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“Road Rage” Murder Trial: Witness Says Walker Shot Stopped Harvey ~40′ Away

“Road Rage” Murder Trial: Witness Says Walker Shot Stopped Harvey ~40′ Away

“[Harvey] had stopped and brought his arms up to the side. Then I heard the two shots fired. “

Our next piece of evidence from the Joseph Walker trial is the transcribed interview of another witness who drove by the shooting scene. As per SOP her name has been redacted. Because this transcript was attached as Exhibit I to the defense’s recent motion to dismiss the charges against Walker, I will refer to him as Ms. I.

It is apparent form the testimony that this is the spouse of Witness H, whose testimony was covered in the previous post. At the time, she was following behind her husband in a second vehicle.

The interview was conducted by the Maryland State Trooper First Class (TFC) Chris Taylor, on June 10, 2013, two days after the shooting.

Ms. I would have been driving the same general route as her husband (indicated by the red box in the image below), except that he had driven past the site when Ms. I began her observations. The white box indicates the area in which Walker and Harvey confronted each other.

Witness I viewing of Joseph Walker shooting of Joseph Harvey

Ms. I wasted no time jumping right into her description of the shooting.

Ms. I: As I’m driving along, I was watching a man from the northernmost vehicle [Harvey’s Honda] walking south on the shoulder. And as he was walking south, my eyes trained back to see where he was going. And I noticed the southernmost vehicle behind him. And I kind of – there was a man standing next to the southernmost vehicle. From what I could see, it was a man, the silhouette of a man, kind of either shortly cut hair or bald. I’m not sure. And I saw the man that was standing next to the southernmost vehicle raise his arms up in a position that you see on television or in a gun safety thing. Both his hands up like this [presumably as if aiming a handgun].

TFC Taylor: With two hands.

Ms. I: With two hands. And I looked back at the man that had been walking. And he – he had stopped and brought his arms up to the side.

TFC Taylor: Okay.

Ms. I: And then I heard the two shots fired. And I saw the man fall to the ground. And I broke pretty – I – my eyes trained back up to the northernmost vehicle. And there was somebody standing there on the side of the vehicle. And there was nobody else that I saw anywhere near the man that was shot. There was another person in that northernmost vehicle. But he was standing on the side of the vehicle.

Ms. I quickly pulled over, within a few hundred feet of the shooting, and called 911—which had already begun receiving calls on the incident, even only a few seconds after the observed shots had been fired.

Ms. I was humorously unable to provide any meaningful identifying characteristics of the Honda or Kia minivan, nor much useful information about the appearance of either Walker, Harvey, or Pidel—not even Walker’s race. Of course, none of this information is particularly in dispute.

Harvey Stopped Advancing When Walker Raised His Pistol

Ms. I: The man walking south had stopped progressing in his walk.

TFC Taylor: He had stopped.

Ms. I: He had stopped.

TFC Taylor: Was he walking like aggressively? Was he –

Ms. I: He was walking – now whether or not it was aggressive, I don’t know. But, I mean, there was a gait to him. It wasn’t like – he wasn’t going backwards, definitely. He was walking forwards. But as the other man lifted his arms, he stopped. And then the gentleman walking southbound raised his arms up to his side. Just raised his arms up to his side. And then I heard the two shots. And he just went down. Just down. No – not like in the movies, not like they stumble around or they find cover. He just went down.

At this point Ms. I seems to become distraught and is offered tissues.

Harvey ~40′ Away When Walker Raised His Pistol, Fired

Ms. I: I’ve never seen anything – never. I just – I was shocked. I couldn’t believe what I was seeing. Now, from what I could see, the man had stopped walking towards the vehicle. He wasn’t close enough to that vehicle – this is my opinion – from what I saw – to be physically a threat. He wasn’t close enough to lunge.

TFC Taylor: Like how far would you say they were apart?

Ms. I: Maybe half the distance between how telephone poles would be. Maybe a little shorter to that. But the man was enough back where even if he took a run at the gentleman and lunged, it would – he was still far enough apart. He had – and he had stopped walking. He had actually stopped walking and raised his hands. And then the other gentleman – I heard the two shots.

TFC Taylor: So if you had to put a number to it, I know it’s kind of a hard thing to judge, but between the guy with his hands up and the other guy, how far would you say that they were apart, if you had to put a number to it?

Ms. I: It’s hard for me, maybe 40, 50 feet. . . . . [Harvey] was probably almost at the midpoint in between, maybe a little closer. Like I said, he wasn’t – it was probably a good 40, 40 or 50 feet from what I could see. I – it’s hard. It’s hard to tell from that vantage point. But he –- he wasn’t close enough to physically lunge or to even take a running lunge. He was – he was quite a distance from this vehicle.

Witness Describes Pidel As Back By the Honda, Not Accompanying Harvey

Ms. I: There was another person here [Adam Pidel]. . . .

TFC Taylor: And this guy was near the car and not actually anywhere near any of them [presumably meaning Harvey and Walker].

Ms. I: This guy was definitely back towards the car.

Shooting of Harvey Simultaneous With His Stopping, Raising Hands to Sides

TFC Taylor: From the time [Harvey] had his hands up and you heard the gunshots, how long was that?

Ms. I: Instantaneous.

TFC Taylor: Instantaneous?

Ms. I: Instantaneous. I mean, it was just boom boom. Split second.

TFC Taylor: Okay. But the hands did go up first.

Ms. I: They went up to their side. Not up over – I can show you. It was like this. He stopped, and he just went like this. It was boom boom, and he just fell over. So his arms went up to about this point, not up like this, just like this. And then he just fell. As I said, he just fell to the ground.

Walker Was At Side of Minivan When He  Raised Pistol, Fired

TFC Taylor: Did you see anything after the gunshots?

Ms. I: Just besides that the man falling to the ground? No. And I drove – I just drove straight over to the first turn-around that I could – that I could get to just to pull over. It wasn’t maybe three or four seconds before I was able to pull over.

TFC Taylor: I guess from your standpoint the guy in the southernmost vehicle [Walker’s Kia minivan] was at the side of the vehicle, not in front of it.

Ms. I: He was at the side of the vehicle, because I – I couldn’t even tell you like the pants he was wearing.

TFC Taylor: So form your angle, his view was blocked, your view of him was blocked, because of the car.

Ms. I: Yeah. But I was able to see the arms go up.

Shortly thereafter it appears that the interview of Ms. I has concluded—TFC Taylor says as much.

Walker’s Stance Holding Pistol Indicated Training, Expertise

Then suddenly just two minutes later, the interview starts up again with Ms. I, this time having her describe Walker’s demeanor.

TFC Taylor: Coming up to the incident when you saw the individual [Walker] take that stance, what kind of went through your mind when you saw that?

Ms. I: That he looked like he knew what he was doing. He was – they –he looked like he knew how to handle a firearm in a confident manner. He was very direct in his movement. He wasn’t shaky. It was a very deliberate stance that he took. It looked like that type of confidence could be by somebody who knew how to handle a firearm – had been trained. Just that level of confidence, that displayed to me that this person knew that they – knew what to do in that situation. Just there was a confidence about the stance that I noticed. So, you know, whether he was an officer or military, that – it went through my mind that that level of confidence would have indicated somebody who knew how to handle a firearm or at least how to take the stance confidently.

TFC Taylor: Just again to clarify or just get a better understanding, when the guy was walking southbound, when he stopped, from the time he stopped until you heard the gunshots, how long was that?

Ms. I: Not even a second, just a split. He raised – he stopped and raised his arms up to the side. And then it was boom boom. It was that quick.

TFC Taylor: Was the gun raised before he stopped or after?

Ms. I: It was almost instantaneous that the guy stopped walking, as I saw the – it was almost instantaneous. . . . He had stopped walking at that point as he raised his arms. He had stopped moving. It was after the other, the southern, the gentleman standing at the southernmost vehicle [Walker] had raised. So it was almost an instantaneous thing.

And that, finally, concluded the interview with Ms. I.

Here’s the actual transcript:

–-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

Have any of these witness interviews agreed with each other yet? It seems like they each saw something very different.

    Brian Epps in reply to Czar Kasim. | March 16, 2014 at 12:19 pm

    If they all agreed on all the details, I’d suspect coaching.

    Mac45 in reply to Czar Kasim. | March 16, 2014 at 12:30 pm

    This is usual with multiple witness testimony. That is why it is the least reliable form of evidence. IN this case, this witness has Harvey being shot 40′ in front of the van and immediately falling to the ground. He did not stumble toward the van, run toward the van nor is there any evidence that anyone dragged him toward the van or that the van was moved [something that Pidel would surely have noticed and commented on]. Yet Harvey’s body was found within 6′ of the front of the van. How was this possible? Perhaps hogs were rooting around the area as Marshal Rooster Cogburn alleged in the movie of the same name.

    Look first to the physical evidence to explain what happened.

      Ragspierre in reply to Mac45. | March 16, 2014 at 12:40 pm

      But you also question the reliability of “physical evidence”, which is, after all, the result of human activity.

      Essentially, you look under the hood of every bit of purported evidence. Consider the reliability of the state ME evidence in the Zimmerman matter, for instance.

        MouseTheLuckyDog in reply to Ragspierre. | March 16, 2014 at 1:51 pm

        No that was the ME’s eyewitness testimony to what he saw when he during the autopsy. For example we had the ME’s eyewitness testimony that TH’s hands were unremarkable. What we don’t have are pictures of TM’s hand that show they were unremarkable, and reviewable by any expert. What we also has was the medical technician’s eyewitness testimony, that GZ was damaged, b ut we also have pictures ie physical evidence, that shows GZ was damaged.

          Ragspierre in reply to MouseTheLuckyDog. | March 16, 2014 at 2:01 pm

          Poor Mouse. You just insist on kicking against reality.

          An ME’s observations are supposed to be “objective” (though we all know they are largely SUBjective).

          A photograph is no more “reliable” and “objective” than the incidents surrounding how it is taken. Consider the “crowd shots” which seem to show immense numbers of people, when no such numbers are present.

          The “fact” that Buldung likes so well was the result of at least two very human activities; 1) observation of a measuring device, and 2) recording of the observation. Ever hear of “measure twice, cut once”? Human error invades both activities, potentially. So…you look under the hood, like I said.

          Cripes…!!!

          Gremlin1974 in reply to MouseTheLuckyDog. | March 16, 2014 at 7:55 pm

          I would also contest that there are not photographs of Martin’s hands since in my experience ME’s tend to take copious photo’s. Now those photo’s may not be entered into evidence, but that is not the same as them not existing.

        Mac45 in reply to Ragspierre. | March 17, 2014 at 11:10 am

        Physical evidence is simply physical evidence. It is neither “reliable” nor “unreliable”. It simply is. What can effect the “reliability” of physical evidence is the interpretation of it. And, the physical evidence can not simply be ignored or lightly explained away if it conflicts with the testimonial evidence.

          Ragspierre in reply to Mac45. | March 17, 2014 at 3:06 pm

          Right. Up to a point.

          100ml of water is 100ml of water.

          Trouble is in the kabuki of trial procedure, nobody just puts 100ml of water before a jury and says “la”.

