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Accused NJ Cop Takes the Stand in MD Road-rage Killing

Accused NJ Cop Takes the Stand in MD Road-rage Killing

Walker testified he did not attempt to retreat because “I had a split second to make a decision.”

Joseph Walker, the New Jersey police officer who shot and killed Joseph Harvey Jr. in a Maryland road-rage incident, took the stand this past Friday to testify in his own defense over a 90 minute period, reports The Baltimore Sun.  Walker is charged with first degree murder in the case, and if convicted faces life in prison.

The events were recounted by Walker as follows (based on how Walker’s testimony was paraphrased by reporters):

Walker inadvertently drifted into Harvey’s lane while turning from one road onto another.  Harvey responded by screaming at Harvey, “What’s your f*cking problem, n*gger?” followed by “I’ll f*cking kill you, n*gger!”  Walker waved his badge at  Harvey, shouting back “Police! Keep moving!”  (The 41-year-old Walker is black, the 36-year-old Harvey is white.)

Walker heard a thump and thought something might have struck his van.  (Surveillance video from a nearby Wawa convenience store showed Harvey and his companion Pidel each buying two energy drinks–only three energy drink were later found in Harvey’s car.)  Harvey’s Honda then swerved in front of Walker’s van, forcing Walker to take evasive action. Eventually Harvey pushed Walker’s van off the side of the road, where he stopped.  “I was thinking this was done,” Walker testified.

Walker had exited his minivan and was inspecting it for damage when he heard his wife yell that the two other men were approaching.  Walker said he first showed his badge, and ordered the men to stop. When they failed to stop, he pulled out his gun.  Walker told jurors, “I wanted to deter the situation . . . hopefully they would forget this and go about their business.”  When Harvey continued to approach, Walker shot him once. Walker testified that Pidel stopped, which is why he did not shoot Pidel.  Harvey, however, continued to approach, and Walker shot him two more times.  Harvey’s injuries would prove mortal.

Walker’s wife testified earlier in the week, her recounting largely matching those of her husband, and noting that she was in fear for her life and those of her children.

Other witnesses, however, provided testimony that was inconsistent with that of Walker.  Pidel, Harvey’s companion, testified that Walker never announced he was a police officer and never showed his badge.  Some other witnesses, who were driving past on the road by where the conflict occurred on the shoulder, testified that Walker stood with crossed arms as Harvey and Pidel approached, and that Harvey stopped prior to being shot.

Key to the case, of course, is that Maryland is a vigorously enforced duty-to-retreat jurisdiction.  If one has a safe avenue of retreat available, one must make use of it before using deadly force in self-defense.  Here, the prosecution argues, Walker could simply have stayed in his minivan and driven away as Harvey approached on foot.

Walker’s explanation for why he didn’t do exactly that? “I had a split second to make a decision.”

Strictly speaking, if this is true it would be an adequate explanation.  The avenue of retreat available must be absolutely safe, and the duty to retreat is not applied when the attack faced is so immediate as to make safe retreat impossible.  Based on his own testimony–retrieving his badge and gun, first displaying the badge, ordering the men to stop, then shooting–it would seem that more than a split-second was available.  Whether, of course, Walker was indeed left with merely a “split second” to make his decision will ultimately be determined by the jury.

News reports indicate that closing arguments in the case are expected to take place this coming Tuesday.

–-Andrew, @LawSelfDefense

P.S. The newest Law of Self Defense University Video/Podcast has just been released:  “#004: The Intersection of Tactics and Law.” Enjoy!


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 (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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Comments

Gremlin1974 | July 27, 2014 at 8:14 pm

Couple of things I notice; “Walker testified that Pidel stopped, which is why he did not shoot Pidel.” If Pidel stopped wouldn’t that mean that there was no longer a “disparity of force” due to more than one attacker?

“Eventually Harvey pushed Walker’s van off the side of the road, where he stopped. “I was thinking this was done,” Walker testified.”

So someone just forced you off of the road and you just assume that that’s the end of it? Once again I refuse to believe that he just go out of his car without knowing where the folks that just forced him from the road were located at all times.

I also note that here is no mention that Walker ever believed that Harvey was armed. His story is just crap. As far as the wife testifying, I don’t see why that should hold any weight anyway of course their stories are going to be the same.

    MouseTheLuckyDog in reply to Gremlin1974. | July 28, 2014 at 12:39 am

    “Walker testified that Pidel stopped, which is why he did not shoot Pidel.” If Pidel stopped wouldn’t that mean that there was no longer a “disparity of force” due to more than one attacker?

    Right because instead of two much bigger guys approaching him, it became one much bigger guy,.

      Gremlin1974 in reply to MouseTheLuckyDog. | July 28, 2014 at 12:23 pm

      “One much bigger guy”

      Who is approaching a trained LEO. Also, while “he was bigger than me” might be a reasonable defense for a small female, I just don’t see it going over as well. Its not like Walker is a “tiny” man, from what has been reported he is average height and weight.

Gremlin1974 | July 27, 2014 at 8:17 pm

Andrew,

Do you think that Walker taking the stand shows some weakness in the defenses case. To me it smacks of Michael Dunn having to testify to get Self Defense instructions.

“I had a split second to make a decision.”

Noooooopa. You had time to flash your badge. THEN you had time to pull your gun. According to your own story, dude.

Which STILL strains credulity. You had a LOOOOONG time before those guys got near you.

Bub-eye.

    sequester in reply to Ragspierre. | July 28, 2014 at 8:31 am

    Let’s say Walker had attempted to flee via his vehicle when the men approached his family. The Maryland standard is ‘to retreat or avoid danger if such means were within his power and consistent with his safety. (DeVaughn v. State, 232 Md. 447, 453, 194 A.2d 109, 112 (1963))

    If the men had been armed (which Walker did not know but can express a well founded fear given their behavior) the assailants could have posed a grave danger as Walker drove past. The men could also have made use of an improvised weapon such as a stone to cause harm.

    Furthermore the men could have pursued and possibly overtaken Walker’s car before help arrived. To get the best advantage for safe vehicle retreat, Walker had to wait for the men to approach him before retreat by vehicle. The longer he waited, the lesser the chances of being overtaken in a vehicle retreat.

    Was vehicle retreat truly safe? Is it truly safe to be forced into a vehicle pursuit situation where third parties can be endangered because of an amorphous duty to retreat doctrine. In this case all participants had vehicles. Walker or the other party (who might have been intoxicated) could have crashed and killed someone.

    Notice the word “or” in the settled case law. Arguably, as a trained police officer, Walker met his burden if he truly tried to diffuse the situation.

      MarkS in reply to sequester. | July 28, 2014 at 8:53 am

      I think it’s called “red herrings”. Is a vehicle retreat truly safe? No travel in a motor vehicle is, as you say, truly safe as there is always some risk involved. It is an assumption on your part that Harvey would, pick up a stone, particularly finding one large enough to facilitate a break in to Walker’s vehicle, or have pursued Walker if he had merely driven off and considering Harvey’s car was fifty yards away the time advantage to Walker should be sufficient for a safe retreat.

      Ragspierre in reply to sequester. | July 28, 2014 at 9:29 am

      A lotta gnat-straining coulda-shoulda in that, and it was all quite weak. I understand the exercise, but…

      Nothing whatsoever precluded our LEO staying in his car, calling 911, and simply standing pat. HE KNEW he was armed. He knew he could out-run any pedestrian, and out-last them, too.

      But, again, the whole story just never has held water to me.

      In some ways, less so now. His van was “pushed” off the road, but there’s no paint transfer…??? Naw.

      tom swift in reply to sequester. | July 28, 2014 at 10:02 am

      Walker met his burden if he truly tried to diffuse the situation

      But there remains no reason to believe that that was the case, aside from Walker’s unsupported claim. The fact remains that he shot a man three times for reasons which were entirely speculative. Yes, maybe Harvey was intent on pounding him, rather than just yelling in his face and spraying a bit of spittle. Yes, maybe Harvey had a dangerous weapon in his possession. Yes, maybe Harvey might have thrown a rock at Walker’s van during a retreat. Yes, maybe Harvey would have continued the road duel after Walker drove off in his van, and maybe he would have caused a traffic accident. Maybe, maybe, maybe …

      So the logical response is to definitely put three bullets into him.

      Puh-lease.

      sequester in reply to sequester. | July 28, 2014 at 10:19 am

      I am just putting forward some of the of arguments a defense counsel may make on Walker’s behalf. It is an adversarial system — so why not include a little taste of the potential defense arguments on this blog. I am not trying to attack any you.

      The jury’s factual conclusions will be “legally right” even if they are dead wrong. No matter how we feel, defense counsel is in the best position to assess the jury; and judge what arguments will best reach this jury. What may seem like a “gnat” to us may turn out to be an “elephant” to this particular jury.

        Ragspierre in reply to sequester. | July 28, 2014 at 10:24 am

        Like I said, I understood what you were doing. It was an exercise in forensic argument.

        I didn’t feel attacked. I was just giving you a tit for your tat. (That sounds SO dirty…)

        tom swift in reply to sequester. | July 28, 2014 at 10:34 am

        I am just putting forward some of the of arguments a defense counsel may make on Walker’s behalf.

        Sure. Just as I’m speculating about what an imaginary juror might think about some of those arguments.

        Here we all have the great luxury of not facing prison time, or the dolorous burden of condemning someone else to same. So, speculate away.

      Gremlin1974 in reply to sequester. | July 28, 2014 at 12:51 pm

      “(which Walker did not know but can express a well founded fear given their behavior)”

      To paraphrase Andrew “speculation does not a self defense argument make”. You can’t imply that they were armed just because they were aggressive.

      “the assailants could have posed a grave danger as Walker drove past. The men could also have made use of an improvised weapon such as a stone to cause harm.”

      “Furthermore the men could have pursued and possibly overtaken Walker’s car before help arrived.”

      Complete speculation. You could also say that Harvey could have had a nuke in his pocket, it doesn’t make it any more credible.

      “Is it truly safe to be forced into a vehicle pursuit situation where third parties can be endangered because of an amorphous duty to retreat doctrine.”

      Speculation, no “vehicle pursuit” happened so its irrelevant. Its not what happened. I could just as easily say, well Walker could have chosen to not take the same exit that Harvey took.

      Gremlin1974 in reply to sequester. | July 28, 2014 at 12:53 pm

      “Walker met his burden if he truly tried to diffuse the situation.”

