harvey and Walker when Walker fired are consistent to the extent it was not 6′, then Walker had to have moved his vehicle forward. Consciousness of guilt? Trying to hide the true facts to make it look like Harvey was in imminent danger?

    MouseTheLuckyDog in reply to tom swift. | February 27, 2014 at 4:53 pm

    There were six partial witnesses. Probably several people passing by after the fact. Plus Pidel and Walker managed to move the van without being seen.

    Really?

Tom Swift.
It would be necessary to prove the cop cut off Fat Guy on purpose.
Lane changes and such like which are annoying to other drivers happen all the time.
It is rare that the offended takes it to this level. So, yes, Fat Guy started the duel. He had the option to mutter under his breath and continue going to wherever he was going.
Happened to be in a city for a week which is full of wealthy, older citizens. First time I’ve seen three (3) turn lanes from one road to another. Two are not common. People can make mistakes. That’s not the same as starting a murderous road duel.
Again, looking at it from the jurors’ point of view. “I’ve been cut off by the clueless or the buttheads. I’ve muttered a prayer for his soul. I didn’t try to start a fight. And when I’ve screwed up, the other party didn’t attack me, either.”
Now, if we have Walker quoted by, say, his wife, as saying, “Watch me cut this cracker off,”, you might have a point.

    tom swift in reply to Richard Aubrey. | February 27, 2014 at 4:09 pm

    It would be necessary to prove the cop cut off Fat Guy on purpose.

    Not at all. One can start an unpleasant incident by accident or clumsiness. No malice required. The incident has been started, nonetheless.

Potential loopholes against the duty to retreat I can think of but don’t have the legal background to evaluate:

1) While Walker could have retreated with his family by driivng away when Harvey first got out of the car, from what you say above, by the time Walker shot Harvey, it was too late to retreat by driving off in the car and therefore too late to retreat safely?

2) Retreating in the car might have required breaking traffic laws; does Maryland case law require you to break the law in order to retreat, if you can otherwise retreat safely?

3) If Walker was concerned about damage to his car, he may not have *known* whether or not he could retreat safely; is he required to make the attempt?

3a) If Walker’s car is damaged, driving it endangers third parties (i.e. not just his family, but people in other vehicles not currently endangered by the confrontation); is he required to do so?

4) Maryland does appear to have a castle law, and some jurisdictions treat cars as homes; could that be construed to apply, if Walker waited to shoot until it was too late to drive off?

5) Given the case you cite and the initial altercation, it appears Harvey was drunk and dangerous and allowing him back on the road driving a 2500 pound weapon was ITSELF a threat to Walker and his family and arguably to everyone else on the road? (I.e. even if Walker knew his car was fit to be driven, being pursued by Harvey endangered his family and to a lesser extent everyone else around.)

Personally, I wouldn’t over think the defense on this. While juries are notoriously ill-informed concerning the law, even after jury instructions, all that is necessary here is to convince the jurors that Walker was the victim of unrelenting aggression which it had proven nearly impossible to escape and that any reasonable man would have responded in a similar manner to protect his family and his person. This is going to be a “presentation” case.

The points at issue are simple. Harvey became enraged at Walker, a person whom he did not know. He pursued him, and his family, for several miles, while operating his [Harvey’s} vehicle in a reckless and dangerous manner, at the least bordering upon vehicular assault if not constituting it. Walker attempted to evade and made no similar attempt to assault Harvey. Walker attempted to warn Harvey off by displaying a handgun, while driving. This was clearly seen by Pidel and therefor should have been equally visible to Harvey. Yet, Harvey continued to pursue Walker. When Walker pulled over, Harvey pulled over and both he and Pidel got out of their vehicle and advanced upon Walker, who was now standing outside his vehicle, in which his family was seated. They did this even though they knew Walker was armed, having previously seen the handgun displayed. Walker identified himself as a law enforcement officer and the pair continued to advance in an obviously threatening manner. Walker reached into his vehicle and again produced a recognizable handgun, the display of which caused Pidel to stop his advance. Harvey, who is can easily be assumed also saw the handgun, continued to advance. Harvey was then shot once in the thigh. He did not go down. He may have continued has advance upon Walker or been close enough, at that point, to represent an imminent threat. Walker, reasonably fearing that Harvey intended to seriously injure him, and possibly kill him, fired two more rounds to stop Harvey. Harvey fell 6-8 feet from Walker’s van, according to Pidel, immediately following the second and third shot. A person, who continues an unnecessary assault in the face of a deployed firearm and, especially, after already being shot, can reasonably be assumed to be homicidal. Whether Walker could, or should, have attempted to continue fleeing is immaterial, here; except to a judge o professional jurist.

Jurors can identify with this scenario.

It will be interesting to see if the defense chooses to adopt this course or if witness testimony and physical evidence, present at trial, would support it.

    Ragspierre in reply to Mac45. | February 27, 2014 at 12:41 pm

    You didn’t read Piden’s statement.

    Or you elect to ignore it.

    My reading of it, if given credence by the jury, is damning.

    “Jurors can identify with this scenario.”

    I can’t.

    Even as a CCL-holding NRA member from a SYG state, I find it very hard to imagine reacting to being hassled by an irrationally short-tempered driver who seems seriously ticked off with me, by pulling over, stopping, getting out of my vehicle LEAVING MY DEFENSELESS BABIES ALONE INSIDE, waiting till he approaches within 6 feet of me, then shooting him dead in front of them. Especially in a duty-to-retreat state. Where my CCL permit is not even valid, so I shouldn’t be carrying a gun anyway.

    Seriously, I don’t know all the facts in this case, so I don’t know whether he’ll be found guilty or not. But if his defense attorney really is reading the comments here, I’ll suggest to him that if he’s going to use the Mac45 defense, he try to stack the jury with testosterone-flooded He Men wannabes rather than calm reasonable Mommas who see all of the grief he could have saved his family if he’d just made a bit more of an effort to de-escalate the situation.

    Look at the position he’s put his poor wife and children — whom he was allegedly all about ‘protecting’ — in now. His little boys’ own adventure is going to cripple them financially, and potentially deprive them of a husband, father and provider for decades now. So whether or not he ends up being found guilty, it was a damned stupid and irresponsible thing for him to have done. And, I think, unnecessary.

After reading Andrew’s first edition many years ago I understood the importance of planning ahead. Because the duty to retreat is critical in many self defense cases I had to protect myself as much as I could.

I have a bad knee that has already gone through surgery once. It is well documented in my medical record that it has a tendency to “lock up” and refuse to bend for several moments. I also have gout in my knees that can go from no pain to severe, crippling pain in a matter of a few minutes. All well documented.

My ability to retreat just may be compromised at any given moment.

For all of us who have had any kind of physical life it is easy to develope an intermittent “trick knee.” Sometimes it works right, other times it just doesn’t seem to function as well as it should. Most of the time the doctor will look at it and say, “be careful.” That’s about it. But you just never know when that trick knee is going to flare up and give you problems.

IF this is documented in your medical records, you never know when it might be useful.

As a side note this is also why I had the doc write me out a prescription for a cane. I understand I can walk into any drug store and buy a cane without question, but I wanted the ‘scrpt for my taxes as a medical expense.

In my case I need it about from 1 to many days a month. In your case you may only carry it because you fear your trick knee is going to act up that particular day. If you happen to need it for self defense purposes, and you happen to be asked just why you were carrying a cane that day, you pull out the ‘script from your pocket that was written several years ago and document that it was medically prescribed and had nothing to do with you walking in the bad side of town without any other means of self defense.

    JackRussellTerrierist in reply to jack burton. | February 27, 2014 at 2:55 pm

    If I were a jury for a trial in which you were the defendant accused of assault or some form of physical violence associated with the use of your cane, I would be quite taken aback that you were carrying the doctor’s note at the ready, as though you were using the note as a “crutch” for the possession of the cane (pun intended). If you produced the note and medical records showing the necessity for the cane at another time, say after the arrest or during if you could call somebody to bring it to the scene, I would not be taken aback. But having the note at the ready strongly suggests your having considered it a potential weapon and intended to use it as such, with the doctor’s note as ‘backup’.