          IF 100ml of water is going to be entered into evidence, someBODY has to testify that, yep, that flask contains 100ml of water. They have to testify that, yessiree, they measured that water with an ACCURATE graduated column of the proper volume. Prior to THAT, they conducted a chemical test to ascertain that the liquid was, in fact water. It may be necessary that they conducted minute chemical analysis of any substance in the water, or a microscopic investigation of what organic critters were in it, and at what concentration.

          You, on the jury, take the 100ml of water SOLELY on the testimony of the expert(s) who have testified about it. You CANNOT measure, test, examine it yourself.

          The only way you have any information that that exhibit is 100ml of water comes from a human being.

          So, physical evidence is not physical evidence at all. It is what someone has testified it is, regardless of it being a “thing”. All you, as a juror, know about it is what your were told.

          Baker in reply to Mac45. | March 17, 2014 at 4:38 pm

          LOL Rags – I always considered I got the better part of my legal education through watching ‘My Cousin Vinny’ 14 times but I never considered the bedroom ‘balls on accurate’ scene as part of that education.

          Ragspierre in reply to Mac45. | March 17, 2014 at 5:42 pm

          Hey, Mona Lisa KNEW her….stuff…

      bildung in reply to Mac45. | March 16, 2014 at 12:48 pm

      Thanks for this point; I was getting ready to post on exactly the same question.

      Viewing a fluid scene from a moving vantage point introduces so much relativity that estimations of distance are unreliable.

      But Harvey’s position at death is a fixed fact.

      And isn’t this trooper an object of the defense motion–isn’t the defense alleging he offered misleading information and withheld other information?

      He seems to be framing his opinions in the form of questions and then encouraging the ‘witnesses’ to agree with him.

        Ragspierre in reply to bildung. | March 16, 2014 at 2:32 pm

        “Harvey’s position at death is a fixed fact.”

        Really? How? Is that related by anything certain to where he was shot?

        Why is ‘witness’ in scare quotes?

        Whippersnapper in reply to bildung. | March 16, 2014 at 7:59 pm

        The trooper was definitely asking “leading” questions. I don’t know if that’s problematic or not. For example:

        “TFC Taylor: Was he walking like aggressively? Was he –”

        In any case, this person’s testimony is not at all helpful to the defense of self-defense.

      Gremlin1974 in reply to Mac45. | March 16, 2014 at 7:52 pm

      “something that Pidel would surely have noticed and commented on”

      Not necessarily, under the stress of the situation sitting on the side of the road with a dying friend that had just been shot, I would be willing to believe he could have missed a flying saucer landing behind him.

      Unless I am mistaken, Pidel does say that Walker returned to sit in his van. I guess it is possible that Walker could have moved the van forward, but frankly without an eye witness saying that he did or some kind of forensic evidence that he did, I am just not willing to take that for granted.

    tom swift in reply to Czar Kasim. | March 16, 2014 at 1:27 pm

    It seems like they each saw something very different.

    They’re not very different. The basic scenario is identical in all who actually witnessed the shooting. They all describe Harvey walking, then stopping, then being shot and falling.

    The details vary. While Harvey was walking toward Walker, were his arms down at his sides, or was he gesticulating with both? Did Harvey drop immediately after being shot twice, or did he fumble at his leg after a shot, then drop after catching two more? Was Pidel standing beside the Honda, or was he also walking toward Walker at some distance from Harvey? What was the distance between the two cars? What was the final distance between Walker and Harvey? What were the distances between Pidel and the other two?

    But at heart, they all describe Harvey walking, then stopping, then being shot and falling. So now the task for the defense is to interpret that as a case of forcible self defense by Walker against an imminent deadly attack by Harvey.

      MouseTheLuckyDog in reply to tom swift. | March 16, 2014 at 1:33 pm

      So now the task for the defense is to interpret that as a case of forcible self defense by Walker against an imminent deadly attack by Harvey.

      No. There is no task for the defense. The prosecution has to show that the is no reasonable doubt that Walker did not act on self defense.

        Ragspierre in reply to MouseTheLuckyDog. | March 16, 2014 at 1:40 pm

        Wrong on at least two counts.

        Given the tack the defense seems to have taken (defense of a third party), the defense has to provide evidence that Walker was, in fact, defending any third party.

        This is, according to my (limited) understanding, an “affirmative defense”, which means after you raise it, you have the burden to show it by evidence.

        And, as both Andrew and I have observed, this is a ROUGH row to hoe in Maryland. The defense seems to have opted for this very hard road because they know they don’t have much to work with on the DTR front.

        Which is your second error.

          JackRussellTerrierist in reply to Ragspierre. | March 16, 2014 at 3:07 pm

          Precisely. It’s clear retreat wasn’t on Walker’s menu.

          Cold. Blooded. Murder. Then an “Oh, shit” scramble to CYA, hence the contradictory, lame-assed stories.

          ThomasD in reply to Ragspierre. | March 16, 2014 at 6:56 pm

          Maybe not cold blooded (1st degree) murder but quite possibly hot,in the heat of the moment murder.

          In MA if two parties enter into mutual combat and one dies, what is the customary charge?

          ThomasD in reply to Ragspierre. | March 16, 2014 at 6:58 pm

          MD not MA (but you all knew that anyway.)

          “Affirmative defense” merely means that you concede the underlying elements of the crime–yes, I did deliberately shoot and kill that person–but claim a legal justification or excuse–I did so in lawful self defense.

          Some affirmative defenses keep the burden of persuasion on the defense. And others shift it to the state.

          Self-defense, in all states other than Ohio, shifts the burden to the state to disprove self-defense beyond a reasonable doubt.

          That’s not as hard to do as it might sound–depending on the facts, of course.

          –Andrew, @LawSelfDefense

          JackRussellTerrierist in reply to Ragspierre. | March 16, 2014 at 8:18 pm

          Thomas, I’ve thought about heat of passion, too, but I keep going back to Pidel stating that, while still driving, they were yelling at each other and they were going to fight. But then Walker doesn’t move toward Harvey to fight. He just stood there letting Harvey come to him, as though he’d set a trap by already knowing Harvey had to be relatively close before he could have it appear that the shooting was reasonable. Harvey sees the gun and throws his hands up, but Walker shoots him to death anyway.

          That’s why it looks premeditated to me.

          ThomasD in reply to Ragspierre. | March 16, 2014 at 9:45 pm

          “Only pull if you are justified in using it”.

          Absolutely. And same goes for pointing it, people can scream all they want, pointing a firearm at someone without adequate justification is assault.

          Even having decided use is justified, it is important to remember that a chain of actions are invoked.

          Depending on what you’ve practiced the chain can be a lot like seeing brake lights at close range. Your foot is going to mach the brakes without much thought involved.

          The problem arises when intervening acts – your intended target changes his behavior, a bystander crosses your line of vision – create the possibility for alternate response.

          Perception alone is a problem, and reaction time is a total bitch.

          I know my routine when choosing to fire from a holstered gun. I focus on the target (and not the whole target, but center mass) then the motion begins – eyes on target, draw, raise pistol, front sight on target, finger depresses trigger.

          Being focused on center mass I might not even see arms going up, or if I do, be able to arrest the process.

          Once, hunting elk in Idaho, I was working up a closed out logging road. It was the ‘any elk’ portion of the season so a cow was as good as a bull. As I came around a bend in the road I saw an animal up ahead, quartering away from me with it’s head down in some brush feeding. I was close, had no need to see antlers, and had to move fast if I was going to take it. I shouldered my rifle, thumbed off the safety and brought the cross hairs up just behind the near shoulder. The shot would pass through the lungs, maybe the heart, and also disable the far shoulder. Two and a half pounds of finger pressure (Timney trigger) and it was mine.

          Then I froze. Something was wrong, but I didn’t even know what. In that instant it sensed me and stepped down off the roadway, into the brush and then trotted off down the mountain slope. No antlers, so it was a cow (not that that was a problem.)

          Then it dawned on me what the problem was – no rump patch. I was a split second away from killing a moose out of season, and with no moose tag either. That would have been a big mistake.

          It happens that fast, then you are left trying to explain it all.

        tom swift in reply to MouseTheLuckyDog. | March 16, 2014 at 1:44 pm

        Not true.

        Walker has to give the jury some scenario in which his actions constituted justifiable self defense. It could be anything, up to “the devil made me do it”, but there has to be one.

        He doesn’t have to prove that that scenario is true, the prosecution has to prove that it’s implausible. Exactly how implausible depends on the standard of proof demanded (preponderance of the evidence, beyond a reasonable doubt, etc.).

Eye witness accounts must be given a symmetry test and only those observations which reasonably line up given high credibility. The remainder are placed in the general information that may or may not be correct category. Individuals who can perform this symmetry test while listening to accounts from different observers of the same incident rarely ever make it into a jury pool. This is much easier to do when dealing with the written transcript though.

Until all accounts are heard, all physical evidence seen and medical reports digested it is near impossible to come up with a reasonably correct picture of this event from start to finish.

Right now we are seeing an account from the defence, it is supposed to look good for Walker.

    JackRussellTerrierist in reply to OldNuc. | March 16, 2014 at 3:10 pm

    If what we’ve seen so far is what the defense has, they’re in very bad shape, especially in a DTR state.

      Agreed, cannot see how this is not going to proceed to trial.

      Although, I also wonder, had the incident happened in NJ, if this would have ever gotten to a criminal charge. And not due to a lack of DTR in NJ.

MouseTheLuckyDog | March 16, 2014 at 12:45 pm

Aren’t these out of order? Isn’t Mrs. H statement next, not this one?

so….he stopped and raised arms a bit.
like surrendering?
and the defense wants people to know this?
I have not read full transcript so may be misunderstanding.

    Baker in reply to dmacleo. | March 16, 2014 at 2:28 pm

    The defense submitted a motion to dismiss the GJ indictment alleging that the prosecution had misled the GJ by excluding certain information or by misrepresenting the available evidence in response to questions from the GJ. The motion included specific examples by quoting directly from the evidence which in this case consisted largely of the eye witness accounts. It also included references to the 911 call and a few specific issues such as Harvey’s BAC from the autopsy. In citing specific instances they presented as supporting exhibits the interviews and other evidence. An interview that they cited and submitted might have information supporting the issue that they cited but also might include other specific information that runs counter to the defense’s overall interests.

    What they submitted as exhibits was their call and that is what we have at the present time.

      MouseTheLuckyDog in reply to Baker. | March 16, 2014 at 3:01 pm

      What they submitted as exhibits was their call and that is what we have at the present time.
      Do they even have to option to submit partial witness statements?
      In any event eventually the whole transcript will come into evidence. So what sense would it make to submit a partial transcript now? So it doesn’t make sense to submit a partial transcript.

        JackRussellTerrierist in reply to MouseTheLuckyDog. | March 16, 2014 at 3:24 pm

        They don’t get to pluck tidbits from this and that witness statement for the motion. The entire statement must be presented because each statement is one complete piece of evidence. What he’s saying is that the defense may submit a statement that is not helpful to their case at trial but has fragments that are helpful to their instant motion because they support the legal theory of the motion they hope to succeed in. The motion is not about guilt or innocence – it’s about process, specifically the conduct of the investigating officers in their presentation of evidence to the GJ which returned a bill of indictment against the defendant.

