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“Road Rage” Murder Trial: Motion to Dismiss, Grand Jury Testimony

“Road Rage” Murder Trial: Motion to Dismiss, Grand Jury Testimony

Walker’s lawyers: “Prosecutors presented materially false and misleading testimony to the grand jury,” move to quash indictment

Back on February 26 we reported that defense counsel for Joseph Walker–the New Jersey cop who shot and killed Joseph Harvey Jr. in an apparent “road rage” incident in Maryland–had filed a motion to dismiss the first degree murder indictment against him on the grounds that the Grand Jury had been given “materially false and misleading testimony.”  You can see that story here:

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

Shortly thereafter I received a call from Walker’s lawyers offering to share with me their motion and the accompanying exhibits.  These are not confidential documents, but rather are public documents having been submitted to the trial court. Nevertheless, having them provided directly by counsel was a great convenience in accessing them.

Over the last few days I have been going through the attached exhibits, which consist mostly of transcripts of witness statements to police, as well as a brief report generated by the MD State Police themselves and a sketch of the shooting scene with the locations of the vehicles and other items.

Today I wrap up this series of “exposés” with the actual motion itself, as well as the transcript of the actual MD State Trooper testimony presented to the Grand Jury.

There’s little point to doing an in-depth analysis of these, as the documents speak largely for themselves, so have at them at your leisure.

First, the motion to dismiss:

Second the MD State Police testimony to the Grand Jury:

–-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

“There’s little point to doing an in-depth analysis of these, as the documents speak largely for themselves, so have at them at your leisure.”

Andrew – It would be a large advantage to those of us who don’t want to read the whole freaking thing 🙂

It would be an interesting discussion as to what value such a motion has. Procedurally, if the motion is granted the prosecutors can just go right back to the grand jury and get another indictment (for those readers not in the criminal justice world, double jeopardy won’t attach until the jury is empanelled in the trial, so there’s no double jeopardy problem with getting a new indictment if this one gets dismissed.) And, such as the old joke about a being able to get a grand jury to indict a ham sandwich, it’s very likely the next grand jury will still return the same indictment. About all that can be accomplished is a) getting pretrial publicity on the facts favorable to the defendant, and b) delaying the trial, which does help the defendant in that witnesses move and can be difficult to find the more time goes by, and their memories fade. Not that those two things aren’t extremely beneficial. But are they worth the delay to Walker in getting his name cleared (as he probably sees the trial outcome)?

Just thinking out loud,
Ted

    MouseTheLuckyDog in reply to Ted Bell. | March 18, 2014 at 2:13 pm

    I don’t think you have read the motion. MoD is a misnomer. It is actually three motions: a motion to dismiss, a motion that the prosecutor misconduct is so severe that a dismissal is not sufficient it must be a dismissal, and a motion to impose restrictions on the prosecutors should they resubmit. The restrictions are basically that they can’t repeat the claimed “nono’s”.

    I’m actually surprised that the defense didn’t move to set aside the indictment and have a preliminary hearing, but I also got the impression that had the prosecutor answered some of the questions differently, the GJ might not have indicted.

      MouseTheLuckyDog in reply to MouseTheLuckyDog. | March 18, 2014 at 4:33 pm

      Sorry two should read “has to be a dismissal with jeopardy”.

      I can’t find it referred to in the motion. Perhaps it was a comment at the time.

Not a lawyer, however, to me page 5, line 4, if true, ends Walker’s claim of self defense, especially in a DTR State.

    ThomasD in reply to MarkS. | March 18, 2014 at 1:36 pm

    Not a lawyer either, but if the state is proceeding under the belief that the events occurring while on foot are merely a continuation of the potentially lethal altercation begun while driving, then I would agree.

    I also wonder if the verbiage of the MD First Degree statute “lying in wait” comes into play. If the state can confirm to a jury that Walker did indeed stand and observe while Harvey approached to within a suitable distance they may be convinced that the shooting was a form of ambush.

    tom swift in reply to MarkS. | March 18, 2014 at 2:25 pm

    But the trial will not be about bad driving, it will be about bullet holes.

    Walker can be a major-league jerk behind the wheel but still have a legitimate claim of self defense a few minutes later.

    It all depends on when a physical attack by Harvey threatening death or serious bodily harm to Walker became imminent. That would be when Walker’s shots would be an appropriate defense. And that didn’t happen during the silliness while both parties were driving. If it happened at all, it happened later.

    MouseTheLuckyDog in reply to MarkS. | March 18, 2014 at 2:44 pm

    Actually I think you’ve picked a good line to examine the merits of the motion. Actually paragraph.

    Remember what this is. The troopers summary of the witness statements. Which statements? The ones we have seen. No more, no less.

    The first thing that impresses me is the phrase “to catch up to the victim’s vehicle”. ( BTW there is that nasty word “victim”. )
    I don’t remember any witnesses claiming that Walker ever tried to catch up. That’s a motive that the Trooper , who didn’t see anything, ascribes to Walker.

    But even accelerates is questionable by the witness statements. Pidel says they went back and forth, but I don’t think he ever says Walker accelerated. Walker says he was never aggressive. Most of the witnesses IIRC don’t say anything. The exception being Mr B. Who said Walker kept slowing down.

    I haven’t read the whole GJ testimony, but if the rest is like this, then the defense may haver a chance on the motion.

      How much of the trooper’s testimony do you find discountable? Earlier in the GJ report it is mentioned that after the initial cut off Harvey, on the shoulder, sped up and pulled ahead of Walker leaving the conclusion that if Harvey and Walker were ever again side by side it was because either Harvey slowed or Walker accelerated. So Walker said he never did anything aggressive (self serving) despite witness statements to the contrary.

        MouseTheLuckyDog in reply to MarkS. | March 18, 2014 at 10:45 pm

        In the first case, I haven’t read the troopers testimony in it’s entirety yet only bits drabs. As to what the trooper said, none of it is best evidence. Those are the witness statements.

        If I as a grand juror hear say “then MarkS accelerated …” I expect that the trooper has seen evidence that shows MarkS accelerated. Not that MarkS probably accelerated, but that Marks definitely accelerated.

        So now where is the evidence that Walker accelerated? Not inferences but actual witness statements that he accelerated? Because there is evidence that he slowed down. Mr. B’s testimony and Walkers testimony.

Here’s a question about GJs – can the defense argue that the state failed to give the GJ information from Walker’s statement when Walker specifically refused to give any such statement to the state police? How can they use information which was withheld?

Walker gave some sort of statement to the local constabulary but not to the staties, expressing his desire for a lawyer.

    tom swift in reply to tom swift. | March 18, 2014 at 1:21 pm

    Hmmm, page 19 (that’s page 22 in the PDF universe) claims Walker can keep his statement and eat it too. True? False?

      MouseTheLuckyDog in reply to tom swift. | March 19, 2014 at 2:35 am

      Can they do that? Yep. It’s called the fifth amendment. About the only thing that can happen is a judge decides when you talked you waived your fifth amendment rights and can be forced to answer questions. Another reason to never speak to cops without a lawyer, you kind of want to avoid that.

        tom swift in reply to MouseTheLuckyDog. | March 19, 2014 at 4:05 am

        Which isn’t even remotely what my question was about. Walker’s civil rights are not the issue. The question is can the defense obstruct the prosecution’s attempts to gather some basic information, and then later make outrageous accusations of malfeasance when the prosecution in turn fails to provide that particular information to the GJ. It’s really not that complicated.

    MouseTheLuckyDog in reply to tom swift. | March 19, 2014 at 1:00 am

    What happened: Walker gave a brief description of his version of what happened to the first cops on scene. He then told them that that was all he would say without a lawyer present. AFAIK the police never again asked for a statement. IOW Walker did give a statement to a duly appointed law enforcement official.

    The job of the GJ is not to listen to the pro prosecution evidence and give a ruling based on that. They are supposed to listen to a summary of all the evidence and determine whether it is sufficient to convict.

      Ragspierre in reply to MouseTheLuckyDog. | March 19, 2014 at 10:02 am

      Totally wrong. Totally.

      As I noted elsewhere, the job of a grand jury is to determine if there is sufficient evidence of a crime to bind a suspect over for trial.

      They never begin to see the totality of evidence, and they sure don’t make a judgment on it.

      It IS a process weighted toward the prosecution, sort of (but not entirely) because of its purpose. Hence the “ham sandwich” cliche.

I am probably missing something or doing something wrong, but I cannot find the 911 call by Mrs Walker cited as Exhibit D. I am curious only because in earlier commentary it was asserted that Walker (the Walkers) did NOT call 911 until after the shooting. It appears that Mrs. Walker did so during or prior.

I’ve got the browser set on 180% view and will read all of this, however I am still “stuck” on my original position, with an exception raised that I agreed with by Gremlin1974…e.g., why didn’t Walker just get in his van and wait until Harvey was close and just drive off promptly? That is what I would have done. Only if pursued further would I have increased my level anxiety and defense.

That would have been a reasonable means of at least temporary escape (retreat)….however, baring that, Harvey stopped far ahead of Walker and advanced backwards toward Walker, which can only be overt aggression. He was already past Walker and free to go on his way. Why did he do otherwise? That is what gives credence to me that Walker may have been under the apprehension that his and his family’s life were in danger…given the advance, at least initially, was by two men. In other words, there is no reasonable doubt that had Harvey just driven off from his position of 160+ feet in front of Walker, there would have been no shooting and he’d still be alive.

My conclusion so far is that I’d still acquit due to the over charge by the Prosecutor. No way,none, zero, nada, from anything I’ve have read, qualifies this for first degree murder. Intentional over charging renders the motive of the prosecution suspect in my eyes. That is just me, however. The fact there are possible included lessor charges makes no difference to me, I am going to form my opinion on the initial charges. Lessor charges are merely cop outs, in my opinion, given the initial charge.

If the charges can be dismissed wihtout prejudice I would favor that. Then the prosecution could re-charge with an appropriate level of serverity…some thing more like involuntary manslaughter or negligent manslaughter, if those are legal terms/charges. Legal experts Branca and/or Ragspeirre can advise me on that matter.

Walker could have stayed in his vehicle driven past Harvey. Harvey could have just kept on driving. Both caused the death of one, and unless the charge is re-made at a much lessor level than first degree murder, I’d acquit Walker. Harvey died of personal stupidity. Could be manslaughter because Walker had an option to drive away too…however this scenario far demonstrates to me how a Grand Jury can indict a ham sandwich.

Why do I dismiss all the witness blather , as well as Walker’s variations you say?

Very simple. I’ve been in combat. I know, beyond any reasonable (or shadow of) doubt, that the front line participants cannot render a completely factual description later. There really is a fog and it encompasses you. Only very rare men (or women), such as Marcus Luttrell and his team, can rise above it and keep a clear head and follow their consciences ethically.

Most of us are not nearly so capable.

    Ragspierre in reply to Aridog. | March 18, 2014 at 1:46 pm

    You seem to confuse the roles of the trial court and the grand jury.

    The grand jury determines if enough evidence exists to bind the defendant over to trial.

    Here, they found there was, and on the specifics of murder one.

    It isn’t their job to try the case.

      Aridog in reply to Ragspierre. | March 18, 2014 at 2:10 pm

      I get that, but I fail to see the evidence for Murder 1. Maybe I don’t understand Maryland’s requirements. To me, Murder 1 means intent to murder afore-hand. I do not see that in Walker’s behavior…just based upon the physical facts. The only ones that matter to me.

      I’ve already said (I am a bane to lawyers I know…one of my best lawyer friends has told me so …and so have you 🙂 I do not care about the opinions of witnesses nor the contrived blather of attorneys on either side. Physical facts count alone to me. Very simply, I am someone who thinks that each of us is responsible for our actions…and stupidity is a cause for a bad outcome. The only thing I see against Walker’s actions is the fact he could (also) have waited then just driven away while Harvey was prancing about all macho man. I’m biased as that is exactly what I would have done. I do not go looking for gunfights ( and I am fairly proficient)…and doubt Walker did either, but his choice to stand and wait seems to imply manslaughter due to making a poor choice when otherwise attacked. But not murder. I absolutely despise prosecutors who over charge.

        tom swift in reply to Aridog. | March 18, 2014 at 2:30 pm

        You can’t claim that you think physical facts paramount and simultaneously fantasize that Harvey died of stupidity. He’d apparently lived quite a while quite well on stupidity and it never hurt him until he caught a dose of lead poisoning. That’s what killed Harvey, and nothing else.

        tphillip in reply to Aridog. | March 18, 2014 at 2:32 pm

        “I get that, but I fail to see the evidence for Murder 1.”

        You’re still confusing a Grand Jury Trial with the actual criminal trial.

        At least in New York, you don’t have to present your entire case; just enough to get an indictment. It doesn’t have to be fair, and what’s presented at the GJ doesn’t have to be shown/used by the prosecutor in the actual trial (Even though it typically is). And as they say in New York, a prosecutor can indict a ham sandwich if he so desires.

        Frankly I’d ignore the GJ testimony for actual innocence or guilt. There’s no defense side, the case is incomplete, and even at this point the motions for suppression and exclusion may not be complete. Making a judgement without all the facts/case in is a bit hasty, don’t you think?

      Aridog in reply to Ragspierre. | March 18, 2014 at 2:18 pm

      Rags said …

      Here, they found there was, and on the specifics of….

      Ham Sandwich.

      Sorry, I could not resist.

    ThomasD in reply to Aridog. | March 18, 2014 at 2:13 pm

    I’ve read through the applicable MD statutes, and based on my comparison to other jurisdictions, there really is not a whole lot there there – 1st, or 2nd is about it given that the shooting was an intentional act.

    Maybe there is more flesh on the bones to be found in the case law – but that is beyond my time, an accessibility limits. Or maybe there are other potentially applicable statutes that I’ve missed…

      Aridog in reply to ThomasD. | March 18, 2014 at 2:23 pm

      I guess then that “instantaneous” intentional action is the idea. How many of us would have such an instantaneous reaction for aggression? Or would the “intent” merely be to survive by any means necessary. By personal experience I’d say the latter.

      I’ve already said the best “means” available was to hop back in the van and boogie on down the road past macho man Harvey.

        Aridog in reply to Aridog. | March 18, 2014 at 2:28 pm

        Sorry ThomasD…I directed that toward the prosecution based upon you comment, not at you. I was vague and that is my fault.

        I do not believe a man out with his wife and three young children forms intent to murder over a road rage incident. I do believe the prosecution over charged for this case and therefore should be admonished by dismissal…and go back to zero and start over based upon real evidence. If prejudice is already established, then tough crumpets, the prosecution is at fault by being idiots.

          tom swift in reply to Aridog. | March 18, 2014 at 2:35 pm

          I don’t see it as an overcharge. The state holds that it’s a murder case; exactly what sort of murder is for the jury to decide. That seems proper.

          If the state charged Walker with child abuse for shooting Harvey within sight of the kids, exposing them to a traumatic blah blah blah, that I’d call pretty obvious overcharging.

          ThomasD in reply to Aridog. | March 18, 2014 at 3:05 pm

          No need to worry, but thanks for the kind words.

          Personally I share your suspicions. Looking at Walker I see a melanin enriched version of myself – middle class family man in a minivan. Looking at Harvey and Pidel I see guys I probably don’t want to be around.

          But, I also know things happen in the heat of the moment, and while maybe Walker didn’t plan for things to happen the exact way they happened, he did manage to keep himself in an altercation knowing full well he was armed. Never a good idea, and even more so in a DTR state (whether that fact is known or not.)

