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Law of Self Defense: Murder re-trial for man who confronted public urination

Law of Self Defense: Murder re-trial for man who confronted public urination

When the Stakes Aren’t Worth the Risks

https://www.youtube.com/watch?v=O9GEk-ub8ek&feature=youtu.be

Law of Self Defense Case of the Week is a new weekly series by Andrew Branca

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This case of the week involves the recent murder trial of a Texas man, Terry Thompson, who got into a barehanded fight with a drunk, John Hernandez, in a Denny’s parking lot. Thompson choked Hernandez to death, and was tried on charges of murder, manslaughter, and criminally negligent homicide.  That trial ended days ago in a mistrial when the jury couldn’t arrive at a unanimous verdict.  The prosecutor has announced he will re-try the case.

The facts (as reported by the media) are that Thompson was eating dinner at Denny’s with his wife and teenage daughters when he saw a staggering Hernandez urinate in the parking lot. Thompson took it upon himself to confront Hernandez’ unpleasant behavior.  The case raises a number of interesting legal issues. (Also racial issues, because Thompson was white and Hernandez was Hispanic, but we’ll not discuss those here today.)

Lawful Conduct Can Lose You Self-Defense

Our first point: Thompson is allowed to tell Hernandez to stop peeing in plain view. He didn’t do anything illegal by confronting him.  That said, just because conduct is lawful doesn’t mean it’s smart, let alone productive.

If otherwise lawful conduct predictably leads to or contributes to a fight, it might legally qualify as “provocation” despite the fact that the conduct is legally allowed. In many states, it is not necessary that conduct be unlawful in order for that conduct to qualify as sufficiently provocative.  If the jury deems your actions “sufficiently provocative” you will lose the element of innocence, a required element of a self-defense claim, and thus lose your case.

Make Sure the Stakes are Worth the Risks

Indeed, given that Thompson just experienced a full-blown murder trial, and the prosecutor has committed to re-trying him again, I’d suggest that choosing to engage Hernandez, even lawfully, was counter-productive to the best interests of both Thompson and his family.

Remember: the moment you engage in a confrontation, you’ve immediately incurred two risks you weren’t incurring a moment before: a greater-than-zero risk of death, if you lose the physical fight, and a greater-than-zero risk of going to jail for the rest of your life, if you lose the legal fight.

Make sure that the stakes you’re fighting over are worth the risks. It’s somewhat predictable that  Thompson’s confrontation of Hernandez might turn physical, with all the risks we’ve just described. Was it worth it?

Don’t Be Surprised by Predictable Events

Next, instead of the drunk, urinating Hernandez recognizing he was in the wrong after being chastised by Thompson, Hernandez took personal offense and engaged with Thompson—again, totally predictable. The two men proceeded with what self-defense trainer Rory Miller refers to as “the monkey dance”: escalating verbal hostilities, threatening physical posturing, chest bumping, fist clenching, and ultimately a thrown fist.

In this case it appears that Hernandez first punched Thompson, after which Thompson threw Hernandez to the ground, face-down, laid Hernandez’ back and wrapped his left arm around his neck. It was this arm around the neck that choked Hernandez, killing him.

Disproportional Force Can Lose You Self-Defense

Setting aside the juvenile stupidity of engaging in a monkey dance, which we’ve already addressed, we now have a defendant who used deadly defensive force to neutralize a bare-handed attack (no weapons were ever displayed or found), and absent aggravating circumstances not apparently present in this case a bare-handed attack can generally be countered with only non-deadly defensive force.

Yet here Thompson managed to kill Hernandez by choking him for, purportedly, as long as 15 minutes, clearly an application of defensive force capable of causing death or serious bodily harm—that is, deadly defensive force. As such Thompson (arguably) lost the element of proportionality, another required element of a self-defense claim.

What Resources Are Left for a Re-Trial?

I also wanted to point out a legal process issue I thought I’d share. First, this murder trial ended up in a mistrial because the jury could not unanimously agree on a verdict, although a supermajority were in favor of a not guilty verdict on all charges. Now, a hung jury is surely better than a conviction, no doubt about that, but the prosecution has the right to re-try Thompson once again.

Think to yourself what money you would spend to defend yourself in a murder trial, where conviction likely means life in prison without possibility of parole. Would you sell your motorcycle? Cash out your retirement fund? Sell your home? Your business?

I expect that most of us would expend pretty much every resource, to do everything we could to win that first trial. And what do you think is likely to be left, now, to fund a RE-trial? Probably not much.

You think it might be easier for a prosecution to win a guilty verdict now that he’s prosecuting a defendant who has been effectively stripped of all his money to mount an effective legal defense? You bet. And you can be sure the prosecutor knows this.

–Attorney Andrew F. Branca, Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

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Comments

If no one defends society’s rules, there are no rules.

    tom_swift in reply to Matt_SE. | June 27, 2018 at 10:47 pm

    To which rules do you allude? The ones discouraging public urination, or the ones discouraging homicide?