        Here, we’re reading and discussing the statement as to guilt or innocence, so the defense has a different agenda at the moment from ours. However, it does them no harm to present the statements because the statements will be presented at trial anyway, assuming the motion fails. Our discussion provides the defense with a look at how a jury will view the witness statements and whatever else comes out as we review and discuss the exhibits from the motion.

          Thanks Jack – I think Mouse missed my point entirely. What they included in the motion drove what exhibits they submitted. Their call on what the included in the motion. My point had nothing to do with partial statements. I appreciate you explaining it more efficiently.

          Coupla points…

          Anybody writing a motion such as the one under discussion IS going to be highly selective in what they put in the motion. They WILL include the entire body of a statement as an exhibit, but they WILL ALSO be very careful to spin everything they can as extracts in the body of the motion.

          Persuasion is the name of the game, and many of us have learned we are lucky if the judge or appellate court actually reads what we have written, much less pawed through all the exhibits and case-law we append.

          That may vary only slightly…if at all…from what you were saying.

          Second, the witness statements MAY not be introduced at trial at all. There are evidentiary issues with them that make their introduction problematic. Those, in these statements, may be overcome, but the live testimony of witnesses is pretty much always much more valuable.

          Jurors are animals. Like all the rest of us, they like light and motion and being entertained. Reading a transcript is usually DEADLY boring to a jury. Ergo, you put on witnesses if you can.

          JackRussellTerrierist in reply to JackRussellTerrierist. | March 16, 2014 at 4:13 pm

          Rags, witness statements are used at trial for reference/refresh memory and for impeachment, so I don’t understand what you mean that witness statements can’t ever be introduced at trial.

          Explain, por favor?

          I agree that juries want to hear from the witness rather than have to thumb through a statement. When I spoke of witness statements above, I was speaking more of a witness reiterating in their spoken testimony what they said in a written statement or to an investigator in an interview, not the agency’s documentation of the statement/ transcript/interview.

          “I don’t understand what you mean that witness statements can’t ever be introduced at trial.

          Explain, por favor?”

          Yeah, your confusion comes from misreading what I did say.

          But there is also this… If the prosecutor never sponsors a particular witness at trial, the ability of the defense to get that witnesses statement into the trial record is highly limited. The defense can, of course, call that witness as part of its case-in-chief but they would have to presume they were sort of “pre-impeached” since the prosecutor chose not to use them.

          JackRussellTerrierist in reply to JackRussellTerrierist. | March 16, 2014 at 4:46 pm

          True dat. The few times I’ve seen it done, it was a defense hail mary that turned into a disaster. It’s usually either a witness that turned sour/not credible for the prosecution by changing their story (usually someone who knows the defendant) or their account is so divergent from the rest of the witness testimony and/or even physical evidence that they sound like they’re either hallucinating, were paid off, or are just lying for their defendant-friend.

          If it’s a reliable witness, the prosecution will either be armed to impeach or at least inoculate.

        JackRussellTerrierist in reply to MouseTheLuckyDog. | March 16, 2014 at 3:34 pm

        Oh, missed part of your question. The text of the motion can include excerpts from the statements for whatever purpose the defense hopes to be successful in, but defense has to attach the actual statement/document it was gleaned from in its entirety because only in its entirety can it be considered evidence and thus used as an exhibit. The purpose of the exhibit is to authenticate the representations made in the motion. They are usually certified in some fashion by the issuing entity, in this case the police department that investigated the case.

          What it basically seems to me is that they write the motion and then hope no one actually has the time to read the full transcript and will just use what is quoted in the motion.

          We are probably giving these transcripts a much more thorough reading than they may ever get even throughout the trial, depending on which witness we are discussing.

    Phillep Harding in reply to dmacleo. | March 16, 2014 at 5:06 pm

    Glad I’m not the one who has to make sense of this. Give me a regulatory compliance audit any day. At least the info is either there or not, and seldom “subject to interpretation”.

    Except when the inspector is a recent college grad with an agenda, but let us not go there.

    A previous witness says Harvey grabbed his leg, I’m thinking “top part of the leg” where the femoral artery is. This witness says arms started up and two shots fired, except three were fired? And it was “bang, bang, flop”.

    Note on shooting. Once a person commits to pulling the trigger, it’s real hard to stop when the situation changes, especially if the person is following “proper” shooting procedure and focussing on the front sight, leaving the target as an unfocused blur.

      MouseTheLuckyDog in reply to Phillep Harding. | March 16, 2014 at 5:30 pm

      Except when the inspector is a recent college grad with an agenda, but let us not go there.
      With a Spocklike eyebrow raise.

      Painful memory?

        Phillep Harding in reply to MouseTheLuckyDog. | March 16, 2014 at 5:51 pm

        “Painful memory?”

        Oh, lordy.

          Gremlin1974 in reply to Phillep Harding. | March 16, 2014 at 8:18 pm

          JCAHO, OSHA, CARF, or some other initials. I have helped healh care facilities get ready for both JCAHO and CARF inspections, before.

          My favorite inspector was a guy who showed up the night before the inspection after we had taken him to dinner and gotten him settled in his hotel we asked if there was anything else we could do for him. He said; “Yes, just one thing. Can one of you please show me the shortest route from here to the closest bottle of good Tequila?”

          That inspection went very well.

          Henry Hawkins in reply to Phillep Harding. | March 17, 2014 at 3:35 pm

          My clinic gets audited for reg compliance by the NC HHS every two years. It’s like having your Winnebago drug searched at 3 am by the Mexican police. They dinged me at last fall’s audit for using a serif typeface on my Emergency/Fire exit signs. They wanted sans serif for readability. Nothing in the regs covers this. Nothing in the regs covers half the dings I get. Another favorite was a ding for using a color coded file system – what if a future employee were colorblind? Not in the regs and I have no employees, having sold off all but one office three years ago in advance of Obamacare.

      Ragspierre in reply to Phillep Harding. | March 16, 2014 at 5:35 pm

      Agree as to pretty much all of that. I decided on civil law versus criminal law as a focus because I just didn’t feel I could begin to master both procedural bodies, and I REALLY did not want someone’s life (or even years of it) in my hands. More than enough pressure when it is just their money or reputation.

      Respecting the training a lot of people get…yeah. I resist that whole “raise, point, click” school of self-defense shooting. There is a moment I feel I can give to anybody, and to myself, for one last chance.

      I understand it could get me killed, and even expose those I love to some danger. The cost/benefit ratio seems worth it to me, and it would be just one moment.

        Phillep Harding in reply to Ragspierre. | March 16, 2014 at 6:02 pm

        “Respecting the training a lot of people get…yeah. I resist that whole “raise, point, click” school of self-defense shooting. There is a moment I feel I can give to anybody, and to myself, for one last chance.”

        Nobody in the class liked that when the lawyer said it’s what we should do (AK CCW course). So far, the threat has been impeded enough so I could draw slowly, making sure they could see the firearm. They leave. Quickly.

        Sooner or later, faster movement is going to be needed. Not looking forward to it.

        Yep. I think many shootings are avoided in that last chance ‘Do you love Jesus ?’, moment of looking down / into a barrel.

        “raise, point, click” is bullshit for cowboys.

        A gun has several intermediate steps of use in many situations (not all) before it has to go ‘bang’.

        Showing it (holstered), un-holstering without pointing, pointing, THEN ‘Bang’ if needed.

        At each step you have another chance to maybe not have to shoot someone. A very valuable thing indeed. Not ALWAYS possible, but frequently so.

          Phillep Harding in reply to pjm. | March 16, 2014 at 6:37 pm

          Back a few years ago, a gun hating DA, or a rookie cop, could and would nail you for “brandishing” if you did that. Especially if you did not call 911 first.

          Not speculation, true incidents. Check with the self defense blogs.

          tom swift in reply to pjm. | March 16, 2014 at 7:00 pm

          could and would nail you for “brandishing” if you did that.

          I suspect he just means that the mechanics of shooting someone extend over a finite interval of time, and in that time the self defense situation can change. Should it change in such a way that the imminent attack changes – becomes no longer imminent, or is abandoned altogether – the shooting may no longer be justified. At that point, the shooting procedure should be aborted.

          If that’s what pjm meant, I can’t disagree.

          An aborted process of shooting an imminent threat shouldn’t be interpreted as brandishing when the threat abruptly disappears.

          pjm in reply to pjm. | March 16, 2014 at 7:07 pm

          Yes, there’s “brandishing” as a possible charge.

          I would rather go argue that point than ‘he shot someone’ any day of the week.

          I would mention in my defense to that charge that cops are 100 % of the time trained to actually fire only as a last resort, AFTER drawing, pointing, etc.

          pjm in reply to pjm. | March 16, 2014 at 7:12 pm

          And the obvious ‘brandishing’ defence would be

          DA – Why did you brandish that weapon ?

          Me – I did not. I took it out to shoot it in valid self defence. At the last split second, my assailant (whatever – backed up, stop advancing, dropped his knife, etc ) in such a way that I did not feel I was at that instant in danger, as I had been a split second before. Thus, although the weapon was out, I did not need to fire it.

          Gremlin1974 in reply to pjm. | March 16, 2014 at 8:28 pm

          I give this one to my grey haired Guardian Angel. I was pumping gas around 10 years ago and I was wearing my .40 cal in a Galco Miami rig (very comfortable holster) under my left arm. I was wearing a long sleeved polo shirt over my t-shirt and holster. Nice summer afternoon in Arkansas, the humility was actually low for once and there was a nice breeze. Well when I got out of my SUV I noticed a man standing beside one of those big frame hiking backpacks to the side of the gas station, he looked a bit shady to me so I kept him to my front. While I was pumping he walked towards me and I heard him ask for change, I also noticed that he kept his right hand in his pocket.

          I took my hand off of the pump handle so I would have both hands free and started to say that I didn’t have any change. Before I could get the words out of my mouth the breeze picked up and blew my shirt open exposing my gun. The guy immediately backed off and headed back for his back pack, picked it up and went around the back of the station.

          About 2 hours later, that same guy stabbed a woman for her purse at at the same pump I was using. She let him get close while digging in her purse for some spare change and he just shanked her and left her there. I will always feel blessed by that breeze.

          MouseTheLuckyDog in reply to pjm. | March 16, 2014 at 10:20 pm

          @Gremlin, an interesting aspect of you incident. BY “letting” the gun be revealed by the breeze, my understanding is most CCW jurisdiction you are violating the law. Though a lot of cops I know would let you off determining it to be unintentional.