      Attempts at diffusing a situation is not retreat.

JackRussellTerrierist | July 27, 2014 at 8:26 pm

I wish we knew more about the prosecution’s case. Why wasn’t that reported? If it was, Andrew surely would have posted it.

What happened to the officer who said that Walker said he pulled over because he drove over rumble strips and therefore thought he might have a flat and was inspecting his tires when Harvey just sort of appeared not far ahead of his vehicle?

Anyway, the whole pulling over thing doesn’t add up at all in connection with duty to retreat.

    MouseTheLuckyDog in reply to JackRussellTerrierist. | July 28, 2014 at 5:26 am

    I wish we knew more about the prosecution’s case. Why wasn’t that reported? If it was, Andrew surely would have posted it.
    IT has been you just have to find it.

    I haven’t seen much detailed coverage of the trial at all–usually just 2-3 paragraph news bits, seemingly single-source and used by varied papers. If someone has better sources, links are always appreciated.

    This story is lengthiest I’ve seen covering the testimony of Walker’s wife: “Wife of detective charged in Millersville road rage killing testifies” http://is.gd/HAjihp.

    –Andrew, @LawSelfDefense

Not sure what the jury makeup is, but if there are more than two black jurors I doubt he will be convicted, regardless of evidence. In addition, if there are one or more liberals on this jury, that righteous sense of guilt will cause him/her/them to side with the black jurors. My prediction: Walker will be going home soon.

    Gremlin1974 in reply to gasper. | July 27, 2014 at 9:01 pm

    Don’t count on a black juror being a for sure not guilty vote. Some blacks are sick and tired of “thugs” giving the whole black community and bad name. Now I am not saying Walker is a thug, but I just trying to get a point across.

      gasper in reply to Gremlin1974. | July 27, 2014 at 9:05 pm

      Didn’t discount it at all. Just don’t have much faith in it is all.

        Shane in reply to gasper. | July 27, 2014 at 10:30 pm

        Another thing that I think you didn’t take into account is that Walker is the po-po. I think that would definitely work against him in a black jurors mind.

          gasper in reply to Shane. | July 27, 2014 at 10:54 pm

          I did, but I think, in their mind, being called the “n” word trumps that and justifies his actions. I thought of a lot of other things too, and keep coming back to Walker will walk.

Lotta’ typos in there…

OMG what kind of incompetent moronic attorney would allow him to take the stand?

Was there some legal need for him to testify? I am no lawyer but from what I have seen it is really bad for the defendant to take the stand.

    Olinser in reply to Shane. | July 27, 2014 at 10:36 pm

    I haven’t been able to watch the trial, but honestly? Seems like somewhat of a desperation move.

    All of the witness testimony that we saw previously said that Walker was watching Harvey approach him, and that he shot him a GOOD distance away.

    The wife can’t testify to what Walker was thinking, that is hearsay.

    Only Walker can testify to what was going through his mind (or lie about it, as the case may be).

    Without Walker’s testimony they don’t have much of a case for the defense. Even with his testimony I think he’s screwed.

      JackRussellTerrierist in reply to Olinser. | July 28, 2014 at 2:29 am

      Maybe it’s an all-black jury, in which case the defense just needs Walker to get up there and tell pretty much any story he likes just so the jury has something to hang their hat on when they acquit. “We believed Mr. Walker.” All-black jury, white loudmouth allegedly slinging the enword, acquittal, po-po or not.

      But we know nothing about the make-up of the jury nor the case presented by the prosecution.

    MouseTheLuckyDog in reply to Shane. | July 28, 2014 at 12:13 am

    Walker is as close to being a professional witness as you are likely ever going to see.

    Of all the potential witnesses in the case, you should expect him to do the best on the stand.

He had a heck of a lot more than a ‘split second’ to make decision.

Even discounting his laughable claim that he didn’t know the 2 guys were there until his wife warned him, he still had time to draw his gun and warn them, yet only had a ‘split second’ to make a decision?

Yeah, Walker’s story just doesn’t jive, even without the other witnesses contradicting him.

    sequester in reply to Olinser. | July 28, 2014 at 7:40 am

    Here is where it gets tricky. Does Maryland’s legal obligation to retreat begin when the assailants pulled off the side of the road; when the assailants started approaching Walkers vehicle; or did the legal duty to retreat begin when the assailants refused commands to stop?

    I’d love to hear Andrews opinion on the arcana of Maryland Law.

      tom swift in reply to sequester. | July 28, 2014 at 9:32 am

      Does Maryland’s legal obligation to retreat begin …

      Probably doesn’t matter, just so long as it happened sometime before Harvey was gunned down.

      Gremlin1974 in reply to sequester. | July 28, 2014 at 12:36 pm

      In my, admittedly limited and inexperienced, understanding of the Duty to retreat is that it basically comes down to is what the prosecutor can convince a jury you “should” have done with-in a “reasonable” time frame before the use of deadly force.

      I would think that a competent prosecution has pointed out what seem to be Walkers many opportunities to “safely retreat”. Just as I am sure they have pounded on the point that he nor his wife called 911 prior to shooting.

“I was thinking this was done,” Walker testified.

Ridiculous. He’d have to be born yesterday, and born a bit brain-damaged as well, to believe that. So I, Mr. Make-Believe Juror, am thinking right about now, this guy is lying. What is he trying to make me believe?

Walker’s problem is that he needs the jury to believe that he had no clue that Harvey was walking toward him until it was “too late” to do anything but gun him down – “I had a split second to make a decision,” etc. That’s the only way he can claim to have a self-defense case and also have an excuse for failure to retreat.

But the witness statements we’ve seen aren’t helping him out. We didn’t hear them in court; they may have changed, or they may have fallen apart under cross examination. But their statements to police not only don’t support Walker’s narrative, they contradict it.

The wife’s testimony is of no consequence, unless she’s the one who made the decision to shoot Harvey, and used mind-control rays to make hubby do it.

MouseTheLuckyDog | July 28, 2014 at 12:40 am

What has the judge ruled about the tattoo?

    Wait a minute, Mouse. JackRussell got a smart-ass response from you when he asked a legitimate question. Why shouldn’t someone do the same in reply to you here?

    As tempting as it is, I won’t do that. I’ll just tell you that fifteen minutes’ research indicates there has been no ruling on the tattoo yet.

    See how that works?

We should always bear in mind that jury verdicts have little or nothing to do with the law, and precious little to do with the evidence.

Jurors see what they want to see and even intelligent, professional people often misunderstand the instructions.

I was once on a jury in Virginia where a man was charged with burglary and conspiracy, two major felonies. The cops had caught two young burglars and turned one to testify against the “fence.” The guy had the stolen goods and didn’t deny having them or knowing they were stolen, but the only direct evidence of the charges against him was the kid who testified.

Even though the instructions clearly specified that the uncorroborated testimony of an accomplice should be ignored, half the jury wanted to convict on all charges because they “knew” he was guilty, an older man using young burglars.

It took the other half of us a couple of hours to convince them they were wrong. Included among the “hang him” jurors was an insurance broker, a schoolteacher, and a CPA.

At least the time forced the County to buy us dinner.

Harvey’s Honda then swerved in front of Walker’s van, forcing [???] Walker to take evasive action [???]. Eventually Harvey pushed Walker’s van off the side of the road [how, if Harvey was in front of him?], where he stopped.

Okay, Walker’s van was now BEHIND Harvey’s Honda. Why did not Walker take this opportunity to call 911 or have his wife call them, put on his emergency flashers and slow way the heck down, and wait for Harvey to either give up and drive on, or for the police to arrive (the REAL police, the ones whose badges actually mean something in Maryland), since every man and his dog being caught up in the traffic jam on the road would be calling 911, and would also be (captive) witnesses should Harvey try anything nefarious?

Was Walker the husband and father (and out of state cop who had no jurisdiction in the state he was playing road-rage in) really looking for the best way to keep himself, his wife and his kiddies safe? Or was he focused on “getting even” with a driver who’d allegedly dissed him, regardless of the safety of his innocent and vulnerable passengers?

    MarkS in reply to Amy in FL. | July 28, 2014 at 9:04 am

    Mrs Walker testified, if I recall correctly, that intermittent with fumbling to “unlock” her phone she was gazing upon the advancing duo of Pidel and Harvey which kinda calls BS on her husband not knowing Harvey’s whereabouts until he had closed to ten feet. As for getting even for being dissed the prosecutor suggested as much in his opening arguments. Again, this is from my less than stellar memory, gleaned from my since discarded issues of the Annapolis Capital newspaper.

    not_surprised in reply to Amy in FL. | July 28, 2014 at 11:35 am

    The only way I see the facts mesh is if indeed in avoiding Harvey’s Honda, Walker did go over the bumps and pulled over to inspect tires. Assume Harvey pulled over a ways in front and backed up. That is how I can see Walker (a cop) not having situational awareness at the time he immediately stopped. once he got to the back of the van, he could have been (reasonable) unaware of the activity up front, but still a trained cop by the side of the road? I’d be checking for traffic, etc.

    bildung in reply to Amy in FL. | July 28, 2014 at 1:13 pm

    Well, my goodness–Why didn’t Walker also offer to give the drunken oaf a shine and manicure too?

Richard Aubrey | July 28, 2014 at 9:04 am

Were I on the jury, I’d be interested in just how safe jumping in the car would have been. That would require diagrams, traffic patterns, posted speeds, etc.
As to retreating, pulling over and stopping is about as clear a retreat from a road duel as can be imagined. So W already retreated once. Then he’s supposed to decide that getting back in his car and presumably becoming a target for renewed road dueling is the safer course.
So he’s stuck on foot until H reaches a distance which is simultaneously far enough from H’s car that jumping in and taking off would give him a safe lead and not so close that W can’t actually do that.
So you draw a line from H’s car to W’s car and somewhere in there is maybe eight feet which meet–presumably–that requirement. W did not correctly calculate that.
Now, suppose H had stood in front of W’s car when W was attempting to get back on the road. Can’t run over the guy, or even brush him with a wing mirror. That means backing up. Even back-up cameras are limited. It’s not as if you turn your seat and steering wheel 180 degrees and are looking out the back window.
I used one this weekend in a ’14 Impala which apparently turns and gives you a view of where it thinks you’re going according, I suppose, to how the steering wheel is turned. But, like all of them, in bright light you can’t see it anyway without leaning down and squinting and taking a second or two for the eyes to adjust. Easy enough to do when you’re backing out of your driveway, between looking right and left for cars coming down the street, boys on skateboards trying to impress girls or texting. And you can’t see far enough back in W’s situation to see people coming up behind you at, say, thirty MPH. The back-upcamera is a dead issue.

    tom swift in reply to Richard Aubrey. | July 28, 2014 at 9:44 am

    Can’t run over the guy, or even brush him with a wing mirror.

