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Off-duty “Road Rage” Cop lawyer: Grand Jury given “materially false and misleading testimony”

Off-duty “Road Rage” Cop lawyer: Grand Jury given “materially false and misleading testimony”

Walker defense attorney seeks dismissal of first degree murder indictment of Walker

The lawyer representing New Jersey Detective Joseph Walker, awaiting trial for first degree murder in the Maryland shooting death of Joseph Dean Harvey Jr., has filed a motion to have the charges dismissed on the grounds that “the assistant state’s attorney and the Maryland state trooper, who led the investigation, presented materially false and misleading testimony to the grand jury,” according to a report by WMAR, the Baltimore, MD affiliate of ABC.  

Defense attorney Michael T. Cornacchia provided several detailed examples to illustrate his claim, including:

  • The Maryland State Trooper told the grand jury that Walker did not make any statements.  In fact, claims Cornacchia, Walker told a responding officer that he had feared for both his own life and that of his family.
  • The Trooper testified that none of Harvey’s gun shot wounds were caused at close range, but he failed to tell the grand jury that Harvey’s body was found only six feet from Walker’s Kia minivan, the position from which Walker fired the shots.
  • The Trooper also failed to disclose to the grand jury that Harvey crossed 158 feet to reach Walker, during which Walker held fire until he had no other choice.
  • The assistant state attorney and the MD Trooper also told the grand jury that “after the first shot, all witnesses who have provided statements indicated Harvey was standing still and had his hands up.” In fact, Cornacchia claims, five of the witnesses did not see the shooting at all and did not say Harvey had stopped after the first shot.
  • In addition, one of the only two witnesses who actually saw the shooting provided an inconsistent statement that itself was contradicted by the second witness of the shooting.
  • In addition, although the Trooper testified that Harvey “had lunch”  before the shooting, no mention was made of the fact that Harvey had been drinking for four hours and was legally intoxicated when shot.

Defense attorney Cornacchia also claims additional critical facts were withheld from the grand jury.

Cornaccia also filed a second motion seeking to admit into evidence a passing polygraph in which Walker stated he acted in self-defense in shooting Harvey.

With Walker’s trial scheduled for May 21, and Maryland’s institutional contempt for armed guns in general and armed self-defense in particular, it seems unlikely that the motion to dismiss charges would be granted.

I’m not sufficiently familiar with Maryland’s evidentiary rules to guess at the prospects for a polygraph being admitted.  In most jurisdictions they are not, and in any case the polygraph could at best evidence Walker’s belief that he acted in lawful self-defense.  I personally get letters with unfortunate frequency written by people serving long prison terms who also honestly believe that they acted in lawful self-defense.  It doesn’t matter if you think you acted in lawful self-defense, it matters if you actually did.  Here, the polygraph could have relevancy only to Walker’s subjective reasonable belief that he necessarily acted in lawful self-defense, and it seems likely that other evidence will be sufficient on that point.

But we’ll keep an eye on it, right here at Legal Insurrection.

–-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

I just added MD to my list of states to stay the hell out of.

    Good thinking. Their highway patrol monitors other states’ registries of CCW permits and they will stop you to check for violations of Maryland law. That’s how they operate.

    Convicted terrorist bomber and perjurer Brett Kimberlin is permitted to file nuisance lawsuits pro se to harass and cause expense to those who mention his true history.

    Baltimore.

    The list of reasons to stay the heck out of Maryland goes on.

      platypus in reply to Estragon. | February 26, 2014 at 6:18 pm

      Now that’s interesting. How do they know IF a CCW holder is actually carrying a handgun at any particular time? Or if a CCW holder even owns a handgun.

      That is a flat-out constitutional violation (or two). Section 1983 provides a remedy, which would include damages from the municipality since it appears to be a policy or custom of the agency (as opposed to a couple of rogue cops).

      Somebody should start a website for people to submit their “false stop” stories so that a suitable class-action lawsuit can be supported with lots of similarly situated plaintiffs.

•The Trooper also failed to disclose to the grand jury that Harvey crossed 158 feet to reach Walker, during which Walker held fire until he had no other choice.

Maybe he was just waiting for Harvey to get into range? You don’t shoot anyone with a handgun that is half a football field away.

    stevewhitemd in reply to Musson. | February 26, 2014 at 2:57 pm

    The solution for the poor late Mr. Harvey was simple then, wasn’t it: stay half a football field away. But he apparently didn’t.

    JackRussellTerrierist in reply to Musson. | February 26, 2014 at 7:50 pm

    I’m also curious about the body being 6 ft. away from Walker’s vehicle. Is it not possible he moved the vehicle forward after he shot Harvey to make it look as though Harvey was closer to him?

    I’d still like to know what the ME says in connection to the first wound or the killing shot in terms of distance.

    It looks to me like defense counsel is just calling everybody a liar and hopes some of it flies.