          So suppose you thought his actions to be strange enough to tell a cop. Could you have been dissuaded by the cop possibly arresting you?

          pjm in reply to pjm. | March 16, 2014 at 10:25 pm

          Gremlin – if you have to get blown in public, that would be the way 🙂

          Gremlin1974 in reply to pjm. | March 16, 2014 at 11:11 pm

          @Mouse

          Yep, same here, letting your weapon be seen is a misdemeanor. But, no it wouldn’t have stopped me from telling the cops, because I actually did tell the cops, when I read the story I put 2 and 2 together came up with something close to 4 and I called and told them my whole story with a description of the guy. The cop that interviewed me did address the gun being shown, he said; “Man, lucky that breeze came up.” to which I agreed. I have carried here in Arkansas and cops here tend to be very good when it comes to CCW holders. I have never had a cop disarm me or anything like that (turns and knocks on wood), but I am also very vigilant about letting them know that I have a CCW and whether I do or do not have a weapon. In Arkansas we are required to inform police if we are armed.

          @PJM

          LMAO, no doubt man, no doubt.

If no one saw Walker backup his minivan or drag the body toward his vehicle and the trooper logged the body as 6 feet or so from Walker’s minivan, the witnesses apparently only saw part of the exchange to be this far off the mark or imagined things. I think the cartridge casings were within reasonable distance of the body as well as I recall. Pidel would have surely been in a position to note a movement of the body or vehicle. Both Walker and Harvey could have taken actions to prevent all that occurred. Walker as a LEO should have known better for sure and that may work against him in the end. At this point, I have no idea whether Walker is guilty or not, whether they baited each other to stop and fight, or anything else for that matter. Cooler heads needed to have prevailed and they didn’t. I’ve had a driver rage against me for reasons I never understood, and I witnessed a local cop go ballistic at my elderly neighbor for allegedly cutting him off while making a turn so this rage crap does happen. It would be nice to see all the witness statements and other evidence. I’m assuming the defense cherry-picked what they attached to the motion.

    Ragspierre in reply to laddy. | March 16, 2014 at 2:06 pm

    “I think the cartridge casings were within reasonable distance of the body as well as I recall.”

    Two very separate things. The only thing the casings would show (if we know they were not displaced somehow) is about where the shooter stood, and there are still a LOT of variables that could influence that.

    MouseTheLuckyDog in reply to laddy. | March 16, 2014 at 2:49 pm

    I’m assuming the defense cherry-picked what they attached to the motion.
    You are doing what assuming implies–making an ass of yourself.

    Outside their motion to dismiss, they are cherry-picking nothing wrt witness statements. They said in the MoD that there are six witnesses, they have presented six complete witness statements. If there are more then six statements, and they knew, then they lied on their MoD which will get them and their client in a lot of hot water. If they didn’t know then it is because the prosecution lied to them. Which would get the prosecution in deep water. Can you say Brady violation?

    So six is all there is. What more do you expect?

      You are doing what assuming implies–making an ass of yourself.

      Thanks for that.

        MouseTheLuckyDog in reply to laddy. | March 16, 2014 at 5:21 pm

        Sorry, but I am just getting tired of hearing people parroting the “this is a defense motion the evidence is slanted for the defense”. The motion has arguments and cites evidence to support those arguments, in that sense the motion is slanted. But the exhibits are what they are, and that is not slanted. We have the all the witness statements in their entirety. We have seen or will soon see ( once Andrew gets done with presenting everything ) the lions share of the evidence in this case.

        If there is something major that we will not have seen then the most likely reason is that someone did something that could get them in big trouble.

      Gremlin1974 in reply to MouseTheLuckyDog. | March 16, 2014 at 11:54 pm

      Ok, I am asking a serious question here, because I just realized this myself.

      If there are only 6 witnesses and we have seen 6 witness statements, there where is Walkers Wife statement? Isn’t she a witness?

    JackRussellTerrierist in reply to laddy. | March 16, 2014 at 3:44 pm

    Perception of distance is more difficult from a moving vehicle than from a stationary viewpoit, especially if the person is not practiced at estimating distances in the first place. Highway patrolmen, engineers, carpenters, lumberjacks, hunters, train engineers/operators, etc., all have a practiced eye for estimating distances and some people come by it naturally. I would not expect somebody who hasn’t developed that skill to give an accurate estimate from a moving vehicle – unless they just get lucky.

      But 6 feet or whatever distance was logged by the police versus 40 feet? That seems a bit much.

        Ragspierre in reply to laddy. | March 16, 2014 at 4:07 pm

        But you have to make several assumptions/acceptances of accounts to get to that.

        1. Where was Harvey shot?

        2. Was the measurement AS RECORDED of the body to the van accurate?

        3. Is the exact distance in feet between where Harvey was shot and where his body was probative of anything? Or was his distance from Walker as an assailant really the issue?

          bildung in reply to Ragspierre. | March 16, 2014 at 4:20 pm

          Your lady said he dropped where he was shot.

          Being a determined depraved fool, I guess he crawled the other 35 feet toward the person who just shot him.

          Ragspierre in reply to Ragspierre. | March 16, 2014 at 4:26 pm

          Ah, so you DO cherry-pick through the statements of what you call “witnesses”?

          Again, just loving this…!!!

          Gotcha…!!!

          JackRussellTerrierist in reply to Ragspierre. | March 16, 2014 at 4:30 pm

          3). Exactly. The distance issue isn’t that important unless Harvey was right on top of Walker. There are no accounts thus far that indicate Harvey was close enough to “attack a police officer.”

          What I see as the most important aspect from this witness is that Harvey had stopped and raised his arms, and THEN Walker fired. Whether it was 40′, 20′ or 10′, Harvey was stopped with his arms raised, empty-handed, a submissive, “Hey man, wait a minute, I give up” posture.

          There are other important aspects to her account, but I see that as the most significant part of it in forming the overall picture of the M1 charge.

          tom swift in reply to Ragspierre. | March 16, 2014 at 4:46 pm

          a submissive, “Hey man, wait a minute, I give up” posture.

          It doesn’t even have to be “I give up.” If it’s “wait a minute”, there’s no imminent attack, and no justifiable self defense.

          BrokeGopher in reply to Ragspierre. | March 16, 2014 at 6:40 pm

          I took the “hands out to the sides” comment not so much as an “I give up” gesture, given Harvey’s excited state, but more of a, “what ya gonna do, shoot me? go ahead!” type gesture.

          Ragspierre in reply to Ragspierre. | March 16, 2014 at 7:04 pm

          Which, in any case, is not a justification for the use of deadly force.

          Mac45 in reply to Ragspierre. | March 17, 2014 at 11:31 am

          This is all critical.

          The distance between Harvey and Walker determines how much of immediate threat Harvey was, at the time.

          We don’t know if the crime scene measurements are correct, yet. However, if Harvey’s body came to rest within 6 feet of the front of the van, and neither the van nor the body was moved, this indicates one of two things. Either Harvey was shot approximately 8-12 feet from the van [and Walker] or he moved several feet closer to the van after he was shot.

          Finally, there were apparently three shots fired. From the transcripts released, it appears that the first shot hit Harvey in the leg, as a distance, after which he continued to advance on Walker. There were then two further shots, in rapid succession, which apparently struck Harvey in the chest. This is supported by the locations of the ejected shells, one of which was found behind Harvey’s body and the other slightly in front and to the left of the body. The whereabouts of the third shell casing is unknown, at this time.

          This physical evidence will have to be explained, at trial.

      I agree. She probably has no idea what the distance was and was making an uneducated guess. JMO.

      Phillep Harding in reply to JackRussellTerrierist. | March 16, 2014 at 5:27 pm

      Estimating distance while standing still is very different from the same while in a moving car. Also takes staying in practice.

        Ragspierre in reply to Phillep Harding. | March 16, 2014 at 5:49 pm

        Two things that most people are terrible at estimating…

        time and

        distance.

        Time becomes very fluid in stress conditions, and few of us even have an idea how long 30 seconds is in perfect calm.

        One thing that helps in trial work is to get someone to estimate how long the courtroom is. Then you measure it off with the help of the bailiff. Usually a fine demonstration….

    DaveGinOly in reply to laddy. | March 17, 2014 at 2:26 pm

    Ms I on cross –

    Defense – Ms I, you testified you saw, blah, blah, blah.
    Ms. I – That’s correct.
    Defense – But investigators took measurements at the scene, and determined blah, blah, blah. Your testimony also is counter to what has been said by others. Can you explain the discrepancies?
    Ms. I – No, I can’t.
    Defense – Is it possible that you were mistaken about what yo saw, or that your estimates of time and distance were wrong?
    Ms. I – Yes, that’s possible.

      tom swift in reply to DaveGinOly. | March 17, 2014 at 3:25 pm

      Your testimony also is counter to what has been said by others.

      What parts are contradicted by other statements? The only one with any solidity is the distance. That can probably be whipped up to a solid accusation that at distances of 100 to 150 feet, she’s not too good at recognizing how much of a distance six feet is. I suspect that the typical juror will sympathize. So, what else?

      Baker in reply to DaveGinOly. | March 17, 2014 at 4:20 pm

      That line of questioning would seem pretty much the standard for any eyewitness in a similar case.

There are questions here about trooper bias and the transcripts read as if the ‘witnesses’ are being led, but I’m not prepared to say the trooper misread a tape measure and/or misrecorded the result.

That’s just more fever swamp babbling. But hey, if both the state and defense impugn the competence of the
trooper(s) that just sounds like more reasonable doubt to me.

Of the ‘witnesses’ we’ve read about this week, one has Walker at 6’6″-sounds like a classic BNBG hysteric. One has Pidel as black and one has Harvey dropping 35 feet too soon and sounding to all the world like a parrot on the trooper’s shoulder.

Defense will neutralize the reliability of these ‘witnesses’.

Nor do I put much weight on the drive by black guy who backs up Walker.

The witnesses are the two Walkers, Pidel and Harvey. Harvey is dead and Pidel is trapped in the gun lie box, leaving Walker’s story uncontradicted by a credible alternative.

    Ragspierre in reply to bildung. | March 16, 2014 at 3:57 pm

    “Harvey’s position at death is a fixed fact.”

    Support, please?

    “There are questions here about trooper bias and the transcripts read as if the ‘witnesses’ are being led…”

    Could be. Quotes?

    “I’m not prepared to say the trooper misread a tape measure and/or misrecorded the result.

    That’s just more fever swamp babbling.”

    So you’re prepared to just accept the word of cops as gospel. Good to have that on the record. LOVE your blind faith!

    Then you just lapse into your normal (HA!) parody mode where you throw out psycho-babble.

    The “witnesses” are classic witnesses. Typical of the rest of humanity, and the norm in any kind of trial where perceptions are in the mix.

    Where’s that dead-bang interrogatory where you “prove” Pidel is an obvious liar?

    Tick-tock…

      bildung in reply to Ragspierre. | March 16, 2014 at 4:12 pm

      Rags, don’t wear yourself out there with that all cap button, buddy.

      I’m sure you’re all tuckered out after a big Saturday night kicking ass down at the Double Deuce.

      Say, did you hear the trooper deliberately left out the last line of this lady’s statement?

      It was “Polly want a cracker!”.

        Ragspierre in reply to bildung. | March 16, 2014 at 4:16 pm

        Ah, the cry of the wailing chickenspit, once again.

        Ad hominem is so weak, don’t you think?

        Still waiting for rational, supported positions, instead of pure bs.