    Just sayin’.

      Jack… thank youy for the comments. I think it would be beyond the abilities of most DAs to tie a note 15 years old in my wallet to a premeditated act of today. That’s a pretty good stretch.

      There is a concept, I believe, in the law that kinda states that if something you fear does indeed come to pass, that you were then justified and right to fear it. If I carry a net with me to protect myself from lions escaped from the zoo, people may look at me as if I were crazy.

      However, if a lion does indeed escape from the zoo and I catch him with my net before he harms anyone I go from crazy to foresightful hero.

      If I stick the ‘script in my pocket because I fear that someday I may be called to account for why I am carrying a cane, and then one day I AM called to account for why I am carrying the cane, then I showed no premeditation to harm anyone… just the foresight to be able to answer a question that WAS indeed asked just as I thought it might be.

      !5 years earlier I had no control over the circumstances in which that question may arise… but my belief can be proven reasonable that it would arise by the fact that it DID arise.

        tom swift in reply to jack burton. | February 27, 2014 at 6:05 pm

        I’m afraid I’m with Mr Terriorist on this one. Carrying old prescriptions around, for fifteen years, no less, would strike me as very odd.

        In your lion scenario, suppose that the lion was loose because someone had tampered with his cage. Investigators wonder who would do such a thing.

        Then they see a guy walking around with a net. Hmmm … escaped lion, tampered cage, a net which just happens to be there … and the whole package smelling like a rat.

    Phillep Harding in reply to jack burton. | February 27, 2014 at 3:22 pm

    Well, there’s a point (having a bad hip), but I think Jack Russell also has a point.

    If you carry one prescription, you’d have to carry all current scripts to lend credence to it being your custom to do so. And laminate them to keep them readable.

    OTOH, you might record your medical records, including prescriptions, on a thumb drive or something similar and carry that. I’m not up on current electronics. Are there fancy cell phones, ipads, kindles, etc that can accept thumb drives or other similar recording mediums?

      MouseTheLuckyDog in reply to Phillep Harding. | February 27, 2014 at 4:01 pm

      When I first got my cane it was a walking stick. Sometime along the way it became a cane. I’ve never had a prescription for it, but am thinking of getting one just to say yes to doctors who asked if It was prescription, instead of going through complicated explanations.

      If you were to carry around your medical records, I think an microSD card would be a better choice. There are lots of phones and tablets that accept microSD cards. not so many accept thumb drives because they are too bulky.

      Also in Chicago the police have a program where they give you a braclet which contains an ID number. On their computer they have first responder information for that ID number.

      If you carry one prescription, you’d have to carry all current scripts to lend credence to it being your custom to do so. And laminate them to keep them readable.

      All prescriptions are not alike. There is no legal, moral, ethical or other obligation to treat them the same. BTW, let me digress for a moment. ALL prescription medicine MUST by FEDERAL LAW be kept in the bottle in which it is dispensed. All these blue haired old ladies playing in the bingo hall with their daily medicine dispensors are all Federal law breakers — every single one of them.

      This is one reason why carrying a prescription with you is not necessary. The info is right on the bottle or package.

      In my case, I fly a bit. I am also kinda hefty, which means I have a hefty cane to support me. Since I don’t always need it, but never actually know from moment to moment when I might need it, it is customary to walk thru an airport terminal perfectly ambulatory while swinging a hefty cane and whistling a tune. While I have never yet been stopped by the JBTs that make up security I know that it is only a matter of time. I need that ‘script to show that, dispirit their objections, it is medical necessity.

        Is it vanity replying to oneself? Just to note that although I take a slightly snarky attitude here towards it, it is not all fun and games.

        My daughter, who loves me very much, won’t let me carry my 8 month old grandson across the room by myself. She has seen me have my knee collapse on me and watched me fall down flat on my face, with everything in my arms scattered. It happened just last week. Scared the carp out of her and my wife.

        So I can sit down and hold my gransson. I can stand and hold him if someone is at my side. But carry him? No. I am not allowed. It’s not a happy place to be in when I am not really that old.

          Gremlin1974 in reply to jack burton. | February 27, 2014 at 4:32 pm

          Let me be clear I was in no way implying, nor would I imply, that you don’t have the physical limitation, I just am one of those close to the vest types. Also, I am that guy from High School that if I tried to pull the crap that other kids did, well I always got caught, lol.

        Phillep Harding in reply to jack burton. | February 27, 2014 at 5:03 pm

        Jake, SEATAC requires people use SEATAC canes to get through the booth and for the customers’ canes to go through the scanners.

        I usually get a lifted eyebrow at how much my (700# rated) cane weighs, then they check my gut and let it pass.

        This one is not a fighting cane, though.

        MouseTheLuckyDog in reply to jack burton. | February 27, 2014 at 6:54 pm

        Actually I don’t think they have to be in the bottle they came in, but you do have to have the label or an RX or something to show
        you have a prescription.

        Most of the time I don’t carry my meds but when I do I don’t worry. I even carry a syringe with some Novolin 70/30. Sometimes even shooting up in public. ( I like freaking out squeamish people. )

        If I ever get arrested for any of it, the first thing I plan on saying is “OK but can you take me to the hospital first, I need to take my meds.Oh and while you’re there you can verify that those are my meds.” That’s what they get for having such a silly law.

          MouseTheLuckyDog in reply to MouseTheLuckyDog. | February 27, 2014 at 6:56 pm

          PS:
          I am not an old blue haired lady. I am middle aged black and grey haired curmudgeonly type man.

          ” I even carry a syringe with some Novolin 70/30. Sometimes even shooting up in public. ( I like freaking out squeamish people. )

          So you, as a presumptive adult, conduct yourself in public with no more common courtesy or civility towards others than, say, a carful of teenagers who get a kick out of blasting their rap music because they like freaking out the old fart in the car next to them? You’re kind of like, what, a white middle-aged version of Jordan Davis, delighting in that adolescent frisson of deliberately annoying the strangers who share your public space?

          Goodness me. Madame l’Etiquette weeps.

          “it is illegal to carry Schedule II or I narcotics, sedatives, etc. in anything BUT the original dispensing container from the pharmacy. ”

          http://community.lawyers.com/forums/t/104451.aspx?PageIndex=1

          Phillep Harding in reply to MouseTheLuckyDog. | February 27, 2014 at 10:09 pm

          I peel the ‘script label off the pill bottle and slap it on either a screw top, nalgene jar or on a plastic ziploc. Nobody has even raised an eyebrow.

    Gremlin1974 in reply to jack burton. | February 27, 2014 at 4:15 pm

    You know, putting your planned ahead medical defense in detail on a internet blog…..probably not the best decision you have ever made.

      If it was actually me posting I’d worry about it. If the PTB want to comb through a couple hundred thousand posts over the years to see what they think I wrote more power to them.

      I would rather help someone else who might need the same solution.

      And nothing changes the facts of what is recorded in my medical record and my physical infirmaries. Some DA may not like what I planned in advance, but it is not against the law to do so.

        Gremlin1974 in reply to jack burton. | February 27, 2014 at 4:30 pm

        No, no I have no problems with planning in advance, its just the little paranoid guy on my shoulder telling me; “don’t tell your plans”, lol.

Richard Aubrey | February 27, 2014 at 3:40 pm

Given what has been told us, I think the prosecution is going to be saying something like,
“The defendant could have retreated by doing [X] which would have only taken ten seconds, and he had a four-second window in which to do it. He could then have driven off and lost Fat Guy by pulling into the next street, which is one way and so Fat Guy wouldn’t have thought to go there.”