          Maybe there is more to the story, and maybe we’ll learn it at trial, but right now it appears his own statements are iffy at best, and may indicate his own recognition that his actions were not suitable for serious scrutiny. If he then compounded his error by being evasive or dishonest, leading to an even more nefarious interpretation of his actions, well, a criminal investigator – of all people – should know better.

          A state has a duty to make sure that it’s citizens are not killed without good cause, and Maryland has a dead body on their hands. Given the shaky nature of the narrative, the available witness statements and that it all can be judged in a very negative light, I see how the state could be justified some sort of charge, and given their limited statutory options, the only fit I can see is a murder charge.

          MarkS in reply to Aridog. | March 18, 2014 at 3:13 pm

          Maybe not an intent to murder over the road rage, but maybe over the rage of being called the enword and disrespected in front of his family.

    Olinser in reply to Aridog. | March 18, 2014 at 2:33 pm

    You are making 2 key misunderstandings about this case and the law.

    1) In a state with duty to retreat, you must use it. The fact that somebody ‘might’ pursue you further doesn’t mean anything. Harvey had no weapon to threaten Walker with, he had to walk a good distance back towards Walker, and Walker’s car was perfectly operational. Walker had a perfectly safe avenue of retreat available in his car. All he needed to do was wait until Harvey got closer, and drive off. If Harvey had run to his car and continued to pursue, Walker would have had a much stronger case.

    2) Certainly, it is reasonable to assume that Harvey intended to at a minimum yell/scream at Walker, and probably start a fight. HOWEVER, Walker had absolutely zero evidence that suggested Harvey was going to do other than yell/scream at him and probably try to get into a fistfight.

    Those are the 2 key issues that are going to convict Walker. Duty to retreat, and reasonable use of force.

    I do think Murder 1 is a big stretch. I think Murder 2 is unlikely, but given we still haven’t seen a lot of the evidence, I would certainly not be surprised if he were convicted of it. As far as I see, Manslaughter is almost guaranteed.

      bildung in reply to Olinser. | March 18, 2014 at 2:55 pm

      Does Walker have a duty to retreat from getting ‘yelled at’?

      A man can stop by the side of the road if he wants to, right?

      But once Harvey (felony assault defendant) bull rushed him, there was no opportunity to retreat. The rush is when the assault begins, from a distance too short to be avoided.

      I think this is how (enough of) the jury will see it.

      Harvey is not a sympathetic figure and enough of the jury will not be swayed (or even bother to try to understand) legalistic sophistry to punish Walker.

      Harvey is where he is because of who he was; no one else is to blame.

        Olinser in reply to bildung. | March 18, 2014 at 3:02 pm

        Interesting how you seize upon tiny little phrases and build straw men from them.

        Walker didn’t have a duty to retreat from ‘getting yelled at’. He had a duty to retreat before resorting to deadly force. He CHOSE not to take it, or even attempt to take it.

        Also, so Harvey ‘bull rushed’ him, huh?

        Funny how every witness account, while differing in small details, all say the same thing very clearly: Harvey was not in the process of attacking Walker when he was shot, nor was he close enough to do so, even if he had tried. Literally the ONLY statement we have seen so far claiming Harvey tried to rush him was Walker’s own.

        And I’ll repeat again. Harvey had given no indication he was going to do anything other than try to get into a fistfight. Shooting somebody trying to punch you is NOT a reasonable use of force.

          bildung in reply to Olinser. | March 18, 2014 at 3:15 pm

          Didn’t Pidel himself state that Harvey intended to fight Walker? Which doesn’t much matter to me because I think I will be thoroughly discredited in any event.

          But you seem to put some stock in him. And he would know much more about Harvey’s intent than the drive bys.

          Walker’s statement about the bull rushing will be the only one left standing after the defense gets through with the drive bys.

          And Pidel.

          bildung in reply to Olinser. | March 18, 2014 at 3:17 pm

          “he” will be discredited, not “I”

          Olinser in reply to Olinser. | March 18, 2014 at 3:28 pm

          I’ll say it one more time, REALLY SLOWLY since you seem to have trouble understanding.

          Just. Because. Harvey. Intended. To. Start. A. Fight. Does. NOT. Justify. Deadly. Force.

          tom swift in reply to Olinser. | March 18, 2014 at 3:52 pm

          Just. Because. Harvey. Intended. To. Start. A. Fight. Does. NOT. Justify. Deadly. Force.

          Even if Pidel made a solid claim that he understood that to be Harvey’s intention, Walker didn’t know that. And so we’re left with little but a man walking, stopping at some distance (6 feet? 8 feet? 12 feet? 30 feet?), then being shot to death.

          bildung in reply to Olinser. | March 18, 2014 at 4:50 pm

          Whatever the legalisms, I think a good many people do believe that intending to start a fight, especially against a victim with no way out, does justify deadly force.

          Just call it the ‘JB Books’ theory of self defense.

          And I expect several such folks will make their way onto the jury, if the defense is any good at all.

          Legal beagles argue guilt and innocence while pouring over the holy writs; citizens Decide guilt and innocence.

          How many here had Michael Dunn guilty of 1st degree based on What the Law Says and all that?

          I said he wouldn’t be convicted, simply because he didn’t start it. If he hadn’t kept blasting after icing Davis, he’d be walking the street today.

          Walker didn’t start it, couldn’t prevent it and is going to be judged with common sense and basic fairness.

          Murphy in reply to Olinser. | March 18, 2014 at 4:59 pm

          “How many here had Michael Dunn guilty of 1st degree based on What the Law Says and all that?”

          Besides your straw man?

          I got the idea that most people were somewhere between “no way was that first degree murder” and “but he can’t just get away with shooting and killing an unarmed kid for listening to loud music.”

          I thought Mr. Branca found a caveat in the case law regarding DTR: It doesn’t apply in MD “In defense of another.”

        MarkS in reply to bildung. | March 18, 2014 at 3:15 pm

        Which witness described Harvey as “bull rushing” Walker? By the way, what exactly is a “bull rush”?

          pjm in reply to MarkS. | March 18, 2014 at 3:57 pm

          Pretty much like the assholes here doing the ‘compulsive thumbs down’ thing any time someone they don’t like posts.

          Unlike Harvey v Walker, that’s BS game in a chat blog.

          bildung in reply to MarkS. | March 18, 2014 at 4:39 pm

          Walker claims he was bull rushed by Harvey and Pidel himself, IIRC, places an agitated Harvey within ca. ten feet of Walker.

          jakee308 in reply to MarkS. | March 18, 2014 at 4:42 pm

          Reply to what pjm said:

          “Pretty much like the assholes here doing the ‘compulsive thumbs down’ thing any time someone they don’t like posts.

          Unlike Harvey v Walker, that’s BS game in a chat blog.’

          Pretty much the “assholes” (your word) here are down dinging you for the use of that sort of language aimed at them.

          And the fact that you seem to be doing your best to antagonize anyone and everyone that doesn’t agree with your particular opinion about this case.

          You’ve been acting like a troll and calling people names and acting oh so superior.

          You’re lucky the Prof doesn’t “down ding” you himself. Some of us wish he would. You add NOTHING to the conversation but bile, arrogance and bluster.

          And if your actions are your idea of how to converse in a chat blog then please let me know where else you tend to skulk so’s I can avoid your unpleasantness.

          Consider the down dings the equivalent of people telling you to STFU because you’re acting like an obnoxious “a**hole”.

          tom swift in reply to MarkS. | March 18, 2014 at 5:38 pm

          use of that sort of language aimed at them.

          Aimed at anybody, really.

          pjm in reply to MarkS. | March 18, 2014 at 10:15 pm

          Dear jakee – bite me.

      ThomasD in reply to Olinser. | March 18, 2014 at 3:56 pm

      Somebody throw me a bone. Where does MD statute actually define what manslaughter is? 2-207 says what the punishment is, and that finding your spouse being boffed by another is not mitigation from murder. But it does not provide anything else about how it differs from murder. Is this in the common law of the state?

        You can find Maryland’s definition for voluntary manslaughter in their jury instructions:

        Maryland Pattern Jury Instructions (MPJI) 4:17-2 http://is.gd/uxPo2O

        Scroll down to section “C”.

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | March 18, 2014 at 11:29 pm

          Whoa, Section C number (4) under Complete Self Defense is eye opening for Maryland. Castle Doctrine and all.

          “(4) the defendant used no more force than was reasonably necessary to defend [himself] [herself] in light of the threatened or actual force.”

          This is the part that I think will get Walker.

          “The defendant does not have to retreat if [the defendant was in his or her home] [retreat was unsafe] [the avenue of retreat was unknown to the defendant] [the defendant was being robbed] [the defendant was lawfully arresting the victim].”

          That is actually more robust than I expected.

          ThomasD in reply to Andrew Branca. | March 19, 2014 at 10:07 am

          Thank you Andrew, that was immensely helpful and will certainly become central at trial.

          Reading through it, and based on what we know so far, it is difficult to see Walker getting anything less than voluntary manslaughter, there being so many issues with his actions qualifying as perfect defense.

          And, with that, both first and second degree murder likewise remain within the realm of possibility.

          Walker’s best hope being that a jury finds his assertion that he believed himself in imminent danger credible, if not necessarily reasonable.

          But if they think his story about how he came to find Harvey so close (flat tires) to be dishonest then they will fly right past second straight up to first – a planned execution.

      JackRussellTerrierist in reply to Olinser. | March 19, 2014 at 1:22 am

      If Walker gets manslaughter, his lawyer will have done a good job. He suckered Harvey into approaching him into good range to claim assault (“A police officer’s been attacked”), then shot him to death as he stood, stopped with his arms raised.

    luckydog in reply to Aridog. | March 18, 2014 at 3:25 pm

    FYI – Exhibit D was posted in an earlier blog post, it is the 911 call started by Walker’s wife AFTER the shooting, and the 911 call that recorded Walker’s first account of what happened. BTW – I am very surprised that the Defense would make this asseration when it can be disproved so easily: “…Det. Walker’s wife called 911 for emergency assistance prior to the shooting.” – unless the Defense listed the wrong exhibit and we have not seen that exhibit to know they made a simple mistake.

      tom swift in reply to luckydog. | March 18, 2014 at 3:37 pm

      I am very surprised that the Defense would make this asseration when it can be disproved so easily

      There seem to be quite a few of those. Which is why I wrote above that the defense motion seems to fall apart when the statements are examined closely.

      Baker in reply to luckydog. | March 18, 2014 at 4:01 pm

      I took the defense’s statement as an ‘aggressive assertion’ that she called before the shooting even though the call was not answered until after the shooting. That does seem to be cutting it pretty close. Sort of goes along with some of the other aggressive assertions in the motion. But, it is the defense’s motion so they call the shots. It is for the judge to assess the claims and make an overall decision.

      My take is she called when her husband told her to call (after the shooting) and she started the conversation with what he told her to say. That is purely my conjecture based on the the fact that the transcript appears to begin after the shooting. Of course it is always possible there is another 911 call we know nothing about.

        luckydog in reply to Baker. | March 18, 2014 at 4:30 pm

        Unless it turns out there is another Walker Wife 911 call (one clearly made before the shooting), it strikes me that the Defense believes it is more helpful to Walker’s defense if he or his wife had tried to contact the police before the shooting.

          tom swift in reply to luckydog. | March 18, 2014 at 7:03 pm

          That may well be. Certainly it’s too late to pretend that Walker or wife showed any interest in Harvey’s survival as he lay bleeding to death, but at least a nod to 911 might help.

          But this Motion goes far beyond that. It accuses the prosecution of some sort of malfeasance for failing to push that angle. Why it might be an obligation of the prosecution to throw the defense’s Hail Marys to the GJ is a mystery to me. Of course the defense isn’t able to defend during the GJ proceedings, but that’s not the GJ’s function. Its job is to determine if the prosecution has enough of a case to proceed with a trial. It is not its job to determine if the defense has enough of a case to do the defendant any good. That’s what the Petit Jury does during the trial.

          JackRussellTerrierist in reply to luckydog. | March 20, 2014 at 11:06 am

          The problem for the defense on this point is that it is clear through the content of the conversation with 9-1-1 that Harvey had already been shot. Oops.

      JackRussellTerrierist in reply to luckydog. | March 19, 2014 at 1:59 am

      This is going to crash and burn for the defense. If Mrs. walker called 911 previously, why didn’t the defense acquire the transcript and produce it as an exhibit to their motion? Further, if she called when Harvey got out of the car or was approaching, why wouldn’t it be all one call?

      What has been produced is Mrs. Walker placing the call AFTER Harvey was shot. We know this because Walker took the phone from his wife and began his first story about how he came to shoot Harvey.

      If Mrs. Walker started the call before the shooting, the 911 tech geeks should be able to tell how long the call was ringing and/or in queue before it was taken. She also first stated to 911 that “A police officer’s been attacked” even though Harvey was never close enough to lay a finger on Walker.

      Then, she refused to give a statement because, according to the officer’s statement to the GJ, she didn’t want to get her husband in trouble. Why would she think she was going to get him in trouble? Did Walker tell her to stonewall the cops? If so, why? Or did the officer just make that up, like so much else the defense claims?

    Bruce Hayden in reply to Aridog. | March 19, 2014 at 1:11 am

    A couple of things. First, I agree about the overcharge. The claim of 1st degree seems to revolve around the decedent “surrendering” and stopping half way to the defendant’s car. But, he apparently died 6-8 feet away. That is, in my mind, the glaring problem with the 1st Degree Murder indictment – that the shooting at such a close distance indicates shooting at the last minute, and not premeditation.

      JackRussellTerrierist in reply to Bruce Hayden. | March 19, 2014 at 2:04 am

      Why did Walker stop, get out of his van and stand by his door in the first place waiting for Harvey to traverse 150′-160′?

        Why did Walker stop? What Walker said, and wasn’t, of course, given to the GJ, was that he stopped behind the other vehicle to allow it to continue on, ending the dispute. That is why you want to get behind any vehicle that is harassing you on the road. But, the other vehicle, (in front), seeing that Walker had stopped, stopped, and then the two men in the second vehicle exited it quickly, and moved quickly back to Walker’s car. Point is that according to Walker, Walker stopping as he did was an attempt to disengage.

          JackRussellTerrierist in reply to Bruce Hayden. | March 19, 2014 at 1:06 pm

          So, according to the defense, Walker never said anything about rumble strips and flat tires? The officer testifying to the GJ and the one who wrote to report made that up out of whole cloth.

          If Walker pulled over to disengage, why exit his vehicle? If he wanted to disengage, why had he not already, or at that moment, called 9-1-1?

          There are no good answers to those questions except more lies from Walker, stacked on top of each other like cord wood, shifting his story as needed.

          The man’s a criminal investigator. Even HE wouldn’t believe him. He’s no longer a credible person. He’s a lying machine, like something from an arcade or amusement park, “Step right up folks, one thin dime, just one thin dime and I’ll tell you a lie”.

      tom swift in reply to Bruce Hayden. | March 19, 2014 at 4:20 am

      that the shooting at such a close distance indicates shooting at the last minute, and not premeditation.

      If Harvey had stopped, and was in process of raising his arms in some manner which didn’t indicate or facilitate hostility, and Walker shot him anyway, then the distance – 6 feet? 500 feet? 1 feet? – doesn’t matter in the least; the self defense claim will be stone dead.