      MouseTheLuckyDog in reply to JackRussellTerrierist. | February 26, 2014 at 9:06 pm

      Is it not possible that police would have noticed tire tracks that said the guy moved the car after stopping. Is it not possible that witness would have told the police that Walker moved the car?

        JackRussellTerrierist in reply to MouseTheLuckyDog. | February 28, 2014 at 12:58 am

        It’s quite possible the cops wouldn’t have seen any tire tracks, especially if there weren’t any. It’s also possible that witnesses in shock at what they just saw – a dead man on the shoulder and/or a guy getting shot – didn’t notice the vehicle being moved. I’ve interviewed thousands of witnesses and stopped being surprised at what they did NOT see right in front of them years ago, especially when it pertains to something that shocks or surprises them. I also stopped being surprised at evidence investigating cops miss a long, long time ago.

DINORightMarie | February 26, 2014 at 2:29 pm

How can the withholding of such information NOT be reason to dismiss, or at least determine that the State did not do their duty as prosecutors?

Does this need to go to trial for it to be dismissed?

Charles Curran | February 26, 2014 at 2:30 pm

Seems like there just was a case of a family driving tru MD, and a MD trooper following them. He ran their plate and found that the man had a concealed carry permit. He pulled them over and searched the car for the gun, which the man had left behind because he was going to travel tru MD. If I recall right, they were held for several hours, and finally released with an apology. I agree with Henry Hawkins above.

    False imprisonment is also actionable in Maryland.

    tom swift in reply to Charles Curran. | February 26, 2014 at 4:47 pm

    Oh yes; Mr Memory tells me that the driver told the trooper that his gun was back in his gun safe nowhere near Maryland, and when asked, his wife said that she didn’t know where it was. The trooper, conveniently misinterpreting that to mean that she was saying it was in the car but she didn’t know exactly where, then claimed that he had probable cause to search the car and its entire contents. Pure harassment, it seems.

      JackRussellTerrierist in reply to tom swift. | February 26, 2014 at 7:54 pm

      The gun wasn’t her property. Her lack of knowledge as to its whereabouts should not be allowed as anything remotely close to probable cause. They should have sued. These gestapo/revenue agents need to be shut down.

        Quite right, as I recall. It sounded to me like one of those situations in which the wife didn’t want to know anything about hubby’s gun(s), so of course she wouldn’t know anything about its location, and answered truthfully.

      MouseTheLuckyDog in reply to tom swift. | February 26, 2014 at 9:11 pm

      Actually the wife’s words were close to “I don’t know where that thing is. Maybe in the glove compartment. I don’t even want to see it.”

    MouseTheLuckyDog in reply to Charles Curran. | February 26, 2014 at 9:15 pm

    It’s more scary then that. MD has scanners that grab the license plate off passing cars. Computers automatically do the background check.

    They also data mine, for information, even if other states do not share it with them.

“•In addition, although the Trooper testified that Harvey “had lunch” before the shooting, no mention was made of the fact that Harvey had been drinking for four hours and was legally intoxicated when shot.”

Wow ! Although this layman suspects that there is no requirement to present exculpatory evidence to the GJ, this little tidbit is pretty amazing, especialy if based on post-mortem blood work.

    Olinser in reply to pjm. | February 26, 2014 at 3:08 pm

    While that could be interesting if true it is also irrelevant to Walker’s actions unless he has some way to prove that he KNEW Harvey was drunk BEFORE shooting. And even then, just because he’s drunk doesn’t suddenly make him a life-threatening danger deserving of being gunned down when he still hasn’t even gotten close yet.

    I’m also suspicious whenever lawyers and the media use terms like, “legally drunk”. When they use terms like that instead of specifying a BAC, it leads me to believe that his intoxication level was at or barely above .08 – which, while it will impair judgement, hardly makes you falling-down-drunk.

    The fact remains that Harvey did not have a visible weapon (or even a weapon at all) and hadn’t even gotten close to Walker yet.

    If they had gotten into a fistfight, Walker might be able to make a case. But he shot him at a large distance.

    I don’t see this going well for Walker.

      Phillep Harding in reply to Olinser. | February 26, 2014 at 3:24 pm

      “Deserve”?

      It’s okay to shoot someone who deserves it but not okay to shoot someone who does not, even though all other conditions are exactly the same?

      I doubt it.

      Henry Hawkins in reply to Olinser. | February 26, 2014 at 3:53 pm

      Legally intox is the differentiation from clinically intox. Legal intox (BAC .08 most places) is a one-size fits all number because it isn’t feasible to the state to clinically measure individual levels of intox (or clinical intox).

      In reality, everyone experiences .08 differently. The extremes would be like this: My wife, who doesn’t drink at all, would be passed out on the couch at .08, while a fifth-a-day bad alcoholic would not be drunk at all, in fact, would likely have gone into withdrawals before his BAC got as low as .08.

      this comment is only valid IF what the defense says is true so in the end I may be wrong. So I will pre-apologize for the snark in case it turns out that way.