        Tick-tock…

          SmokeVanThorn in reply to Ragspierre. | March 16, 2014 at 7:07 pm

          What evidence is there to suggest that the cop’s measurement was wrong?

          Ragspierre in reply to Ragspierre. | March 16, 2014 at 8:05 pm

          None, Smoke. My point was…WAY up thread…that you question everything that is SUPPOSED to be evidence. You never assume anything reported to you is gospel. You look under the hood.

          SmokeVanThorn in reply to Ragspierre. | March 16, 2014 at 9:34 pm

          I don’t disagree. Some commenters give more credence to Ms. H’s estimate than the cop’s measurement – perhaps because it fits their conceptions – but I have a hard time believing the cop would make such a gross mistake that would presumably be revealed by photographs/video of the scene.

          If Ms. H’s estimate was 6-7 times the actual distance and she said Harvey dropped instantly after being shot), it doesn’t necessarily mean she’s wrong about everything, but it does raise doubts about her reliability as an observer.

          tom swift in reply to Ragspierre. | March 17, 2014 at 2:59 am

          but it does raise doubts about her reliability as an observer.

          There are always doubts about any witness’s reliability as an observer.

          You’re setting an absurdly high standard for eyewitness statements.

          In Ms I’s case, she had just witnessed a man being shot to death. When giving her statement two days later she was still rattled by the experience. I’d say she was doing pretty damn well to even remember what her own name was afterwards.

          Ms I has given us a snapshot of an event; a description, and her evaluation of it. The two are somewhat intertwined. A totally objective and arbitrarily detailed description of the events would be much preferred, but that ain’t gonna happen with eyewitness testimony.

          What Ms I has told us is that she heard two shots fired when Harvey didn’t seem to her to be presenting a dire imminent threat to Walker, due to (1) being stopped, not advancing, (2) in process of raising his arms in a manner which she saw as non-threatening, and (3) being at sufficient distance from Walker to not be an immediate menace.

          Her evaluation that Harvey was not, at the time she heard the shots, a dire imminent peril to Walker, is an opinion. But a case such as this necessarily hinges on opinion, specifically the opinion of the legal Reasonable Man. Few objective facts in isolation can establish that either party was an imminent menace to the other; Harvey walking, Harvey in close proximity to Walker, Walker armed with a pistol; these are all everyday things, none in themselves menacing to anybody. The Reasonable Man must interpret them to determine if they add up to an imminent deadly threat or not. In the opinion of Ms I, they did not.

      SmokeVanThorn in reply to Ragspierre. | March 17, 2014 at 10:44 am

      You are setting an absurdly low standard for any statement that fits your agenda.

    JackRussellTerrierist in reply to bildung. | March 16, 2014 at 7:06 pm

    You may be unfamiliar with the art of questioning witnesses. It is not leading to reconfirm exactly what the person saw or heard with regard to the main issue as well as salient details. In fact, failure to do that leads to more inexactness in the overall picture of the event at hand. Also, some witnesses are simply less articulate than others and lack the vocabulary to express themselves with exactness. Specificity sometimes has to be dragged out of them through a long line of questions sometimes reflecting interpretation of what the witness just said. That is not ‘leading’. That is thoroughness and diligence.

I do not own a gun, and have never fired a gun. However, I’m OK with anyone using a firearm to defend themselves when being attacked. And I started off giving Walker the benefit of the doubt. But what I have read over the past week troubles me, in regards to Walker’s innocence, and makes me wonder what else is going to come out. 1) It is very troubling that Walker – a trained police officer – would give conflicting accounts of what happened. And that it does not seem like any of the witness statements back up any of his multiple stories/ accounts (e.g., witnessed him checking his tires). 2) I am also very troubled by the fact that Walker did not fire any warning shots; since it appears that Walker had time to watch Harvey approach him. 3) Despite some thoughtful analysis in earlier postings that there was not enough time for Walker or his wife to call 911 before they did, that is still a concern for me too. I truly find it hard to believe that a police officer would not ask his wife to call 911 if he felt his family was in danger. After all, he was outnumbered, thought they had threatened his family with their car, and did not know if they were armed. And I know of no police force that would not move heaven & earth if told a fellow officer and his family was in danger. Lastly, I believe everything we have read to date has been provided by the Defense – and I am struck by just how “weak” this info is to proving Walker’s actions were justified. Unless, the Defense is trying to distract people over discrepancies in the various witness accounts – versus Walker’s own significant discrepancies. Keep up the good work LI.

    tom swift in reply to luckydog. | March 16, 2014 at 4:54 pm

    I am also very troubled by the fact that Walker did not fire any warning shots;

    If Harvey stopped whatever it was he was doing (and we don’t need to know exactly what that was – intended assault? Chat about the weather? Stream-of-conscious insult session? Doesn’t matter) when he saw the gun, then the gun did its job without being fired. Warning shots? Legally problematic at best, but in this case superfluous. So, was Harvey indeed stopped? Witness statements so far seem to agree that he was, although they disagree as to exactly how far from Walker he was when he did so.

    Merlin01 in reply to luckydog. | March 16, 2014 at 5:27 pm

    This really scares me! Firing a warning shot is a crime in itself (Vice President Biden advice gone bad) and warning shots kill innocent people.

    Hollywood sneaking into reality!

    Phillep Harding in reply to luckydog. | March 16, 2014 at 5:45 pm

    In the past, warning shots have been illegal. That position seems to be softening in some jurisdictions.

    Consider, though. The first hit (as described in a previous posting a few days ago) was supposed to be a ricochet off the blacktop and into Harvey’s femoral artery. From a warning shot into the black top. That’s just one reason warning shots are discouraged.

    Hobby horse: Self defense laws and CCW courses should be required for kids and teachers, even if they never get a firearm. It’d cut down on a lot of misunderstandings on the subject. I’d recommend the sort Alaska has, not the Florida course.

      MouseTheLuckyDog in reply to Phillep Harding. | March 16, 2014 at 6:18 pm

      In the past, warning shots have been illegal.
      No. It’s just that when warning shots are legal so are body shots.
      So why fire a warning shot when a body shot ius more likely to achieve the desired results?

      I mean, can you imagine a prosecutor arguing that a guy should go to jail because he fired a warning shot when he was justified in shooting at the guy. After all how do you know that the warning shot wasn’t a badly aimed body shot.

      Just being picayune.

        Phillep Harding in reply to MouseTheLuckyDog. | March 16, 2014 at 6:29 pm

        You will have to switch over to one of the self defense blogs to find examples of warning shots landing people in prison. It has happened.

        As always, the devil is in the details.

        True, if I tried a warning shot, I’d sure consider an “oops, I missed in the stress of the moment” statement.

      DaveGinOly in reply to Phillep Harding. | March 17, 2014 at 2:13 pm

      Teachers and school administrators should be given gun safety and shooting courses even if the school dept. doesn’t intend to arm them. They may need to take a weapon from an active shooter, they may find a weapon in the school, or a weapon may be found and turned into them. In an active shooter situation a weapon may come to hand (for instance, taken from a seriously wounded or killed security guard) and they may need to employ it to defend themselves. The instruction would help assure that they knew at least how to properly handle a weapon to prevent them from accidentally shooting someone, and may also make them more capable of defending themselves and their charges in an active shooter situation.

        tom swift in reply to DaveGinOly. | March 17, 2014 at 3:02 pm

        Unfortunately, there are too many who fight tooth & nail to keep any sort of instruction which can interpreted as applying to gun use (or even non-use) out of schools. The reasoning, such as it is, seems to be something along the lines of such stuff “legitimizing” guns.

          It isn’t legitimatizing drug use to teach a child what to do if they find a used syringe in the playground or on their way to school. It isn’t promoting gun use to teach a child what to do if they come across a gun somewhere either.

          For that matter, my parents had us take lessons in pool safety, even though we didn’t have a pool, because chances were we’d play at friends’ houses where THEY had pools.

          Teaching children basic safety for all sorts of situations needs to be a priority, but the only safety that government schools seem interested in promulgating is “safe sex”.

    BrokeGopher in reply to luckydog. | March 16, 2014 at 6:34 pm

    Warning shots are a really bad idea. Firing a gun is using deadly force, whether you hit or not. If you have time for warning shots, the threat you’re facing is not immediate and therefore it’s not self defense.

    Don’t draw your weapon unless you’re willing to fire it at your target. Don’t fire your weapon unless you’re willing to kill your target.

    Those Barnaby Jones episodes, where he wings the fleeing suspect in the leg are not at all close to reality. Works on tv, but that’s about it.

    Gremlin1974 in reply to luckydog. | March 16, 2014 at 8:49 pm

    Andrew please correct me on this “warning shot” stuff if I am wrong.

    ” I am also very troubled by the fact that Walker did not fire any warning shots; since it appears that Walker had time to watch Harvey approach him.”

    Warning shots are not really an accepted practice. What a warning shot amounts to is you are firing a bullet out into the general public. As a LEO I can’t imagine that Walker was trained to fire warning shots. Though there seems to be an earlier indication that Walkers first shot may have been a warning shot.

    Right now I don’t see how this case is dismissed, but stranger things have happened. I also don’t see how Walker keeps from testifying and when he does his multiple statements are gonna let the prosecution have a field day.

    luckydog in reply to luckydog. | March 16, 2014 at 9:46 pm

    After reading some of the discussion about firing a warning shot, I now think my concern was misplaced. In theory a warning shot still strikes me as a reasonable course of action. But it seems that in practice a trained police officer would not take that action. At this point I still think my First and Third concerns are valid; however, I am open to info that will explain why those should not be concerns.

      Gremlin1974 in reply to luckydog. | March 16, 2014 at 11:43 pm

      On your first point, yes I think you are spot on. While sure some minor changes to a story can come just because of coming down off of the adrenalin high and what not, but the wild variation in Walkers story, at least IMHO, smacks more of someone trying to come up with a convincing narrative to cover up actions that even he realized were questionable.

      On your third point. I am guessing you mean that he didn’t call 911 at anytime before he actually stepped out of the vehicle. While I understand your concern, I can think of a couple of reasons why he didn’t call 911. Of course the time is a factor. Secondly, he may have felt that being a cop he could deal with the situation himself. Thirdly, he was driving and trying to maintain control of a vehicle then he he was dealing with the confrontation.

      We may find out later that he did ask his wife to call 911, however, that doesn’t mean that his wife did what he asked her to do. Remember there are young kids in Walkers car, and they may not have known what was happening exactly but I bet they picked up on that something not good was going down and she may well have been tending to them. Also, she may have honestly thought; “He is a cop he can handle it.” I would even go so far as to say that if she was dealing with the kids she may not have even seen the shooting until it happened, that may be why we don’t the a statement from her. I realize her being his wife makes her bias, but still surely there is a statement from her.

      So there are numerous reasons why neither of them contacted 911. I honestly don’t believe that Walker got out of his car with the intent to shoot Walker. If he had that little restraint, I doubt he would have had the position that he had in the prosecutors office, because he would have been in trouble to much.

        JackRussellTerrierist in reply to Gremlin1974. | March 17, 2014 at 1:37 am

        The bottom line is that if you’re scared for yourself or your family, you call 9-1-1.