        Bruce Hayden in reply to tom swift. | March 19, 2014 at 11:25 am

        There is a significant difference between 6 ft. and 60 ft. here, and the final confrontation was most likely at the much closer distance. Walker was no doubt trained as a police officer to shoot when someone continues to advance to that close of a distance. The decedent was apparently a quick lunge away from Walker when he was shot. No one, except for Walker, saw his hands when he may or may not have been raising them, and they apparently never made it above his head. He may have been surrendering, but may have just been making his final lunge. You don’t know, and it is the prosecution’s burden, beyond a reasonable doubt, that it was surrender, and did not appear like an assault, and that Walker had no reason to believe at the time he shot Harvey, that the latter was continuing his apparent assault.

          tom swift in reply to Bruce Hayden. | March 19, 2014 at 1:06 pm

          that the latter was continuing his apparent assault.

          But Harvey did nothing which can only be interpreted as assault, or implication of an imminent assault, or indeed any kind of attack. He was walking. Everything else – motive, intention, the crystal ball’s view of the future – is conjecture. And if, as more than one witness has stated, he wasn’t even walking but was stopped, it’s game over for Walker, isn’t it?

          JackRussellTerrierist in reply to Bruce Hayden. | March 19, 2014 at 1:21 pm

          Walker stood by his vehicle waiting for Harvey to approach. That’s how we get to the 6′ – 10′ in the first place.

          Walker could have fled, he could have called 9-1-1, he could have not stopped in the first place. None of what he did show the actions of somebody in fear or even not in fear but still wanting to disengage. He pulled over and got out. Harvey got out. Walker stood next to his vehicle with his arms crossed in a “Bring it” posture and nodded to Harvey, also like “C’mon”. He waited until Harvey was close enough for a good shot and at a distance he thought would lend credence to his self-defense story. He premeditated this scenario and shot a man to death who had stopped and raised his arms like “Wait a minute”, or “What’s with the gun, okay, I give up” gesture.

          It’s seems pretty obvious that Walker was enraged about the enword, and it had nothing to do with who cut who off. He’s probably still very satisfied with what he did, even though he’s in deep trouble and on unpaid suspension. He’s not on administrative leave with pay, so he doesn’t have the support of his department. Anybody who doesn’t think his department is aware of these reports and internal documents as well doesn’t understand how LEAs handle these matters.

      tom swift in reply to Bruce Hayden. | March 19, 2014 at 9:53 am

      It also looks like Walker had a bit of time to meditate about it – however long it took Harvey to walk from his car to the place he was shot. At a fairly brisk walk, that would have been about twenty seconds. Is twenty seconds enough time to count as premeditation?

        Bruce Hayden in reply to tom swift. | March 19, 2014 at 11:32 am

        No – that wouldn’t be premeditation, because there is no evidence that Walker would have shot Harvey, if Harvey had stopped at some point before he got within 6-8 feet, turned around, and went back to his car. If Walker figured that he would shoot Harvey at 6-8 feet, if Harvey didn’t stop advancing until that distance, it wasn’t premeditation, but rather, self-defense (ignoring, for a minute the retreat doctrine in effect in MD). The difference between waiting while Harvey walked from 150 ft to 75 feet to shoot, and walking from 150 to 6-8 feet, is that in the latter case, the threat is now imminent. Harvey was essentially in lunge distance of Walker when he was shot. Allowing Harvey closer than that would have imperiled Walker, as firearms are far less effective at such a close range (that is probably where a knife would be better for defense). 6-8 feet was the last really feasible distance at which to use the gun effectively in self-defense, and it is notable that Walker waited that long to utilize it.

          Ragspierre in reply to Bruce Hayden. | March 19, 2014 at 11:40 am

          I am impressed by the number of “people of faith” here deciding Walker acted in any manner consistent with the law, his training, common sense, or the welfare of his family.

          There isn’t anything like enough information to support that. But a lot of the information we do have seems to cut against it.

          Still early days, however.

          “as firearms are far less effective at such a close range”

          This notion that firearms lose effectiveness as distance to target is reduced is unfamiliar to me.

          –Andrew, @LawSelfDefense

          Ragspierre in reply to Bruce Hayden. | March 19, 2014 at 1:07 pm

          Zimmerman sure made his effective…

          JackRussellTerrierist in reply to Bruce Hayden. | March 19, 2014 at 1:39 pm

          @Andrew 12:09

          What improves at closer range is one’s ability to hit the target and one’s ability to try to claim self-defense.

          JackRussellTerrierist in reply to Bruce Hayden. | March 19, 2014 at 4:08 pm

          Heh. Walker’s actions remind me of the old adage about, “If you shoot a prowler on your porch, drag him inside a couple feet.”

          Walker suckered Harvey into approaching, then shot him in cold blood as he stood stopped with his arms raised.

          I thought Andrew had previously admonished us on case law in mD stating DTR does not apply to defense of others….

        JackRussellTerrierist in reply to tom swift. | March 19, 2014 at 1:34 pm

        I see premeditation before they pulled over – Walker responded to the yelling. “They were yelling at each other. And they (THEY!) were going to fight”.

        There’s no eyewitness who says Walker ever left the immediate area of his vehicle, so it’s not as though he advanced toward Harvey as though to fight and then decided to shoot him instead. He got out and stood by his vehicle, signaling Harvey through subtle gestures to approach. When Harvey stopped, Walker shot him to death. Add to that Walker’s shifting stories about how he came to be stopped and what he, a trained, sworn peace officer, did do and didn’t do, and it becomes an inescapable conclusion that Harvey walked into a premeditated trap set by Walker.

      Ragspierre in reply to Bruce Hayden. | March 19, 2014 at 10:36 am

      Another small wrinkle…

      Walker is reported to have said he displayed his badge and walked backwards.

      So Harvey’s position relative to the van may have almost nothing to do with how far apart the two men were when Walker killed Harvey.

      If you believe anything that Walker has said…

        JackRussellTerrierist in reply to Ragspierre. | March 19, 2014 at 1:50 pm

        Walker has removed himself from the equation yielding the truth by the three stories we now have from him. First he was pulled over by Harvey (“They pulled us over”), then it was rumble strips and flat tires, and now it’s an attempt to disengage.

          Remember, though, we have what Walker REPORTEDLY said.

          So, some suspension of judgment is warranted.

          While I could readily make the arguments that you make as prosecutor, I don’t know that your conclusions are fully justified by what we have as actual evidence.

          Best to maintain a healthy skepticism on both sides of the issues.

          My intuition…which is BOTH pretty good and really rational (read some of the Holmes stories)…says that Walker is dirty in this, and I think he’s cooked. But I know I could be wrong on both counts.

          JackRussellTerrierist in reply to JackRussellTerrierist. | March 19, 2014 at 3:28 pm

          Well, we have Walker’s voice and words on the 9-1-1 transcript. I doubt that has been dubbed, voiced-over, etc., to somehow change what Walker said. If we assume for a moment that the responding officer who took Walker’s statement that night MADE THE WHOLE THING UP, we’re still left with what he’s now claiming through his attorney, that he pulled over to “disengage”.

          But we’ve now seen the defense’s motion which is, in effect, a claim that the state is lying and withheld evidence – evidence not produced by the defense with regard to the 9-1-1 call or any further statements to police regarding disengaging. What the motion boils down to is Johnny telling the teacher Bobby is lying just because he can and he wants to get off the hook for whatever he’s in trouble for.

          A court can do as it likes, but if this motion is granted, I would be shocked. So then we move to trial. Anything is possible, but if this defense attorney puts Walker on the stand, he’s cooked. Walker is no match for a prosecutor armed with impeachment goodies and irrational acts of his target. Walker couldn’t even be straight with the 9-1-1 operator.

My guess – the GJ indictment MAY be voided, based on the Prosecutors not saying ‘Please and May I’ at the correct intervals, etc, during the presentation.

Perhaps using a word ‘victim’ that was not allowed,etc.

If so, the P will re-indict to a new GJ, mind their P’s and Q’s next time, and proceed to trial on the new (identical) indictment.

They will NOT repeat NOT drop this case, no way. Nor the charging levels.

So why even bother ? Other than that the D lawyer has to, to preserve arguments for appeal.

A grand jury can return an indictment in cases where reasonable doubt is still abundant and that seems the situation here.

The defense will turn these passerby witness accounts against one another as well as exposing their inherent wild inaccuracies.

And that’s apart from the juiciest target of all, Pidel.

Did I read correctly that Pidel is a convicted woman beating felon and that Harvey, not to be outdone, was up on charges for the same?

Whether that comes in or not (will it?) the defense is really going to paint a picture of these two.

    MouseTheLuckyDog in reply to bildung. | March 18, 2014 at 2:50 pm

    One the wife, one the girlfriend.I don’t remember which was which.

    Pidel was convicted of a felony. Which is remarkable because usually a judge will find guilt on a misdemeanor and require counseling for a first time offense. Harvey was accused.

    pjm in reply to bildung. | March 18, 2014 at 2:50 pm

    No, that will NEVER come in, even if true.

    And, it’s truly irrelevant.

    pjm in reply to bildung. | March 18, 2014 at 2:51 pm

    I think Harvey’s charges have been dropped.

    Like Harvey.

    I’m not sure why a past act of domestic violence on the part of the passenger of the unarmed man who was shot and killed by Walker has anything to do with whether this homicide was justified or not.

      For sure, it does not. At least under the law.

        MouseTheLuckyDog in reply to pjm. | March 19, 2014 at 1:12 am

        If Pidel claims that he and Harvey are not violent people it can come in. Also Pidels conviction might be able to come in because if he faces charges on anything that happened here, his conviction would mean a much larger sentence.

          Hello, Pidel is not on trial here. A past incident of domestic violence on his part has nothing to do with whether the unarmed man who was driving the car he was a passenger in posed such an imminent, deadly and unavoidable threat to Walker that he needed to be shot dead.

          Bruce Hayden in reply to MouseTheLuckyDog. | March 19, 2014 at 11:41 am

          No – Pidel is not currently on trial – but could go on trial in a lot of states for felony murder. That is one of the weird parts of that law, that the accomplices of people killed in the commission of a felony can be tried for the murder of their accomplice, even though someone else killed them, even the police. Pidel, might be able to claim that he was in the visible process of disengaging at the time of Harvey’s death, but that may not be sufficiently timely. Esp. since the jury might be asked to decide whether Harvey would have exited his vehicle and advanced on Walker, if not accompanied by Pidel.

          Not sure though whether a felony was being committed by Harvey (and Pidel?) at the time of Harvey’s death though, and a mere misdemeanor would likely not trigger felony murder. Possibly, Harvey’s actions behind the wheel could rise to the level of assault with a deadly weapon, etc.

          And, if not felony murder, Pidel may still not be in the clear. He was seemingly an accomplice to much of what Harvey had done, and some of that could have been felonious.

          Ragspierre in reply to MouseTheLuckyDog. | March 19, 2014 at 12:00 pm

          Well, that comment was simply daft. Front to back.

          It does show how biased you are, and your “thinking”.

          tom swift in reply to MouseTheLuckyDog. | March 19, 2014 at 1:12 pm

          He was seemingly an accomplice to much of what Harvey had done, and some of that could have been felonious.

          Being co-driver of Harvey’s car, for instance?

          Walking toward Walker is not a crime, neither in Maryland nor anywhere else. Harvey committed no crime when he did so. Neither did Pidel.

          JackRussellTerrierist in reply to MouseTheLuckyDog. | March 19, 2014 at 1:59 pm

          Bruce, put down the remote and step back from anymore episodes of “Law and Order.”

      Gremlin1974 in reply to Amy in FL. | March 18, 2014 at 6:44 pm

      Remember, bildung apparently lives in a world apart from the rest of us that is not bound by the judicial procedures we have here in this world.

      He seems to think that you can bring up the fact that a witness hogged the sand box in kindergarten to try to impeach them, instead of actually being restricted to only impeaching their actual testimony, which is how it really works.

      I guess during the Michael Dunn trial he missed the prosecution witness that was in the orange jump suit and was currently in jail, but the jury listened to him, hummmm.

    TheDude in reply to bildung. | March 18, 2014 at 3:09 pm

    ‘Inherent wild inaccuracies?’

    Slight differences in distances/heights are not ‘wild inaccuracies’.

    Every witness statement paints the same picture very clearly: 2 cars were stopped by the side of the road. 2 men from 1 car were approaching 1 man from the other car. Before they got close to him, he shot one of them.

    Seriously, you’re so biased that it’s just laughable.

      bildung in reply to TheDude. | March 18, 2014 at 3:25 pm

      The physical evidence, as we understand it now, indicates that Harvey was indeed close to Walker.

      Which suggests the inaccuracies are not slight, nor immaterial as you mean to suggest.

      One says 25 feet, one says 50 feet, the evidence says about eight feet, one says Pidel is black, one says Walker is way bigger than he is.

      They disagree with one another and with the evidence and that will play to reasonable doubt.

      You think this is going to convince 12 jurors to convict a police officer of 1st degree?

      Really, who’s biased?

        Olinser in reply to bildung. | March 18, 2014 at 3:31 pm

        There you go again, building straw men.

        I don’t think a single person commenting has said they think he’s actually going to be convicted of 1st degree.

        2nd degree is reasonable, manslaughter is almost a guarantee.

          pjm in reply to Olinser. | March 18, 2014 at 4:16 pm

          You actually there’s some kind of ‘guarantee’ in a trial like this ? ReEally ?

          Gremlin1974 in reply to Olinser. | March 18, 2014 at 6:48 pm

          He also seems to forget that the Jury can also believe that Walker was scared, but used an inappropriate amount of force to deal with the threat. Which would most likely be manslaughter due to imperfect self defense. But once again in the World of bildungia, things seem to be much different.

        TheDude in reply to bildung. | March 18, 2014 at 3:36 pm

        And? They were seen from a distance, at dusk. I’m not surprised at all they confused somebody’s race.

        Given their positions, since there is absolutely no doubt as to which of the 3 men are which, small disagreements about race, size, or distance are totally irrelevant.

        None of the witnesses disagree on the key points that Harvey and Pidel were approaching Walker, and not a single one that saw the shots saw Harvey actually try to attack Walker.

        I have to agree with the other response regarding straw men, as well. I have not once stated I thought he was going to be convicted of 1st degree.

        I personally think he’s going down for Manslaughter, and possibly the weapons charge.

          tom swift in reply to TheDude. | March 18, 2014 at 3:43 pm

          since there is absolutely no doubt as to which of the 3 men are which

          Hard though it may be for some to believe, not everyone thinks that a person’s race is a terribly vital piece of information. It can be useful for identification, as in “the tall guy”, “the fat guy”, “the black guy”, etc., but as you say, in this case who is who is not a mystery.

          bildung in reply to TheDude. | March 18, 2014 at 4:28 pm

          None of the discrepancies are irrelevant, if the defense choses to make them relevant, and the documents above indicate it will.

          And the discrepancies about distance are most certainly very important indeed.

          Recent installments have headlined ’50 feet away’ or 30 feet or some such and posters have gone on to opine cold blooded murder on that basis.

          So the distance seemed to be mighty important to the Walker haters until reminded the physical evidence places the perp (Harvey) too close for Walker to flee.

          And I think no more than two drive bys ‘saw’ the shots or what immediately preceded them, and these are the ones so far off on the distance as to be irreconcilable with the physical evidence.

          So there is every question as to what they ‘saw’ at all.

          And the motion makes the specific point that there is no agreement at all among the drive bys that Harvey was pulling up and showing his hands.

          Even though the state said there was.

          Sensing failure in the narrative, the lynch mob is now falling back on second degree or manslaughter.

          If Walker beats first degree on the grounds of self defense, why wouldn’t he beat these charges too?

          Seems to me the absolute worst he could get is something for brandishing the gun at all, since that’s probably illegal on the Democrat plantation.

          Ragspierre in reply to TheDude. | March 18, 2014 at 6:11 pm

          You just keep insisting their are “witnesses” and now you’re calling people “walker haters”.