      6 feet away after a 150+ foot run at you after the guy uses a vehicle as a weapon seems pretty close to me but hey, you make sure to wait until its 2 feet if this happens to you. let us know how that works out.

        tom swift in reply to dmacleo. | February 26, 2014 at 4:58 pm

        150+ foot run

        The reports released to the public say nothing about running. The police said something vague about Harvey approaching in an “aggressive” manner, but have so far failed to elaborate on “aggressive”.

          you do know run doesn’t always mean a person running.
          a 150 foot run can mean 150 foot distance to people not looking to parse everyones words some odd reason.

          I think the “at you” made it look like I meant physically running, that was my fault, sorry.

          tom swift in reply to tom swift. | February 26, 2014 at 10:41 pm

          you do know run doesn’t always mean a person running.

          The point is that the reports we’ve all been reading about this case since last year didn’t mention the word “run” in any context. The words used were “approach” and “aggressive” (or “aggressively”), with no further explication.

      BTW I am sure there is asphalt and concrete nearby, and videos all over the place show that being used as a weapon. hell seems to me was a pretty big case about that recently…

    tom swift in reply to pjm. | February 26, 2014 at 4:52 pm

    There may not be as much there as it seems. Harvey had probably been sleeping – and sleeping for hours! – sometime before driving, too, but that hardly implies that he was asleep when the incident occurred.

    JackRussellTerrierist in reply to pjm. | February 26, 2014 at 8:01 pm

    I don’t see what Harvey’s sobriety has to do with the shooting. And as much stuff as this defense attorney is throwing against the wall, I have doubts about any of it. A polygraph relating to what someone’s thoughts were? Gimme a break.

A ham sandwich has a better chance

Phillep Harding | February 26, 2014 at 3:13 pm

52yds is a bit more realistic a stopping distance than 33yds, and Walker would have had an easier time getting back in his car and driving off without risk of being slammed between the door and the car. I suspect that is going to cause problems if this goes to trial.

Still, the DA seems to have left out a whole bunch of stuff. IAMAL, so no idea if it’s the sort of stuff the DA is /supposed/ to reveal at that point.

    JackRussellTerrierist in reply to Phillep Harding. | February 26, 2014 at 8:08 pm

    If a trained officer can’t get away from a fat, possibly drunk guy 158 feet away without killing him, he needs to find a new job.

      I wish that were the standard.

      30 years ago I was shocked to see green fungus on a policeman’s leather service holster.

      But I was young and naive in those days.

      Any recreational IDPA shooter fires vastly more rounds per year than does the typical police officer.

      Any recreational martial arts student spends vastly more hours each year sparring than does the typical police officer.

      There’s a reason why most large police departments have had to develop “felony arrest squads” or “SWAT teams” or the equivalent. Most of their personnel are not actually capable of going up against truly hard men and having a serious prospect for surviving the contact.

      Write tickets? Take down crime reports? Stand around and present a thin veneer of security? Sure.

      That’s not a knock on the officers–their capabilities accurately reflect 99.9% of a typical police department’s daily job responsibilities. Those departments don’t need–and couldn’t possibly afford to maintain–a department largely made up of men who could to the hard thing.

      It’s just the nature of the beast.

      –Andrew, @LawSelfDefense

      MouseTheLuckyDog in reply to JackRussellTerrierist. | February 26, 2014 at 10:56 pm

      Well maybe he has found a new job. If Walker, for example blew out a knee, he may no longer be fit to be a street cop. So he gets assigned to a desk job. The police department spent lots of money training this guy. Do you think that they let that investment go because he is not able to fulfill a physical but can play a role which is not physical.

        JackRussellTerrierist in reply to MouseTheLuckyDog. | February 27, 2014 at 12:36 am

        Walker was an investigator for the prosecutor’s office, not a street cop. They are two different, separate departments. Walker may have started out as a street cop, which most investigators do, but an investigator’s position with the prosecutor’s office is a big step up from street cop. Most have advanced to detectives with the PD or sheriff’s office before they’d even be considered for the prosecutor’s office. We don’t know how Walker got his job – maybe he was an AA hire. But, whatever path he took to get there, he didn’t demonstrate the cool, calm and collected demeanor of a true investigator. It appears that he behaved like a power-happy rookie cop whose badge was hot off the press.

Some of those allegations may make it a righteous shoot — in a SYG state. But none of it would seem to relieve Walker of his duty to retreat under MD law. I’d hate to see Walker go down for murder if it was indeed a righteous shoot, but it would go a very long way to demonstrate the need for SYG.

if this is true (and we all know how defense lawyers are right??? amirite Mr Branca?? 🙂 🙂 ) I would think this is pretty damning stuff.
and in a normal state, where you are not required to die retreating after being chased my a weapon weighing tons, I would suspect its a case turner.
in MD though…I am not so sure. I think (and easily could be wrong) that if the officer does go free its only due to his job position which leaves me feeling queasy. If these are true I would be glad he was not found guilty and sick that it was only due to his job all at the same time….
One to watch for sure, I thank the people at this site for keeping us up to date on it and others.