    Why not?

    Even if Walker had whacked Harvey with his mirror hard enough to knock him down while making his escape, he wouldn’t be facing first degree charges now.

    Defense certainly isn’t going to claim that Walker couldn’t be sure he wouldn’t hit Harvey with his mirror, so in one of those “split second decisions” he decided to put three bullets into him instead.

      not_surprised in reply to tom swift. | July 28, 2014 at 11:42 am

      I don’t see driving past someone hostile who might be armed as a ‘safe’ retreat. what’s to stop them front shooting point blank at you as you drive by?

    inspectorudy in reply to Richard Aubrey. | July 28, 2014 at 11:09 am

    I believe that your premise of “Not whacking him with the mirror” was not an option is incorrect. Because W had already pulled over to defuse the situation he showed that he would rather escape rather than have a confrontation. Then seeing the same two guys walking towards his car would tell him that things were about to get much more personal and would leave his family at the mercy of the two men should he fail in his attempt to stop them. At that point had he put his van into drive and driven away he would have been safer and in much less trouble than he is today, the rock throwing theory notwithstanding. I am not saying you are wrong but W’s actions do not indicate a man who felt desperate and reacted in a panic but one that took deliberate actions that showed very little fear and a lot of determination and bravado. Since no gun was seen by W of the approaching men he had every reason to feel that driving away was the safest choice. I have sympathy for W and understand his actions because as a cop he is trained to deal with physical threats. But since his family was involved he had to change his actions to insure their safety. BTW, if the jury has any blacks on it I believe they will either hang it or persuade the rest to acquit. See OJ verdict.

      tom swift in reply to inspectorudy. | July 28, 2014 at 11:50 am

      if the jury has any blacks on it I believe they will either hang it or persuade the rest to acquit. See OJ verdict.

      Maybe, but I don’t know that we need postulate blatantly racist black jurors in the OJ case. Recall that the jury was sequestered during the entire circus performance; everyone must have been desperate for the damn thing to end. I doubt they even bothered to debate anything – just pick a finding, any finding, quickly agree on it, and get the hell out of there.

      I probably would have found that tempting myself, and I’m about as black as an albino polar bear.

        inspectorudy in reply to tom swift. | July 28, 2014 at 12:18 pm

        The post trial interviews with some of the jurors did not indicate that attitude by the black jurors. They felt that the evidence was not there to convict. I think they wanted a color video of OJ actually cutting off the head of his wife as “Evidence”.

Richard Aubrey | July 28, 2014 at 9:56 am

tom swift. My reference to the wing mirror was part of my impatience with the duty-to-retreat law. Clearly, being knocked down is not the same as being dead and being tried for knocking an assailant down during an attempted retreat is less of a threat to one’s future.
As I said earlier, exaggerating (but maybe not), if an assailant swings at me and misses and falls down and hurts himself because I didn’t get my family out the emergency exit of a restaurant fast enough–should have started when his car jumped a curb coming into the parking lot–I could be guilty (I exaggerate but maybe not).
Point is, if H were standing in front of the vehicle, W could only back up, a dangerous process. Now, H wasn’t standing in front of W’s vehicle, daring him to move forward but the possibility might have occurred to W if he was thinking about getting into his car. Which, were I the defense attorney, I would certainly have W recall thinking.

    Olinser in reply to Richard Aubrey. | July 28, 2014 at 10:03 am

    If Walker had tried to use his car to get away and in the process ran over and killed Harvey, I would argue that this would be a borderline slam dunk for acquittal. We would have a man that has his family in the van and wants no part of a roadside brawl, and tried to get away. Harvey tried to force him to stop the car, and got hit in doing so. Slam dunk for the defense.

    Instead we have Walker stopping his car and gunning down an unarmed Harvey before he even gets into conversation distance. Walker didn’t try to get away, he went straight to his gun. Which is why he is on trial, and in my opinion, about to be convicted.

    tom swift in reply to Richard Aubrey. | July 28, 2014 at 10:17 am

    if H were standing in front of the vehicle, W could only back up, a dangerous process

    If Harvey is standing in front of Walker’s car, he’s a threat to nobody. All Walker would have to do is sit in his car and wait for the gendarmerie to arrive. He wouldn’t even have to roll up the windows, because Harvey would be in front, where he’s helpless. Walker would even have plenty of time to go through his intimidation routine again, waving the badge and pistol around where Harvey could see both and devote some thought to the perils of threatening an LEO. The only thing Harvey could do which might be dangerous is draw a gun of his own (which he didn’t have), or hunt for a rock with which to damage Walker’s windshield (though he’d most likely have to abandon his position in front of the van to do that, allowing Walker to drive off unimpeded). At worst, Walker would have to shoot Harvey, as we know he was both willing and able to do, but with the advantage that he’d attempted to satisfy the duty to retreat (ie, to the relative safety of his locked van).

      not_surprised in reply to tom swift. | July 28, 2014 at 11:38 am

      not defending or acussing btw, but walking towards Harvey (closing the distance) is risky and opposite of a safe retreat. perhaps this is why he didn’t get back in the van. the move forward could also be interpreted as hostile by Harvey. the call to stop seems appropriate to defuse. he certainly could not run away on foot and leave his wife, so some of what he says makes sense.

        tom swift in reply to not_surprised. | July 28, 2014 at 11:57 am

        walking towards Harvey (closing the distance) is risky and opposite of a safe retreat.

        Walker was waiting for Harvey’s approach while standing behind his open car door. He was practically inside the car already.

        the call to stop seems appropriate to defuse.

        If he ever made such a call.

        he certainly could not run away on foot and leave his wife

        Which nobody has proposed. One of Walker’s problems here is that if he’d retreated in his van, the wife and kids would have retreated with him automatically. It would have been a wise move, as well as a legally required one.

          JackRussellTerrierist in reply to tom swift. | July 28, 2014 at 12:12 pm

          Walker’s biggest problem is explaining how he came to be pulled over in the first place, and that’s why his story about that keeps changing.

        JackRussellTerrierist in reply to not_surprised. | July 28, 2014 at 12:20 pm

        What call to stop?

    Gremlin1974 in reply to Richard Aubrey. | July 28, 2014 at 1:09 pm

    Still my biggest problem is that I can’t bring myself to believe a trained LEO who was just “forced off of the road” did not keep the rear end of Harvey’s car as his focus until it was well and truly gone.

    Nor do I believe that at dusk, when Harvey’s break lights would have been very visible from 150 feet away, that neither Walker nor his wife noticed Harvey stopping. (Generally, I completely discount the wife’s testimony in its entirety due to obvious bias.)

    Harvey’s body was 6 feet from Walkers bumper according to crime scene evidence, but Harvey’s car was 150’is feet away. Go outside and take a look at 150 feet, its not as far as you think, but it is plenty of distance to cross which should have given Walker other options, at least in my mind.

    Also, I can understand an inexperienced driver not to be able to tell the difference between rumble strips and a flat, but a cop?

Richard Aubrey | July 28, 2014 at 10:38 am

Tom Swift.
While H is standing in front of the car, what–W would be thinking–would Pidel be doing?
Whatever we think about W’s cop training, someplace in it he must have been instructed in what to do, or what might happen, when facing two or more guys. At the very least, you have to think about it and not let the bigger threat become your entire focus.
So, although it didn’t happen, it could have been part of W’s calculations. The defense would be derelict if they did not keep pounding on the fact there was this other guy who was a potential threat.

    tom swift in reply to Richard Aubrey. | July 28, 2014 at 10:54 am

    The defense would be derelict if they did not keep pounding on the fact there was this other guy who was a potential threat.

    Too late for that.

    “Walker testified that Pidel stopped, which is why he did not shoot Pidel.”

    Walker has already testified that he didn’t see Pidel as a threat.

    If the situation had changed, then perhaps shooting Harvey or Pidel might have been a good idea, and perhaps even a legally defensible one. But not until then.

not_surprised | July 28, 2014 at 11:27 am

Hard to say with the information on hand, but If I understand correctly Walker was behind or towards the back of his minivan inspecting damage unaware Harvey had stopped in front? how far in front?

I can see how it would be difficult to retreat without risk in two men (unknown armed status) coming toward you. you have to close the gap towards them to get behind the wheel and by the time you put in it drive you could be shot through the window.

That’s how I see it. Now, clearly this is some hostility and aggressive behavior that triggered his fear. but who is to say the guys weren’t walking over to apologize (not..).

Interesting case, and I agree with many here his testimony might help, but the contradicting testimony might sway the jurors to think he did have time.

How far away was Harvey when he got shot? car length? was he already by the driver door of the minivan?

    Gremlin1974 in reply to not_surprised. | July 28, 2014 at 1:32 pm

    “Hard to say with the information on hand, but If I understand correctly Walker was behind or towards the back of his minivan inspecting damage unaware Harvey had stopped in front?”

    If you believe that the cop actually took his eyes off of the vehicle that had just ran him off of the road before it was well and truly gone, which I call BS on.”

    “how far in front?”

    Right around 150 feet.

    “I can see how it would be difficult to retreat without risk in two men (unknown armed status) coming toward you. you have to close the gap towards them to get behind the wheel and by the time you put in it drive you could be shot through the window.”

    Which is just a relevant as saying; “But they could have had a nuke.” No evidence that they were armed, speculation doesn’t matter. According to what I have read, not even Walker testified that he thought they were armed or might be.

    “How far away was Harvey when he got shot?”

    Not sure if there has ever been a clear answer on how far away Harvey was when Walker shot him the first time, but his body was 6 feet from Walkers front bumper.

Char Char Binks | July 28, 2014 at 11:35 am

How far away was Harvey when he was shot? Sorry if I’m not up to speed, but I haven’t been able to watch the trial, and I’ve read conflicting accounts of how far apart H and W were when shots were fired. Two angry, aggressive, burly men at 10′ could definitely be an imminent threat, but three shots seems at least two too many for self defense, if H stopped moving forward after the first one.