As to the character of the jurors: I was a member of the NRA for about a month back when they would sell you an M1 carbine for $20 if you joined. I think that was 1969. Turned out there were about ten million guys in front of me.
I do not talk about carrying or licensing or any of that sort of thing, nor about the sort of weapons I own.
But I am certainly not coming to my conclusion by virtue of being a wannabe shootemupperson.
Walker was minding his own business as he saw it, and whatever he was thinking, it will be tough to get him to admit he pulled over to entice Fat Guy to come after him. The fact that the vehicular duel was the alternative to pulling over is, I think, relevant here, as is the reported demonstrating of the weapon and badge while in the vehicle.
Didn’t stop Fat Guy.

    Ragspierre in reply to Richard Aubrey. | February 27, 2014 at 4:36 pm

    If I read Mr. Piden correctly, there is every likelihood that “Fat Boy” never saw a gun during a very mutual exchange of illegal road rage driving.

    According to what I read, the brandishing of the gun (across the body and face of the LEO’s wife) was done while the LEO’s car was being passed, and behind the vision of “Fat Boy”.

    I recall nothing about a “badge”.

    As I said the other day…the LEO here violated the law, his training, common sense, and any notion of his family’s safety.

    I know from personal experience you CAN break off a road rage incident if you want to. You don’t do it by passing the other “rager” and swerving in front of them. If you are in front, you simply drive. If they are intent on passing, you HELP them pass by moving over AND slowing. If you are behind, you slow down a bit and simply drive.

    I also noted nothing about a “thrown bottle” in Mr. Piden’s account, though I could be mistaken.

    If you stop and get out of your car, you are there for a fist-fight. If you stay outside your car when you see the other driver stopped and getting out of their car, you are REALLY there for a fist-fight.

    OR if you are aware…at some point…you have a gun and you stay outside your car waiting for the other driver to close on you, you are putatively just setting yourself up for a murder charge. SYG or not.

    As with the Martin/Zimmerman incident, the application of just a tiny bit of civil behavior would have avoided an imminently avoidable resort to deadly violence.

      Whippersnapper in reply to Ragspierre. | February 27, 2014 at 4:58 pm

      I agree. Just as two individuals can engage in “MUTUAL combat” so can two individuals engage in MUTUAL road rage. From everything I’ve read, that appears to have been the situation here. But it WAS NOT a mutual shooting–just one of the parties decided to engage in that escalation, and against an unarmed “adversary”.

      Although he sounded very believable, Pidel’s recollection was quite vague in several areas. I think that would be normal considering he was scared witless. Don’t you think a good defense lawyer will exploit those uncertain recollections, and emphasize the drinking, Harvey’s willingness to “finish a fight”, his cussing showing evidence of uncontrolled rage, etc? There are also many people who think being called the “n” word may be justification for shooting someone, regardless of what you or I think. Pidel may well be telling the truth as he knows it, but it seems a good defense lawyer can also make it sound like he’s being loyal to a friend. In other words put doubt in the most important witness’s statement.

        MouseTheLuckyDog in reply to gasper. | February 27, 2014 at 7:41 pm

        Keep something in mind: Harvey was arrested for berating his girlfriend. Pidel is actually a convicted felon for beating his wife.

        These are guys who, I can imagine putting some guy in the hospital for a month and saying they “only roughed him up a little bit”. I can see them saying that and actually believing it.Let me be clear, I am not saying that they are the kind of people who could put someone in the hospital. What I’m saying is that these are the kind of people that could describe such a situation as “roughed up a little bit”.

        IOW he is prone to wild exaggerations to support his friend. I’m also tempted to believe Walker’s wife is prone to exaggerations though much more mild.

        The big thing here seems to be burden of proof which favors Walker.

    Given what has been told us, I think the prosecution is going to be saying something like …

    I suspect the state is going to hit Walker far harder than that.

Charles Curran | February 27, 2014 at 3:49 pm

How do I get to the older comments?

Andrew,can they use the fact that he let an obviously aggressive guy advance on him more than 100 feet and just stood there and waited for him to attack the “reasonableness” aspect of his Self Defense Claim?

Maybe I am giving that one aspect to much weight, but I just can’t get by that point. I mean 158 feet, half of a football field that’s how much distance we are talking and the trained cop just stands there and waits on him. To me that sounds more like just standing there waiting to shoot the guy, let him get past 110 feet then get in the car and drive.

I think I can reasonably argue that Walker wasn’t reasonable to just stand there and wait on the guy to get close, especially since showing his badge and gun hadn’t worked before.

    Phillep Harding in reply to Gremlin1974. | February 27, 2014 at 5:11 pm

    This might be too tricky, but if Walker had trouble getting in and out of the car (and he might, considering what his neck looks like), opening the car door and “starting” to get out would probably lure Harvey out of his car, allowing Walker to drive off while Harvey is sputtering beside the road.

    But, that still leaves the question of Harvey jumping in front of Walker and if Walker is then vulnerable to an assault with a deadly weapon (the car).

    “Andrew,can they use the fact that he let an obviously aggressive guy advance on him more than 100 feet and just stood there and waited for him to attack the “reasonableness” aspect of his Self Defense Claim?”

    Yes, indeed, that’s the heart of the problem. We know that Walker was holding his gun in his hand well before he fired the shot, and can infer that retrieving his gun was the latest moment at which he would have conceived a potential need to use deadly force in self-defense.

    Why, instead of taking out his gun, and waiting for Harvey to walk ever closer, didn’t he simply get back in the minivan, put it in reverse, and role backwards at a sedate 10mph? Even my 16yo son can do that without crashing. Sure, Harvey might have caught up, and Walker might have been too concerned about crashing to reverse any faster, but then we’d have completely different case.

    Even if I buy that defense of others avoids the duty-to-retreat issue–on on first examination it appears it does–the use of deadly force, and the failure to take advantage of a safe avenue of retreat, still go directly to the necessity and reasonableness of using deadly force in purported self-defense.

    I hope the Walker defense has something more in their pocket than what I’ve seen so far–although, in fairness, I’ve spent today prepping for a Law of Self Defense Seminar in Virginia this weekend, so I haven’t progressed through any more of the witness statements the defense counsel provided me–but so far it doesn’t look good.

    I own a minivan, and I have a wife, and three kids, one as young as 2yo, that I drive around with some regularity. I also routinely carry a sidearm for person protection, and would use it without hesitation in the necessary defense of myself or my family against an imminent, otherwise unavoidable, deadly threat.

    But I just can’t imagine pulling the trigger under the facts as I currently understand them to be.

    Still, early stages. We’ll see how things develop.

    –Andrew, @LawSelfDefense

      Phillep Harding in reply to Andrew Branca. | February 27, 2014 at 10:14 pm

      (heheh) Put the van in reverse and just keep backing? I like that idea.

      If you consider the actual location I think backing up would have been a viable alternative. From where the van was likely stopped the path behind appears to be virtually straight, level, and relatively wide with adequate drainage. It consists of an emergency lane which appears to be wider than a vehicle plus a very slightly sloped grassy shoulder mostly the same width or more. Of course on that particular day there may have been an obstacle but on Google street view there are no obvious obstructions (signposts, etc.) except for a large light pole maybe 100 yds away. By that point one could go around either side of the pole or potentially even shift into drive and cross over a short area of grass and to go back to Highway 3.

      I’m not from the area but I presume there was adequate daylight to see well as it was around 8:00pm and being June 8th it was one of the longest days of the year. I don’t know if was possibly overcast or rainy but I haven’t seen any mention of inclement weather. Granted it might involve a certain amount of risk but likely not significantly more than parking in the emergency lane.

      JackRussellTerrierist in reply to Andrew Branca. | February 28, 2014 at 12:04 pm

      “Even if I buy that defense of others avoids the duty-to-retreat issue–on on first examination it appears it does–the use of deadly force, and the failure to take advantage of a safe avenue of retreat, still go directly to the necessity and reasonableness of using deadly force in purported self-defense.”