Richard Aubrey | February 26, 2014 at 5:03 pm

Couple of observations: The defense ought to put this photo in evidence. Fat Guy, even when having a portrait taken dressed reasonably well, wants everybody to know he’s a badass. OTOH, it may be a mugshot. Which would be nice to know.
Not sure the withheld facts–withholding exculpatory evidence ought to be a capital crime–apply to the duty to retreat.
Question, imo, is when Fat Guy became obvious to a reasonable person as a threat.
Suppose the cop figured that, with his fitness and training, he could take Fat Guy without using a weapon. Changed his mind when it was too late to retreat (time from standing there to getting into the car, locking the door and getting going versus the distance to Fat Guy). Is he to be penalized for thinking first of non-lethal techniques should the thing get that far?

    Phillep Harding in reply to Richard Aubrey. | February 26, 2014 at 5:16 pm

    You are assuming “fitness and training”. Another poster says he was a paperwork cop. No telling why he was shifted off patrol to the back office.

      JackRussellTerrierist in reply to Phillep Harding. | February 26, 2014 at 8:11 pm

      Walker was an investigator for the prosecutor’s office. They don’t “do” patrol. They investigate and gather evidence for prosecutions.

      MouseTheLuckyDog in reply to Phillep Harding. | February 26, 2014 at 9:29 pm

      There are some cops who like to be street cops, but a lot of cops, especially cops with families, prefer to work behind a desk where they are less likely to get shot.

    The term “Fat Guy” assumes facts not in evidence. Many body builders, construction workers and hard cases are 300 lbs of grit and muscle. The dining room at Kaiser’s Eagle Mtn Mine in CA held 120 mine workers at a time, and at least 50 topped out over 300. Assumptions, baby!

    Prosecution Investigators are sometimes picked because they are smart, not damaged goods. Not saying flashing a badge and gun from OS in MD was smart. It wasn’t.

    No cop worth his salt is going to let an aggressor get too close to him. Yep, Walker made a mistake by not driving away sooner, probably. But once Harvey was too close Walker was in a position of defending a precious cargo, not just himself.

There’s less here than meets the eye. It’s the defense’s job to put up these hurdles, but that doesn’t mean that they’re all good ones.

Consider, for example, this one:

In addition, one of the only two witnesses who actually saw the shooting provided an inconsistent statement that itself was contradicted by the second witness of the shooting.

In other words, defense may be conceding that the state has at least one perfectly good witness to the shooting.

Another:

In fact, Cornacchia claims, five of the witnesses did not see the shooting at all and did not say Harvey had stopped after the first shot.

How many “witnesses” didn’t actually witness the event is hardly likely to be important to the trial. The witnesses who did witness the event will be the ones the court wants to hear.

IANAL, but it’s hard to see things like these being grounds for dismissal.

    JackRussellTerrierist in reply to tom swift. | February 26, 2014 at 8:16 pm

    “In fact, Cornacchia claims, five of the witnesses did not see the shooting at all and did not say Harvey had stopped after the first shot.”

    Yes, that one’s a complete red herring. Of course the five wouldn’t say Harvey stopped after the first shot since they didn’t see it, but defense is trying to make hay out of it by suggesting that what somebody didn’t see is somehow proof that what someone else said who did see it is not being truthful.

    Ay carumba!

      I don’t think that’s the point, actually. I think the point is that the State misrepresented to the Grand Jury that ALL the witnesses who provided statements were consistent on that point. Given that the majority of them didn’t even see it, that could hardly be true.

      –Andrew, @LawSelfDefense

        tom swift in reply to Andrew Branca. | February 26, 2014 at 10:52 pm

        Probably. But does the DA’s possibly casual attitude toward strict accuracy when dealing with the GJ kill the whole case, or would the judge allow it to proceed if he thinks that the inaccuracies would have had little effect on the GJ’s finding?

        JackRussellTerrierist in reply to Andrew Branca. | February 27, 2014 at 12:48 am

        Do you have the investigative information that was presented to the GJ by the State? If so, I’d love to see it. 🙂 Is Walker’s wife one of the five witnesses?

        Are there subsequent statements from some of those five witnesses who state they didn’t tell the investigators such-and-such, yet the investigators or the State claimed (to the GJ) that they did say such-and-such?

          I have the transcripts of the witness statements whose testimony was used to support the State’s pursuit of the first degree murder indictment from the grand jury. The witnesses themselves did not, I believe, testify to the grand jury. Rather, the state prosecutor pursuing the case and a MD State Trooper provided the in-person testimony, supporting their statements with those made at prior dates by the actual witnesses.