    Gremlin1974 in reply to Char Char Binks. | July 28, 2014 at 1:36 pm

    I don’t remember any testimony or evidence that says Pidel got anywhere near Walker or his car until after Harvey was shot and down. So it’s not like they were advancing together as a unit. If I remember correctly a couple of the witnesses put Pidel closer to Harvey’s can than Walker’s Car when shots were fired, but I could be wrong on that one.

Richard Aubrey | July 28, 2014 at 12:10 pm

tom swift.
I was talking about W’s calc that, possibly, H stands in front of the W vehicle and Pidel–who could certainly start–was free to do something or other dangerous. To presume that P came all over permanent teddy bear just at that moment and the evidence for it was so obvious that W couldn’t possibly have missed it wouldn’t even appear to a lame-ass prosecutor as a good sale to a jury.
I was making the point that driving forward might not have seemed like a possibile or safe avenue of retreat. Leaving backing up into traffic, ditto.
IF we’re going to insist that, as a cop, W should have known this or that, we have to allow for the fact that he might. And then were would we be? He might have been trained to and selected for the capability to see various scenarios playing out as circumstances changed. Cops are supposed to be able to do that.

    tom swift in reply to Richard Aubrey. | July 28, 2014 at 1:24 pm

    “Retreat” doesn’t actually imply that Walker had to drive anywhere. Putting himself in a position of relative security would constitute retreat from an impending assault by even two apparently unarmed men.

    Before cell ‘phones that could have been considered an untenable position and hence not a practical retreat. Nowadays, not so much. It would certainly have given the wife time to figure out how to unlock her phone.

    Gremlin1974 in reply to Richard Aubrey. | July 28, 2014 at 1:44 pm

    My biggest problem is the distances involved. No 150 feet isn’t that far away, but it is enough distance that Walker could have waited for Harvey to get 50 or more feet away from his car then just drive on past him. Unless you buy Walkers story about him not knowing that Harvey was there, I mean Harvey had only, according to Walker, “forced him off of the road”, hurled racial slurs, and threatened to kill him, so I can see why he would let his awareness of Harvey slide to check damage to his car that could only have been cosmetic…..yea, right.

This case was never about the law. It was going to be about a jury deciding when a person can actually stop running and confront a determined attacker.

This incident stemmed from what has always been characterized as a an accidental incident of minor consequences. One party, Harvey, threatened the other parties, Walker and his family, by word and deed for a considerable distance on the roadway. During that time, Wakler showed Harvey and Pidel that he was armed [according to previous statements made by Pidel]. When Walker finally stopped, Harvey, who was preceding the Walker vehicle, pulled over Got out of his vehicle and walked back toward Walker, in a threatening manner. Wakler again deployed his pistol, which was clearly seen by Pidel [his stated reason for stopping HIS advance]. Harvey continued to advance, in a threatening manner, into the muzzle of a drawn pistol. And, Walker shot him. He continued to advance and Walker shot him two more times. None of this is, apparently, in dispute.

Now Maryland has this quirky little statutory language which requires that someone run from a threat, unless they are unable to safely do so. There is no apparent dispute that Walker attempted to do this, as well as warning his assailants that he was armed. His assailants continued to pursue him and his family. When Walker pulled over, Harvey pulled over as well and continued the assault.

The true question that jury will base their decision on is not whether Walker could have continued attempting to escape, but could he, and his family, have done so safely and how long and how far, and under what conditions, does a person have to run to satisfy the statutory requirement for retreat? The defense has to attempt to get some of the jurors to identify with Walker. And his testimony was necessary to show that he had fled from a threat and that when he pulled over, he assumed that the threat, which was ahead and puling away, was over. Only to have the threat reappear and continue. If some of the jury can be convinced to view Walker as simply a man attempting to guard his family from a persistent violent threat which he had fled from and which, even in the face of an obvious deadly weapon, continued to be presented through a reasonable means, then no conviction will result. We’ll have to wait and see how ell this goal was accomplished.

    The duty-to-retreat is not a checkbox, that once checked in the course of an encounter need not be bothered with again.

    If you have a safe avenue of retreat you are required to take advantage of it before resorting to deadly force in self-defense.

    This is true whether it is the first time you are attempting to retreat, or the 100th time you are attempting to retreat, so long as a safe avenue of retreat remains available to you.

    Only when a safe avenue of retreat no longer exists may you resort to taking another person’s life in self-defense.

    All of this in duty-to-retreat states, of course.

    –Andrew, @LawSelfDefense

      I have to disagree. The “duty to retreat” is most definitely a checkbox. There are limits to everything. One can continue to retreat literally forever. But, if the attacker does not cease the pursuit and assault, then sooner or later the person under assault has to take a stand or be overwhelmed. The point at which this occurs is subjective. And, that is what the jury will be asked to determine.

      Could Walker have re-entered his vehicle and continued to attempt to flee from Harvey? Certainly. Would it have been safe and effective? Unknown. Would Harvey have broken off his pursuit of Walker, if Walker had driven off? Unknown. However, the actions prior to and during the fatal confrontation suggest that Harvey would have continued the pursuit. Would continued pursuit have placed Walker, his family, Harvey Pidel and the general public at risk? Probably.

      On top of that, Harvey was the aggressor. Harvey probably knew that Walker was armed [Pidel stated that he had seen Walker’s pistol]. Walker and family, parked on the roadside, posed no threat to Harvey. Harvey pulled off the roadway, exited his vehicle and approached Walker in an aggressive manner. And, Walker had attempted to disengage from Harvey’s pursuit for a considerable distance, even pulling off the road to allow Harvey to proceed on his own.

      Now, the statutory language requiring an attempt to retreat does not set a time of distance limit for such attempts. So, the defense has to be two pronged, here. The first prong is that Walker did not have to retreat, because he was in defense of his family. This loophole loses traction if it can be shown that Walker himself could have “safely” escaped with his family. As it is likely that Walker would have attempted to use his vehicle, in which his family was seated, then it stands to reason that if Walker could have been required to retreat, by vehicle, then it would have been safe for his family to do so, as well. The second prong of the defense is that Walker attempted to retreat, several times during an ongoing assault. He drove away for a considerable distance with Harvey in pursuit. He displayed a handgun and warned Harvey to break-off his pursuit. He pulled off the roadway, while Harvey was traveling in front of him, in order to break contact. And none of it worked. Harvey continued to aggressively threaten Walker, and his family, and even advanced into a loaded firearm. Now, the question for the jurors will be had Walker attempted to retreat enough. Was he supposed to continue retreating in the face of a determined aggressor, in circumstances which would likely have placed he, and his family, in continued jeopardy?

      Jury decisions are often decided on issues other than statute. And, when statute does not clearly exonerate your actions, then the defense must appeal to the sympathies and common sense of the jurors. It only takes one sympathetic juror to save a defendent.

        “I have to disagree. The “duty to retreat” is most definitely a checkbox. There are limits to everything. One can continue to retreat literally forever. But, if the attacker does not cease the pursuit and assault, then sooner or later the person under assault has to take a stand or be overwhelmed. The point at which this occurs is subjective. And, that is what the jury will be asked to determine. ”

        You’re entitled to disagree. That doesn’t change that you’re mistaken as a matter of MD law.

        If, as you describe, an effort at retreat would result in the person being assaulted being “overwhelmed,” by definition safe retreat is no longer possible. The duty to retreat exists only as long as safe retreat is possible–once no longer possible, there is no longer a duty.

        “Was he supposed to continue retreating in the face of a determined aggressor, in circumstances which would likely have placed he, and his family, in continued jeopardy?”

        So long as safe retreat IS possible, YES, you are required to do it the first time, and the 10th time, and the 50th time, and the 100th time, before you can use deadly force in self-defense.

        “Now, the statutory language requiring an attempt to retreat does not set a time of distance limit for such attempts.”

        It’s MD, so it would be case law, but correct–the law sets no limit on how far or how often you must retreat–because there IS NO LIMIT so long as you can continue to do so safely. In duty-to-retreat states the phrase commonly used is “until your back is against the wall”–in other words, until safe retreat is no longer possible.

        It’s really rather straightforward. If you can safely retreat from an assaulter, MD law does not allow you to exercise the alternative of using deadly force against that assaulter.

        Period.

        –Andrew, @LawSelfDefense

    tom swift in reply to Mac45. | July 28, 2014 at 1:30 pm

    This case was never about the law. It was going to be about a jury deciding when a person can actually stop running and confront a determined attacker.

    Not so. That part’s easy. Duty to retreat means just that, so long as retreat is feasible.

    When Walker finally stopped, Harvey, who was preceding the Walker vehicle, pulled over Got out of his vehicle and walked back toward Walker, in a threatening manner.

    What constituted a “threatening manner” has not been established. In any case, Walker claimed not to have observed Harvey’s approach, in which case he wouldn’t have been aware of any “threatening manner”. Witnesses claim that he did indeed observe the approach, but didn’t support the “threatening manner” claim.

    Walker shot him. He continued to advance and Walker shot him two more times. None of this is, apparently, in dispute.

    It certainly is in dispute. By witnesses, in fact. Not even Walker’s wife’s testimony supports that story.

    Now Maryland has this quirky little statutory language which requires that someone run from a threat, unless they are unable to safely do so. There is no apparent dispute that Walker attempted to do this

    There sure is dispute. Unless you’re referring to the game of bumper dodge-cars as retreat.

    When Walker pulled over…

    After which, Walker never even tried to retreat.

    Harvey pulled over as well and continued the assault.

    What assault? Harvey was walking. Walker’s wife claimed that after he took the first shot, Harvey was standing … aggressively.

    The true question that jury will base their decision on is not whether Walker could have continued attempting to escape, but could he, and his family, have done so safely and how long and how far, and under what conditions, does a person have to run to satisfy the statutory requirement for retreat?

    Until they’re out of Maryland. Or until officialdom intervenes – a matter of minutes.

      MouseTheLuckyDog in reply to tom swift. | July 28, 2014 at 2:52 pm

      Walker shot him. He continued to advance and Walker shot him two more times. None of this is, apparently, in dispute.

      It certainly is in dispute. By witnesses, in fact. Not even Walker’s wife’s testimony supports that story.”

      Only if Harvey in a stance that looks like he is about to charge Walker doesn’t support his story.

        tom swift in reply to MouseTheLuckyDog. | July 28, 2014 at 3:24 pm

        So.

        Harvey wasn’t charging, he wasn’t within arm’s reach, he displayed no weapon.