          More parody.

          You ALSO keep making the cardinal mistake that the trial will EVER see introduction of the witness statements.

          It MIGHT, but it isn’t likely if you have sharp prosecutors.

          You also have no freaking idea of the process of interrogation of trail witnesses.

          You DO have a wild imagination, and a penchant for calling people names (like sociopaths) of which you have NO idea of the meaning.

          Gremlin1974 in reply to TheDude. | March 18, 2014 at 7:05 pm

          “And the discrepancies about distance are most certainly very important indeed.”

          Really, why? The only folks I know that can reliably sight distances by sight are, surveyors, snipers, construction workers, and competition shooters. Also, even if they all can’t agree on distance it doesn’t invalidate their entire testimony.

          Walker haters”

          Yea, because…..RACISM!

          “perp (Harvey)”

          You seriously write something like that after accusing others of being “Walker Haters”?

          “too close for Walker to flee.”

          Yea, after Walker let Harvey advance over 150 feet, then he was to close to flee, or are you a fan of the “checking for a flat” fantasy?

          “And I think”

          Don’t hurt yourself now, we know you aren’t used to doing that.

          “So there is every question as to what they ‘saw’ at all.”

          What? Are you accusing them of making what they saw up. There is no reason to believe that any of the witnesses did not see exactly what they saw.

          “the lynch mob”

          Note: You, bildung are the only one who has mentioned hanging.

          “is now falling back on second degree or manslaughter.”

          Actually, I started at manslaughter and have moved to 2nd degree.

          “If Walker beats first degree on the grounds of self defense, why wouldn’t he beat these charges too?”

          Because the jury can decide that even though he was defending himself, Walker used to much force in his defense and convict him of a lesser charge. Also remember that Juries don’t get to just decide things willy nilly, they give them instructions for a reason.

      pjm in reply to TheDude. | March 18, 2014 at 4:01 pm

      40′ vs 6′ is not ‘slight’.

        ThomasD in reply to pjm. | March 18, 2014 at 4:28 pm

        Depends on the ordnance involved.

        tom swift in reply to pjm. | March 18, 2014 at 5:31 pm

        Until the 6′ can be puffed up to an imminent deadly attack, it isn’t so much a slight discrepancy as an irrelevant detail.

          Bruce Hayden in reply to tom swift. | March 19, 2014 at 11:52 am

          6 feet is an immediate, imminent, attack, esp. if the potential assailant has not stopped his advance. It is probably the minimal distance at which a handgun is effective (which is why many think that a knife is more effective at distances closer than that), and someone at that distance is a mere lunge away from being able to take a much lighter person down (where the armed person can be disarmed). I have little doubt that Walker was trained to shoot before potential assailants got any closer than that, and I expect that training to come out at trial.

          That is probably part of Walker’s apparent defense – that he waited until the last possible second to shoot Harvey. He was unlikely to survive unscathed if Harvey had been allowed to advance any closer.

          tom swift in reply to tom swift. | March 19, 2014 at 1:23 pm

          6 feet is an immediate, imminent, attack, esp. if the potential assailant has not stopped his advance.

          That’s just silly. Proximity is not a threat. There also has to be, you know, a threat, and a threat of death or serious injury. Not a threat of annoyance, not a threat of a shouting match, not even a threat of a shoving contest. Something much bigger, a threat of death.

          It is probably the minimal distance at which a handgun is effective (which is why many think that a knife is more effective at distances closer than that)

          That’s even sillier.

          and someone at that distance is a mere lunge away from being able to take a much lighter person down (where the armed person can be disarmed).

          Too bad Harvey never lunged at anyone. If he had, there might be an argument somewhere in there.

          I have little doubt that Walker was trained to shoot before potential assailants got any closer than that, and I expect that training to come out at trial.

          Why would jurors give a hoot about Walker’s training? Mafia hitmen are trained too, but that doesn’t make their actions legal. I suspect that the jury won’t be too worried about Walker’s training, it will be concerned about the law, and why a man was shot to death.

      SmokeVanThorn in reply to TheDude. | March 18, 2014 at 6:30 pm

      “Every witness statement paints the same picture very clearly: 2 cars were stopped by the side of the road. 2 men from 1 car were approaching 1 man from the other car. Before they got close to him, he shot one of them.”

      Where did Pidel place Harvey? Where does the police diagram place Harvey’s body?

      Or does none of this matter to you in your zeal to see Walker convicted?

        tom swift in reply to SmokeVanThorn. | March 18, 2014 at 6:39 pm

        Where did Pidel place Harvey?

        All witness statements place Harvey too far from Walker to inflict death or serious bodily harm at the moment that he was shot.

          Ragspierre in reply to tom swift. | March 18, 2014 at 8:14 pm

          Well…except Walker.

          Think38 in reply to tom swift. | March 18, 2014 at 10:36 pm

          If a situation warrants drawing a pistol, only a fool let’s that person inside of 10 feet of them. The advantage of a firearm is range. You need to use it before the other guy gets close enough to make physical contact. If you let them get any closer, you may find that the firearm gets used on you.

          tom swift in reply to tom swift. | March 19, 2014 at 12:55 am

          Well…except Walker.

          Not really. The only distance estimate we’ve heard from Walker was the police paraphrase of his claim that after the tire-checking adventure he saw that both passengers from the Honda had approached to within ten feet. He said that then Harvey “started his charge”, but gives no further distance estimates.

          The closest distance we’ve heard from any witness so far is the six feet from Pidel’s “6 to 8 feet” estimate.

          The 7 foot 9 inch distance obtained by the police metrology squad is the distance from Harvey’s blood to the Kia’s front bumper. That tells nothing about the distance between the two men because it doesn’t tell us anything about where Walker was when he fired.

          Ragspierre in reply to tom swift. | March 19, 2014 at 10:28 am

          “All witness statements place Harvey too far from Walker to inflict death or serious bodily harm…”

          You just went from that to trying to count feet.

          Walker clearly DID state that Harvey was NOT too far. He was in fear, after all. For what that’s worth…

          Bruce Hayden in reply to tom swift. | March 19, 2014 at 11:58 am

          Not really. The only distance estimate we’ve heard from Walker was the police paraphrase of his claim that after the tire-checking adventure he saw that both passengers from the Honda had approached to within ten feet. He said that then Harvey “started his charge”, but gives no further distance estimates.

          But we do know the size of the Kia, and can calculate the distance between the Walker’s front door and the location where Harvey fell. Walker most likely was somewhere between his front door and the front of the vehicle, when he shot Walker. Anything else, and Walker would be putting his family between himself and Harvey, and not the other way around. So, if Harvey was found 6-8 feet from the Kia, and no drag marks found where Walker moved the body, then it is unlikely that Harvey was more than 10-15 feet away, at the outside, when shot. Probably less.

          tom swift in reply to tom swift. | March 19, 2014 at 1:26 pm

          Walker clearly DID state that Harvey was NOT too far. He was in fear, after all. For what that’s worth…

          If Harvey had arms eight feet long, he’d have been within reach of Walker. But I think we can safely discount that theory.

          Ragspierre in reply to tom swift. | March 19, 2014 at 1:32 pm

          You whipping this point is just silly.

          Walker REPORTEDLY said he was in fear for himself and family.

          What the distance was between the men is BOTH not established AND a matter for the jury to judge Walker’s “fear” as a matter of legal self-defense.

          tom swift in reply to tom swift. | March 19, 2014 at 2:05 pm

          You whipping this point is just silly.

          Walker REPORTEDLY said he was in fear for himself and family.

          What the distance was between the men is BOTH not established AND a matter for the jury to judge Walker’s “fear” as a matter of legal self-defense.

          I don’t see what you’re trying to flog here.

          There was a question about where Pidel placed Harvey. The only meaningful interpretation in this context is where did his statement place Harvey in relation to Walker. An answer necessarily involves distance. And all the witness statements said something about that, albeit sometimes with a bit of cheerleading from the interviewing LEO. All we have from Walker is one number and a police statement that “Walker felt that his life and the life of his family was in danger so he fired his weapon” – not something a witness can dispute, not being privy to Walker’s mental processes. So we have witness statements giving objective (even if incorrect) numbers, witness statements giving subjective evaluations of the situation (that is, Harvey being or not being “close enough” to be an imminent deadly threat to Walker), and Walker’s subjective statement that Harvey was indeed close enough.

          So, what about all this is “silly”?

          JackRussellTerrierist in reply to tom swift. | March 19, 2014 at 2:18 pm

          Tom @ 12:55

          Excellent point.

          Ragspierre in reply to tom swift. | March 19, 2014 at 2:51 pm

          “All witness statements place Harvey too far from Walker to inflict death or serious bodily harm at the moment that he was shot.”

          That statement is simply not true.

          1. Walker is a witness.

          2. Walker has (reportedly) stated that Harvey was close enough to pose a threat of death or serious bodily injury to himself and his family

          3. THAT is a matter for the evidence to support or not, and for the jury to judge.

          JackRussellTerrierist in reply to tom swift. | March 19, 2014 at 4:14 pm

          Walker has no credibility. Nothing he say is worth spit in a search for the truth.

          Ragspierre in reply to tom swift. | March 19, 2014 at 4:38 pm

          Well, two thoughts occur…

          1. this is a weak source for finding “the truth” in the metaphysical sense; and

          2. a trial court is even worse.

          You won’t like this, but Zimmerman was also caught in a lie or three WRT the bail thingy. I do get your position on Walker, but I can’t join you in your certitude. Not yet.

          tom swift in reply to tom swift. | March 19, 2014 at 5:29 pm

          “All witness statements place Harvey too far from Walker to inflict death or serious bodily harm at the moment that he was shot.”

          That statement is simply not true.

          Ah, terminology problem.

          We have a victim (the guy the police find lying on the ground when they arrive), the defendant (the guy who’s being charged with whatever-it-is), and witnesses (everybody else who, well, witnessed something relevant). Once in court, the defendant can of course be a witness. So, generally, can the victim.

          Sorry, this isn’t a court deposition here, I’m not being paid to write out “the witnesses, with the exception of the defendant and the victim” every time I say something about witness statements.

          2. Walker has (reportedly) stated that Harvey was close enough to pose a threat of death or serious bodily injury to himself and his family

          He has indeed. I never said otherwise. And I’ve never fallen into the “Walker has no credibility” rut. Maybe he does, maybe he doesn’t, I’m in no position to determine that. But he has a right to speak in his own defense, whether credible or not.

          3. THAT is a matter for the evidence to support or not, and for the jury to judge.

          It sure is. But so what? The witnesses still made statements about it. What the court does with them and what we do with them are different things.

          tom swift in reply to tom swift. | March 19, 2014 at 5:46 pm

          Walker has (reportedly) stated that Harvey was close enough to pose a threat of death or serious bodily injury to himself and his family

          On further consideration, no, we don’t have that statement. We have – exact quote – “Walker felt that his life and the life of his family was in danger so he fired his weapon”. Nothing about Harvey being “close enough”. After the incident, we’re concerned about distance because no projectile weapon was found on Harvey, implying that to cause any injury to Walker, Harvey would have had to have been very close. Walker wouldn’t have known that Harvey most probably had no such weapon.

      Finding the body within 6 feet is very close, especially in the context of percent of original distance from where he exited his vehicle.

      I have little sympathy for those who would exit their vehicle to escalate such a situation.

      Although Walker did exit his vehicle, there is a presumption that when someone opens your car door to get at you, death or severe bodily injury will occur. (granted this doesn’t fit this set of facts)

      From a moral view, I find no difference that Walker had exited his vehicle, though the law states different.

What is Maryland’s past history on allowing in polygraph exams in felony cases, if anyone knows?

    TheDude in reply to bildung. | March 18, 2014 at 3:12 pm

    In Massachusetts, as in most states, polygraphs aren’t even allowed to be entered into evidence.

    Polygraphs are so notoriously unreliable they are completely worthless at ascertaining facts. They are junk science.

    MD does not permit polygraph evidence.

    If it were allowed in this case, as the defense seeks, it would be new law in the state.

    –Andrew, @LawSelfDefense

      JackRussellTerrierist in reply to Andrew Branca. | March 19, 2014 at 2:14 am

      ….and they know that, which makes it an easy thing to blow smoke about. Nothing new with that. It’s just used to favorably bias potential jurors – with negligible impact.

Richard Aubrey | March 18, 2014 at 4:18 pm

There’s no reason to retreat unless there’s a threat a reasonable person could perceive.
So the P is going to have to make Harvey threatening from the get-go in order to initiate the DTR. If Walker can be shown to be waiting peaceably until Harvey got close, thinking Harvey and Pidel were just going to talk, there’s no DTR.
Then, once the oxygen-wasting twosome got close enough, the threat was perceptible but the avenue of retreat was not available because of…too close.
IANAL, but I watched an actor play one on television and then I went and washed myself all over. Just in case.
But it seems reasonable, logically, that the DTR cannot be asserted in the absence of a threat, and the more threatening H & P can be shown to be, the longer the avenue of retreat might be and the less the jury is going to be sorry for Harvey.
Not sure how that balance is going to work out in the jury room, lawyers’ assertions of legal requirements notwithstanding.
Now, of course, if Walker makes a good case for not seeing a threat until too late, then his avenue of retreat may not be practically available.
So the P makes Harvey out to be a slavering maniac and the D makes him out to look like a teddy bear until up really close. Can’t wait to see how that goes.

    “If Walker can be shown to be waiting peaceably until Harvey got close, thinking Harvey and Pidel were just going to talk, there’s no DTR.”

    What happened to Walker’s excuse that he didn’t even SEE Harvey until the last second, because he was busy checking his tires to see if they’d been enflattened by the rumble strip?

    What did Harvey do, in your scenario, to change Walker’s perception of wanting to talk to Harvey wanting to inflict grave bodily harm or death?

    tom swift in reply to Richard Aubrey. | March 18, 2014 at 6:08 pm

    the threat was perceptible but the avenue of retreat was not available because of…too close.

    That’s not going to fly. Nobody so far has reported that Harvey suddenly did something different at any point in his approach to Walker until the gun made its appearance. The Harvey walking toward Walker when 150 feet away was exactly the same Harvey walking toward Walker when 50 feet away.

Olinser | March 18, 2014 at 2:33 pm…

1. Duty to retreat…

I agree, and he could have just driven pastHarvey when harvey was 100 feet or so away from his own vehicle.

…Walker had absolutely zero evidence that suggested Harvey was going to do …

As I have said earlier, that is conjecture by a 3rd party when one is faced with a fight and reacts to it. State of mind (under the apprehension, etc.) is what is important….and that cannot be concocted by other than the accused in this case. I’ve been clear that IMO survival is paramount and what one conceives as necessary to effect that.

That Walker reacted poorly by not just driving away, I agree with and would consider. It is something that the fog or a fight can cause, however. Hesitation freeze. I have seen it occur. That could compel a manslaughter conviction due to lack of planning.

However, I just do not understand why it is de rigueur to charge first degree murder, with potential lessor charges (cop-outs), when the evidence is plain as day that it wasn’t more than manslaughter of some kind.

It may be the law, and/or standard practice to charge the full boat, but it doesn’t make sense to me. Thus if I were on the jury I’d hold the prosecution responsible for their over-charge and likely acquit.

In my opinion, a lay opinion I admit, the practice of charging first degree for every death is baloney and should be changed. It serves no one and probably acquits more than it convicts.

    Think38 in reply to Aridog. | March 18, 2014 at 10:49 pm

    The problem with the retreat by driving away is multiple.