          The full-text of the defense’s motion to dismiss the indictment and the transcript of the same-night testimony of Adam Pidel (Harvey’s passenger) to investigators will be posted up here as part of my next post on this case, in about 20 minutes or so.

          –Andrew, @LawSelfDefense

    MouseTheLuckyDog in reply to tom swift. | February 26, 2014 at 10:22 pm

    All the points seem to be an example of a violation of the doctrine of completeness. http://www.law.cornell.edu/wex/doctrine_of_completeness .

    Put in simpler way, when the prosecutor presented the points to the jury, he may have told them the truth, but he did not tell them the whole truth.

    I don’t know if the prosecutor is required to follow the doctrine of completeness in a GJ hearing, but if you violate regular court room procedures, even though allowed, enough times they can invalidate a GJ proceding.

    I do not expect the defense attorney expects a outright dismisal. I expect that he wants to force the ju9dge to hold a preliminary hearing.

    A preliminary hearing would result in two positive things for the defense. The first is that it would force the prosecution to present its case, subject to defense scrutiny. The defense may be able to convince a judge that there are enough cracks in the case that a trial is not warranted.

    The second thing is that it forces the prosecution to show it’s hand. It makes it easier to prepare for trial.

      JackRussellTerrierist in reply to MouseTheLuckyDog. | February 27, 2014 at 1:29 am

      Since Walker was indicted, he probably doesn’t have an absolute right to a prelim.

      At any rate, a prelim is only about probable cause, which is a much lower standard than the proof required to overcome reasonable doubt of guilt. Thus, the State doesn’t have to show all their cards at a prelim. Not even close, especially when we’re talking about 158 ft., a fat guy and a seasoned peace officer in or by his vehicle in a state requiring “retreat”. Further, the State can probably call Walker’s wife to testify in a prelim and tear her apart right out of the gate. No jury to say tsk tsk, Mr. prosecutor, leave the poor woman alone. She may well be the defense’s best witness in terms of observations of the incident. Once she’s cooked by the State, the defense loses its star for the jury, and that’s beyond the level that she’d be discounted by the jury for her bias as the defendant’s wife.

      Even if the defense succeeded in a prelim, the State could probably refile for M2.

This could also be “battle-space preparation” by the defense. It is hard, at this point, to know the verity of any damn thing.

If the defense argues the case shrewdly and picks the right jury, they wont even listen to the legalistic, mind numbing ‘instructions’ and the acquit will be quick.

The defense must impugn Harvey, which doesn’t look like its going to be too tough, then put each juror in Walker’s place, emphasizing he already ‘retreated’ once, and then ask each juror: What would you do?

    JackRussellTerrierist in reply to bildung. | February 26, 2014 at 8:17 pm

    When did Walker “already retreat once”?

      I think it might refer to Walker having stopped his vehicle while Harvey continued on, but Harvey stopped too and came on foot towards Walker.

        JackRussellTerrierist in reply to Henry Hawkins. | February 27, 2014 at 1:43 am

        Walker reportedly stopped his vehicle to check for damage allegedly caused by a thrown bottle, not to get away from Walker. If he intended retreat at that point, then he would have driven off as soon as Harvey pulled over (assuming Walker didn’t wave Harvey to stop with his badge and a hand motion). He could have backed up or turned around (depending on the traffic level) as soon as Harvey stopped or certainly when Harvey got out of his vehicle, and called 9-1-1. THAT would have been a ‘retreat’ at that point.

          In AB’s first post on this case, the first thing I said was I was dubious on the claim Walker stopped to check for damage. Didn’t make sense to me in the middle of an incident. A thrown bottle could only dent a fender, crack a window, neither of which would seem to require immediate inspection.

Richard Aubrey | February 26, 2014 at 6:09 pm

Bildung.
Duty to Retreat would strike some people as counter-intuitive. Prudent, in some cases, yes. Legally required???
There’s a counter-intuitive law and then there’s the jury. Most of us have had to deal with Fat Guy one way or another.
I would find it hard not to acquit absent the most egregious evidence against the shooter. I mean, really egregious. I would try hard to follow the law, but gray areas can tilt one way, or another, for a juror, I suspect.
As to fitness and training, a paperwork cop can use the gym regularly and a beat cop can have a Krispy Kreme habit. But he had some training once upon a time. Maybe he overrates his abilities at this point, but the point is…maybe he figured he’s as good once as he ever was.
So it seems relevant to try to figure when the cop went from–loudmouth asshole coming my way–to–crap, I might have to shoot this guy–and relate that to the time left to retreat.

Whippersnapper | February 26, 2014 at 6:24 pm

I think that as more information comes out publicly, many here who are thinking this was a justified self-defense shooting will reassess their conclusion. From the little I know (from living in the area), this was likely a road rage murder–pure and simple.