      Unless the wife and kids were trying to bail out of the car for whatever bizarre, inexplicable reason (and there’s been no indication that she or they were), if Walker retreated, then they’d have been “retreated” as well.

      As we discuss and speculate about why each player did or may have thought this or that and what rational responses would be or not be under these circumstances, I haven’t seen anybody raise the point that Harvey kept moving toward Walker even though Walker had his firearm out. Harvey was unarmed. Would anybody with two firing brain cells continue to approach someone they believed to be a peace officer holding an unholstered weapon with the intent to do him bodily harm or did he want to just have a shouting match and/or take a closer look at that badge so he could turn Walker into his department for brandishing (especially with his wife and kids in the car). Walker didn’t just brandish while he was behind the wheel. He was also brandishing when he got out of his vehicle and pulled his firearm out. He knew he had no peace officer authority in that jurisdiction.

MouseTheLuckyDog | February 27, 2014 at 5:49 pm

How many shots were fired?

Did the police actually try to find out how many shots were fired?
It sounds like Walker may have fired a warning shot ( or a really badly aimed shot ), before actually shooting Harvey.

If so and Harvey was still approaching, that may play a big role for me.

    Gremlin1974 in reply to MouseTheLuckyDog. | February 27, 2014 at 6:18 pm

    Andrew posited in another thread that the shot that hit Harvey in the leg, and ironically the one that killed him I believe, might have been a warning shot that bounced off of the pavement. I believe that Walker fired 3 shots total, one that hit the leg and severed the femoral artery, then 2 more that hit Harvey elsewhere.

    Severing the femoral artery puts you about 2 minutes from being DRT (DRT = Dead Right There). Especially if you are to drunk to feel it and your blood is thinned by consumption of booze.

      MouseTheLuckyDog in reply to Gremlin1974. | February 27, 2014 at 7:51 pm

      Yes but did they actually count the number of bullets fired other then by notoriously inaccurate eyewitness testimony?
      Could Walker have fired one round that totally missed, then three? One hitting on a ricochet, two just traight hitting the guy?
      Did they actually count the shell or the bullets left?

    Pidel, page 42: When I saw the gun, I stopped. When Joe saw the gun, he stopped. And at that point, you know, he was about eight or so feet, or six – six to twelve … There was a pop. And Joe turned to his left and picked up his left leg … And then he put his foot back down. And then it was more pops. I don’t know if it was two or three.

    At some other point in his account (I don’t know where – Scribd is a real pain in the crankcase) Pidel said that Harvey was not moving toward Walker when shot. He also said that Harvey was not running toward Walker at any time. He was walking. The police were unable to get Pidel to commit to anything more definite, although they tried, bizarrely, for “stroll”. But Pidel stuck with “walk”.

      MouseTheLuckyDog in reply to tom swift. | February 27, 2014 at 7:59 pm

      You mean the guy who said his friend wasn’t drunk?
      Despite the fact that the BA taken 12 hours later shows he was?
      The guy who is a convicted felon?

      JackRussellTerrierist in reply to tom swift. | February 28, 2014 at 12:38 am

      Heh. If Harvey turned left and lifted his leg, surely a seasoned peace officer (or the average, untrained person) knew he’d hit Harvey. But Walker continued to fire away. So, I think it’s hard to argue that the first shot was a “warning” shot or that Walker didn’t intend to outright kill Harvey.

        MouseTheLuckyDog in reply to JackRussellTerrierist. | February 28, 2014 at 3:36 am

        Gee he lifted his leg and turned. Like maybe that incident Houston. Where the woman shot at the guy, he lifted his leg and turned, then hit her, then she shot him and drove away?

        Yeah I get it. Expect for one thing. When that guy lifted his leg she had missed.

We can pettifog all day and half the night about what burdens the state places on whom to what and when.

But the natural laws of forensics (arguments, not medical/ crime evidence) place the burden of proof on the counter-intuitive proposition.

So it will be with the jury.

The state’s charge of first degree murder is wildly counterintuitive, more than enough evidence already exists to establish reasonable doubt among a significant number of jurors and a common sense defense will completely obviate all this legal theology about (apparently endless) duties to retreat and so on.

Walker couldn’t be any less culpable if Bully Boy had stepped on a rake and brained himself to death.

Which is sort of what he did.

PS: Where’s the sympathetic victim–nobody likes a bully.

    tom swift in reply to bildung. | February 27, 2014 at 7:41 pm

    So person A pulls a boneheaded traffic maneuver which person B avoids by leaving his own lane, then plays footsie with B’s car for a mile or so, and ends up shooting three bullets into B while he’s standing still. But B is the bully.

    Got it.

    Ragspierre in reply to bildung. | February 27, 2014 at 7:53 pm

    “Where’s the sympathetic victim–nobody likes a bully.”

    And nobody likes the outlaw cop who kills somebody he’s egged on, letting him walk up to his gun in cold blood.

    And, pard, I could hang that around this LEO walking in the park.

    On these facts, as we know them, at least.

For you gamblers out there, I’m making book on which MSNBC host is first to say, in effect, “When a white man shoots a black man, it’s always self-defense, but when a black man shoots a white man, it’s always 1st degree murder.”

Who’ll be first? It can’t be Sharpton unless Obama says it first, so my money’s on either Toure, Hayes, or Chrissy.

MouseTheLuckyDog | February 27, 2014 at 11:22 pm

Early prediciton time!
Will Walker take the stand?
Keep in mind this is not Florida and John Guy will not do the cross.

MouseTheLuckyDog | February 28, 2014 at 4:01 am

Looking at the motion to dismiss, I think they have a good chance at getting a judge to set aside the indictment, but a very long shot at having a judge rule that jeopardy attaches. Though I do think that if a judge does set it aside, he will also grant there motion for requirements when it gets resubmitted to a grand jury.

I’m surprised that Walker’s lawyers didn’t submit a requirement that if they do get to indict, that the prosecution will be required to indict through a preliminary hearing instead of a grand jury hearing. Walker would stand a better chance there.

I also notice there is a New York lawyer appearing Pro Hac Vice (spelling? give me a break it’s late ). Is Walker being represented by the PBA?

    Gee, Mouse, do ya thank it might be wise to wait for the prosecution response? I mean, before jumping neeked and declaring the LEO walks?

    Did you catch as many…pretty much…lies in the motion as I did? Certainly some furious spinning on that whole “heavy drinking” meme. I could have a couple of Scotches during an evening of dinner and cigar smoking, and someone could claim “He’s been drinking for hours”. Not really a truthful representation, huh?

    And Fat Boy and Pidel “charged”…???

    You got the part where LEO stood outside his car with his arms folded across his chest and did the whole head nod thank, right? That was pure “bring it”, wasn’t it?

    I guess you make bricks with the clay you have, and the defense has a very daunting set of facts here.

      MouseTheLuckyDog in reply to Ragspierre. | February 28, 2014 at 2:45 pm

      Me: “Looking at the motion to dismiss, I think they have a good chance at getting a judge to set aside the indictment, but a very long shot at having a judge rule that jeopardy attaches. Though I do think that if a judge does set it aside, he will also grant their motion for requirements when it gets resubmitted to a grand jury.”

      Rags: “Gee, Mouse, do ya thank it might be wise to wait for the prosecution response? I mean, before jumping neeked and declaring the LEO walks?”

      So where do you see me say that he will walk? Did you actually read what I wrote?

      Come to think of it, did you even read the legal arguments near the back of the motion to dismiss. Obviously not, if you had, then you would not be saying I said he would walk. I guess it was just too far back for your attention span.

Richard Aubrey | February 28, 2014 at 7:38 am

“”Did you catch as many…pretty much…lies in the motion as I did? Certainly some furious spinning on that whole “heavy drinking” meme. I could have a couple of Scotches during an evening of dinner and cigar smoking, and someone could claim “He’s been drinking for hours”. Not really a truthful representation, huh?””