    First, at least some of the statements suggest that Harvey used his car in a threatening manner. A car is a deadly weapon capable of causing death and great bodily injury. Walker apparently stopped to avoid a moving vehicle confrontation to begin with. That is, he ALREADY retreated from a dangerous situation.

    Second, cars are fast. Much faster than people walk or run. But a car going the speed limit (or something close to it) would not be hard to catch. Assume that Walker waited until Harvey was more than 100′ from Harvey’s vehicle, then jumped back in a sped off. How long would it take Harvey to run back to his car, and race to catch up? One minute? Maybe two? Then you are right back into the moving vehicle situation, but now a much higher rate of speed, with the disputing party *behind* you. Sorry, I just don’t see this as a very safe or smart play.

    Third, while driving by Harvey and the other person, you don’t know if they have a gun, or a crowbar, or a pipe with them. Initial acceleration isn’t that great, so Walker would be going by at a comparatively low rate of speed, giving a moment or tow of vulnerability. That vulnerability would primarily expose his wife and one kid. As it turns out, Harvey and the other guy had none of these items. But there was no way for Walker to know that at the time.

      Ragspierre in reply to Think38. | March 18, 2014 at 11:34 pm

      Hey, ol’ “Think”, you need to catch up.

      All that “coulda” has been dealt with in prior threads.

      The main problem…Walker didn’t. IF any of your “coulda” had transpired, different outcome…PERHAPS.

      And, when both antagonists are stopped and dismounted, Walker still had the option of just backing his car up a ways, and then taking the other ramp.

      Point being, he didn’t. And that could put him in prison for a long time.

        Think38 in reply to Ragspierre. | March 19, 2014 at 12:29 am

        You mean back up into oncoming traffic while taking your eye off hostile individuals? Yeah, that’s a really smart play. Apparently in Maryland, the duty to retreat is so strong you have to do stupid things that put yourself, and your family, in danger.

          tom swift in reply to Think38. | March 19, 2014 at 1:02 am

          Apparently.

          In Maryland they seem to consider those risks preferable to the practice of just shooting people dead.

          What yokels.

          Think38 in reply to Think38. | March 19, 2014 at 9:39 am

          But a person does not have to retreat if it would not be safe for the person to do so. “[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, supra, 218 Md. at 97, 145 A.2d at 433.

          Think38 in reply to Think38. | March 19, 2014 at 9:48 am

          Oops, wrong quote. Before using deadly force in self-defense, a person has the duty “‘to retreat or avoid danger if such means were within his power and consistent with his safety.'” DeVaughn v. State, 232 Md. 447, 453, 194 A.2d 109, 112 (1963), cert. denied, 376 U.S. 527 (1964), quoting Bruce v. State, 218 Md. 87, 97, 145 A.2d 428, 433 (1958). See also Burch v. State, 346 Md. 253, 283, 696 A.2d 443, 458 (1997).

          tom swift in reply to Think38. | March 19, 2014 at 10:12 am

          But we’ve seen the scenery in that vicinity. A two-lane ramp with full breakdown lane on right, nice grassy margin on each side, no immediate obstructions, no curbs, berms, drains, nothing but prairie on both sides. Vegetation a few car lengths off to the right obscuring a chain link fence, ditto to the left but without the fence.

          As a dangerous stretch of killer road, it’s a distinct disappointment.

          The only place Walker would not have been free to drive would be directly over Harvey or Pidel, or an occasional isolated lamp post. Walker wouldn’t have to back up into traffic or into anything else. The only physical factor impeding any attempt by Walker to go elsewhere was Walker’s imaginary flat tires, and I doubt that we’ll hear any more about those.

          In fact, as retreat scenarios go, it might be a challenge to imagine anything more suitable.

          Ragspierre in reply to Think38. | March 19, 2014 at 10:18 am

          Again, “think”, you are plowing furrowed ground.

          We allllll know this.

          We also all know you can safely back a car up on the piece of road involved here. Big, wide, excellent sight-lines.

          A car backing up is no more a danger to safety than a car standing on the side of the road. Especially with a guy standing next to it.

          Think. (Heh!)

          Olinser in reply to Think38. | March 19, 2014 at 3:01 pm

          Tom, in point of fact, if Walker had tried to drive away and run over Harvey during his getaway, I would actually argue this would be a borderline slam-dunk for the defense.

          tom swift in reply to Think38. | March 19, 2014 at 5:32 pm

          I would actually argue this would be a borderline slam-dunk for the defense.

          Perhaps. If a pedestrian deliberately gets in the way of a vehicle and is hit, I’m not going to be in any rush to blame the driver. But that would be a radically different case from this one.

          Think38 in reply to Think38. | March 19, 2014 at 10:09 pm

          Would a person driving backwards on this road normally receive a citation? It’s been asserted that it was safe to do so, but given that we have witnesses from multiple vehicles passing by in a very short period of time, that appears questionable.

    Bruce Hayden in reply to Aridog. | March 19, 2014 at 12:05 pm

    The problem that I see with Walker jumping back in his car and driving away, is that they would have had to drive by Harvey and Pidel, who could just have jumped back in their vehicle and pursued them again, but now with the advantage of being behind. In these vehicle altercations, the vehicle in the rear tends to have the advantage, because it can react to what the car in the lead does. Thus, whenever I have been in a potential vehicle altercation on the road, I quickly drop behind the other vehicle, and keep slowing up as they slow up, etc. Jumping back into his vehicle and speeding off would have necessitated Walker driving by Harvey and his vehicle, giving up this advantage, and, thus, further endangering his family.

      It’s too bad Kia’s don’t have a reverse gear.

      Wait, what? 🙂

      –Andrew, @LawSelfDefense

      Ragspierre in reply to Bruce Hayden. | March 19, 2014 at 12:54 pm

      “In these vehicle altercations, the vehicle in the rear tends to have the advantage, because it can react to what the car in the lead does.”

      But the vehicle in the front has no need to react to anything, does it?

      Can the following car react to Momma making a 9-11 call, with Walker simply driving down the road?

      tom swift in reply to Bruce Hayden. | March 19, 2014 at 1:35 pm

      In a world of cell ‘phones, the optimal response is to summon the gendarmes, and stall until they arrive and put an end to the foolishness. And the way to stall is to retreat. This has the great virtue of compliance with local law.

      In this case, we know that the police response time was excellent; the first ones arrived while Harvey was still bleeding to death. Had Walker driven off instead of gunning Harvey down, the police would probably have arrived before Harvey had gotten back to his own car.

      So, particularly in retrospect, shooting rather than fleeing was an outstandingly bad call by Walker.

        JackRussellTerrierist in reply to tom swift. | March 19, 2014 at 2:32 pm

        Heh. It was only a bad call if he didn’t want to kill Walker. But I agree, not much forethought on Walker’s part. We’re now up to three stories from Walker on why he stopped in the first place. As for fear for his family, there was no forethought as to the breadwinner going to the state pen and no dad in the home to protect them in the future. Maybe coming to his job from Newark PD, as he did, taught him a set of street ethics that only work among his own network.

        Walker lived in the moment, satisfied his urge, his rage, and now he’ll see where that takes him.

… IANAL, but I watched an actor play one on television and then I went and washed myself all over.

🙂

However, there are times when you really really need a good one.

…what exactly is a “bull rush”?

It’s a weed that grows on the banks of denial.

And in the WONDERFULLY twisted and fanciful mind of Buldung.

Didn’t Pidel himself state that Harvey intended to fight Walker?—Buldung

How do you get that into evidence, ace?

Show us how that works.

    bildung in reply to Ragspierre. | March 18, 2014 at 7:42 pm

    The motion to dismiss mentions that Pidel made such a statement to the 911 operator and to one of the troopers.

    I wouldn’t know the technicalities of evidentiary rules.

    Please enlighten.

      Ragspierre in reply to bildung. | March 18, 2014 at 7:50 pm

      No, no, no…

      I KNOW what Pidel said.

      I ALSO know trial procedure, but I’m not Mr. Buldung slinging dis and dat about how the defense is gwaina make people “apparent liars” and cut witness testimony to ribbons. Plus the part about how “ordinary people” will see through all the legal bs.

      Show us how that looks.

      Go ‘head. I’ll hold your coat.

“Whatever the legalisms, I think a good many people do believe that intending to start a fight, especially against a victim with no way out, does justify deadly force.”

How many times can you think of that Walker, the taller and lighter…and ARMED…man “had a way out”?

I can think of dozens. Don’t hurt yourself, though…

    bildung in reply to Ragspierre. | March 18, 2014 at 7:31 pm

    Well then, since you’re so fond of scripting scenarios, why don’t you give us just a few of these dozens of ways.

    Just make sure they all start with Walker being bull rushed by a 300 lb. depraved drunk from point blank range.

    Not you… the merely mortal Walker…because everybody knows you is a sooper badass mofo

    Ragspierre in reply to Ragspierre. | March 18, 2014 at 7:45 pm

    Oh, but I asked first.

    But, OK.

    Let’s start with this…

    Walker never “curbs” the minivan. He has Momma call the police as he drives carefully on his way.

    Walker never steps out of the minivan (which, in my experience, DOES MEAN you want a fight).

    There’s two, hunny.

    Your turn.

      bildung in reply to Ragspierre. | March 18, 2014 at 7:58 pm

      A man pulling over and standing beside his own vehicle doesn’t constitute a failure to take a way out…there was nothing to take a way out of yet.

      A man’s got a right to pull over if he wants, even if depraved drunks don’t like it.

      Now try again, and follow instructions…begin with your boyfriend bull rushing Walker from point blank range and explain how he’s supposed to magically avoid it.

        Ragspierre in reply to bildung. | March 18, 2014 at 8:08 pm

        Wow. You’re loosing badly in this, just so far.

        “A man pulling over and standing beside his own vehicle doesn’t constitute a failure to take a way out…there was nothing to take a way out of yet.”

        Really? You wanna TRY that? Like nothing happened over the last fear-packed, raging minute or two?

        Really? Walker stopping AND dismounting had NO significance to you?

        But you didn’t really even address the “carefully driving one” part.

        Didja…??? This signals you are depraved.

        JackRussellTerrierist in reply to bildung. | March 19, 2014 at 3:44 pm

        WHY DID WALKER STOP?

“Just call it the ‘JB Books’ theory of self defense.”

Except J.B. Books was not afraid of a fist-fight. Probably not of a knife-fight, either.

I mean, so long as you’re fantasizing…

    bildung in reply to Ragspierre. | March 18, 2014 at 7:32 pm

    I guess that’s why they called it The Fistist.

      Ragspierre in reply to bildung. | March 18, 2014 at 7:39 pm

      You’re thinking of Rocky, moron.

        bildung in reply to Ragspierre. | March 18, 2014 at 7:47 pm

        Surely to God you didn’t completely miss that, did you?

        Holy hell.

          Ragspierre in reply to bildung. | March 18, 2014 at 7:54 pm

          No. I have both works of fiction in my video collection.

          Both fine, fine movies. Both a lot like the fantasy you have playing in your head.

          I also read history, so I know about the Earps having to hire a lawyer after the OK Coral and attend court.

      Ragspierre in reply to bildung. | March 18, 2014 at 7:41 pm

      You DO know the Earps had to answer in court for the killings at the OK Coral, right?

      See, that wasn’t a movie.

      Real life is…well…an uncharted land for you.

        bildung in reply to Ragspierre. | March 18, 2014 at 8:01 pm

        I never saw Stallone’s F.I.S.T., if that’s what you’re referring to, but I’ll take your word for it.

        I don’t recall the outcome of the case against the Earps after OK Corral–what was it?

“…begin with your boyfriend bull rushing Walker from point blank range and explain how he’s supposed to magically avoid it.”

Well, we’d have to start from how Mr. Harvey manages to “stealth up” on our LEO from 164 feet away.

Try this…

“Scotty, beam me to a point just in front of Walker where I can bull rush him.”

“Aye, Cap’n, I’ll give ‘er she’s got. I dinno how muuch mur of this she kin tak…”

(Captain Harvey disappears in a column of sparkles.)

How’s that…???

Henry Hawkins | March 18, 2014 at 9:24 pm

Layman’s take, points numbered for rebuttal reference:

1. Walker is parked roadside and standing next to his van. His family are inside – very important – his family are present. This isn’t a street mano-a-mano thing.

2. 150′ or more away Harvey is parked and out of the vehicle with his buddy. Harvey is walking towards Walker and his van. 150′ or more.

3. Walker has himself and his family to worry about, yet he doesn’t simply get in and drive away or back away. Laws be damned, if you’ve got your family present, 99% of reasonable people would do just that, get in and move away.

4. Although off-duty and from another state, Walker is an armed LEO, and his decision to stand and face Harvey indicates he felt confident neither he nor his family would be harmed. Why? Because he’s armed and a trained LEO. His confidence was logical and unfortunately proved true.

(4a. In Walker’s defense, although Harvey/Pidel weren’t *visibly* armed, who knows what’s tucked in a waistband?)

5. I submit Walker did not know Maryland’s self-defense law (DTR), and believed Harvey would either blow some f**k you noise and walk away or attack and get shot. Walker appears to have been acting as if he believed Stand Your Ground was in effect, not DTR.

6. I submit that Walker, angry over the road-rage thing, laid in wait, thinking that if Harvey only yells and leaves, fine, but if he gets close enough to satisfy Walker’s errant sense of the actual self-defense law in effect, he could go ahead and shoot Harvey, a freebie ‘good’ shooting.

7. If the above were true, it’s first degree murder, but prosecution requires proving much that is only in Walker’s heart and mind – a tough thing to do, I’d imagine.

8. Walker goes down for second degree murder or involuntary manslaughter instead.

OK, then. I’ve sussed it all out, and me not even a lawyer. No need to continue this thread, in fact, go ahead and forward my post to the court. Case closed.

You’re welcome!

    *Uptwinkles*

    Yukio Ngaby in reply to Henry Hawkins. | March 19, 2014 at 12:20 am

    Involuntary manslaughter? How do you figure that?

    Partial self-defense is voluntary manslaughter.

    luckydog in reply to Henry Hawkins. | March 19, 2014 at 11:41 am

    I agree with the “tough thing to do” part of your point #7. And it strikes me that successful Prosecutors do that on a regular basis, that they attribute Motive to the Defendants, in part, by leveraging how a case “looks & feels”. It also strikes me that the defense knows that “looks & feels” matter, and that their client has some serious factual issues that negatively impact the “look & feel”.

    For me the absence of a 911 call before the shooting is a significant point. No call to report that they are in danger, if believe threat still exist. Or no call to report Harvey’s actions, car, direction headed, etc, if they believe the threat is over.

    In the Motion To Dismiss (MTD) the Defense made at least 4 statements indicating that the Walker’s called 911 before Walker shot Harvey. It appears that the Defense knows calling 911 before the shooting would be considered by many the correct course of action. An action that would be taken to give the police a chance to protect them, and possibly other citizens. And the Defense appears to recognize that the “optics” on this are bad for their client, if they called after the shooting.

    from the MTD:
    i) “…Det. Walker’s wife called 911 for emergency assistance prior to the shooting.”

    ii) “Det. Walker stepped out of his minivan and remained by his family as the men charged him, traversing nearly the entire distance between the vehicles….As this was occurring, Det. Walker’s wife called 911 for help.”

    iii) “…while omitting that Det. Walker’s wife had also called 911 as Harvey and Pidel charged towards the minivan, the prosecutor unfairly permitted the Grand Jury to draw the inference that Pidel and Harvey were “victims” while Det. Walker and his family were unconcerned aggressors. ”

    iv) “d) Mrs. Walker’s 911 call for assistance, as Harvey and Pidel approached the Walkers’ minivan; and…”

    BTW – I am now wondering: Can what the defense claimed in a MTD be mentioned at trail? Not just the claim that the Walker’s made a 911 call prior to the shooting; but also the Defense’s claim that not doing so would lead to the inference that the Walker’s were “unconcerned aggressors”. A statement like that is a “bell that can’t be un-rung”. And seems to be telling the jury what to conclude if no 911 call was made prior to the shooting. Hard to understand why the Defense would “plant that seed”. Maybe Andrew can answer the “mention at trail” question. Keep up the good work LI.