        Where’s the imminent deadly assault which would justify all those bullets?

Several comments on the OJ Simpson acquittal verdict. Especially the black jurors. As if the event Det. Walker having 2 or more black jurors will give Walker a hung jury or acquittal. The same reasoning could be used for Robert Blake’s acquittal. Considering the much longer history of white jurors hanging and purposely acquitting people of murder.

Char Char Binks | July 28, 2014 at 12:21 pm

Unless Walker’s has significantly contradicted himself, or other witnesses do, his account, as I read it in the Capital Gazette, seems like credible self defense. Walker flashing his badge from the car seems credible, flashing his gun (as per Pidel) seems far fetched. Would Pidel and Harvey have approached him unarmed if so? It seems like Harvey was a hot-headed bully, and was shot 6′ to 10′ feet from W’s van, which is close enough to justify a self-defense shooting. Admittedly, I don’t know how badly W has contradicted himself, or how credible the opposing witness accounts are, but it’s starting to look like a good kill.

    MouseTheLuckyDog in reply to Char Char Binks. | July 28, 2014 at 1:00 pm

    Walker wore his gun in an ankle holster. There is no way he was going to retrieve it while driving.

      Gremlin1974 in reply to MouseTheLuckyDog. | July 28, 2014 at 2:27 pm

      I can reach my ankle holster while driving, I just went and checked.

        “I can reach my ankle holster while driving, I just went and checked.”

        Of course you can. Indeed, a sitting position is uniquely well-suited to reaching an ankle holster.

        One limitation of an ankle holster, however, is that if you upright and find you need to draw your pistol, it is slow.

        Because it is slow, it is not likely that Walker was suddenly surprised by the proximity of Harvey, and only then drew his pistol and shot him (as, for example, a strong-side hip holster worn by someone skilled in the use of a pistol might allow). If, as the evidence suggests, Harvey was within 10-15 of Walker when Walker shot him, Walker must already have had his pistol in hand or Harvey would have been on him before it could have been drawn from his ankle holster.

        If Walker was standing there, gun in hand, waiting for Harvey to come closer: (1) Walker necessarily believed he was facing a developing threat of death or grave bodily harm (the only circumstances under which use of the pistol would be legally justified) and (2) he had time to sit in his minivan, put it in reverse, and roll backwards at a leisurely pace, thus meeting MD’s duty to retreat before using deadly force in self-defense.

        The argument that Harvey MIGHT then have engaged in actions that foiled this attempt at retreat is speculative and irrelevant. Coulda-mighta is not a legal defense.

        In any case, whatever actions Harvey might have taken and whatever counter-actions Walker might have taken in response, the legal duty to retreat remains–so long as there existed a safe avenue of retreat Walker would have been required to take advantage of it prior to using lethal force against Harvey.

        –Andrew, @LawSelfDefense

          bildung in reply to Andrew Branca. | July 28, 2014 at 4:11 pm

          Why do you say Walker was standing there, ‘waiting for Harvey to come closer”?

          How do you know that–couldn’t he just as likely have been “waiting”–all of a few split seconds, under duress–for Harvey to stop and turn around?

          You imply there was some leisurely amount of time involved here and, consistent with the rest of the lynch mob, you buy into the notion that shifty ol Walker baited big dumb Harvey to his death.

          Any testimony to the effect that Walker made statements consistent with this perverse notion–IE, egging Harvey on, inviting him in–while Walker kicked back and strummed his fingers?

          Or did he try to waive Harvey off?

          And, as a good technician, perhaps you can define exactly for us how far back Walker would need to roll before satisfying MD’s ‘duty to retreat’?

          I mean, surely there’s a precise number of feet enshrined in the statutes, correct? Roll this far back, you’re OK!
          One foot short–Murder 1!

          Of course there’s no such definition; it all reduces to a judgment call, just like the assumption on your part he had time to get in the car and roll back at all.

          Its hopeful for Walker that this judgment resides with common sense citizens, not legal apparatchiks.

          tom swift in reply to Andrew Branca. | July 28, 2014 at 4:38 pm

          How far did Walker have to retreat?

          As far as it takes.

          Walker obviously didn’t do that. There’s no judgment call involved, just outright failure.

          Ragspierre in reply to Andrew Branca. | July 28, 2014 at 6:23 pm

          Buldung doesn’t read any better than he thinks…

          “If Walker was standing there, gun in hand, waiting for Harvey to come closer”

          IFFFFFF

          bildung in reply to Andrew Branca. | July 28, 2014 at 7:16 pm

          Swift: “As far back as it takes”?

          A mile, two? This kind of Monty Pythonish, absurd to infinity type response is simply not serious.

          And judgment must be exercised as to whether there was time to retreat at all–you and Branca, for whatever reason, are damned sure there was but I’m not and several jurors may not be either.

          Ragspierre: Branca clearly elucidates his belief that Walker had to have already been holding the gun, since, “as the evidence suggests”, Harvey was too close for him to get it out of the ankle holder quickly from a standing position.

          Branca’s ‘If’ is not genuinely conditional; it is purely rhetorical.

          There is one other possibility: maybe Walker’s just quicker with the hardware than the cowboys on this forum.

          “maybe Walker’s just quicker with the hardware than the cowboys on this forum.”

          If you can figure out a way to test that hypothesis, I’ll put up a reasonable wager. Speaking, of course, only for myself.

          –Andrew, @LawSelfDefense

          Ragspierre in reply to Andrew Branca. | July 28, 2014 at 7:43 pm

          I always LOVE IT when Buldung goes into his clairvoyant mode!

          He knows the murderous intent of teenage kids by the volume of their music in a car.

          He knows the hidden intent behind the plain meaning of someone like Andrew who makes a living with words, and writs professionally, too.

          Always impressive. And good for a laugh…!!!

          Actually, it is more likely that Walker did not return the pistol to his ankle holster, if he drew it in the vehicle. To do so would be unwieldy and dangerous if driving. It is much more likely that he placed the weapon on the seat or center console, or shoved it into his waistband when he exited the vehicle.

          Agreed, Mac45. Holstering a pistol into an ankle holster is generally a two-handed and time-consuming affair. Indeed, it’s most convenient to holster the pistol BEFORE strapping on the ankle holster–it’s very rare that one would try to holster the pistol with the ankle holster already affixed. And once the pistol is drawn most ankle holsters collapse, making re-holstering difficult.

          –Andrew, @LawSelfDefense

        MouseTheLuckyDog in reply to Gremlin1974. | July 28, 2014 at 3:25 pm

        OK. Now get on a busy highway and draw while driving.

          Gremlin1974 in reply to MouseTheLuckyDog. | July 28, 2014 at 4:29 pm

          Admittedly, I wasn’t on an interstate but I was on a busy city street. But as Andrew pointed out it is slow and not easy to do, its also not really relevant to this case.

          The times I’ve dropped items on the floorboard of my vehicle and simply picked them up–while driving–are too numerous to be worth counting, and never once did I so much as swerve, much less crash. I’ve surely done it many hundreds of times in ~35 years of driving hundreds of thousands of miles on multiple continents.

          Further, I’ve actually worn and drawn from an ankle holster, including under pressure, in a variety of circumstances and positions. Although it happens not to be my personal preference for CCW, for any number of reasons, I consider myself reasonably knowledgeable and experienced in that form of carry.

          The notion that drawing from an ankle holster while driving a typical American auto, minivan, or SUV (absent some kind of pre-existing physical limitation of range of motion) is at all arduous is silly. It’s particularly silly to suppose it would be difficult for anyone who routinely carries in an ankle holster.

          –Andrew, @LawSelfDefense

      JackRussellTerrierist in reply to MouseTheLuckyDog. | July 29, 2014 at 12:43 am

      LOL! People bend at the waist to reach an ankle holster. When seated in a car, you’re bent at the waist. Someone seated is in a better position to reach an ankle holster than a standing person or one laying down.

    bildung in reply to Char Char Binks. | July 28, 2014 at 1:31 pm

    IIRC, Pidel trotted out some cock and bull about having seen Walker flash the gun while on the road, but, GET THIS,
    not telling Harvey about it.

    So either Pidel let his fellow woman beater ignorantly charge an armed man or he’s lying and Harvey did know about the gun and comes off looking even worse.

    The lie still leaves Harvey the aggressor; the probable truth leaves Harvey looking completely deranged and dangerous.

    It is Harvey, not Walker, who plainly displayed a depraved mind.

    Knowing of the weapon, Pidel approached in a manner that did not connote imminent danger–IE–he ‘hung back’ a bit and saved his own life.

    The difference in outcomes for Harvey and Pidel is the strongest evidence in Walker’s favor.

    Some say they cant believe Walker testified. I cant believe Pidel did.

      Gremlin1974 in reply to bildung. | July 28, 2014 at 1:54 pm

      “It is Harvey, not Walker, who plainly displayed a depraved mind.”

      A fact that only matters if Harvey had harmed someone. Also, Harvey is not on trial so his “depraved mind” really doesn’t matter, since no one but Harvey can testify to his actual state of mind, anything else is speculation.

    tom swift in reply to Char Char Binks. | July 28, 2014 at 1:37 pm

    his account, as I read it in the Capital Gazette, seems like credible self defense

    Well, of course. He’d have to be pretty dumb to tell a story which didn’t.

    Gremlin1974 in reply to Char Char Binks. | July 28, 2014 at 2:26 pm

    “Would Pidel and Harvey have approached him unarmed if so?”

    Yep, humans do stupid and boneheaded things every second of every day, especially when they have been drinking.

    “It seems like Harvey was a hot-headed bully,”

    Yep, which gives exactly zero reason to take his life, the world is full of hot headed bullies, you can’t shoot them its called murder.

    “and was shot 6′ to 10′ feet from W’s van,”

    After crossing another 140 feet to get there. During which time Walker would have us believe he was completely unaware of the approach of the man who had run him off of the road, threatened his life, and hurled racial slurs at him.

    “which is close enough to justify a self-defense shooting.”

    You need more than distance to justify a self defense shooting. How was walker in fear of death or great bodily harm from the unarmed man? Also, was his fear reasonable? Also, would a reasonably prudent person have had the same fear of death or great bodily harm? The distance is actually not as relevant as you seem to think.

    “good kill.”

    Probably the most offensive thing I have read on this blog thus far. There is never a “good kill” of another human being. Even lawful self defense ins’t a “good kill”. You statement puts Harvey’s life at the level of an animal and proves that you are wholly with out honor or credibility.