Rags. I guess you could say that, while waving your hands and trying to avoid the actual number–an integer–of drinks Pidel mentioned, or the BAC. Not sure how much good that would do you.
Not sure, either, what difference it would make,
since the cop had no way of knowing whether Fat Guy was drunk or sober. FG was doing what he was doing.
Never had a road-rage vehicle duel going down the highway. But I’ve thought about it in the sense of what would I do. It would be difficult to avoid flinching away from another car’s collision course. Then what? Return to your lane? Stay where you ended up and then flinch away again, in the same direction? And again? Try to come back at the guy to make him knock it off?
Be absolutely rigid in my lane and try not to swerve?
What would it look like to others?

    It almost always takes two parties to have a road rage duel. All it takes is for one of the parties to say, “Goodness me, what a jerk that guy is being. One of us has to play the responsible grown-up here, so I guess it’s on me” … and refuse to engage.

    If you get in the right-hand lane and slow down so that cars start stacking up behind you, if they’re in the left-hand lane they’ll probably just whiz past you with the rest of the traffic, or if they’re right on your tail, the worst they can do is nudge your bumper with both of you going like 20mph and dozens of witnesses, and the police already on their way because you were prudent enough to call 911 as soon as it started looking serious.

    Nobody ends up in a body bag, nobody ends up in jail facing murder charges, and y’all have an engaging story to tell at barbecues for the next few weeks. The end.

      MouseTheLuckyDog in reply to Amy in FL. | February 28, 2014 at 1:41 pm

      And I supose you also believe that it is OK for little girls to accept rides from strange men.

      It only takes one to create a road rage incident, if that person is determined. The general rule is it takes one to start a war, it takes two to make peace.

        it takes two to make peace

        Which doesn’t help Walker much, as he certainly wasn’t working very hard on his half.

          MouseTheLuckyDog in reply to tom swift. | February 28, 2014 at 10:18 pm

          I would suggest that stopping and letting the other guy drive on is an attempt at making peace. OTOH It’s clear from his friends statement that Harvey had no intent of making peace.

        “And I supose you also believe that it is OK for little girls to accept rides from strange men.”

        Gosh, yes. How astute of you to have read that in to my comment. Because that’s obviously exactly what I was saying. SMH.

        Boomers: determined at every turn to disprove the old adage that with age, comes wisdom.

        Bless your hearts.

    Ragspierre in reply to Richard Aubrey. | February 28, 2014 at 8:29 am

    “Rags. I guess you could say that, while waving your hands and trying to avoid the actual number–an integer–of drinks Pidel mentioned, or the BAC. Not sure how much good that would do you.
    Not sure, either, what difference it would make…”

    Well, pretty much none here. Not where you have Lee v. State, 996 A.2d 425 (MD Ct. Spec. App. 2010).

    There’s a pretty good discussion of BAC in the thread, above, and how little an “integer” means in terms of individuals and actual…you know…intoxication. Was our dead guy snot-slinging drunk? Apparently not. Was he so impaired it would make any difference? Not according to Maryland jurisprudence as I read it.

    Was he belligerent? Well, he was certainly LOOKING like he was belligerent. But, as I’ve related before, I’ve had people literally charge me, head down, full-tilt, only to have them stop short. They were doing what a lot of animals do. It’s often a bluff, or a means to get you to throw the first punch. Nobody, in fact, got punched at all in a couple of instances, much less shot to death.

    I also provide a pretty good primer on how to break off a road rage incident, having done it several times with cars and big trucks. I’ve had people “brake-check” me down to almost a dead stop on an interstate hauling a super-heavy cargo. No problem for me. All it did was give me a chance to break off the engagement, since it became apparent I was keeping enough distance so that the other driver was not going to force me to rear-end them, and it took me a while to gather speed anyhow.

    I didn’t “hand wave” anything. Rather, I think I’ve shown that I read what people wrote (both sides), and applied some critical thinking and my own experience.

Richard Aubrey | February 28, 2014 at 9:54 am

Rags.
My point is that if the prosecutor used your hypo–couple of scotches and a cigar in an afternoon–to dismiss the “drinking all day” charge, the evidence would make that an obvious misdirection. Even a juror would catch on.

As I say, it’s tough not to flinch from a collision course from the side. Front and back are different issues and the side was, according to Pidel’s testimony, was where the action was. You can be approached from the side no matter how slowly you are going. And my question is what the resulting manuvers would look like to a third party. One issue would be what the terrain was just off the shoulder. A wall as in a city freeway? Guard rail? Ditch? What would the driver be attempting to avoid after flinching, and how would he do it?

When a butthead like Fat Guy comes at you, he may be bluffing. What is more likely is that he’s going to make a visceral decision about whether going beyond running his mouth will be as much fun as he thought it would be. If you look weak or vulnerable, it will be more than a loud bluff.
And, as Pidel says–and it can’t be unsaid, merely contradicted by a character witness–Fat Guy “finished fights”. If he bluffed, it was only when his chosen vic looked either sufficiently powerful or was quailing to the extent that the mere power of his power was gratifying.
The cop has a visceral read on Fat Guy–if you want to haul in animal behavior–as not being a bluffer unless he, the cop, seemed too powerful.

Lastly, Fat Guy was ahead of the cop when the latter pulled over. Fat Guy decided he hadn’t made his point sufficiently, so he decided to abandon what he’d been doing, off to another event or something, in order to give the cop a piece of his mind. That, by itself, is a tell as to likely behavior.

As I say, were I a juror, I’d try hard to follow the law, but an avenue of retreat including just seconds and feet wouldn’t impress me. And Judge Roy Bean would be whispering in my ear.

    That, by itself, is a tell as to likely behavior.

    How is this going to influence a jury? There will be eyewitness testimony about Harvey’s behavior, as well as Walker’s. Nobody has to speculate about likely behavior when he has testimony and evidence about actual behavior.

    If defense can’t destroy Pidel’s likely testimony – not just smudge it a bit around the edges, destroy it – the jury will see a man standing – doing nothing – six or ten feet from the man who guns him down with three shots.

    Who was drinking what, who intended to do what, who said what … none of that will be of consequence unless defense can pull one hell of a rabbit out of its hat.

    And such a rabbit may exist, but he hasn’t shown so much as his nose so far.

    JackRussellTerrierist in reply to Richard Aubrey. | February 28, 2014 at 12:18 pm

    How is Harvey’s BAC germane to what all Walker did? Emboldened? Poor judgment? Yeah, so? He obviously wasn’t falling down drunk, so Walker wouldn’t have been able to judge Harvey’s sobriety until he got close enough to observe him for a few moments or smell “the strong odor of alcohol” emanating from Harvey’s personage. And even if Walker had somehow become aware that Harvey was less than sober, perhaps Walker thought that this would lend even more credence to his version of events.

    Please explain the nexus between Harvey’s level of intoxication, assuming for the moment he was intoxicated, and Walker’s actions.

Someone remind me of what threat of deadly force Walker was defending against? Harvey might be big but he’s still unarmed. And don’t say his car is a weapon because he’s 150 feet away from his car.

Broke.
Not saying anything about today, but back in the day, I was in a campus club–“self defense–we called it. Actually, it was “scientific dirty fighting”. I could kill you pretty quick without a weapon. The single lethal blow is pretty much a myth unless you can get the guy to stand absolutely still. But first, I break your knee. Then I take my time.
Might have taken the girls in the club a couple of extra minutes, but don’t dismiss “unarmed”.
Doesn’t LI have a post about a cop getting his head beaten up pretty badly and shooting his unarmed assailant? Somebody does. And Zimmerman got off for the reason that an unarmed man was about to seriously injure or kill him.
Harvey is bigger than Trayvon Martin, and, as his buddy Pidel says, liked to finish fights.
So, as I say, don’t dismiss “unarmed”. The jury wouldn’t buy that for an instant.
I don’t know if you could sell the jury on the picture that Harvey stopped his car and went back to the LEO in order to remonstrate. In the anything’s possible world, of course it’s possible because anything’s possible. But, in terms of selling a jury….
The cop had no way of knowing if Harvey had been drinking, so that shouldn’t be a factor in how he decided what he decided. Harvey was doing what he was doing.
The prosecution could try to picture Harvey as a teddy bear with a near-anal concern for traffic courtesy but who had the staggeringly bad luck to have the appearance and body lanaguage of an aggressive, violent thug. Yeah. That’ll work.