        Based on what we’ve seen so far, do you think Walker was frightened, or was he angry?

          Honestly, I am not sure, if I had to come down on a side one way or the other I would say angry/arrogant. At first I thought that he may have been frightened for his family and then just used to much force in his defense. However, after the witness statements regarding his actions and stance just before the shooting and the apparent changes to his story of what happened I am more inclined to believe that he was angry and shot Harvey, then had an “Oh, Crap! What did I just do!” realization.

          I still think Murder 1 is an overcharge, but I can get to Murder 2 now. However, I think if the case isn’t dismissed I would be amazed if their wasn’t a plea deal for Manslaughter.

    DaveGinOly in reply to luckydog. | March 17, 2014 at 2:19 pm

    Warning shots are not advised because they can endanger bystanders, even if the bystanders are not visible or apparent to the shooter of the warning shot. For instance, a warning shot can penetrate the wall of a building and injure or kill someone who is inside, unseen. Many police and self-defense-minded civilians use hollow point ammunition today because HP ammo is intended to “blossom” in the target’s body, preventing its exit from the body. This not only has the effect of dumping all of the bullet’s energy in the target body (a bullet that continues to fly through a body still has energy that is being wasted – the energy dump is the shock that can stop an attack), but a bullet that passes through a target body can also hit a bystander. So HP bullets are used not just for the defensive effect, but because they are actually safer to potential unintended targets. (Although a shot shouldn’t be taken if the target is not clear of bystanders. But in a fight, target fixation/narrowing of vision can lead the defensive shooter to block out bystanders, and bystanders can also be hidden from sight.)

If nothing else, this trial will provide a great example of the problems with eyewitness testimony.

    Ragspierre in reply to genes. | March 16, 2014 at 4:31 pm

    Not to be snarky…

    but like that never came up before…!!!

    JackRussellTerrierist in reply to genes. | March 16, 2014 at 5:00 pm

    Eyewitness testimony really doesn’t deserve the bad rap it gets. Different things are more noticeable between one person and the next. Vantage points, timing, all come into play. The general observation skills vary from witness to witness. But if an eyewitness is very clear about some aspect of their observation, even if they have other details dead wrong or somewhat different from someone else’s account, it does not mean they didn’t see what they’re saying they saw or heard relative to the more important aspects of the event.

    tom swift in reply to genes. | March 16, 2014 at 5:48 pm

    Eyewitness testimony depends on human memory, and human memory is not terribly well understood.

    The idea that it’s a photograph of scenes and events, full of details which can be recalled with enough effort, is simple and appealing, but there’s little reason to think it’s correct. But it’s popular, as it’s a simple concept, and sometimes it’s useful, like, say, in court; for instance, it’s an unexcelled way to send daycare operators to jail as, with enough coaching, children can eventually recall instances of abuse whether they occurred or not. And they’re not lying when they “remember” these things, as in memory there’s no easy test to distinguish reality from fantasy. (There are tests, but they have to be set up, and can’t be applied in just any ol’ instance.)

    A more sophisticated view is that memory is not a photograph accurate in all arbitrary details, but rather a very sketchy outline, to which details are added as later required. But these details are not real memory of real events, they are simulations conjured up to fill gaps, much as visual information is synthesized to fill in things we can’t see (such as the visual “blind spot”, or full color vision off our center of field). These bogus details are rarely apparent, since with concentration, more details are added; what’s added is whatever is needed to seem convincing. So people end up with memories of images which they insist they can see clearly, down to the most improbable detail. But it’s almost entirely fantasy.

    Interesting topic, but this is probably not the place for it.

      Ragspierre in reply to tom swift. | March 16, 2014 at 5:57 pm

      We know that we don’t really “see” everything in what we consider our “field of vision”. There is a hole (names curse…) in human vision that our brains fill in for us, based on the data from what we DO see.

      I suspect that our brains are really quite good as recording devices, but our capacity for retrieving data without distortions is at fault.

        tom swift in reply to Ragspierre. | March 16, 2014 at 6:12 pm

        Right. Both from our senses in real time, and from our memories. But we’re usually not aware of shortcomings in either (and why that should be true is another interesting topic).

Are there any witnesses to the beginning of the incident (other than the Walkers and Pidel)?

Apologies if this has already been addressed, I’ve been focusing most of my attention on the Teghan Skiba murder trial and may have missed it.

One more observation about my Third concern in my 04:21 comment: even if Walker felt the danger had passed by the time he pulled over – I still find it hard to believe that a police officer would not call 911 to report Harvey’s actions, his plate #, his car type, etc.

    JackRussellTerrierist in reply to luckydog. | March 16, 2014 at 5:02 pm

    Very true, and very significant to DTR and his alleged fear for his family.

    Gremlin1974 in reply to luckydog. | March 16, 2014 at 8:56 pm

    Just like I find it impossible to believe that Walker would have taken his eyes off of Harvey’s car until it was well out of sight. This whole checking the tires and that let Harvey sneak up on him thing is not going to go well.

Have the forensic ballistics been released? What is the distance the physical evidence supports?

    tom swift in reply to gxm17. | March 16, 2014 at 5:40 pm

    What are you expecting? GSR on Harvey (That’s gun shot residue). For pistol shots, that gets very weak beyond about three feet, so it won’t help to determine if Harvey was six feet away, or thirty, or fifty.

    Baker in reply to gxm17. | March 16, 2014 at 6:19 pm

    In his GJ testimony the trooper said of the 3 wounds ‘None of these wound [sic] showed evidence at being fired at close range.’

    I think that is all we have at present about range/ballistics.

      MouseTheLuckyDog in reply to Baker. | March 16, 2014 at 6:34 pm

      Again being picayune, close range means ten inches IIRC from the Zimmerman trial. Six feet would be considered to far to be close range.

      gxm17 in reply to Baker. | March 16, 2014 at 8:44 pm

      Thanks. I’ll be interested in hearing the forensic evidence at trial.

MouseTheLuckyDog | March 16, 2014 at 6:06 pm

I was going to comment on this but Phillep Harding beat me to it.
Mrs I says there were only two shots.

The reasonable conclusion is that she did not see the first shot.
So she did not see Harvey stop after the first shot.

In fact she says she saw Harvey stop nearly simultaneously with the shots. Which means that when Walker decided to fire shots two and three, harvey was still approaching him.

    Ragspierre in reply to MouseTheLuckyDog. | March 16, 2014 at 6:26 pm

    Ms. I: It was almost instantaneous that the guy stopped walking, as I saw the – it was almost instantaneous. . . . He had stopped walking at that point as he raised his arms. He had stopped moving. It was after the other, the southern, the gentleman standing at the southernmost vehicle [Walker] had raised. So it was almost an instantaneous thing.

    Ummm….

    It was ***after*** the other, the southern, the gentleman standing at the southernmost vehicle [Walker] had raised.

    “reasonable”…???

    (Face palm…)

      MouseTheLuckyDog in reply to Ragspierre. | March 16, 2014 at 6:30 pm

      So then where did the first shot go?

        Ragspierre in reply to MouseTheLuckyDog. | March 16, 2014 at 6:37 pm

        You’re asking the wrong guy.

        For me, the jury is still out (heh!) as to when the first shot was fired.

        It COULD have been fired as he was bring his pistol up…I dunno.

        But any shots that putatively…note the word…HIT Harvey were not fired UNTIL he had his arms up.

        That seems rational, does it not?

        Now, that could change if we have a bullet recovered from the fatal wound tract that is badly mangled from ricocheting off the ground, sooo…

        developing…

          Ragspierre in reply to Ragspierre. | March 16, 2014 at 6:40 pm

          …were not fired UNTIL he [Walker] had his arms up…

          Sorry. That was ambiguous.

          tom swift in reply to Ragspierre. | March 16, 2014 at 7:25 pm

          But any shots that putatively…note the word…HIT Harvey were not fired UNTIL he had his arms up.

          But how many bullet wounds did Harvey actually have? Mrs I reported hearing two shots. She heard both fired while Harvey was standing still, with his arms partially raised. She didn’t categorically state that there were no other shots fired.

          Walker’s statement to police was uncertain. He said he fired 2, 3, or 4 shots.

          Pidel reported one shot, possibly at the ground, and after a brief pause an undetermined number of additional shots.

          MouseTheLuckyDog in reply to Ragspierre. | March 16, 2014 at 10:06 pm

          @tom swift, there were three bullet wounds.
          Well according to the trooper.

          Gremlin1974 in reply to Ragspierre. | March 17, 2014 at 12:01 am

          I still have this gremlin in the back of my head that is telling me that Walkers first shot that bounced off of the asphalt was more poor trigger discipline than a warning shot. I have absolutely no evidence to support this assertion, it was just my first thought when I heard “warning shot”, I though it sounded like a quick way to cover up a accidental shot.

    JackRussellTerrierist in reply to MouseTheLuckyDog. | March 16, 2014 at 7:45 pm

    It doesn’t matter much. Let’s say Harvey was killed by the third shot, not the first shot. He fired continuously.

    Walker’s intent doesn’t change with which shot killed Harvey.

    The case is about whether Walker had to kill Harvey or not. His contradictory stories and not calling 9-1-1 for help if he was truly afraid are not the actions of an innocent, frightened man.

      Well, exactly when the shots were fired and what Harvey was doing at the moments they were fired could be significant for a self defense case. If two were fired while Harvey was stopped, moving his arms up, and was six to forty feet from Walker, those might be hard to justify on self defense grounds. But if a shot was fired before that, while Harvey was advancing on Walker, that might be turned into a useful argument for justification, particularly if Harvey was closer to six feet away than to forty.

        JackRussellTerrierist in reply to tom swift. | March 17, 2014 at 1:55 am

        Maybe, but Harvey would have been further away at that point, so that’s the other side of that coin. The point is Walker fired at Harvey when he was already stopped (and still standing, arms up and unarmed), so whether Walker fired another shot before that or not probably won’t be that important to a jury as a matter of self defense.

          Yes, if Walker fired two shots into Harvey when there was no good reason to believe that Harvey was an imminent deadly threat, then Walker is going to have a hard time claiming self defense so far as those two shots are concerned.

          There’s another consideration, though probably a trivial one. Ms I was some distance from the altercation. Looking at the Google map of Rt 3 and the ramp to Rt 97, she could have been 100 to 150 feet away. She heard shots, but she didn’t hear them when they were fired. The speed of sound in air is 1100 feet per second. So the distance would cause a delay of 90 to 135 milliseconds or so. Not a large delay, but not indetectable by human senses, either.

        Mac45 in reply to tom swift. | March 17, 2014 at 11:42 am

        So fart, all the witness statements that describe Harvey raising his arms state that the two gunshots came almost simultaneously. This can indicate one of two things. The first is that if the distance between witness and the shooting was great enough, the sound would have reached the witness after the actual shot occurred. This could mean that the shot actually preceded the arm raising or occurred in conjunction with the arm motion. The second possibility is that Walker was unable to stop the motion of his trigger finger between the time he initiated the action and the time that Harvey raised his arms.