      Char Char Binks in reply to Gremlin1974. | July 28, 2014 at 4:18 pm

      People do stupid things, but it’s unlikely that they would have brought fists to a gunfight if they had seen the gun first. Bullying, and road raging, often make self defense necessary. Parking 140′ from Walker was also far enough away that maybe W didn’t notice, and thought H was gone. Maybe he was preoccupied with checking for damage to his car while H and P walked toward him; the thrown bottle and the rumble strip gave him reason enough to think there might be damage. Mere proximity never justifies a self defense shooting BY ITSELF ALONE, but it’s absolutely necessary to justify it against an unarmed man (a point totally lost on Trayvonites who used the “point-blank” shooting against GZ because it sounded sinister, when in fact it was exculpatory). A seemingly strong and angry man like H could easily be a threat to W. Any fully justified self defense killing is a “good kill”. Good riddance to violent criminals.

        Gremlin1974 in reply to Char Char Binks. | July 28, 2014 at 5:01 pm

        “but it’s unlikely that they would have brought fists to a gunfight if they had seen the gun first.”

        Having worked in ER’s over the last 20 years, I can tell you that you are spectacularly incorrect on that point.

        “Bullying, and road raging, often make self defense necessary.”

        I would like to see some stats on that one, since use of deadly force in self defense isn’t actually all that frequent.

        “Parking 140′ from Walker was also far enough away that maybe W didn’t notice, and thought H was gone. Maybe he was preoccupied with checking for damage to his car while H and P walked toward him;”

        Only if Walker had zero situationial/tactical awareness, which I refuse to believe.

        “the thrown bottle and the rumble strip gave him reason enough to think there might be damage.”

        Seriously? Rumble strips don’t sound like a flat and Walker is far from an inexperienced driver.

        “A seemingly strong and angry man like H could easily be a threat to W.”

        “Threat” yes, agreed, but I note that you did not say deadly threat, which is what is required. Yea, Harvey was bigger than Walker, that is not always and advantage. Also we aren’t talking about an insurmountable size difference, especially for someone with even a basic amount of training.

        “Any fully justified self defense killing is a “good kill”.”

        Hey, that could just be a difference in our respect for human life, (not meant as in insult towards you). I believe that every violent death is a tragedy, but then again I have seen more violent deaths than most folks in my lifetime.

          Char Char Binks in reply to Gremlin1974. | July 28, 2014 at 6:59 pm

          Maybe W was an experienced driver, but that doesn’t make him a “car guy”, or mean he was much experienced with either rumble strips or flat tires, or bottles thrown at his van, or being run off the road by angry drivers. And I was referring more to the threat of W being outnumbered two to one, and that his avenue for safe escape was maybe blocked or compromised by H and P. If he actually did have a safe way to escape or avoid shooting, or if he actually did invite the fight, by gesture or otherwise, as at least one witness claims, then he’s probably guilty, but the prosecution has to prove it.

      bildung in reply to Gremlin1974. | July 28, 2014 at 7:26 pm

      Are you seriously postulating that its impossible for an unarmed man to do great bodily harm, therefore no one could rationally fear such a result?

      I think the law says you have to fear great bodily harm, not actually undergo it to make sure its possible before you shoot.

      We’ve got the Zimmerman example of an unarmed man doing great bodily harm and one here who’s potential for damage far outweighs Martin’s.

      People get beat to death every day–and if Walker had let Harvey on him a jackal like Pidel would have been right behind him.

      Do you think two unarmed men can do great bodily harm?

      Just last week a couple of unarmed mopes beat a professor to death in Chapel Hill on a residential side street in the middle of the day.

Richard Aubrey | July 28, 2014 at 12:53 pm

As A.B. keeps saying, W. had a duty to retreat if he thought he could safely do so. The prosecution has to prove he had at least one opportunity.
That’s going to be difficult. Among other things, driving off is a non-starter because the whole thing had been about road rage vehicle dueling. Silly to try to convince a jury that H would have let the whole thing go if W had taken off, or that H couldn’t have caught up to W. Or, to put it on another level, that W would be required to think taking off was definitely safe.

    Gremlin1974 in reply to Richard Aubrey. | July 28, 2014 at 2:06 pm

    I couldn’t disagree more. First realize that most likely in the eye’s of the law the “bumper cars” incident could easily be seen as a completely separate conflict, therefore both parties had regained their innocence.

    Its not that difficult to back up at low speed down the shoulder of an on-ramp. Yes, it is illegal, but it doesn’t get you on trial for murder.

    Even if the whole thing was about road rage, that doesn’t mean that you can ignore a “safe avenue of retreat”, even if that avenue of retreat “might” lead to another road rage incident.

    Lastly, speculation about what might have happened, i.e. Harvey could have chased them”, don’t matter, they didn’t happen. That is no different than saying that Walker didn’t drive off because his car might have been struck by a meteor.

    So who suddenly have no duty to retreat on the speculation the the person you are retreating from might pursue?

Richard Aubrey | July 28, 2014 at 12:55 pm

So, since driving off wasn’t looking like a good idea, we have the confused approach on the side of the road. And, since W couldn’t have been expected to flee on foot, we’re back to the vehicle. Which obviously is a lousy idea, given H’s butthead and potentially deadly behavior while both were driving.

    bildung in reply to Richard Aubrey. | July 28, 2014 at 1:47 pm

    Richard, your series of comments make perfect common sense and they describe the simplest and most likely explanation of events.

    But it seems many here at LI are slathering to see Walker get it, while taking an amazingly sympathetic stance towards the ‘porch shooter’ who blasted a teen age black female mope disturbing his peace at 4am.

    As I’ve stated already, dead mopes don’t bother me a bit, so I’m prepared to take a sympathetic posture towards a man who’d never been in trouble and wasn’t asking for any here either.

    Same as Walker.

    But why be supportive of the one and unsympathetic of the other?

      Gremlin1974 in reply to bildung. | July 28, 2014 at 2:11 pm

      Go race bait somewhere else.

        bildung in reply to Gremlin1974. | July 28, 2014 at 3:37 pm

        Go look in a mirror, hypocrite.

          Gremlin1974 in reply to bildung. | July 28, 2014 at 4:10 pm

          Actually go back and read my comments before you start calling me names. I am one of the ones that has been saying that I don’t really think that Mr. Wafer is a good self defense shooting.

          You are so invested in down talking people on this blog you are getting confused. However, none of that matters you are still race baiting and it that is always a small minded and petty argument.

        bildung in reply to Gremlin1974. | July 29, 2014 at 8:56 am

        I used the terms ‘supportive’ and ‘unsympathetic’.

        You may not think Wafer has much of a case but you are clearly sympathetic to him, whereas you demonstrate nothing but contempt for Walker, despite the fact that the case for his shoot is much, much stronger.

        I regard blacks as a group as my political enemies, though not my racial inferiors. If Walker gets convicted, it will be at the hands of a leftist regime he and 98% of blacks helped create and sustain.

        I’m not invested in Walker personally, but you and others are–negatively.

        I stand by my statements.

          Gremlin1974 in reply to bildung. | July 29, 2014 at 2:53 pm

          I am guessing this comment was to me so let me respond.

          I don’t believe that I have show “contempt” for either. I don’t believe either of them have a “strong case”.

          I believe that Wafer was negligent in his gun safety and accidentally shot McBride. I don’t believe he intended to shoot or kill anyone, but he was the one holding the deadly weapon therefore he is responsible, just as when I slid my .45 into its holster this morning I became responsible for that deadly weapon and any damage caused with it while it was in my possession. Wafer is claiming self defense because he has been told that is the only way to keep out of jail. Period end of story.

          I don’t believe that walker wanted to kill anyone. As a matter of fact I believe and have believed since this case came up that that the first shot Walker fired was either due to nerves/poor trigger control or a “warning shot” gone bad. I think he realized he had hit Harvey and (imho) went into “oh crap” mode and shot twice more. Either that or he realized he was committed and continued to fire.

          However, Walker is subject to the law. He should have already been on the phone with 911 the second he was “forced off of the road”. Heck, I would have been on with 911 when the idiot screamed he was gonna kill me. But Walker didn’t, if he had there would be recordings of exactly what he said an did.

          I simply can not believe that Walker, after being threatened, racially slurred, and forced to pull off of the road, just stopped paying attention to where Harvey’s car was. 150 feet isn’t that far away, it is certainly not out of sight and/or tactical awareness range down a straight shoulder with no obstructions to line of sight.

          I think walker was angry, which he had every damned right to be. I hate the N-word, it causes a visceral reaction in me, and I am about as white as you get. To a black person I believe that word coming in the context that it was meant when used by a redneck idiot like Harvey can cause rage, now add that on top of being threatened with death and someone putting your family in danger, hell I would be in a rage.

          I think Walker thought, I am a cop and I don’t have to take this from this redneck idiot and he just stood there wanting to scare the crap out of Harvey. Then when he raised the gun…BANG, and then he went into “Oh, crap mode.”

          I am not unsympathetic towards Walker, who’s life is ruined regardless of the outcome just like Wafer. Yes, I do hold Walker to a bit higher standard because he is a LEO. Were I a juror in walkers case I would never agree to First degree murder, I have a real problem with second degree. Frankly, I think they both should end up with Manslaughter. That’s how I feel, now you can break it down as much as you want.

I am very surprised that so many are attempting to convict Walker of first degree murder! Even more surprising is that so many attempt to read the mind of both Walker and Harvey. It always amazes me when people start assuming that everyone thinks just like they do, in every possible circumstance. Once you ass-u-me you know what someone else thinks! Just consider yourself WRONG, because you most likely are WRONG!

I’m not a lawyer and all I have is my opinion that Harvey was the aggressor and it appears to me that he got exactly what he asked for, shot and killed by a man protecting his family and himself! Drunk and stupid is a bad combination! I understand that local law says you must retreat but it’s just ridiculous!