    The trial’s not going to be about Harvey, it’s going to be about Walker and why he shot a man without some pretty goddam solid reason – not a few wild-ass guesses – to believe that he was actually facing an immediate deadly threat. And not even trying to avoid the threat by retreating.

    I don’t see a jury having much difficulty with this.

    JackRussellTerrierist in reply to Richard Aubrey. | February 28, 2014 at 12:29 pm

    There’s no evidence thus far to indicate Harvey ever laid a hand on Walker, or ever got close enough to do so. So your argument is pretty far into the old apples and oranges category.

    If Walker was motioning Harvey toward him like “C’mon dude, get closer”, then Walker was a cold-blooded killer looking to set the stage to be able to walk away from a killing of Harvey, an apparent redneck.

    And I have to wonder if Walker would have chosen the same course if Harvey had been a brotha instead of a “creepy-assed cracka.” I’d be interested to know what, if any, commentary Walker has ever made about the GZ acquittal.

    MouseTheLuckyDog in reply to Richard Aubrey. | February 28, 2014 at 1:02 pm

    On Kimmel a few nights ago, they had a tiger cub on. He was cute and cuddley and oh so sweet. But if you asked any trainer he would tell you that the cub could turn into a ferocious killer in seconds.

    BrokeGopher in reply to Richard Aubrey. | February 28, 2014 at 3:01 pm

    This is what I’m saying. Walker has to be able to articulate what the deadly threat was, and all he has is that a big guy was mad at him. Does “mad at him” translate easily to “clear intent to kill or do great bodily harm”? I don’t think it does. He’s got to have something — what the guy said, a weapon or other action.

    The cop being beaten into the ground (and Zimmerman in the same vein) were facing death/GBH because of the position they were in and the continued assault by their attacker. Walker was not on his back being beaten. He wasn’t even struck. So there has to be some obvious threat and I don’t think big mad guy passes that threshhold.

    I think his claim of self-defense is failing the test of objective reasonableness due to the lack of a clearly deadly threat.

    tom swift in reply to Richard Aubrey. | February 28, 2014 at 4:52 pm

    Zimmerman didn’t “get off”. Zimmerman was found not guilty of charges which should never have been brought in the first place.

    One can’t be “guilty” of non-criminal behavior, and one doesn’t “get off” after being charged for non-crimes.

Richard Aubrey | February 28, 2014 at 2:30 pm

If Walker

“If” It would be better if “since” were iron-clad.
No, nobody laid a hand on Walker. But Cervini didn’t lay a hand on Scott, either, and Scott walked.
Cervini’s lunge at Scott was, I presume, from close enough that turning and fleeing would not be an option.
See Roderick Scott Chris Cervini. I’m sure there are differences, but the question is what differences make a difference.

    tom swift in reply to Richard Aubrey. | February 28, 2014 at 4:13 pm

    In one case one is dealing with a criminal, in another one is not. Criminals – rapists, muggers, robbers, kidnappers – can reasonably be assumed to have no proper regard for their victim’s well-being. That same cannot be assumed of non-criminals.

    A person confronted by a robber knows it; there’s usually a demand for valuables, and a display of some means of inflicting damage to encourage the victim to hand ’em over. The immediate threat to the victim’s safety is obvious, even before a physical assault actually occurs. The victim has no obligation to assume that the robber’s intentions are benevolent. There is a reasonable basis for immediate forcible self defense.

    A person confronted by an angry driver after a traffic incident has no right to assume that the angry driver is a criminal, much less a violent criminal. Such encounters rarely come to blows. Among adults, they almost never even descend to the level of shoving matches. There may or may not be a considerable amount of yelling. Yelling is not serious bodily harm, even to the ears. Should the angry driver display a weapon (gun, knife, bludgeon of the tire iron sort), then an assumption of imminent physical peril might well be reasonable. But assuming the guy you just cut off in traffic is homicidally inclined is not reasonable without some further evidence.

      MouseTheLuckyDog in reply to tom swift. | February 28, 2014 at 4:48 pm

      Cervani was not a robber, he was a burglar. Typically burglars run away rather then confront their victims.

      And most people that get cut off, vent their spleen and drive off.
      Most people don’t play vehicle tag for the next mile. When their alternate pulls over most people don’t stop the car ahead,get out and approach the vehicle.

Richard Aubrey | February 28, 2014 at 4:48 pm

Tom Swift.

When you mentioned “just cut off in traffic”, we see, you should excuse the expression, a red light. You left out the road duel. The prosecutor probably would do so, hoping the defense would as well. But the defense won’t.
As to shoving: I think the last murder in the little town where I used to live was a shove which resulted in a guy falling and hitting his head. Or maybe it was a heart attack. In any case, the perp was not homicidally inclined and is no doubt the second-most suprised party in the encouter.
Talking to a cop about a SYG state reg and a guy coming at you with an industrial garbage can lid. Kick him in the balls, I suggested. You aren’t required to suffer an injury, I was told. So even if Fat Guy were only going to punch Walker, which would be the prosecutor’s fall back position, the jury would, whatever the law says, wonder about having to accept injury. So was Walker reasonably concerned about being punched, with either injury or death involved?
Keep in mind that Fat Guy has won sufficient of his encounters that he likes it. Okay? He’s good at it. He didn’t learn his lesson when he was a kid. He kept it up. Because nobody kicked his ass enough to suggest he take up chess. Which is to say, it wasn’t easy to kick the guy’s ass because he was good at brawling.
Which will no doubt occur to the jury, in one way or another.
Do you think the prosecutor can convince anybody that Walker’s pulling over was an invitation with the force of an anchor chain pulling Harvey back into the fray? Did Harvey have a choice? Yes. And he made it. The choice he made is a point the jury will consider, irrespective of the duty to retreat. Do you think the jury can be convinced Harvey was only going to yell at Walker? Do you think the prosecutor can convince the jury that Walker should have known that Harvey was only going to yell at him?
Some prosecutions are stupid; the unarmed man on trial for the cops’ shooting bystanders in NYC. This one is merely dodgy.

    BrokeGopher in reply to Richard Aubrey. | February 28, 2014 at 6:21 pm

    “Do you think the prosecutor can convince the jury that Walker should have known that Harvey was only going to yell at him?”

    In a word, yes. You can’t assume deadly intent from a traffic dispute. And even if Harvey was clear he was coming over to punch Walker in the face, that’s not a deadly threat either. You can’t respond to a punch with bullets.

    Walker needs some material justification for shooting Harvey, not just the possibility that he might be there to try to kill him.

      MouseTheLuckyDog in reply to BrokeGopher. | February 28, 2014 at 10:10 pm

      Harvey didn’t have to try to kill Walker to justify the force. All he had to do was ( in the words of Florida as we all should know at this point ) “commit grevious bodily harm “.

        BrokeGopher in reply to MouseTheLuckyDog. | February 28, 2014 at 10:31 pm

        Ok then explain how Harvey was obviously about to do grievous bodily harm to Walker. You can tell by a walk that he’s about to beat you to a pulp rather than a yelling and shoving match?