If a State Trooper gave “materially false” testimony to a grand jury would that be punishable? (I know, we’re talking about MD) Walker’s actions prior to the shooting, IMO, are irrational for a LEO. If he was the victim of road rage why didn’t he call 911? If an intoxicated Harvey had to close on foot a distance of over 50 yds, why didn’t Walker simply drive away?
“The Trooper testified that none of Harvey’s gun shot wounds were caused at close range, but he failed to tell the grand jury that Harvey’s body was found only six feet from Walker’s Kia minivan, the position from which Walker fired the shots.” Did we not learn from the Zimmerman trial that mobility can continue after being shot? How far could Harvey have moved toward Walker after being hit?
Not being a lawyer, but if I’m on the jury these objections would warrant a “so?”.

    JackRussellTerrierist in reply to MarkS. | February 26, 2014 at 8:20 pm

    More importantly, how far toward Harvey’s body could Walker have moved his vehicle after he killed Harvey?

    Henry Hawkins in reply to MarkS. | February 26, 2014 at 8:51 pm

    It was ‘reported’ (insert usual codicils here) that Walker stopped his vehicle to inspect for possible damage from a thrown bottle. I suppose it’s possible this caused him to miss Harvey stopping his vehicle 50 yds up, and/or getting out, coming after Walker…

In an earlier thread on this subject, I opined that a fairly obvious hypothetical was not discussed at all. I don’t think any comment was made in response.

But what if the cop was telling drunk man he was under arrest and to get down on the ground? What if he repeated the command several times, and added a warning after he drew his weapon (to no effect)? What if during that time period, drunk man was advancing on the cop? And what if cop was trained to wait until it was absolutely certain he was going to be attacked before he shoots the threat?

There was a Seattle cop who shot a knife-carrying drunk to death and was not charged. About forty years ago, an LAPD officer shot an unarmed naked man to death at 6:00 am and was not charged. This case sounds very similar.

Oh, and what if he told his wife to shut up about what happened, which she did, and because she wouldn’t talk they arrested him?

Any comment on this notion, fellow keyboard analysts?

    MarkS in reply to platypus. | February 26, 2014 at 6:56 pm

    A lot of speculative ‘what ifs’. What I find difficult for Walker is that, according to local news, the prosecutor asked the Grand Jury for a second degree murder indictment but after hearing the evidence returned a first degree charge.

      That is incorrect. Immediately following the shooting Walker was charged with second degree murder. The prosecutor then decided to submit first degree murder charges to the grand jury, which returned an indictment on that greater charge.

      The defense, however, just yesterday submitted a motion for dismissal of the indictment for the materially false and misleading testimony described in the post above.

      More on that motion–the Walker defense team was kind enough to provide me with a copy, and I’m reading through it now. 🙂

      –Andrew, @LawSelfDefense

    tom swift in reply to platypus. | February 26, 2014 at 11:03 pm

    But what if the cop was telling drunk man he was under arrest and to get down on the ground? What if he repeated the command several times, and added a warning after he drew his weapon (to no effect)? What if during that time period, drunk man was advancing on the cop?

    What scanty fragments of witness accounts we’ve heard so far don’t match such a scenario terribly well.

It seems to me that the defense has now made an admission that erects a huge road block to mounting a successful self defense case here…

“The Trooper also failed to disclose to the grand jury that Harvey crossed 158 feet to reach Walker, during which Walker held fire until he had no other choice.”

Absent a compelling narrative for why the defendant did not get into his car and drive away when Harvey came at him from 158 feet away, I don’t see self defense holding up in Maryland with its duty to retreat law.

-bsd

    JackRussellTerrierist in reply to bigskydoc. | February 26, 2014 at 8:28 pm

    Besides all that, let’s not forget what Walker is reportedly claiming as hos reason for stopping: to inspect damage done by a bottle Harvey allegedly threw at Walker’s vehicle. You’re involved in an ongoing road rage incident and you pull over to look at damage from a bottle? So far as we know, Walker is not claiming that the bottle somehow disabled his vehicle, so I remain suspicious about his entire story. 158 ft. and he couldn’t just drive away? I wonder, since Walker flashed his badge and gun if he didn’t motion Harvey to pull over. I’d like to know what Harvey’s passenger has to say in regard to this part of the debacle.

      I’d be careful about placing too much emphasis on the “thrown bottle story,” although I passed on that narrative myself (albeit with the usual caveats about “news” “facts”).

      Having now seen numerous witness statements, none of them mention a thrown bottle, leading me to suspect that the bottle narrative may be a wholly-“journalism” created fantasm.

      If I come across definite support for the bottle story, you can be sure I’ll share it here.