    I’m not surprised at all. All you have to do is see pictures of Walker and Harve, know the ddescriptions of both men ,it becomes obvious. Maryland is a duty to retreat state. You’d think that would apply to Harvey as well as Walker. Bildung also correct on the way Wafer is receiving sympathy for shooting a drunken McBride, yet Walker gets no sympathyfor sshooting a drunken Harvey. McBride only knocked onWafers door. Compare that to Harvey who purposely chose to follow Walker for cutting into the lane Harvey was in. Harvey enraged ,racially spurring Walker, refusing to stop being confrontational. Even when his friend Pidel ceased hostility

      Char Char Binks in reply to m1. | July 28, 2014 at 4:36 pm

      “Racially spurring” — m1. I’m curious, maybe a lawyer (preferably one specializing in the law of self defense) could comment on this. The shouted epithets certainly show anger on H’s part, but could they be considered provocation, meaning justification, to any degree, on W’s part? I used the term “fighting words” earlier, but I meant them only to show aggression on the part of H. Andrew, does the idea of justification by provocation play into this?

        tom swift in reply to Char Char Binks. | July 28, 2014 at 4:51 pm

        Are you seriously asking if you can shoot a man to death – and then claim it was self defense – because you didn’t like something he said?

        I think I can save Mr AB the effort of crawling from his sick bed.

        The answer is no.

        I meant racially slurring. The sympathy for a more aggressive person(Harvey) getting shot ,over a less aggressive person(McBride) getting shot is very telling.

          All the racial innuendo–subtle and not-so-subtle–is growing increasingly tiresome.

          I suggest it be throttled back. Severely.

          Posting here is a privilege. We are–all of us–guests here.

          No host likes guests repeatedly hurling feces around the living room.

          Fair warning.

          –Andrew, @LawSelfDefense

          Gremlin1974 in reply to m1. | July 28, 2014 at 5:13 pm

          Only if you completely discount all the other situationial differences in the cases. Self Defense cases are probably the most event specific cases you can find.

          Also, you may just need to except that not everyone cares about race even if you do.

      tom swift in reply to m1. | July 28, 2014 at 4:43 pm

      You’d think that would apply to Harvey as well as Walker.

      Harvey didn’t kill anybody, he isn’t on trial, he isn’t invoking self defense. It can’t possibly apply to him.

      Don’t be an idiot.

    Gremlin1974 in reply to Merlin01. | July 28, 2014 at 4:25 pm

    So we should be able to ignore laws just because we believe they are ridiculous? I think that paying taxes more than 10% of my income in ridiculous, I wonder if that argument would work with the IRS.

    Also, no one here is trying to “convict” Walker of anything, we are discussing whether or not this was a lawful use of deadly force in self defense. I haven’t seen one comment in the past couple of days saying that he should be convicted of First degree murder.

    Frankly, I think first degree murder is a bit of a stretch. 2nd degree maybe, Manslaughter likely, if it was a imperfect self defense.

    “it appears to me that he got exactly what he asked for”

    Really, so approaching someone with the intent to use non-deadly force, (since there is zero evidence he intended to used deadly force) is justification for shooting someone?

    “shot and killed by a man protecting his family and himself!”

    Even if that man could have protected his family and self by simply driving away?

    At the end of the day it comes down to this. Walker shot and killed an unarmed man on the side of the road. So far I see little evidence that it was necessary to do so. I couldn’t give less of a crap was race, creed, or color either one of them are, if you make them both purple it doesn’t change the basic facts.

      Lets just be sure you understand the difference between my comment and the comments of others. I never, not once mentioned the race of anyone!

      More mind reading going on again. Because I stated that the law was ridiculous doesn’t mean I think we, you, me or anyone should ignore the law. It’s a statement of opinion not a legal argument for getting a pass on breaking the law.

      Again you take what I stated out of context. I said I was surprised that so many where trying to convict. I guess we will need to agree to disagree on the tone of the posts.

      Again, more mind reading. How would you or anyone know the intent of Harvey?

      I’ll do my best to address your concerns about driving away. Maybe a hypothetical will suffice. Walker hastily jumps in his car and pulls out into traffic and is hit by a fast moving car/truck unaware the events unfolding and kills his wife and child. I could come up with an unlimited number of negative outcomes but I’ll settle on this one.

      You might even make the argument that getting out of the car is removing the threat from his wife and child and taking on the threat himself.

      My last comment is that I stand by my statement that Harvey “got what he asked for” note I didn’t use the word deserve. If Harvey assumed that Walker could read his mind and intent, he made a grave mistake that so many make.

        Gremlin1974 in reply to Merlin01. | July 28, 2014 at 5:37 pm

        Actually, I owe you an apology, my comments about the race stuff should have been put in a separate comment to a different person. You have my sincere apologies.

        I also understand you thoughts on Walker driving away, and yes there is a certain amount of danger involved, but there is also a certain amount of danger in just driving and what you describe could have happened regardless of the confrontation.

        The question comes down to if you believe Walker could have safely retreated, therefore making it unnecessary to use deadly force, from what I have read from the witness statements and evidence I believe that he could have. Now that retreat may have ended up with Walker and Harvey in conflict and may have had the exact same outcome, the point is that it was never tried.

        I just can’t bring myself to believe that Walker just quit paying attention to Harvey’s car after all that had gone on before.

        I live in a duty to retreat state, but even if I didn’t I would do my best to run like a scalded dog, if I could do so safely or with only minor danger.

          Apology accepted! I enjoy a good healthy debate and I believe I can always can learn something by listening to someone else’s opinions.

          I’m not sure comparing everyday driving to escaping from a threat (Can we agree that Harvey was a threat?) while under the duress of being run off the road and hastily retreating is a good comparison.

          May I ask a question of you? And please understand you are under no obligation to answer the question if you are uncomfortable with the question. This is not a legal question but a question of morality. At what point in the confrontation do you think Walker would have been justified in shooting Harvey?

          Thanks

          Gremlin1974 in reply to Gremlin1974. | July 28, 2014 at 6:23 pm

          @Merlin01

          Oh, I believe in my heart of hearts that Harvey was a non-deadly threat at least. He had made threats and had engaged in behavior that is unacceptable.

          “At what point in the confrontation do you think Walker would have been justified in shooting Harvey?”

          I can’t tell all the “what if’s or might have” happens. Frankly, I am not sure Walker would have ever been justified in shooting Harvey. Just like if Martin had hit Zimmerman and just knocked him down Zimmerman wouldn’t have been justified. Now I can give a lot of “if”‘s, if Pidel had become involved, if Harvey had displayed anything even resembling a weapon and so on and so forth.

          You must be in fear of death or great bodily harm, which I am not debating that Walker was in fear of death or great bodily harm. But that fear must be reasonable and I just don’t see that it was.

          As far as my morality and when it is ok to shoot, I will say that if I have my way, I will never be forced to fire a shot “in anger”. Morally you have the right to defend the lives of you and those you love, where that moral line is for me, well I hope I never have to find out.

          @Gremlin1974

          God willing neither of us will have to face such a decision!

          Thanks for the debate! 🙂

Richard Aubrey | July 28, 2014 at 5:01 pm

“Even if that man could have protected his family and self by simply driving away?”

We have a problem here. W should have known H was a threat because of the road rage dueling vehicles. And W should have known that if he’d driven away, H wouldnt’ have been a threat because they’d both be in cars.
I’d be insulted as a juror if a prosecutor tried to pull that on me.
Seems you have to pick one, but the prosecutor needs both.

    Gremlin1974 in reply to Richard Aubrey. | July 28, 2014 at 5:25 pm

    While I understand what you are saying, you can’t use possible future events to justify the use of deadly force. Yes, Harvey MIGHT have continued the pursuit, but MIGHT isn’t relevant.

    “W should have known H was a threat because of the road rage dueling vehicles.”

    Yep, because it wasn’t just that, it was threats, racial slurs, and W being “forced off of the road”. I would say that is enough to think that Harvey could be an ongoing threat. Which is why I question W’s assertion that he just kind of forgot about him and decided to check his car for damage.

    “And W should have known that if he’d driven away, H wouldnt’ have been a threat because they’d both be in cars.”

    No one has said that, sure Harvey could have been a threat even if Walker had driven away, but once again that is a could have (i.e. MIGHT) and doesn’t come into play.

    I know this is counter intuitive, but lets go with a hypothetical that is just way out there. Lets say someone has told you flat out that they are gonna kill you with a gun in your home on Thursday night at 9 pm and they even did so in front of witnesses.

    Would you be justified in shooting them first at say 8:45 on Thursday? Of course not. You are only justified in using deadly force in self defense when that person actually enters your home and attempts to harm you, not one second before. The defense of “I shot him because he MIGHT have actually done it.” Just ain’t gonna fly.

Richard Aubrey | July 28, 2014 at 5:49 pm

Gremlin. In your hypo, you use “justified”. I’m not sure you want to go there. Legally get away with it would be more accurate.
But your hypo fails for another reason. To make it analogous to the case at hand, the question would, “Would you be justified in hiding?” And if you can’t hide and the guy shows up with a pistol at 8:59, may you shoot?
The question the prosecutor is going to have to answer for the jury is not that nobody can prove–a negative–that H wouldn’t have pursued. The question wrt W is whether, given the totality of the circumstances, would he have a reasonable presumption that driving away was not a useful avenue of retreat.
An attorney who thinks little of the jury might try to insist that, since you can’t prove H would have pursued, W had no right to think H might or even was likely to.
That would brass off any juror with an IQ over 85.

Richard Aubrey | July 29, 2014 at 7:49 am

Gremlin,
With respect, we’re arguing two different issues. You seem to be arguing the law, and taking A.B.’s position, at least somewhat, that in a DTR state there is always an avenue of escape. Presumably, the defense has to prove there wasn’t, which seems kind of backwards given the presumption of innocence.
I’m discussing the impact(s) of the various factors on the jury, which is to say, what I would likely think seeing this case as a juror, and, by extension what other people I know would likely think.
And it’s flavored by my impatience with the entire concept of DTR, or at least its application here as explained by various legal types.

    “You seem to be arguing the law, and taking A.B.’s position, at least somewhat, that in a DTR state there is always an avenue of escape.”

    To avoid confusion, that IS NOT my position, which is:

    In a DTR state, where a safe avenue of escape exists it must always be taken before resorting to deadly force in self defense (some slight variance among the states, but true for the relevant state of MD and most DTR states).

    That’s not at all the same thing as saying “there is always an avenue of escape.”

    Had either Harvey or Pidel displayed a firearm, for example, the dynamics of “safe escape” would have changed dramatically–nobody is expected to be able to outrun a bullet.

    –Andrew, @LawSelfDefense

    Gremlin1974 in reply to Richard Aubrey. | July 29, 2014 at 1:54 pm

    Just for the record, that wasn’t my position either.