      Ragspierre in reply to luckydog. | March 19, 2014 at 1:03 pm

      Not intending to answer for Andrew, and with the caveat that criminal practice could be very different than civil practice…

      Stuff in a pre-trial pleading is not really useful at trial, unless it is something like a statement in an affidavit.

      Pleadings are understood to present even tenuous propositions of law which CAN be made without crossing any ethical rules. “Spinning” is not outside the lines.

      If courts allowed introduction of that kind of stuff against a part at trial, it would tend to chill a party’s representation, and the offer of novel arguments which might have some merit.

        luckydog in reply to Ragspierre. | March 19, 2014 at 11:00 pm

        Thanks guy – that makes sense. Although I will share with you that at first blush it seems counterproductive to make statements that can be easily disapproved. Or statements that very inflammatory. But then that may be just the nature of the process – and the actual participants in the field understand the “game”. Again, thanks for the feedback.

With what I have seen so far, I would probably quash the indictment, and tell the prosecutors to go the grand jury again, but not to cross the line this time. I wouldn’t dismiss with prejudice though – there may be enough here for a prosecution.

I think that it was bad that the prosecutor was arguing about stuff that was not in evidence, and was calling Harvey the victim, when arguably he was the aggressor. But, most fatal, I think, to the indictment, was the intentional lying about whether or not Walker had made a statement. The jury was entitled to hear his statement, asked for it, and was told that there wasn’t one. In some states, this would be enough to get the prosecutor disciplined by the bar. It was exonerating evidence in the possession of the prosecution that was not given the grand jury, even when essentially requested. And, with that, the GJ likely probably would have viewed the evidence presented to it differently.

We shall see.

    tom swift in reply to Bruce Hayden. | March 19, 2014 at 1:43 pm

    and was calling Harvey the victim, when arguably he was the aggressor.

    “Aggressor” has absolutely nothing to do with it. Harvey’s the guy with the bullet holes in him. Those bullet holes were why the police were called, and they’re why Walker is going to be tried. In short, Harvey’s the victim, in every sense.

      BULLSHIT !!!

      Harvey is ‘the dead guy’. In no way shape or form does that make him ‘a victim’ !

      He may be, or he may not be, but the fact that he’s dead does NOT put him into ‘victim’ status !!!!

        tom swift in reply to pjm. | March 19, 2014 at 2:11 pm

        In this context, that’s exactly what “victim” means, whether you’re capable of grasping the concept or not.

        But enough of your bullshit. Stop talking like a baby and say something intelligent, or bugger off.

        Ragspierre in reply to pjm. | March 19, 2014 at 3:26 pm

        Hmmm… Your contention seems like it could be verified.

        Do that.

        Bring us a grand jury transcript where the “dead guy/gal” is not referred to as “the victim”.

        We’ll wait…

        JackRussellTerrierist in reply to pjm. | March 19, 2014 at 3:51 pm

        Harvey is indeed the victim of a shooting…..as in……he’s dead.

        Whether or not he is a victim of a crime will be decided by a jury. I believe he is a victim of cold-blooded, premeditated murder committed by an enraged liar.

          He is ‘the guy who got shot’. It is yet to be determined if he is a ‘victim’.

          If you come home and find some guy raping your wife, and you shoot him dead, do you refer to him as a ‘victim’ ? Hell no. ‘dead criminal’, yes. But he was not ‘victimized’ by you shooting him. He brought it on his own damn self.

          A guy named Bin Laden got shot a while back, was he a ‘victim’ ? No.

          JackRussellTerrierist in reply to JackRussellTerrierist. | March 19, 2014 at 7:36 pm

          pjm, in your world, are there no nuances in speech, certain phrases and word usages that can vary through context?

          In your scenario, we would have a rape victim, who is a victim of a crime, and a shooting victim. The dead guy is a victim in the sense that somebody did something that caused his demise. He probably isn’t a crime victim. That would be reviewed and decided later, very likely in favor of the shooter.

          Harvey being a shooting victim is separate from any events that lead to him being shot. It relates to his physical state, not the legal state.

          Anyway, this has been explained to you by a couple of people now. Accept it or move on.

          The other day, I cut my finger preparing dinner. So, a knife in someone’s hands caused me to bleed.

          Am I a ‘victim’ of a knife attack ? A ‘victim’ of ANYTHING ? Other than my own clumsiness, that is …

          Where’s that grand jury transcript where the DON’T use “victim” when referring to the person who was killed by another?

          Should have had time to root one up.

          I mean…if one exists…

    luckydog in reply to Bruce Hayden. | March 19, 2014 at 3:08 pm

    Some of your thoughts reminded me of how truly effective the Power of Suggestion can be. In this case, the Defense’s “suggestions”.

    1) To me this was one of the most “grasping-at-straws” claims that the Defense could make: “repeatedly using the term “victim” in referring to Harvey as it was the Grand Jury’s role to reach any such conclusion; ”

    Every dictionary I checked had a similar definition for Victim: One who is harmed or killed by another. And none of the definitions mentioned that a determination of guilt or innocence was necessary to determine if the individual was a victim.

    I also noticed that the defense did not stipulate what term should have been used – or even what term is customarily used in Grand Jury proceedings.

    2) And this claim by the Defense made me cringe a little: “falsely informing the Grand Jury that Det. Walker had not provided a statement to law enforcement personnel when, in fact, he had done so, and then, improperly eliciting testimony about his “failure” to do so; and ”

    Like the claim about the Walkers making a 911 prior to the shooting, the exhibits the Defense referenced do not support their claim.

    From MTD “Statement #5” (page 18)- or Trooper testimony to Grand Jury (pages 12-13):

    A) This Q&A started the discussion on whether or not Walker had provided a statement.

    Juror: “Did Mr. Walker say that he knew either of the victim or who he was with?”

    Trooper: “Mr. Walker did not make any statements.”

    B) A Q&A, between the Prosecution (?) and Trooper, followed and the following points were made:
    -The Anne Arundal County Police (AACP) responded before the Maryland State Police (MSP).
    -Walker made a statement to an AACP police officer.
    -Walker did not indicate he knew Harvey or Pydel (juror’s question).
    -At a later time Walker declined opportunity to give a more detailed statement to the MSP.
    -As of GJ meeting, Walker had not provided a more detailed statement to the MSP.

    C) The Juror summed up his understanding of the info the Trooper provided.

    Juror: “…maybe there was some history in NJ…he certainly has an opportunity to say that – if it was.”

      pjm in reply to luckydog. | March 19, 2014 at 6:37 pm

      1) you believe everything you read ?

      2 A)”Trooper: “Mr. Walker did not make any statements.””

      Clearly a lie. If Walker so much as said ‘My name is Walker, I shot the guy’, THAT is a statement to the police. It may not go into as much detail as the Trooper would like, maybe Walker was smart enough to not answer questions, not be interrogated,etc (I don’t recall), but to say ‘he did not make any statements’ is patently false.

      How is it even legal to ask if he did ? What about his 5th Amendment rights ?

        Ragspierre in reply to pjm. | March 19, 2014 at 7:21 pm

        Except that people, when testifying, often say stuff you know is not accurate. They are not “lying”. They are just lost in the process of speaking to others in public.

        So, you do what the prosecutor here did…you lead them back to the facts as you understand them.

        Why do we assume Lois Lerner is hiding stuff when she takes the 5th? People draw conclusions every day from a refusal to answer questions. Walker will get his chance to elaborate at trial, and that is partly because the grand jury decided the other evidence supported making him stand trial.

        luckydog in reply to pjm. | March 19, 2014 at 8:18 pm

        “1) you believe everything you read ?”

        This truly made me smile. It strikes me that most people think using a dictionary – in this case multiple dictionaries, both on-line & hard copy – to determine the definition of a word is a reasonable, unbiased action. And if multiple sources have the same definition, then that definition is believable. I will also note that if the Prosecutor or Trooper had said “innocent victim”, I would think the Defense had a point.

        “Clearly a lie.” “…but to say ‘he did not make any statements’ is patently false.”

        More smiling. If that line of questioning had stopped with the Trooper indicating Walker had not made a statement, it strikes me that it would be reasonable for the defense to challenge his actions. Did the Trooper mean: “Mr. Walker did not make any statements [about whether or not he knew Harvey or Pydel before today].” Or did the Trooper mean: “Mr. Walker did not make any statements [of any kind to the police].”

        Fortunately, that line of questioning did not stop there, and the jurors were made aware – by the Prosecution & the Trooper – that Walker had made witness statements to the Anne Arundal County Police. And the juror’s question was answered again, and in a manner that did not introduce more ambiguity. I think that is how things should work, and something that should be encouraged.

        “How is it even legal to ask if he did ? What about his 5th Amendment rights ?”

        This strikes me as the Defense utilizing the Power of Suggestion. But I could be wrong if it turns out that jurors in a Grand Jury are not allowed to know that, but a jury in a courtroom is allowed to know that. Maybe one of the attorneys participating in these comments can shed some light.

Yes, they may have to re-indict. But a ‘statement from the accused proclaiming innocence’ is not unusual, nor likely to change to a ‘no true bill’.

Process and procedure, not destination (trial).

Richard Aubrey | March 19, 2014 at 5:52 pm

IMO, the prosecution has a problem with the DTR. Presuming they can make the case that Walker watched, or should have been watching, Harvey approach, the prosecution needs to make the threat clear in order to initiate the DTR.
So the point will have to be, in effect, the defendant, having been involved in a vehicular assault by the dear deceased, should have, must have had, a reasonable perception that Harvey, approaching on foot, was a serious threat of serious injury or death to Walker and/or his family. That’s why the law requires Walker to get back in his car and expose his family to the substantial risk of further vehicular assault just like that they’d already barely survived. That’s the law.
Should the P fail at making Harvey out to be a slavering potentially murderous maniac, then there is no threat and no DTR.
So they can’t spare the adjectives.
At which point, somebody on the jury says, “THAT’S the law? My sweet Aunt Fannie.”
Juror null, which that might be, is a big deal, contradicting the will of the majority of the voters. But the jurors, hearing this, will wonder when they were consulted as to the nuttiness of such a law. Probably not many will recall a survey from the legislature on the question.

    Ragspierre in reply to Richard Aubrey. | March 19, 2014 at 5:59 pm

    Ummm… you’ve got the Walker vehicle stationary.

    You have Walker OUT of his stationary vehicle.

    Why is that “more secure” somehow than driving up or down the ramp?

    If Harvey is a homicidal nutbag, how come there isn’t any contact between the vehicles to the point of Walker pulling off the road?

    If he wants to deal death and deprivation, how come he doesn’t go for the now-stationary target?

    Cripes.

    Again.

Henry Hawkins | March 19, 2014 at 6:11 pm

HEY. I already solved this caper. Why are there continuing posts????

Richard Aubrey | March 19, 2014 at 6:36 pm

Rags. I see I’ve been going too fast. Let me try again:

You can’t specify a DTR without a threat. The prosecution has to insist Walker failed his DTR. Thus, there must have been a DTR.
Are we good so far?
Now, if there’s no threat, there’s no DTR. So the prosecution has to assert a clear and obvious threat. Clear and obvious from the time Harvey got out of his vehicle, so clear and obvious that Walker or any reasonable person would have felt severely threatened and taken off.
This maniac, with murder in his eye–the P will have to imply if not assert–visible at 50 yds, should have impelled Walker to get back in his car and leave.
So, having painted H as a rabid, ravening starving gila monster–take your pick of various bad animals–we have the certainty of H getting back into his car and going to the party. That’s what Walker should have thought.
Now, you’re not talking to me. You’re talking, should you be the P, to the jury. You’re necessarily making H out to be a threat to all of civilization such that W should have seen it coming and booked. Until H got back in his car at which time he’d have snorted a line of lithium and mellowed right out.
And there is likely to be more than one juror who, keeping his duty to the law in mind, still wonders what you are smoking, or trying to get over on twelve honest citizens.

    Then it was merely a shooting (whatever charging label or degree – manslaughter, murder, etc).

    The P does not have to prove any such thing as you suggest. He has to prove Walker shot Harvey, in fact that is not in dispute.

    If there was no ‘DTR’, due to ‘no threat’, then in fact Walker has no defense at all (he can not say self defense). No threat = no justification to shoot.

      Ragspierre in reply to pjm. | March 19, 2014 at 7:07 pm

      Wow. You got it.

      Now, don’t forget that Walker is going for the “defense of third parties” thing, to get around the DTR (which would be a REAL bad problem for him).

      But the same stuff applies. Walker’s defense has to prove (or at least raise the idea to ONE very determined juror) that Harvey was a threat to the Walker Momma and kiddies.

        JackRussellTerrierist in reply to Ragspierre. | March 19, 2014 at 7:39 pm

        ……yet momma didn’t perceive any threat, or she would have called 9-1-1 before Harvey was shot.

          You also have her either absorbed in a killer game of “Angry Birds”, or playing “Big Noise From Winnetka” on her door as the terrrrrrrrible, dangerous Harvey approaches while her hubby is gathering wool just outside the van.

          Dunnent wash, does it?

          JackRussellTerrierist in reply to JackRussellTerrierist. | March 20, 2014 at 3:31 am

          Nope, it doesn’t. And it’s why Walker claimed he was checking his tires/rumble strips. He needed for it to look like he was occupied by something that would cause him to not see Harvey approaching long enough so he could shoot him to death in what he hoped will be considered “self-defense” range. He forgot about momma when he told that tale, because she would have been beside herself, hollering at him and calling 9-1-1 if he wasn’t seeing Harvey approaching. I guess Walker finally saw the flaw in the tire/rumble strip story (which was really, really lame to begin with in the context of the roadway events and the whole rumble strip thing anyway) because he’s now claiming, through his lawyer, that he pulled over to disengage since their claim is that he made that statement to the cops and it wasn’t included in the cop’s testimony to the GJ.

          It’s kind of like Goldilocks – one was too big, one too small, third one was just right. Assuming the motion fails, it’s probably done him more harm than good.

        “Walker’s defense has to prove …”

        Nothing. All a defendant needs is ‘reasonable doubt’, not ‘proof’.

          Ragspierre in reply to pjm. | March 19, 2014 at 7:56 pm

          And to raise a “reasonable doubt” you have to have SOME proof.

          You can’t argue what you have no proof of, silly.

        If getting in his car and trying to drive away was ‘viable retreat’ for HIM, then it was also viable retreat for (protection of) the third parties, who were already in the vehicle.

          Ragspierre in reply to pjm. | March 19, 2014 at 10:18 pm

          Supposing that SOMEBODY makes the case…via evidence…that there was a threat to third parties.

You can’t argue what you have no proof of, silly.”

Really ? I thought you said you are a lawyer ?

At least 50 % of the time what a lawyer argues in court is ‘what he can not prove’.

That’s why it’s called ‘argument’, not ‘evidence’.

    Ragspierre in reply to pjm. | March 19, 2014 at 10:16 pm

    IF you have no evidence, you will be stopped from making an argument.

    Is this concept hard?

    You can’t argue crap. You have to have some evidence, or you get no jury instruction, and you WILL be met with an objection.

    We did this the other day, remember? You can’t just intone “defense of a third party”. You have a hill to climb.