          MouseTheLuckyDog in reply to BrokeGopher. | February 28, 2014 at 11:10 pm

          He was already attempting to do grevious bodily harm to Walker when he assaulted him with his vehicle. What evidence do you have that he was going to stop.

          tom swift in reply to BrokeGopher. | February 28, 2014 at 11:47 pm

          We don’t know who assaulted whom. All we really know is that both drivers managed to avoid a collision.

          MouseTheLuckyDog in reply to BrokeGopher. | March 1, 2014 at 5:36 am

          @Tom Swift
          “We don’t know who assaulted whom.”
          And we have a name for that–“reasonable doubt”.

        Harvey didn’t have to try to kill Walker to justify the force. All he had to do was … “commit grevious bodily harm “.

        We still have no reason to believe that Harvey had any intention to do either. It is certainly possible to approach another driver without intent to kill him or inflict grievous bodily harm; I’ve even done it myself.

    Phillep Harding in reply to Richard Aubrey. | March 1, 2014 at 1:04 pm

    You argue that Walker should have known things he had no way of knowing?

    Even if Walker knew these things, or, to exaggerate, knew that Harvey was a mass murderer who like to dismember people with his bare hands, Walker would not be able to claim self defense for shooting Harvey until something happened, more than just an approach. The trial is about what happened then and there, not the reputation of either.

Richard Aubrey | February 28, 2014 at 8:44 pm

Broke. The cop I talked to about a good shoot was an instructor, I found out later, for the CCW classes. And his view of the law is that you are not required to accept an injury. I was taking the position that I’d feel better having kicked the guy in the balls instead of having killed him–in this hypo. Either way, it ends and I’m not hurt. Still, even with me not hypothetically being hurt, he said I had the right to shoot.
After all, nobody could prove Martin was going to kill Zimmerman.
It’s one thing for a prosecutor to say something–or any lawyer, I guess–but if we presume another lawyer will take the other side, that’s different.
Being punched in the face is sufficiently likely to be deadly that it’s actually led to some guys dying. Trying to guess which side Walker was required to believe he’d be on–see Harvey’s picture(s)–would be easier for the prosecutor if there were no defense attorneys.
See, thing is, the jurors are going to wonder, even if Walker’s lawyer doesn’t suggest it, that Harvey could have kept going. Nobody’s hurt. Only Walker’s car was damaged, maybe, and that only slightly. No reason at all for Harvey to get out and approach Walker. Except, I submit, the jury will presume, given the evidence, that he was going to be violent. And if Walker’s attorney suggests it, it will be old news to the jurors.

    tom swift in reply to Richard Aubrey. | February 28, 2014 at 9:41 pm

    And his view of the law is that you are not required to accept an injury.

    Certainly, in that particular context, he’s right. The victim doesn’t have to wait until an assailant’s knife is actually cutting into him before he responds. Assailant, weapon, clear intent, and immediacy; that’s enough for forcible defense.

    But …

    There is a concept of proportionality involved. It’s what the “reasonable man” would consider an appropriate response. Deadly attacks justify deadly defensive force. Lesser attacks justify lesser levels of defense force, and that’s all; nothing more. You can’t simply declare that any injury you might suffer in the future is an excuse to start blasting at anyone whose motives you find suspicious. A woman throws a drink in your face in a bar. It looks all well and fine in the movies, but in real life, it’s assault, and a crime. She can end up in jail for it. You may suffer injury from the alcohol in the eyes, or more severe injury from the glass, it she throws that at you to. Can you shoot her beforehand because of your suspicion that she might throw a drink at you? The Reasonable Man wouldn’t even consider it. And neither, I suspect, would a jury.

    Except, I submit, the jury will presume, given the evidence, that he was going to be violent

    There is no evidence that Harvey was ever considering violence. Suspicion that he was considering violence is not evidence.

    Walker’s gun is evidence that he was considering violence, but nothing of the sort exists for Harvey.

      MouseTheLuckyDog in reply to tom swift. | February 28, 2014 at 10:04 pm

      “Assailant, weapon, clear intent, and immediacy; that’s enough for forcible defense.”
      A fist is not a weapon?

      “There is no evidence that Harvey was ever considering violence. ”
      The fact that he hit his girlfriend is proof that he is capable of it. Any aggresive move in their game of vehicle tags is violence–and legally assault. Stopping, getting out of the car, and approaching is a sign of violence. Flinging racial epitaths is a sign of violence.

        MouseTheLuckyDog in reply to MouseTheLuckyDog. | February 28, 2014 at 10:07 pm

        I forgot, his friends statement that Harvey was a man “who finished a fight” is evidence that he intended to commit violence.

          I forgot, his friends statement that Harvey was a man “who finished a fight” is evidence that he intended to commit violence.

          You didn’t forget, you’re fantasizing. The phrase is essentially meaningless. Even if it means what you think it means, “finish” means to complete something already in progress. What was in progress here? An annoying and potentially dangerous game of automotive tit-for-tat. There was no fight in progress. Pidel never said that Harvey was the type to start fights so that he could finish them.

          Gremlin1974 in reply to MouseTheLuckyDog. | March 1, 2014 at 5:40 am

          If you read the friends actual statement, he only said that after the cop had said it first, so it will be fairly easy to write that off as the cop putting words in his mouth by the time this comes to trial.

        A fist is not a weapon?

        A fist is something which is attached to you. The fact that you have it with you at all times is hardly evidence that on any particular occasion you are preparing yourself for the possibility of a violent encounter, or for that matter any other non-routine matter. Maybe you are, maybe you aren’t.

        You are aware that when we say someone’s armed, we don’t mean that he has arms – those things which connect the shoulders to the hands. We mean that he is lugging around some bit of hardware which humans are not normally born with.

        The fact that he hit his girlfriend is proof that he is capable of it.

        Don’t be silly. Anybody’s capable of it if he has hands. But I don’t know that he hit his girlfriend. Walker didn’t know that he hit his girlfriend. And it doesn’t make him a deadly menace to Walker. It might make him an annoyance to his girlfriend; I’ll wait for her testimony before getting excited about it.

          MouseTheLuckyDog in reply to tom swift. | March 1, 2014 at 6:37 am

          “You are aware that when we say someone’s armed, we don’t mean that he has arms – those things which connect the shoulders to the hands. We mean that he is lugging around some bit of hardware which humans are not normally born with.”

          That is not the definition of armed that OMara was using in the Zimmerman case.

      MouseTheLuckyDog in reply to tom swift. | February 28, 2014 at 10:31 pm

      “Walker’s gun is evidence that he was considering violence. ”
      A gun is not a katana, that if a samurai draws he has to use before he places it back in hos scabbard. EWven with the katana that’s a myth.

        Note carefully the word “consider”.

        If Harvey happened to be toting a tire iron with him when he walked toward Walker, we could be pretty sure that he wasn’t planning to change a tire. Hence, it’s reasonable to conclude that he was considering violence.

        Whether that violence would be an offensive assault against Walker, or a prudent precaution for Harvey’s defense should Walker launch an offensive assault against him, we can’t say from the mere presence of a weapon.

Defense’s main problem. Cops don’t retreat. This is a problem for the defense. On cross he will be asked, “Have you ever retreated when faced with an aggressor in your role as a police officer?” His police mentality will be front and center and be used to show that he never really thought about retreating. Duty To Retreat will doom him.

Gremlin1974 | March 1, 2014 at 5:45 am

I see to big arguments for this not being a justified shoot after reading Harvey’s friends statment.

First Walker had time to move from the front of his car, open the door, retrieve the gun and move back into a position to fire. So he could just as easily gotten into the car and tried to drive a way.

Second, Harvey’s friend is very clear that when Harvey saw the gun he stopped and then Walker shot, then paused and shot again. So according to the main witness Harvey had stopped his advance before being shot.

Also, I wonder if Walker’s first shot wasn’t “buck fever” so to speak. I mean we don’t know if he has ever even had to draw his gun before. I have this little Gremlin in the back of my head saying that maybe Walker’s trigger discipline failed and he cracked one off by accident, ironically probably severing the guys femoral, and then he saw the guy turning towards and was panicked and shot twice more. Pure speculation but just a thought.