    My position was that from what I have seen of the facts of the case I believe that Walker did have safe and available avenues of retreat that he did not use. Now I am not in the court room as a juror and do not have all the testimony and I realize what I am working with is very limited, but that is just my feeling so far.

Richard Aubrey | July 29, 2014 at 8:40 am

A.B. I know what DTR requires. You’ve explained it. The problem is that you and many of the commenters seem to be taking the position that it must exist absent positive and overwhelming proof by the defense that a reasonable person (W) couldn’t see one. Which, given the presumption of innocence in US courts, is bassackwards. And amounts to the same thing.
And then we have what looks like playprosecutoring and special pleading about what W MUST have known/thought/seen. Sure, after playing bumper cars, W must have known that, if he took off, H would just drop the whole thing. Must have known. Couldn’t have thought anything else. OTOH but simultaneously, W should have known, because of the bumper cars, that H was a sufficient threat afoot to require retreat.
This is no doubt a fun thing for lawyers to play at, giving each other ain’t-I-clever grins. But it brings up another question: Are jurors allowed to spit on the floor of the jury box, or are they limited to clearing their throats loudly? Compromise on a loud harrumph?

    “The problem is that you and many of the commenters seem to be taking the position that it must exist absent positive and overwhelming proof by the defense that a reasonable person (W) couldn’t see one. ”

    Then you’re misunderstanding the legal standard to be applied.

    For MD to overcome Walker’s claim of self-defense they must disprove any one of the five elements of self-defense beyond a reasonable doubt.

    If they choose to attack his claim of self-defense on the basis that he violated his legal duty to retreat by failing to take advantage of a safe avenue of retreat, as I presume they will, they must convince the jury of the truth of that claim beyond a reasonable doubt. (Of course, they could attack the self-defense claim on any of the other elements, as well, or several simultaneously.)

    The difficulty for Walker here is that it does not appear that proving a failure to safely retreat beyond a reasonable doubt is going to be all that difficult.

    Depending, of course, on the weight and credibility the jury ultimately assigns to each of the witnesses, including Walker himself. If the jury buys his claim that he had only a split-second to decide whether to retreat, he’s likely fine on that element. There is considerable evidence and testimony, however, that he had far longer than that to make a decision.

    Now that may sound like a difficult burden for the State to overcome, and it is a considerable burden, indeed. But self-defense claims get defeated at trial routinely–indeed, the vast majority of self-defense claims made at trial fail–precisely because the State successfully meets that burden.

    –Andrew, @LawSelfDefense

Richard Aubrey | July 29, 2014 at 9:17 am

A.B.
What the state tries to do is one thing.
I’m suggesting that the state tries to insist on the two assertions:
1. Harvey is a threat afoot because of bumper cars and W could/should/must have/couldn’t have otherwise thought anything at all. So he should have retreated.
2. And W should, etc. have thought–no other conclusion is imaginable–that if he drove off H would no longer be a threat with that nasty bumper-car stuff. So he should have driven happily on his way with no further concern.
Because we’re depending on the jury to be manipulable morons.
My question is what happens if one or two of the jurors bring their own lunch and the state doesn’t get a chance to dope their tuna casserole at the cafeteria.
It seems to me the state is going to have to prove both 1 and 2. And, while they can assert it, nobody with half the brains God gave a goose is going to buy it.

    “I’m suggesting that the state tries to insist on the two assertions:
    1. Harvey is a threat afoot because of bumper cars and W could/should/must have/couldn’t have otherwise thought anything at all. So he should have retreated.
    2. And W should, etc. have thought–no other conclusion is imaginable–that if he drove off H would no longer be a threat with that nasty bumper-car stuff. So he should have driven happily on his way with no further concern.”

    Again, you simply misunderstand the State’s burden.

    To defeat Walker’s claim of self-defense on the grounds that he breached his legal duty to retreat they must simply prove beyond a reasonable doubt that:

    (1) Walker used deadly force against Harvey, a fact not in dispute;
    (2) Walker failed to take advantage of a safe avenue of retreat available to him as an alternative to (1).

    The second point is in dispute, but there is more than sufficient evidence from which a jury could reasonably decide that such was the case beyond a reasonable doubt.

    If the jury believes both (1) and (2) beyond a reasonable doubt, they need not be convinced of anything else in particular to defeat self-defense, because Walker’s claim of self-defense fails as a matter of law.

    I understand that many commenters here find this legal reality to be morally offensive. I would suggest in that case that your objection is to the legal duty-to-retreat–which I also oppose on public policy and moral grounds–and not with the analysis of how that duty applies.

    Obfuscating analysis with speculative coulda-woulda’s and observations that Harvey was almost certainly not a very nice guy and Walker almost certainly is (both of which I believe to be true) doesn’t change the legal analysis a whit.

    MD law requires that one take advantage of an available safe avenue of retreat before resorting to deadly force in self-defense. Period. Fail to do so and that use of force may be lots of things, but one thing it is NOT is self-defense under MD law.

    –Andrew, @LawSelfDefense

Funny how lawyers and laymen carry on here for hours attempting to define what constitutes a reasonable ‘duty’ to retreat, that a normal person subject to such a duty might understand, yet Walker is expected to understand it perfectly in a few split seconds, under duress.

Its an undue burden.

And ‘experts’ on self defense at the trial disagree among themselves as to whether Walker met this (immoral) ‘duty’.

And the jurors are supposed to parse the legalistic implications of a bizarrely counterintuitive ‘self-defense’ law, which is in fact designed to prohibit self defense?

I don’t think they’re going to–the ambiguity and insincerity of the ‘law’ itself lends weight to an acquittal for reasonable doubt.

    Gremlin1974 in reply to bildung. | July 29, 2014 at 2:10 pm

    “I don’t think they’re going to–the ambiguity and insincerity of the ‘law’ itself lends weight to an acquittal for reasonable doubt.”

    Which very well may happen, it sure wouldn’t be the first time. Also take into account that the jury is going to be given instructions in writing that tend to be pretty concrete that are going to say something to the effect of; “If you believe that Mr. Walker could have safely retreated and not resorted to deadly force then his claim of self defense fails and you must find him guilty.” So after the exhausting process of sitting there through this whole thing they are gonna have written instructions that they will most likely follow.

    Also, take into account that just reading this blog probably gives you more knowledge about self defense statute and litigation than 95% of the country so the chances of anyone on that jury that has even that amount of knowledge are pretty slim.

    I also think that the past couple of years of the whole “Stand your ground” coverage could have a negative effect on a self defense claim in what is a fairly liberal area of the country.

Richard Aubrey | July 29, 2014 at 4:21 pm

A.B. My point about 1 & 2 is that they are mutually exclusive, yet both must be true.
1. If W is required to retreat when H is afoot, then H must be reasonably seen as threat. Bumper cars solved that. Anybody who’d do bumper cars is by nature a threat. So W should have driven away, that being a safe avenue of retreat and H being an obvious threat.
2. The state must prove–this is the state asserting coulda/shoulda–that W would know driving away is safe because H could in no way be expected, in fact the thought should not even have occurred to W, to restart bumper cars. It would be unreasonable to think driving away would also be dangerous because of…..look, a squirrel! The bumper cars we told you about earlier…we were lying. Never happened. That’s why H was a threat when we need him to be a threat and not a threat when it would be inconvenient to the state’s case.
All very clear.

This brings up another question: Couple of buttheads walking down the sidewalk emitting thuggish menace (TM). Honest citizen coming the other way is assaulted and one or both buttheads lose bigtime.
In a DTR state, is the honest citizen guilty for failing to sense the TM?
And do cops have TM meters? “Excuse me, sir, I’ll have to place you under arrest for excessive TM.”
Seems to me that the honest citizen is required to react to something which is not illegal in case the butthead decides to assault him.
DTR cedes the public spaces to thugs and bullies even before the thugs and bullies do anything illegal.

    bildung in reply to Richard Aubrey. | July 29, 2014 at 8:22 pm

    Good points, Richard–there’s a whole lotta ‘shoulda, coulda, woulda’ in AB’s presumptions about Walker’s supposedly feasible line of retreat.

    One would think even minimally competent defense counsel could sow that sort of reasonable doubt with the jury.

      bildung in reply to bildung. | July 29, 2014 at 8:26 pm

      PS Richard

      I like your observation about DTR ceding the public space to thugs.

      But that is precisely the leftist mind set–look no further than current Obama policy in the Gaza war: Israel shouldn’t defend itself, since its in no real imminent danger of extermination or even real harm.

        “I like your observation about DTR ceding the public space to thugs.”

        A very legitimate policy position. I hold it myself.

        But irrelevant in this case, as the MD legislature has discarded it, in their adoption of DTR.

        Oofah.

        –Andrew, @LawSelfDefense

          bildung in reply to Andrew Branca. | July 29, 2014 at 10:06 pm

          It is irrelevant in a formal, structural sense–true enough.

          But it will not be irrelevant if several jurors hold the same ethical views of DTR as you, myself, Richard and others.

          In fact, I should think such ethical views would be widespread, even in blue MD, but as a life long red stater I may be mistaken.

          My vote to acquit would be unshakeable, regardless of the brain numbing, eye glazing legalistic transubstantiations submitted, in writing or otherwise, by judges or prosecutors.

          These legal techs, and that’s all they are, do not own the law or Walker’s fate.

          Only the jury does now.

“But it will not be irrelevant if several jurors hold the same ethical views of DTR as you, myself, Richard, and others.”

While I agree with you in principle, I wouldn’t hold my breath.

Richard Aubrey | July 29, 2014 at 11:04 pm

I do have a philosophical difference with MD’s DTR law. But my major point here is that the state needs my #1 and # 2, both. And they’re mutually exclusive.

Depending on the ink this gets in the state, it’s possible a good many of the citizens will be astonished at what the clowns they so carelessly elected have foisted on them.

Even in a DTR state,a person shouldn’t be pursued by an angry legally intoxicated person filled with road rage. Detective Walker had the right of self preservation against an angry drunken aggressive person,even in a DTR state.

    The legal duty to retreat is not suspended merely because the aggressor is intoxicated and/or angry.

    If it were, it would hardly exist at all.

    And in MD it DOES exist. Very much.

    –Andrew, @LawSelfDefense

    Gremlin1974 in reply to m1. | July 30, 2014 at 4:48 pm

    I agree, a person “shouldn’t” have to retreat in the face of a criminal ever. However, regardless of your or my belief the law in the state in question disagree’s with us and the law wins.

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