      Your “You have to have some evidence, or you get no jury instruction, and you WILL be met with an objection.”

      vs my ‘what he can not prove’.

      IOW – as long as he can find SOME WAY to twist something in evidence to sound like it backs up his argument, he can argue it. He can’t PROVE it, but he can ARGUE it.

      “Is this concept hard? ” back at ya,

      “You can’t argue crap.” Are you kidding me ? Half the lawyers in the country would be out of work if that were true.

        Ragspierre in reply to pjm. | March 19, 2014 at 11:34 pm

        You’re full of crap.

        One of my favorite parts is closing.

        “Remember when OC promised you that he/she would provide you evidence of X? When did they make good on that promise? Remember when they promised that you would see, through the evidence, that ZY happened? Where was that? When did they make good on that promise?”

        And, remember, I get to close. I get the last word to the jury.

        Where do you think the “evidence” is going to come from that Walker reasonably feared for his wife and kiddies, and so shot Harvey dead?

        Mrs. Walker? Walker himself?

Richard Aubrey | March 19, 2014 at 9:06 pm

Two points: The P is talking to a jury, not a bunch of folks on line.

Second, if W claims the threat was not percetible until H got close, then the avenue of retreat is small or nonexistent. Hence, the prosecutor has to make the case that the threat was obvious from the get-go thus triggering the DTR.
Now, having made that case, the P is going to have to make the case that the avenue of retreat involved in driving away was perfectly safe, which is why W should have taken it. Because, all of a sudden, H was no longer a threat.

I understand that some have said MD law says you have to take even a poor chance, an unlikely chance to retreat and you can’t shoot until you’re backed up in a blind alley. But the P is going to be talking to a jury, half of whose members have likely had a run-in with H’s type and all of whom are going to be trying to figure out how come H comes all over peaceable when he gets back in his car.

Luck with that.

    “Hence, the prosecutor has to make the case that the threat was obvious from the get-go thus triggering the DTR.”

    Or that there was no threat, thus DTR doesn’t enter into it, as it can not be self defense without a viable threat. One that fits the parameters in MD (whatever they may be) of ‘validating a deadly response’.

    So, he tears a new butthole in any witness that suggests otherwise.

    In closing : L & G of the jury, you have heard no believable evidence (OK, OK, maybe he’s not allowed to phrase it like that, because ‘believability is the sole province of the jury’ but you get the idea) that Harvey ever presented a threat. He walked, he did not run. His hands were down. He did not pick up a tire iron or a bat or whatever. A reasonable man can not derive ‘a deadly threat’ from that, therefore there WAS no threat sufficient to place this police officer, trained and certified in self defense, in fear for his life, etc’
    .

      pjm in reply to pjm. | March 19, 2014 at 9:48 pm

      And don’t get me wrong, I’m not saying I think Walker is guilty.

      It’s entirely possible that, walking with hands down, when almost in arm’s reach, Harvey said ‘Me and my friend are gonna teach you some F’ing manners, you MF’g N’ etc.

      Walker would have no way to know if Pidel was going to join in or not, and Harvey was not some small guy.

      And at that range, maybe Walker really had no option to regain his car, close and lock, and drive, etc. And he could not turn and run with the family in the car.

      12 people other than me are gonna have to worry about that one.

    JackRussellTerrierist in reply to Richard Aubrey. | March 20, 2014 at 3:48 am

    Walker already tried that gambit of the threat not being perceptible/perceived until Harvey was close. That’s what the whole rumble strip/flat tire story was about which he has now abandoned. His story now, presented by his lawyer in the motion, is that he told the cops he pulled over to “disengage”.

    I suspect that’s what this motion is really about – a means to change Walker’s story again in order to get a third bite at the apple – introduce the idea that Walker tried to disengage. But one doesn’t disengage by not calling 9-1-1, but stopping, getting out, giving Harvey come hither gestures while standing by his car, and then shooting him to death when he’s 6′-20′ or so away, stopped with his arms raised.

      His story now, presented by his lawyer in the motion, is that he pulled over to “disengage”.

      I don’t think this is an attempt to get a ‘third bite at the apple’ by changing to “disengage”. The disengage position was introduced in the responding officer’s interview:

      “Walker decided to pull his vehicle to let Harvey’s vehicle go hoping this would end it. Once he pulled over he heard the tires hit the rumble strips. Walker thought he had a flat tire.”

      The motion does not change the stated reason for the pull over, but just completely ignores the after pull over flat tire narrative and replaces it with the following: ‘Det. Walker stepped out of his minivan and remained by his family as the men charged him, traversing nearly the entire distance between the vehicles. (Exh. B at 14).’

      This is from one drive-by witnesses and being a summary the defense elected to use the terms ‘charged’ and ‘remained by his family’ neither of which was actually in the statement. This witness observed the initial pull over and was likely past the scene before Harvey had advanced over ½ way to the van. The statement includes such terms as approaching ‘real fast’ and ‘aggressively’ but the witness avoids the term ‘running’ even when directly asked. The statement also indicates that Walker is standing next to the van and appears to be aware of the advancing Harvey.

      Of course this is just the motion. Ignoring the narrative of the flat tire doesn’t make it go away. That narrative could be problematic for the defense in a trial. We don’t have all the evidence but it appears so far that this will all boil down to the witness testimony of the 3-5 seconds prior to the shooting and Walker’s testimony will be critical. Credibility will be a major issue and, as we all can see, Walker’s problem with credibility is not insignificant.

        pjm in reply to Baker. | March 20, 2014 at 1:40 pm

        “Credibility will be a major issue and, as we all can see, Walker’s problem with credibility is not insignificant.”

        Except that he doesn’t have to testify. And when it comes that time, if he and his lawyer feels the P has failed to ‘prove guilt beyond a reasonable doubt’, he may not.

          Baker in reply to pjm. | March 20, 2014 at 2:14 pm

          I understand that he doesn’t have to testify. I’m somewhat familiar that concept.

          I noted that it ‘could’ be problematic at trial, not will. I also said that it is my opinion that the trial will boil down to witness testimony. I anticipate the position of the defense may be that Harvey ‘charged’ or ‘lunged at’ or ‘attacked’ Walker and therefore he fired. I would think they would try to provide some support of that assertion. Support for that assertion seems rather limited at present and is confined primarily to limited information from Walker’s statements. Maybe they will want to go with just suggesting that it was a possibility. Maybe the prosecution will never question that assertion. Maybe additional evidence will be revealed or released. Never can tell how the trial will go.

          Ragspierre in reply to pjm. | March 20, 2014 at 2:32 pm

          I shrewdly guess that the defense is even now furiously searching for a “fear” expert that could survive a Daubert- like (…names curse! Whatever they use in Maryland) challenge.

          Because that…rather weak reed…is the only way I see to avoid having the Walkers testify at trial.

          And even then, the jury will look with a jaundiced eye at any failure by Walker to tell his story.

Richard Aubrey | March 19, 2014 at 10:00 pm

pjm
That may fly if it’s in the afternoon after a high-carb lunch for the jury. Used to occasionally eat in the place across from the courthouse. Not many jurors chowing down on lettuce and lo-cal vinegar.
But it would require the jury to ignore the vehicular gymkhana, as one commenter put it, and presume H was no more obviously a threat than a passing motorist pulled up to W’s car to see if he could help.
So far, with the exception of Pidel, afaik, we don’t have anybody telling us what either said to each other, if anything.
Now, to be frank, sitting at my keyboard, W’s actions as described make me a bit twitchy. I’m not entirely sold on his guilt, though, because in the real world, I’ve gone nose-to-nose with H’s bros here and there and if there had been two of them, they might have gotten brave and I’d have been in trouble.
So, if H and P were closing, I can see W perceiving a threat, and too late to do any running.
If the prosecution wants to insist there was no threat at all, it leaves open the perception in the last ten feet or whichever it turns out to be because at that time W can see H clearly, hear him if anything was said, and see wingman P doing whatever he was doing, including possibly moving to flank him (TBD).
I think one point the D can make is that, without the intent to commit harm, H &P had no reason to leave their vehicle and approach W. Which W would probably think.
I understand the descriptions of DTR, but the point is I don’t think the jury, unless pretty literal folks, are going to buy it in this case.

    “So, if H and P were closing, I can see W perceiving a threat, and too late to do any running.”

    Yes, as I said, so can I. I can also see the other option – H & P were playing some jaw harp, but nothing more than that.

    The whole thing is, all the lead-up really doesn’t matter, at least in some ways.

    Who drove how where, who pulled over first, who walked where, that doesn’t have to lead to ‘deadly threat’ or shooting.

    Only the very last instants matter. At ‘shooting time’, that moment, was there sufficient threat for a reasonable man to shoot ? Only two men really know, and one is dead.

    If the various descriptions were ‘enough to justify shooting’, hell, I’d probably have killed ten men in my life. Not ‘just in similar driving situations’, but in ‘life in general’ – the described level of ‘who’s pissed off at who’.

    But my body count is at 0 so far, in fact I’ve never displayed my weapon.

    Good luck to the jury. Carbs and all.

Since you are saying that there was something to retreat from, which Walker failed to do, in your view, then you are also saying that Harvey was, in fact, a threat.

Well, that’s progress.

Because the case up to now was Harvey was just walking up and exercising his First Amendment rights like the model citizen he was.

It seems you’ve realized that logical flaw in your argument…no threat, no DTR, so now Harvey has to be a threat, just not one that justified lethal force.

Which allows you to slide down the scale towards manslaughter, ranting furiously the whole way.

You’re pulling the plug on yourself.

If Harvey wasn’t a threat that required lethal force, then he wasn’t one that required Walker to retreat either.

Walker had his gun ready in case he became such a threat, which Harvey did when he crossed the line of proximity to Walker that precluded his ability to get away.

If they are just going to yell at one another, Walker is under no duty to retreat. When Harvey suddenly took it to the next level, he got dead.

And rightly so.

This notion that a free citizen is required to slink off like a coward in the face of an abusive drunkard, just because something might happen that Democrats and lawyers might not like….its just not gonna sell.

I’m not a lawyer but I am a connoisseur of human folly. And I’ve just looked into Walker’s eyes and seen the unutterable depths of stupidity that lies within. He murdered Harvey because he ‘dissed’ him in front of his family.
Unsurprising for this particular demographic, they will kill over the last chicken wing.
He escalated the confrontation by getting out: forget all the bullshit about DTR, Walker wanted to kill that ‘white cracker’ and that’s what he did. Bubba the drunk meets AA/quota hire copper. The outcome was written in the stars.
One question, did Walker turn off the ignition while he waited to murder Harvey?

Richard Aubrey | March 20, 2014 at 6:03 am

“It’s the law in MD, and other places.”

pjm. bitcoins to Krispy Kremes, this would surprise most of the honest burghers of MD and other places. Which would include the jurors. And they have the last word.

I’ve never had a threat, much less ten of them, which might have required lethal force, and I just turned sixty-nine. I have been in situations which I handled without lethal force which, had I not handled them successfully, might have escalated. Just lucky, I guess.

    With all due respect, SO WHAT? I have the opposite experience where lethal force was the only option.

    Doesn’t mean I’d shoot someone now, just that I know what is involved.

    I’d acquit Walker because of the stupid facile over-charging alone. Period. Good thing I am not on that jury (as Rags has already stipulated :))

      pjm in reply to Aridog. | March 20, 2014 at 11:58 am

      Is that justice ?

      Are there no lesser included charges that you might (or might not), after testimony and deliberation, feel fit the facts and the law ?

      You would vote based on ‘I think the P is a bitch’ ? Really ? Or vote the other way based on the opposite (D lawyer is an irritating asshole) ?

        Aridog in reply to pjm. | March 20, 2014 at 12:09 pm

        Regarding “justice” I suggest Richard Pryor’s routine … “Just-Us” comes to mind. Really I don’t give a dang either way, but I want a charge that reflects the actions taken by BOTH parties. In this case that is ignored. So I acquit. It is the prosecutor’s job to be appropriate … not mine.

        Rags may disagree (and be right!), and be legally on the side of righteousness, I am speaking only as to what I’d do if on that jury. Period.

        And, YES, I hold a prosecutor responsible for the degree of his/her charging…and I’d punish bull roar such as this charge. If a lessor charge is appropriate, then skip the max and sundry cop outs for juror conscience salving.

        It is not complicated to an ordinary person. To a lawyer, perhaps?

          pjm in reply to Aridog. | March 20, 2014 at 1:12 pm

          OK, so you think any given case should have one charge only (per count) ?

          Never maybe ‘Murder 1 or in the alternative Murder 2’ ?

          And if they acquit on M1 (no intent shown), what then ? Can they re-indict on M2 ? A third time on manslaughter ? What about DJ ?

          If the charge is M1, and the jury decides ‘he didn’t really PLAN to kill the guy, he was just pissed off at the moment, so he’s innocent on M1’, and that was the only charge, does a guy then walk forever ?

          How does the system work then ?

          Your idea would result in P’s ever only indicting on ‘the charge that they think is a slam dunk’. ‘Maybe M1, or M2, depending on how they view intent, or maybe manslaughter’ would always result in a charge of manslaughter, never M1 or M2.

          This takes the discretion of the jury away. The jury is supposed to decide ‘Did he really MEAN and PLAN to kill the other guy on purpose, or was it a fit of anger, a momentary lapse of judgement, or what ? The punishments differ.

          The jury is supposed to decide.

        Aridog in reply to pjm. | March 20, 2014 at 12:47 pm

        Regarding “justice” I suggest Richard Pryor’s routine … “Just-Us” comes to mind. Really I don’t give a dang either way, but I want a charge that reflects the actions taken by BOTH parties. In this case that is ignored. So I acquit. It is the prosecutor’s job to be appropriate … not mine.

        Rags may disagree (and be right!), and be legally on the side of righteousness, I am speaking only as to what I’d do if on that jury. Period.

        And, YES, I hold a prosecutor responsible for the degree of his/her charging…and I’d punish bull roar such as this charge. If a lessor charge is appropriate, then skip the max and sundry cop outs for juror conscience salving.

        It is not complicated to an ordinary person. To a lawyer, perhaps? This concept of “instantaneous” premeditation is beyond me. Manslaughter, as the primary charge, yes, anything else no. You charge first degree, on the jury, I’d acquit. Not my fault, but the prosecutions fault. Simple really. Why is this so hard to get by my intellectual betters?

      Aridog in reply to Aridog. | March 20, 2014 at 12:00 pm

      A far better solution would be to dismiss this stupid charge without prejudice and re-charge based upon something close to real life.

      All this divining of what was in Walker’s mind is down right scary to me….no one but Walker can know this, period. “Fear” is an amorphous thing…you know it when you feel it and you cannot feel it for another…all this guess work is comically, really. Harvey’s mind is simpler, he was going “back” to a fight. Dumb ass. If Walker feared, he feared. He could have departed by driving off, but so could have Harvey.

      Harvey was a dumb ass stomping to his own death…why that occurred is the issue, and is damn sure as hell was not per-meditated…in my opinion anyway.

      But I know nothing, other than the experience gained from being in gun fights.

        Ragspierre in reply to Aridog. | March 20, 2014 at 12:27 pm

        Read the link Andrew put up the other day.

        The definition for murder 1 is very plausibly met by the facts here.

        http://lawofselfdefense.com/jury_instruction/md-mpji-cr-417-2-homicide-first-degree-premeditated-murder-second-degree-specific-intent-murder-and-voluntary-manslaughter/

          Aridog in reply to Ragspierre. | March 20, 2014 at 12:59 pm

          I read it. I do not agree. But that is from a Joe Sixpack viewpoint. I despise charging at maximum levels when the actual evidence says manslaughter (either of the two men could have escaped by driving away). The max charge is a cop out if lessor charges are included. Shotgun approach, not justice.