        Again, the distance between the actors, the actors and the witnesses and the time factor becomes important here.

          Ragspierre in reply to Mac45. | March 17, 2014 at 1:28 pm

          So fart, all the witnesses directly refute the “bull-rush” bs assertion.

          Juries do not believe someone who they perceive to have lied, IMNHO.

          They will readily accommodate human error and fallibility, and even conduct that an actor cannot explain. Because none of us can always explain what we do. Why do we fall in love?

So, forget her ‘estimate’ – the position of the body should be an easy ‘fact in evidence’ (let’s assume no one moved it, and he died where he dropped) – how far was that from Walker ?

IMO, 40 – 50 feet is too far to say ‘I was in fear of that unarmed man and had to shoot him’.

Then again, I trust this lady’s estimate not at all.

Surely the police measured it, body to car ? What does the report say ?

    Ragspierre in reply to pjm. | March 16, 2014 at 6:29 pm

    “…let’s assume no one moved it, and he died where he dropped…”

    Why would you dream of doing that, except on blind faith in “witness” (per Buldung) accounts?

    Why “assume” any flucking thing?

      Ummm.. because this is a little chat blog on the internet and it don’t fucking mattter here ?

        Ragspierre in reply to pjm. | March 16, 2014 at 7:24 pm

        oppps…

        Sorry. Now that I know you are just gassing, I can put your comments in context.

        Thanks!

          And I forgot you’ve already been selected to sit on the jury, so you’re not ‘just gassing’ here.

          My bad.

          Ragspierre in reply to Ragspierre. | March 16, 2014 at 7:43 pm

          Yep. Your bad.

          Attacking me is just not a good argument.

          It isn’t an argument at all. But neither is your resort to bovine excrement. As we all know too well.

I’d have to agree with many of the comments here about the motion of weapon presentation being merely an element of the entire firing motion.

A duly identified/uniformed LEO might get away with drawing down on someone, but for anyone else, pointing a pistol at someone is tantamount to shooting at someone. It is not self defense it is still an assault. Which is why civilians are commonly taught to only display the weapon once they have committed to using it. Is there any chance plainclothes cops are taught something similar?

Walker may very well have already been in the act of stroking the trigger when Harvey’s arms went up.

Bad news for the both of them though, Harvey for the obvious reason, Walker because someone saw it happen in that sequence.

I’d also note that the witness was basically pressed into offering a numeric value for the distance. Which, based on the other information sources, makes her rather less than credible on issues directly involving distance measurements. Whether that rules out her opinion of what constitutes ‘threat distance’ remains to be seen.

Again, I find the telling part to be her description of Walker does not comport with a man attempting to inspect his tires, but more closely matches what the other witnesses describe – a man standing and facing another man approaching at a steady clip.

    ThomasD in reply to ThomasD. | March 16, 2014 at 7:20 pm

    If it is not self defense it is still an assault…

    pjm in reply to ThomasD. | March 16, 2014 at 7:26 pm

    “but for anyone else, pointing a pistol at someone is tantamount to shooting at someone. ”

    Bullshit.

    “It is not self defense it is still an assault”

    More BS.

    “Which is why civilians are commonly taught to only display the weapon once they have committed to using it.”

    Correct. IOW ‘You are mentally prepared to fire it’. IOW, ‘it is not to be used simply as an empty threat if you are not prepared to shoot someone with it.’

    That does not mean that the final irreversible firing decision has been made at that instant.

    “Is there any chance plain clothes cops are taught something similar?”

    No. No cop has ever been taught ‘If you pull your weapon and DON’T fire it, you are in deep shit. Better off you should go ahead and shoot someone, just to justify taking it out’.

    tom swift in reply to ThomasD. | March 16, 2014 at 7:30 pm

    but for anyone else, pointing a pistol at someone is tantamount to shooting at someone. It is not self defense it is still an assault.

    Not really. It’s a legal fiction, and even as legal fictions go, it’s one of the sillier ones. An action which can’t conceivably hurt anyone isn’t much of an assault in the real world.

    tom swift in reply to ThomasD. | March 16, 2014 at 7:34 pm

    Walker may very well have already been in the act of stroking the trigger when Harvey’s arms went up.

    Well, he did it twice. He can only have been in process of firing one shot when Harvey’s hands went up. The second would have to be more deliberate.

      No, training makes ‘double tap’ instinctive in muscle-memory.

        tom swift in reply to pjm. | March 16, 2014 at 8:19 pm

        Which doesn’t make it legal.

        Gremlin1974 in reply to pjm. | March 17, 2014 at 12:05 am

        I train to fire double taps, and yes it is a very quick motion, but I can still interrupt the sequence if I have to, muscle memory is one thing but pulling a trigger is a deliberate action.

          tom swift in reply to Gremlin1974. | March 17, 2014 at 2:02 am

          By its very nature, a double tap is difficult to reconcile with the concept of justified self defense. You can’t shoot a target which isn’t an imminent deadly threat.

          So, faced with an imminent deadly threat, you shoot it. OK so far. Now what? If the target is still an imminent deadly threat, you shoot it again. Still OK, but . . . how did you determine that it was still an imminent deadly threat? You didn’t, you fired again before making any attempt to re-evaluate your situation. Your first shot wasn’t a Nerf ball thrown at your assailant; it had to have had an effect, so, what was it?

          Many many moons ago, when I first heard about any of this stuff straight from a mouth of officialdom, I heard about Castle Doctrine (and this was in Massachusetts). I also heard from the same mouth of officialdom that you can be justified in shooting your attacker, but that doesn’t mean you’re automatically justified in shooting him twice. He actually stated it more forcefully; that if you shoot him twice, you’re in trouble. He was not talking about double taps specifically; he never mentioned the concept. Still, two shots is two shots, whatever you call it.

          Ragspierre in reply to Gremlin1974. | March 17, 2014 at 9:24 am

          I have to disagree. Firing doubles…and sets of doubles…is not inconsistent with self-defense law.

          If I have to fire on someone, I am firing until I am certain they are no longer a threat. I am not a tele-medico, and cannot know what I’ve hit, what the effects might have been, and what an assailant might do in the next ten seconds.

          If I ever have to shoot someone, they will probably get shot a lot.

          Gremlin1974 in reply to Gremlin1974. | March 17, 2014 at 1:34 pm

          @Tom Swift

          I think you would have more of a problem with groups of shots vs number of shots fired in a group. I mean we aren’t talking about putting 2 in the chest then walking up and doing a head shot.

          The Michael Dunn case is a great example, the prosecution and eventually the jury focused on groups of shots not individual shots.

          Also, you wouldn’t have any problem finding an expert witness that would testify that Double Tap is a accepted method of training and defense. So I don’t see it as being that big of an issue.

          tom swift in reply to Gremlin1974. | March 17, 2014 at 2:38 pm

          The Michael Dunn case is a great example

          The offense would have been the same if his last fusilade at the van as it was driving away had been a single shot. The charge was firing into an occupied vehicle, not firing multiple shots into an occupied vehicle.

          finding an expert witness that would testify that Double Tap is a accepted method of training and defense

          Accepted by whom? I’m talking about an extremely circumscribed circumstance, justified use of deadly force in self defense. I’m not talking about any other sort of defense such as something which might crop up in military or law enforcement. In self defense, if the force used has to be in some way proportionate to the threatening force (and it does, doesn’t it?), multiple shots can’t be justified just because some instructor in a class said so. Or even if all instructors in all classes said so.

          tom swift in reply to Gremlin1974. | March 17, 2014 at 2:52 pm

          I am firing until I am certain they are no longer a threat.

          You fire until they are no longer a threat, or until you believe they are no longer a threat. You don’t fire until there is no possibility that they aren’t still a threat, or until everybody’s dead, or until you run out of ammunition, or until your trigger finger gets tired, or any other reason which isn’t concerned with the current state of the threat itself.

          Before you start shooting your antagonist, you have an obligation to evaluate your situation the same way the Reasonable Man would. That obligation remains yours throughout the encounter; it doesn’t suddenly evaporate once a shot is fired. You can escalate your defensive response, certainly, but only if some escalation reasonably seems warranted by the continuing persistence of the threat. And two shots is an escalation over one shot. None of this need be guesswork; you can reasonably be expected to use the same mental faculties you used to determine that there was a deadly imminent threat in the first place to determine at every point during the remainder of the encounter that the deadly threat is still imminent.

          Hey, nobody promised that this forcible self defense stuff would be easy.

          Ragspierre in reply to Gremlin1974. | March 17, 2014 at 3:16 pm

          Sorry. I think you are simply wrong.

          If I strike someone with an ASP, my second strike is not an “escalation” while the threat still exists.

          If I hit the assailant and he immediately turns to run, the encounter has changed. If he continues to try to knife me it is the same threat that justifies the use of a potentially deadly weapon. There has been no “escalation” of my defense.

          Gremlin1974 in reply to Gremlin1974. | March 17, 2014 at 6:57 pm

          @Tom Swift

          “The offense would have been the same if his last fusillade at the van as it was driving away had been a single shot.”‘

          Yea, that was kind of exactly my point. It was never mentioned that Dunn fired the 3 initial shots, however the multiple groups of shots with space to reconsider in between is what hung him.

          “Accepted by whom? I’m talking about an extremely circumscribed circumstance, justified use of deadly force in self defense. I’m not talking about any other sort of defense such as something which might crop up in military or law enforcement. In self defense, if the force used has to be in some way proportionate to the threatening force (and it does, doesn’t it?), multiple shots can’t be justified just because some instructor in a class said so. Or even if all instructors in all classes said so.”

          Many of the civilian instructors I know teach double taps. What does law enforcement or military have to do with anything, I never brought either one up.

          I think you are confusing Proportion with reasonableness. Deadly force is deadly force whether it be a gun, a knife, a bat, or a sidewalk, deadly is the proportion of force being discussed, vs non-deadly, if you employ deadly force you employ deadly force. By the way you describe it if you fire a double tap, which is usually 2 rounds in under a second, then the first round could be justified, but the second round could be murder? Now if you have a noticeable pause between those rounds that actually gives you time to reconsider, as in the Dunn case, then you might be in trouble. We are not talking about trying to claim that shooting someone with a full magazine is obvious self defense.

          I have never seen anyone suggest that you have to fire once, then you must stop to reconsider, then fire again and so on and so forth.

          Now reasonableness is I fire the first double tap, now I pause and fire a second. Then yes, the second 2 shots might not be reasonable.

          (Yes, I am sure that some prosecutor could argue that because you train to fire 2 bullets you are just out to kill someone, but I expect that argument would go about as far as the argument that just because someone carries hollow points they are just looking to kill someone.)

          tom swift in reply to Gremlin1974. | March 17, 2014 at 7:03 pm

          If I strike someone with an ASP, my second strike is not an “escalation” while the threat still exists.

          Of course not. But you can’t assert that the threat still exists if you haven’t evaluated it. Maybe it does, maybe it doesn’t. It’s your job, as the guy firing the bullets, to believe that it’s reasonable to continue doing so, not to make a convenient guess that it is.