    MouseTheLuckyDog in reply to Gremlin1974. | March 1, 2014 at 7:28 am

    I suspect that Walker probably was a street cop at one point, though he may never have drawn his weapon. His present job sounds like something you have to earn, rather than a first assignment.

    I pointed out in the previous “story” ? “article” ? whatever that “retrieving the gun” might be a problem. It is however only the friends word that I’ve seen so far. I can see a friend lying about something like that. Especially one already convicted of a felony. I also seem to remember someone saying that he showed the gun to Harvey while driving. If so where did he put it? Remember he had a three year old in the car.

    I think what we are going to find in the end is the testimony of five people. Pidel, the wife, Walker, and the two witnesses who actually saw the shooting, and my understanding is that one of those witnesses statements is confused.

      Gremlin1974 in reply to MouseTheLuckyDog. | March 2, 2014 at 7:24 pm

      I think you are putting far to much weight on the friends previous felony conviction. Just because he has been convicted of a felony in the past doesn’t mean he is lying here. Sure it gives him a history but he isn’t in any danger here, so why lie. Also remember his statement didn’t exactly present his buddy as a peaceful model citizen, so why lie about such a detail?

      Also, remember during the Zimmerman trial, the prosecution put up the obviously mentally ill woman who claimed she saw the whole event and that Zimmerman was standing over Martin and shot Martin in the back. She didn’t have a felony that we know of so does that maker her statement automatically the truth?

    MouseTheLuckyDog in reply to Gremlin1974. | March 1, 2014 at 7:46 am

    If you were playing vehicle tag, the other guy stopped, you stop out ahead and get out to confront the other guy ( Ok I would not do that, I would keep going but let’s just say). Then the other guy pointed a gun at you and said “back off”. What would you do?

    I would freeze, raise my hands, slowly back up saying something like “OK keep calm I’m backing off.”

    Maybe Walker felt that showing Harvey the gun would get him to back off.

    Remember the firefighter shooting? How quickly the situation changed? If could be that Walker felt he was dealing with some belligerent guy who he could just chase off, and by the time he realized that wasn’t going to happen it was too late to do anything.

      Gremlin1974 in reply to MouseTheLuckyDog. | March 2, 2014 at 7:29 pm

      Sorry, I still can’t justify setting there while the guy walked more than 100 feet and then shooting the man. I could understand it if he had, well pretty much anything resembling a weapon in his hands. Surely in his time a a cop Walker had dealt with belligerent drunks before. I am gonna make the radical assumption that he didn’t shoot to many of those.

Richard Aubrey | March 1, 2014 at 1:16 pm

Seems to me this is going to be a case of competing windows. The prosecutor is going to make the time and space between reasonably seeing a threat and retreating as large as possible. The defense is going to make it as small as possible.

Just for grits, I wouldn’t think anybody with sense would have a gun loose, more or less, in a vehicle containing a three-year-old. Likely Walker had it on him.

    Gremlin1974 in reply to Richard Aubrey. | March 2, 2014 at 7:36 pm

    You are assuming that Walker didn’t get sloppy in his gun handling and safety, didn’t have a seat holster, seat belt holster, or didn’t just keep it in the console. We are all human and just being a cop doesn’t make him immune to being unsafe with his gun regardless if children are present.

    Personally I keep mine on my hip or in my cross-draw shoulder holster when I drive, I just make sure it is clear after I buckle my seat belt.

      Personally, I wouldn’t carry mine across state lines into a jurisdiction which did not recognize out-out-state CCL/CCW permits, either. Let alone brandish it at some random guy who was ticked off with my driving.
      Imagine if HARVEY had been an off-duty cop. An off-duty MARYLAND cop, whose gun & badge actually MEANT something in this jurisdiction. And this Walker guy who’d cut him off illegally pulled a gun on him while driving, or after they’d both pulled over. Might’ve been a different guy who ended up in a body bag if that’d been the case.

Richard Aubrey | March 1, 2014 at 1:19 pm

Oops. Meant to say that the prosecutor, to make the threat reasonably apparent as soon as possible and at the greatest distance possible–to extend the window of possible retreat–is going to have to make Harvey out to be–I exaggerate–an obviously slavering maniac from the moment he exited the car. “Anybody could see this freak was a threat at half a mile…. Umm. No, I mean….”

    Ragspierre in reply to Richard Aubrey. | March 2, 2014 at 10:14 am

    Well, again, I’m left wondering how you manage to invert stuff so consistently.

    For our LEO to make the case he MUST (i.e., he was in fear of imminent death or serious bodily harm to himself or a third person), HE has to make the case that he stood and waited for this IMMINENT danger to walk up to him and/or his family…all the while knowing he was armed with his handgun.

    This becomes MORE difficult as our victim approaches, and with no apparent weapon.

    Again, I think I could sell the idea our LEO was an outlaw cop who killed the victim in cold blood after being a very willing participant in a road rage gymkhana.

Richard Aubrey | March 2, 2014 at 4:54 pm

Rags.
Let’s try it this way: The prosecutor needs two things. One is a window in time and space throgh which Walker could have escaped/retreated. That will be fought out with diagrams and simulations and what not. The defense will want to make the window as small as possible.
No window/avenue, duty to retreat does not apply. So the prosecutor will want the largest he can come up with.

But there is no duty to retreat unless there is a reasonable apprehension of a threat.

The prosecutor will have to make the reasonable apprehension of a threat as being as early in the procedings as possible, and as apparent as a dead fly in a bowl of cream to support the larger window theme.

The defense will probably suggest that Walker, out of his charity, thought Harvey was a kindly man who wished to discuss the situation equably. Figured it out too late to have a window/avenue.

The idea of Harvey as a threat from the get-go (“Didn’t you think his driving to force you off the road was a threat, huh, huh, huh????” will necessarily make Harvey look to the jury like a pretty bad guy.
So, once the prosecutor has convinced the jury that they wouldn’t have minded hearing Harvey came to a sudden and early demise, we’re left with the window.

Then we have the driving. Can we tell, do we have witnesses who can tell the difference between Walker attempting to evade but stay on the road, and Walker going aggressively back at Harvey.
Did Walker have any cop-driving training? I understand that evasive driving includes some basic physics. If Car A and Car B are going side by side and Car A slides into Car B hard, Car B is going to go sideways pretty hard. Evasive driving, according to a brief documentary on teaching this, says that if Car B, seeing Car A coming,
goes at Car A, they meet in the middle, force vectorily speaking, and Car B retains control. Probably.
Without some serious, solid evidence, the idea that Walker was going 50-50 in the road-rage driving would be kind of muddy. He’s dodging but trying to stay on the road. He’s trying to get Harvey to flinch and leave him alone. He’s….
Lastly, the idea that pulling over meant Harvey was bound to do what he did is kind of far-fetched. Imagine getting Walker to admit he was kind of hoping Harvey would pull over…. Not happening, thus Harvey’s actions, free will and all that, a choice, constitute a threat. Which the prosecutor needs.

Richard Aubrey | March 2, 2014 at 8:04 pm

Gremlin.

Ref the pistol and whether Walker had to retrieve it: I was talking of probabilities. I had little kids in the house, I have grandkids. You don’t have to think for long to recall the time one of them got hold of something they shouldn’t have.
Of course, Walker might have had his weapon someplace else. But if he were responsible, probably only on his person. If he does’t have it on him, and if he has it locked up against the fingers of a bored three-year-old, it may as well be in the trunk.
So I guess we’ll see, but I was speaking of probabilities.

    Gremlin1974 in reply to Richard Aubrey. | March 3, 2014 at 4:47 pm

    Yea, anything is probable but until we see Walkers statement and likely more importantly his spouses statement speculation is all we have other than the witness statement.

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