          This is one of the reasons I recommend anyone in a gunfight make sure they kill all the witnesses. (somewhat facetiously) That’s nuts, and I’d not do it (I don’t think?) but survival calls for it. Marcus Luttrell’s 3 team mates might be alive today if they’d done that. Just saying….off topic, but not so much if you think about it. There’s “right” and there’s what you feel at the instant of challenge. I defy the arm chair folk to counter that. You just cannot know. You can’t Just can’t.

          For me…Walker charged with manslaughter on top, or he walks. Charge what you know not what you imagine.

          No jury would ever have me…I say what I believe.

        pjm in reply to Aridog. | March 20, 2014 at 1:22 pm

        “All this divining of what was in Walker’s mind is down right scary to me….no one but Walker can know this, period.”

        And yet that is the exact distinction between many levels of charging. ‘What was in his mind ?’.

        Assume A shot B, B is dead, in dispute. What was in A’s mind ? You say ‘Only A knows’ ???

        M1 – planned to kill
        M2 – killed in anger, not by plan
        Manslaughter – killed, but with other thoughts
        Criminally negligent homicide – killed by criminal level of accident, IOW wasn’t even thinking to do it
        Self defense – has reasonable fear in his mind
        No charge at all – as in SD

        The difference is anything from life in prison to walks free, based 100 % on ‘what was in his mind ?’.

        “Harvey’s mind is simpler, he was going “back” to a fight.”

        You know this HOW ?

        “But I know nothing, other than the experience gained from being in gun fights.”

        Been in a few thousand, have you, to get a fair sample ? And from some kind of perceived average, mean, or median, you derive the facts of this case, and of Walker’s mind, and of Harvey’s, at the moment the shot was fired ?

        Really ?

I’ve been consistent about reading all the posts and comments and find it interesting that no one has mentioned that the information indicates Walker actually advanced toward Harvey at some time, likely when Harvey was less than 50-75 ft away and possibly much closer. Granted it is likely that the advance was no more than 6′-8′ and doesn’t necessarily mean any more than he was repositioning himself to a better position tactically but I think it is fairly obvious that he did advance.

I know that this should have been posted a couple of updates ago when the topic was who Walker exited his vehicle (drove over rumble strips, thought he had a flat, got out to check’) — but I’m playing catch up here.

I haven’t seen what year Kia he was driving, but I believe that tire inflation monitoring has been standard equipment on the Sedona for several years.

If those sensors were present, exiting his vehicle to check if a tire was flat would not appear to be necessary

I’ve been consistent about reading all the posts and comments

An admirable display of stamina. Several correspondents supra seem to be mired in very deep mental ruts, and I personally prefer to skip over that stuff en bloc.

As per Exhibit E, the police account –

“When he turned around, the two occupants of Harvey’s vehicle were within ten (10) feet of him . . .”

. . .

“Walker advised he pulled out his gun and stated walking backwards toward the driver’s door.”

“Walking backwards” implies that at some prior time he had walked forwards, but that was probably while doing the tire inspection. I imagine he looked at the rear tires, then walked to the front of the Kia, looked at one tire, then passed in front of the van to look at the other tire, ending up a bit forward of his car doors. If he was indeed checking his tires, his movement toward Harvey might be innocent enough.

    Baker in reply to tom swift. | March 20, 2014 at 11:31 pm

    Point well taken.

    I considered that but quite honestly I dismissed it. It’s possible it happened that way but I think the only evidence we have is Walker’s statement. Several cars passed by and I don’t recall any of those witnesses mentioning that Walker was wandering around. They primarily indicate that he was standing close to the door or in the near vicinity of the door with the exception of the one who actually witnessed the shooting and interpreting her interview it sounds like (my conjecture) he was likely close to the front tire.

    Plus, it seems to me highly unlikely that someone would pull over to disengage from a road rage incident without observing the response of the other vehicle. Harvey sees the other party pull over and exit their vehicle. At some time he decides to get out of the vehicle and walk about checking the tires but doesn’t monitor the activity of the individuals. He remains completely unaware of the approach of those individuals until his wife yells out to him.

    This narrative would also require the assumption that his wife would also be oblivious as to whether the pull over to disengage was successful until she decides that perhaps it wasn’t and warns he husband when the the two advancing men are only 10-20 from the van and yells out to her husband.

    All of Walker’s statements may be true and it is possible it played out that way but to me it seems far-fetched without some additional supporting evidence so I dismissed it.

      tom swift in reply to Baker. | March 21, 2014 at 7:54 am

      If Walker really was walking around his van and checking his tires, witnesses wouldn’t have paid much attention, and police might not even find them if they hadn’t witnessed the later excitement, and later come forward on their own after the story made it onto TV. So lack of witnesses for that may not be fatal to Walker’s narrative.

      But, much worse for Walker, witnesses not only failed to notice any tire inspection, but flatly contradict the story about failure to notice Harvey’s approach. Witness B, who claimed to have watched the incident from the time when both cars were playing dodge’em to the time when Harvey was well on his way walking toward Walker’s van, said that Walker was standing, apparently waiting for Harvey to approach. Nothing about tires, nothing about Walker being unaware that Harvey was approaching. (But Witness B is the most skittish of the jurors, and may be the hardest for the prosecution to get into court for testimony.)

      I have to agree to major skepticism about the idea that Walker wouldn’t make it his business to know the location and activities of the driver who had just caused him such annoyance.

      The wife’s failure to notice Harvey is a good point. But I suppose she could plausibly claim to have been occupied with business inside the van – yelling at the kids, perhaps – and so was not even looking outside where Harvey was approaching. Not terribly likely, perhaps, but not impossible.

      I suspect the tire story is going to torpedo Walker, and it’s why I think the M1 charge is not off the table. A hypothetical: Walker was enraged at Harvey, maybe for his use of The Word, and pulled over for a showdown. He watched and waited as Harvey approached, and when he was close, pulled out the gun. He then may have fired a negligent discharge which hit Harvey, and Harvey definitely stopped moving toward Walker. Walker then decided to finish the job and deliberately gave Harvey another two. Pidel survived because he wasn’t close enough for Walker to make a claim of self defense if he shot him too (or maybe Walker simply wasn’t mad at Pidel). Walker then gave the police his cover story about the tires (as an alternative to the more obvious theory about stopping deliberately for a fight), being surprised by Harvey’s appearance up close, and fear for his life and family.

      Obviously, this is speculation (though based on witness statements), and not fact. But, this speculation, if true or if believed to be true, has the premeditation element needed for conviction for first degree.

      Is there room for reasonable doubt? Probably, particularly as the witnesses disagree on a number of points, the big ones being the relative distance between Walker and Harvey, and Pidel’s whereabouts throughout the entire incident. But those bear only indirectly on the big question: did Walker see an opportunity to gun down Harvey, and then believe that with the right story he would get away with it?

Richard Aubrey | March 21, 2014 at 8:14 am

tom swift
In your scenario, who pulled off first?
Seems to me that if it were Walker, Harvey’s subsequent action would be a major issue. How could Walker have known Harvey would cooperate in the confrontation?
If Walker’s vehicle was behind Harvey’s when Walker pulled off, then Marvey would have had to notice and do the same, ending up ahead of Walker.
If Walker’s vehicle was ahead when he pulled off, Harvey, not being under sufficient control to pull behind Walker, would have had to pass Walker and get stopped in the distance between the two vehicles when Walker–hypothetically–began to pull off, plus the fifty yards.
And if Harvey pulled off first and Walker had the space to pull off fifty yards behind in response, we still have Harvey exiting his vehicle and going back to Walker.

Were I a juror, I’d be inclined to think Harvey died of stupid, and at worst Walker gave him the opportunity. Which Harvey jumped at.

Still, we have dueling windows. The prosecution is going to have to assert Walker should have seen the threat immediately, which makes Harvey a maniac of the first water. The defense is going to have to make the threat clear only in the last instants.
Paradoxically, each of these requirements paints Harvey in a light opposite that which is required to appeal to the jury.
You’ll note that, even in the picture of Harvey in his Sunday-go-to-meeting clothes, he’s at pains to make sure you know he’s a really, really bad ass. This is likely to be more apparent at ten feet than fifty yards, and we don’t know if it is only his bearing, or if his mouth were involved, that clinched the deal when close to Walker.

I can see the hypo that Walker wanted to off this guy, but the mechanical requirements depend so much on Harvey jumping in with both feet when almost anybody else would have kept going that Walker’s wish can’t very well be considered operative here.

    From Walker’s 911 call:

    “…two people “ran us off the road”

    “Him and the other person in his vehicle, they pulled us off the road.”

    If someone who had already been road-raging me “ran me off the road” or “pulled me off the road”, I don’t think I’d get out and leisurely walk around checking my tires, or even get out of my car and just stand there watching them approach me.

    Walker makes it sound like he saw Harvey as a dangerous threat from the beginning. A reasonable person would certainly see someone who acted as Harvey was alleged to have acted as a dangerous threat from the beginning. Why didn’t Walker try to retreat from the point he realized Harvey was a dangerous threat? A reasonable person would probably think that getting out to confront Harvey after all that had transpired was a deliberate decision by Walker to confront Harvey, not an attempt to exercise his duty to retreat.

    tom swift in reply to Richard Aubrey. | March 21, 2014 at 9:22 am

    In your scenario, who pulled off first?

    Doesn’t matter in the least.

    If Walker was gunning for Harvey, he only had two practical choices – do it while they’re driving, or while they’re on foot.

    How or when they both got on foot doesn’t matter. They both stopped, they both exited their vehicles, and the drama played out as we know.

    The only complication is Walker’s failure to retreat, which by itself may be enough to finish him off.

    Were I a juror, I’d be inclined to think Harvey died of stupid, and at worst Walker gave him the opportunity. Which Harvey jumped at.

    Meaningless. Harvey died of bullet holes, and Walker was the guy with the finger on the trigger. Nobody else.

    If Harvey “jumped at” an opportunity, then Walker set a trap. That’s premeditation, and Walker is toast – first degree, and I doubt the jury will even have to leave the courtroom to decide it. Nothing about Harvey will change that – the definitions of M1, M2, MS, and SD in Maryland don’t say anything about it all being OK if the murdered guy is a dumbass.

    You’ll note that, even in the picture of Harvey in his Sunday-go-to-meeting clothes, he’s at pains to make sure you know he’s a really, really bad ass

    No, I don’t see it. Maybe I’m not enough of a chickenshit to be afraid of half the people I see on the street, but I just don’t see a problem with Harvey. Now if Harvey had a big tatoo on his forehead saying “Born to Hang” or some such pleasantry, I’d think that maybe he had some investment in looking unpleasant, and that in turn might be cause for suspicion. At worst.

    Even if Walker is the type who’s afraid of his own shadow, he can’t go around shooting people because of it. It all depends on what the Reasonable Man would do, and I just don’t believe that the Reasonable Man would decide that Harvey needed shooting because he didn’t look like somebody’s grandmother.

    depend so much on Harvey jumping in with both feet when almost anybody else would have kept going that Walker’s wish can’t very well be considered operative here.

    Still premeditation, and on simple humanitarian grounds I hope that Walker’s defense can come up with a better story than that.

Richard Aubrey | March 21, 2014 at 10:06 am

Tom Swift.
If Walker set a trap, it wasn’t with trip wires. If he purposed to set a trap, it was by thinking of Harvey–correctly–as the kind of asshole Harvey turned out to be. It could only have worked if Walker was right. Which he was. So that might have to be proven, as to how Walker was that smart–what did he have to go on?–and how we know he knew Harvey would jump in with both feet.

BTW, lose the “afraid” shit. You’re not afraid of half the guys walking down the street? Bet you have a fan club and everything.

Harvey looks like the kind of guy who thinks he’s a really, really badass and from time to time might try it on somebody. Which could be inconvenient for everybody. Say, did you hear about the road-rage shooting in Maryland?

    tom swift in reply to Richard Aubrey. | March 21, 2014 at 10:35 am

    If he purposed to set a trap, it was by thinking of Harvey–correctly–as the kind of asshole Harvey turned out to be

    So what? That fact that his victim fell into it doesn’t mean it’s no longer a trap. Actually, it makes it a successful trap. And a danger that the jury will get the idea that premeditation was involved.

    BTW, lose the “afraid” shit. You’re not afraid of half the guys walking down the street? Bet you have a fan club and everything.

    Don’t be childish. You’re the one trying to turn Harvey into a boogey-man, not me. The guy’s just not that scary, no matter how much bleating you do about it.

Richard Aubrey | March 21, 2014 at 11:35 am

Tom Swift.
Actually, the prosecution has to prove he’s not only a badass, but a self-appointed, self-conscious badass, who presents himself as a badass, in order to make the case that Walker should have twigged to the badassedness coming his way and retreated.
’cause if he’s not a badass, there’s no threat and no DTR.
Now, afaik, a quick kick in the balls might relieve a guy like that of his baddassedness.
However, in DTR states–if I get the pitch on this thread–if I’m not backing my family out of the emergency door of the restaurant fast enough, I can’t even parry a blow in case the asshole falls down and hurts himself.
Because, in MD, prosecutors lack the moral courage, political will and competence to deal with the knock-out g…hey! Look! Road rage!
I don’t have to get convicted–you can beat the rap, etc.–to get some ink away from Balmore.

    Ragspierre in reply to Richard Aubrey. | March 21, 2014 at 4:23 pm

    “You’re not afraid of half the guys walking down the street?”

    The inside of that poor, old fear-packed skull must be a dark and lonely place.

    tom swift in reply to Richard Aubrey. | March 22, 2014 at 12:00 am

    Actually, the prosecution has to prove he’s not only a badass, but a self-appointed, self-conscious badass,

    The prosecution doesn’t have to prove any of that rubbish, because it’s not relevant. That’s a concept you don’t seem to be able to grasp. Walker is the one on trial, not Harvey, and no wild fantasies about Harvey are going to keep Walker out of prison. Walker’s problems will stem from the fairly evident fact that the vital details of his story (as far as we’ve heard to date) are either unverified by or flatly contradicted by the witnesses. And what the witnesses saw doesn’t add up to a compelling narrative of self defense.

    The defense must offer some story which would justify Walker’s actions (both his failure to retreat, and the shooting death of Harvey) in terms of justifiable self defense against imminent deadly attack. Defense doesn’t have to prove any of it, but there has to be a story of some sort, otherwise all the court will have is one guy who’s dead and another guy who made him that way, and those two add up to homicide.

    The prosecution must prove that the defense story is riddled with holes.

    We haven’t heard that story yet; the trial hasn’t begun. But there are only a few ways it can go, and none of them look terribly promising. The witness statements we’ve seen so far are the problem; they support none of Walker’s vital claims. And that means that Walker was hallucinating, or offered fabrications. Now why would he offer fabrications? One good reason would be if he knew perfectly well that an accurate account wouldn’t sustain his claim of self defense. Stopped to inspect tires? No support. Unaware that Harvey and Pidel were near? Not only no support, but direct contradiction. Showed badge and told the two of them to bugger off? No support. Harvey shot while he was charging Walker? No support; direct contradiction. Walker’s lies are themselves reason to think that he believes himself to be guilty.

    I doubt that Harvey will even enter into the prosecution arguments. They won’t need him. Walker vs. the witnesses may be plenty.

Richard Aubrey | March 21, 2014 at 8:19 pm

Rags. Try sticking to the subject.
Or is this the pound-the-table area of legal argumentation?

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