      –Andrew, @LawSelfDefense

Richard Aubrey | February 26, 2014 at 8:07 pm

Big Sky Doc.
I think–IANAL–that the prosecution would have to show that Fat Guy was obviously a threat from foot 158 on. If not, then that distance is not entirely relevant.
The cop’s possible assumption was that this guy is a loudmouth asshole and the world’s full of them. There is no duty to retreat from a guy who’s running his mouth.
At some point, foot 157 or foot 27, the prosecution may be able to show Fat Guy was a threat as a reasonable person would perceive it. Problem is, the closer that is, the less time for a safe retreat. Close enough and there is no safe retreat. Thus no duty.
If the prosecution shows that Fat Guy was a threat from foot 158 and closing, obviously and clearly a threat after this road rage crap, the jury might have Judge Roy Bean’s maxim in mind. Some men needed killin’.
Look at it from the jurors’ point of view. The cop is only a threat to me if I damage his car and attack him. Fat Guy is a threat to me if I accidentally make eye contact with him at the gas station.

    There is no duty to retreat from a guy who’s running his mouth.

    The “duty to retreat” means that you’re expected to retreat from the encounter before you blow a couple of holes through the guy.

    Doesn’t matter what he’s saying, doesn’t matter what he looks like. The only relevant factor is, is an effective line of retreat available to you?

      Isn’t that duty in force only at the instant a reasonable man might believe he is about to be attacked? Or does someone in MD have to retreat from everyone, all the time? (Sorry)

      Aubrey’s point is valid. Where was Harvey exactly when Walker should have reasonably formed the belief he was in threat of danger, and should retreat? Must it have been exactly when Harvey stopped his car and got out? Or before that? Or when he began walking back? Or somewhere else along that continuum?

        tom swift in reply to 49erDweet. | February 27, 2014 at 6:33 am

        Or does someone in MD have to retreat from everyone, all the time? (Sorry)

        So it seems, if the alternative is lethal force. By requiring retreat when possible, Maryland has removed some options which would otherwise be up to the discretion of the person in the best position to make such decisions. Unwise or unfair though that may be, that’s just how it is in that state.

        Where was Harvey exactly when Walker should have reasonably formed the belief he was in threat of danger, and should retreat?

        Anywhere/anytime would do. That particular choice has been left with the man on the on the spot. Maryland says he has to retreat before using lethal force, but doesn’t specify exactly when, where, or how.

As far as this ‘duty to retreat’ thing that many here are hanging on, I’ll bet the defense pursues a close version of what I keep saying here.

Walker already did ‘retreat’. He already broke off the incident, only to have Harvey continue to push it.

Walker checked off the ‘retreat’ box, but Harvey clearly refused to take ‘I quit’ for an answer.

And to ‘drive away’ obviously isn’t possible, since Harvey is just going to continue pursuit, directly on Walker’s tail leaving him, his wife and three children defenseless.

Harvey went looking for trouble more than once and found it.

I say no jury will convict this police officer because no twelve people are going to concur on a patently absurd first degree charge, no matter the ‘legalisms’ or the ‘instructions’.

Never underestimate the power of a ‘common sense’ defense.

I saw directly perhaps the most stunning demonstration of such a work in 1980 by Atty. Bob Cahoon in my hometown of Greensboro, NC, in the case of the infamous CWP-Klan/Nazi shootout.

Andrew, as a student of self-defense, I’d be surprised if you are not aware of this case.

    “Walker checked off the ‘retreat’ box, but Harvey clearly refused to take ‘I quit’ for an answer.”

    That’s simply not how it works. It’s not a “I checked the box,” therefore I met my retreat obligation for the duration of the conflict.

    Just because you retreated once before does NOT mean that as you now face the prospect of using deadly force in self-defense you aren’t STILL required to take advantage of a safe avenue of retreat.

    You ARE.

    If you had already retreated 100 times, and that 101st time you still had a safe avenue of retreat, the duty-of-retreat requires that you make use of it before you resort to the use of deadly force in self-defense.

    Only when the avenue of safe retreat ceases to exist are you free of the duty to retreat in a duty-to-retreat state.

    –Andrew, @LawSelfDefense

      MouseTheLuckyDog in reply to Andrew Branca. | February 26, 2014 at 10:44 pm

      This is absolutely wrong, the avenue of retreat is a perception. For a person to be required to retreat, a reasonable person would have to perceive that there is an avenue of retreat. After retreating a hundred times, to perceive there is still an avenue of retreat is not only unreasonable, but in the eyes of a great man such as Benjamin Franklin, it is no less than insanity.

        MouseTheLuckyDog in reply to MouseTheLuckyDog. | February 26, 2014 at 10:45 pm

        I forgot to say that the 100 retreats is not the case here ( or course).

        Ben Franklin isn’t going to be on the jury.

        The 100 retreats postulated supra were not failures; they were successes. Each ended a particular encounter without violence. That isn’t changed by the fact that they were followed closely by further encounters.

        Inductive logic can’t conclude from a string of successes (even transient ones) that the next one will be a failure.

    Excepting I have no idea of the general attitude of MD jurors as to the general reputation of NJ LEO’s, I agree with the first part.