          If I hit the assailant and he immediately turns to run, the encounter has changed. If he continues to try to knife me it is the same threat that justifies the use of a potentially deadly weapon.

          You’ve just agreed totally with what I wrote above.

          You must be aware when the situation changes, and you are not justified in continuing to use lethal force after the situation has changed sufficiently in your favor. That includes a situation which changes while you are firing your string of bullets. At some point, you’d better stop, and that point has everything to do with your assailant and nothing to do with what somebody had you do in a training class.

          I’ve never seen, in my career, a self-defense case hinge on the second of two rapidly fired shots.

          A big pause between the two shots? Sure.

          A case where the first had clearly neutralized the threat, and the second shot was a deliberate “finishing shot”? Sure.

          But two shots 2/10ths of a second apart? No. That’s cutting things too fine.

          Granted, things can get awkward among those of us who can with some reliability empty 9 rounds out of a 1911 pistol in roughly 2 seconds–if we do that. Those later shots CAN be awfully hard to explain away.

          As they say: shot placement, shot placement, shot placement.

          And, use enough gun. (Although with modern 9mm ammo, even that caliber qualifies–and maybe lesser calibers, as well.)

          –Andrew, @LawSelfDefense

          “Detached reflection cannot be demanded in the presence of an uplifted knife.”
          Brown v. United States, 256 U.S. 335 (1921)

          –Andrew, @LawSelfDefense

          tom swift in reply to Gremlin1974. | March 17, 2014 at 7:09 pm

          Now reasonableness is I fire the first double tap

          Unless you’re firing a machine gun, this is not reasonable, it is merely convenient. Bullets aren’t attached to each other so they come out in pairs.

          No matter how you jump and dance, two shots simply aren’t a single action.

          tom swift in reply to Gremlin1974. | March 17, 2014 at 7:15 pm

          “Detached reflection cannot be demanded in the presence of an uplifted knife.”

          But nobody’s claiming otherwise. While the knife is still uplifted, of course you can shoot. This is hardly the same as asserting that you can shoot more lead than is needed to do the job.

          My split times (times between shots fired) are under 0.20 seconds.

          How long does it take to react to the bullet impacts and obviously drop an uplifted knife, such that a reasonable and prudent person reacting to an existential threat would know that threat had ceased?

          A second? One-one-thousand?

          That’s five shots right there, without trying hard.

          Big shots, too. 230g.

          –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Gremlin1974. | March 17, 2014 at 9:42 pm

          “My split times (times between shots fired) are under 0.20 seconds.”

          Exactly, while I have never have had my split times measured, I am certain that it is less than an second.

          When you are talking about someone that can fire as fast as Andrew, depending on the distance, the second shot can literally be on its way before the first has even hit.

          JackRussellTerrierist in reply to Gremlin1974. | March 18, 2014 at 4:37 am

          Most departments make their sworn officers re-qualify each year. There should be some range records of Walker’s scores.

    Ragspierre in reply to ThomasD. | March 16, 2014 at 7:38 pm

    “Which is why civilians are commonly taught to only display the weapon once they have committed to using it.”

    And there is the rub.

    I prefer the formulation, “Only pull if you are justified in using it”.

    That leaves me the option of that moment when my finger leaves the side of the weapon, and enters the trigger guard.

    JackRussellTerrierist in reply to ThomasD. | March 16, 2014 at 7:52 pm

    Mrs. I’s opinion on what constitutes threat distance is totally irrelevant. She’s seeing a man with his empty-handed arms raised being shot to death, for crissakes.

Yes, that action you describe is, by law. Read the legal definitions of :

Assault
Battery
Assault AND Battery

IOW, threats to hit someone are a crime (Assault). Hitting them is a Battery.

Richard Aubrey | March 16, 2014 at 7:40 pm

Not sure how important this will be, but it may figure if the question is when Walker saw Harvey approaching.
What is the position for checking a flat tire? Standing erect, looking almost straight down. You can back off some, so you’re not looking almost straight down, but you don’t have to bend, squat, hunker. One thing you may do is compare the sidewall bulge of the suspect tire to the sidewall bulge of the supposedly intact tire on that side. Which means standing erect, possibly moving laterally to get similar perspectives on both tires.
Having said this, it is possible someone may bend over, although it’s unnecessary. Presumably, there was too much traffic noise to bend over to see if there was air hissing out. So you wouldn’t bother.
The defense, if they’re using this, is going to have to convince the jury that it was perfectly reasonable for Walker to have been some time in an inconvenient position.
Forty feet is more than twenty-one feet. But it’s only twice twenty-one, which would be an easier error to for Mrs. I to make than mixing it up with six feet.
Due to your parents’ or grandparents’ tax dollars at work, I automatically begin counting “one one thousand,…” when lightning flashes, even if woken from a sound sleep. I also have been hassled about distances. While one may say that people in general are bad at that, individuals may be just dandy at it. This will have to be addressed with Mrs. I, at least.
WRT memory: Dots demand to be connected. And they demand to be connected in a way that makes logical sense. If we don’t have enough dots, a logical narrative will be constructed without reference to reality and recalled as if it actually happened.

    JackRussellTerrierist in reply to Richard Aubrey. | March 16, 2014 at 7:57 pm

    You can’t possibly believe that hogwash about the rumble strips and flat tires, can you? That was tale #2, and even cheesier than tale #1 to dispatch.

    tom swift in reply to Richard Aubrey. | March 16, 2014 at 8:21 pm

    No witness has so far verified that story. All who saw it have stated that Walker was by his door, watching and waiting as Harvey approached.

Richard Aubrey | March 16, 2014 at 8:26 pm

Jack Russell.
Get a grip, sport. I didn’t say I believed or disbelieved anything. You’re not in front of a jury chosen for malleability here.
I said that if checking a tire is an issue, the position usually taken will be an issue. If he’s said to be checking the tires, then the D will want to insist he was squatting or whatever, rather than the intuitive standing erect which we all would likely do, including the jurors.

Andrew, question regarding the outcome of the motion to dismiss.

If it is dismissed, which I realize is a longshot, can the prosecution take it back to the Grand Jury and ask for a re-charge or can they just charge him directly like Angela Corey did in Florida and avoid the Grand Jury again?

Also, it would seem to me that absent a dismissal this case is just begging for a plea deal, what do you think the chances are for a Manslaughter deal?

    I don’t know if they can charge murder simply by affidavit, as they can and do in Florida, or if a Grand Jury is required. That’s the kind of procedural matter I just can’t keep track of across 50 states.

    But if they need to go back to a Grand Jury, they’ll go back to a Grand Jury. There’s more than enough here to go to trial on, if they want to, and it seems that they want to.

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | March 17, 2014 at 3:43 pm

      LOL, yea, I just found out yesterday that we don’t even use the Grand Jury system her in Arkansas. Learn something new every day.

Henry Hawkins | March 17, 2014 at 3:47 pm

I confess to not reading every single one of 147 comments, but wouldn’t there be blood evidence to indicate where the guy was when shot?

    The 3/13 post on this subject has the police diagram of the crime scene which shows victim’s blood splatter in the roadway approx. 10 feet from the front left bumper of Walker’s car.

      Baker in reply to MarkS. | March 17, 2014 at 5:21 pm

      If I am reading it correctly the police sketch of scene indicates ‘blood splatter’ at 7ft 9.11″ from the front of the minivan.

Matthew Carberry | March 17, 2014 at 5:49 pm

“Objects in the rear-view mirror may appear closer than they are.”

It isn’t clear to me if she is saying she had her head turned looking over her shoulder while driving (yikes) or if she was watching in the rear view mirror. That is going to skew her ability to judge distance to some degree.

    She is likely just describing looking directly out of her left window. Her description of her view indicates that the scene of the shooting is very close to or approaching her 3 o’clock position at the time of the actual shooting. She never saw any of the scene through her rear window. That view undoubtedly would have been blocked by trees or at too great a distance.

I gotta go back to what I think is really a pretty major hole in the Walker story, if I remember correctly.

His account of the “road-rage” driving, after the first little bit, has Harvey tail-gating him as he drives along.

How does that spook a New Jersey cop?

If he slows down to pull of the road…no clouds of tire smoke as he brakes…why can’t Harvey pull off the road right behind him?

    MarkS in reply to Ragspierre. | March 17, 2014 at 8:00 pm

    One witness, I think Mr. B, claimed that Harvey pulled over first and Walker pulled over behind him

    Baker in reply to Ragspierre. | March 17, 2014 at 8:41 pm

    You’re referring to the statements he gave to one of the original officers on the scene, right? I’m finding it hard to believe a lot of that officer’s report. (Or the summary of the interview as recorded by the MSP investigator that we saw.) It seems to be full of facts that don’t tie to the statements from witnesses. I find it hard to believe any of it without some other verification. Much of it seems like the game of gossip where the info goes through so many hands that it gets distorted. There is a kernel of truth but the sequence is wrong or the parties are switched or something else is out of sync. Sounds like the officer just confused the information of the earlier part of the encounter.

    The odd thing, though,is the ‘thought I had a flat tire and got out to check’ series of events. There’s no other evidence that any of that ever happened but it’s very hard to imagine the police officer becoming confused about it or making it up. It is just too long and detailed.

    Plus some of the other portions about it seemed strange but I can see where they might become clear with more information so no real need to go into them now.

      Anybody want to bet we’ll be seeing Trooper Henry testify in court?

      Here’s the post I wrote on his recounting of what Walker told him: http://is.gd/xgrVkm

      –Andrew, @LawSelfDefense

        Andrew – Do you think Walker actually told him all this? Particularly the portion about the evolution of the incident prior to the actual pull over an the ramp from 3 to 97.

          I certainly don’t think the Trooper made it up out of whole cloth. Variances in the details? Sure. The broad strokes? Nope. The Trooper would have to be demented or malicious. Neither seems likely.

          –Andrew, @LawSelfDefense

          Baker in reply to Baker. | March 17, 2014 at 11:40 pm

          Don’t get me wrong. I don’t look past Walker having told a long and wrong tale for a minute. It is just that this one is so strange.

          It is such a mirror image of what we imagined before. Not just the switch from one side to the other of who cut who off but as to the some of the rest of the action. In this telling Walker outs himself as the one who actually initiates the road rage. He is speeding down the paved shoulder (and somewhat narrow at that) of the road to catch Harvey and demand that he be let into the lane he deserves. (At least in Pidel’s version Harvey was riding down an actual traffic lane when he started bitching at Walker even though it was an exit lane that he needed to eventually shift out of.) And then the maneuvers that you expressed concerns about such as cutting in front of Harvey etc. Things that seemed entirely counter to what one would expect of someone driving their family but which might be considered by someone engaging aggressively in a road rage incident.

          I guess perhaps he got off track by trying to blame Harvey all the way back to the Wawa and once he got on the bus he couldn’t get off. Maybe he thought he could prove that Harvey had it our for him prior to the cut-off at Wawa.

          I think that if the Trooper get this across to a jury Walker is in for some hardtime for sure. Absolutely ZERO credibility.

        Gremlin1974 in reply to Andrew Branca. | March 17, 2014 at 11:22 pm

        I would be amazed if he didn’t testify.

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