“If you had already retreated 100 times, and that 101st time you still had a safe avenue of retreat, the duty-of-retreat requires that you make use of it before you resort to the use of deadly force in self-defense.”

But, if you’ve retreated 101 damn times you probably aren’t even in Maryland anymore, so fuggit, fire away.

Richard Aubrey | February 26, 2014 at 9:22 pm

Interesting point about getting in the car as “retreat”. Could the defense make the case that it didn’t actually mean safe retreat? Fat Guy had a car, too, and was murderously reckless.

The defense should easily be able to convince at least several jurors that there was no safe avenue of retreat, based on the fact that the first proffer of retreat was refused and followed up by aggressive action.

It would be reasonable to conclude that any other ‘retreat’ would be similarly rebuffed, increasing the danger to Walker and his family.

So I think a jury will conclude that “the safe avenue of retreat” did indeed “cease to exist”.

That’s even if they choose to consider this aspect of the law as determinative.

I think at least several jurors will decide for innocence based on common sense threat calculations, supported by at least one earnest attempt by Walker to ‘retreat’.

A jury encompasses a moral sense more so than a technical, legalistic expertise.

It is precisely because the law can be an ass, no matter “how it works” that we invite the human element of judgement.

Otherwise, we could just set Big Blue in the jury box and feed it the ‘instructions’.

Walker tried hard enough, Harvey was no innocent lamb, there is no murder one and there will be no conviction.

So, Andrew, what did you get out of the defense pleadings?!?!

    Only worked through about 20% of it so far–the actual motion itself and the same-night testimony of Adam Pidel, Harvey’s passenger, to investigators.

    Both are embedded in my next post on the case, going live in about 15 minutes.

    I’ll work through as much of the rest as I can today, and of course will post the full-text here in successive posts as I do so (timing of publication of posts being at the Professor’s discretion, of course). He may want to spread them out a bit.

    –Andrew, @LawSelfDefense

Richard Aubrey | February 27, 2014 at 6:09 am

‘nother observation. WRT Fat Guy. Look at his pic. His neck does not overflow his collar. He has no jowls. His head is about one third of the width of his shoulders, which is less than average. The skull does not scale directly with body size. The bigger you are, usually, the smaller the head seems wrt the shoulders and torso.
When cartoonists want to show some guy–including top-flight animation efforts–being huge and formidable, they exaggerate the smallness of the head on the shoulder. Usually the bad guy.
So, while we’ve been referring to this clown as Fat Guy, it’s possible he was, instead, big. IOW, strong, quick, and with adequate cardio. Guys like this, with a padding of pudge, are still strong, quick, and with adequate cardio.
The cop might have thought initially he was dealing with a donut dunker and only as Fat Guy approaced discovered a greater threat than he’d originally thought.
Guys who are just fat probably learn through experience, or judgment if they have any, that trying to be a physical badass is a bad idea. OTOH, guys who are big, strong, quick, and with adequate cardio might find that being a physical, threatening, potentially violent badass is a role they can carry off successfully and that’s the way they roll. Which means their temper and violence has not been tempered by being put on their asses a few times. If it works for them, they’ll keep it up.
And here we are.

    tom swift in reply to Richard Aubrey. | February 27, 2014 at 6:41 am

    Doesn’t get you anywhere.

    The more arguments that, based on appearances, Davis should have guessed that Harvey would be trouble, the more arguments that he should have stopped admiring the scenery, gotten back in his car, and driven off. In other words, act like the fictional Reasonable Man.

    If we postulate a harmless Harvey, Davis is on the spot.

    If we postulate a dangerous Harvey, Davis is on the spot.

    Defense is going to be expensive.

    Bruce Lee weighed 135 lbs.

Richard Aubrey | February 27, 2014 at 6:47 am

Tom Swift.
I get that. Problem is, at what point did the cop discern he had a problem; ie. when did “fat” turn to “tough” in his perception.
And, to reference somebody’s perceptive question; why does getting into your car when the other guy has a car, too, and no compunction about using it as an instrument of assault mean you’ve got a successful avenue of retreat?

Ok, here is my problem. Harvey was found 6 feet in front of the van, but according to the numbers I have seen had already crossed 152 feet just to get that close. Why didn’t Walker just get in his car and go when the guy was over the 100 foot mark or so?

I have a hard time believing self defense in a case like that, even if it was a SYG state. It just feels wrong to me.

    MouseTheLuckyDog in reply to Gremlin1974. | February 28, 2014 at 1:19 pm

    I don’t have trouble with that because a really fit guy can run that in 4-5 seconds. What I have some trouble with is Pidel statement that Walker reached into the van to get the gun. But then it’s the guys friend saying this.

    Walker could for example have been looking at the undercarriage when he realized that Harvey was approaching. He thinks “I’ll show him my badge and gun and he goes away”. He realizes that the guy is not going away, and at that time the guy is about 6 feet away.

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