      Max17 in reply to tom_swift. | June 28, 2018 at 12:04 am

      Pretty sure he means public urination, since homicide hasn’t been proven to be at issue yet except in the mind of an over zealous prosecutor.

    “If no one defends society’s rules, there are no rules.”

    For sure. But WHOSE job IS that? YOUR job? Or the guy with the badge?

    It makes a difference.

    -Andrew

      Gremlin1974 in reply to Andrew Branca. | June 28, 2018 at 3:20 am

      See that was my very first thought, I would tell the Manager and call the cops.

      BTW Andrew great to see you writing again, can’t wait until next week, I always learn something.

      tphillip in reply to Andrew Branca. | June 28, 2018 at 6:16 am

      Last I checked the USSC and many state courts think the cop’s job is cleanup after the act has happened and not much more.

      So if we can’t rely on the cops who do we rely on?

        Sure, the cops clean up after, but they also have arrest powers after-the-fact, too.

        Were it me, I’d keep my distance, take photos/videos for evidence, and turn that over to the cops if/when they arrive. And that’s assuming the stakes are high enough to engage at all (public urination, though disgusting, probably doesn’t tip that scale for me).

        If the guy assaults me for documenting his unlawful activity in a public place (where he has no expectation of privacy), then at least I’ve maintained my “innocence” claim.

        CKYoung in reply to tphillip. | June 29, 2018 at 12:11 pm

        Police in my state can not make a warrantless arrest for misdemeanors not committed in their presence, with a few exceptions. In a public urination case they can make a private persons arrest, or gather enough evidence (witness statements, videos, photographs etc.) to forward a “complaint to be filed” with he DA’s office. Unfortunately in my state most DA’s will not file on these types of public nuisance crimes, so it’s a big waste of time for all involved.

      The Packetman in reply to Andrew Branca. | June 28, 2018 at 7:54 am

      PRINCIPLE 7 “Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

      NotCoach in reply to Andrew Branca. | June 28, 2018 at 10:20 am

      What about a citizen’s right to make a citizen’s arrest? Does that not come into play anywhere here when the individual being confronted is in clear violation of the law?

        IANAL, but my understanding is that the force used to detain a suspect during a citizen’s arrest must be proportional to the force the suspect is using to try to escape, and also must be reasonable based on the observed crime.

        You also open yourself up to your own assault and wrongful detention charges, if the DAs decide you weren’t 100% correct.

        Unless there are no other good options, the arrest is another thing best left to the badged ones covered by qualified immunity.

          NotCoach in reply to Archer. | June 28, 2018 at 12:08 pm

          I don’t know any of the specific details concerning this incident, but I am concerned with Branca’s apparent contention that we as citizens are powerless to police ourselves. If excessive force were used it seems to me a better critique is how to avoid escalating such situations instead of telling us to just simply walk away from the bad acts we witness.

          Gremlin1974 in reply to Archer. | June 28, 2018 at 2:12 pm

          @NotCoach

          I think you are reading to much into Andrew’s statement. If you knew anything about Andrew you would know that he is a great proponent of people defending themselves, hence his “legal specialty”.

          Not to speak for Andrew, but what I get out of it is that if you are going to take it upon yourself to get involved, then you are taking increased risk onto yourself, in fact he says exactly that;

          “Remember: the moment you engage in a confrontation, you’ve immediately incurred two risks you weren’t incurring a moment before: a greater-than-zero risk of death, if you lose the physical fight, and a greater-than-zero risk of going to jail for the rest of your life, if you lose the legal fight.”

          It’s a simple risk assessment, do you try to enforce those “expectations” or do you allow the people who are paid to enforce them do so.

          I have corresponded with Andrew via internet for several years now and had the privilege of attending his course and meet him and I can say one thing for sure, being “powerless” isn’t one of his “things”.

          @Not Coach: I don’t see where Mr. Branca said we as citizens cannot police ourselves. I did see where he said, “Make sure that the stakes you’re fighting over are worth the risks.”

          All I’m saying — and I apologize if I wasn’t very clear — is that in our litigation-happy society, if you attempt a citizen’s arrest you open yourself up to significant criminal/civil liability … a liability from which LEOs are protected by qualified immunity.

          That liability comes in addition to the non-zero risk of physical harm the suspect could cause you if he/she decides not to “come quietly”; in many places, for a legal citizen’s arrest you must exert the minimum amount of force necessary to make it happen (which generally increases the risk of harm to yourself; you cannot overwhelm the suspect).

          Therefore, you should use caution and discretion and make sure stopping the crime and catching the suspect are worth the risks, or that there are no other reasonable or palatable options. That’s all I’m saying.

          (For myself, for public urination on someone else’s property, my personal calculus says that’s a “no”; I’ll gladly document [photo and video evidence] and report, but it’s just not worth the physical or criminal/civil risk to directly intervene [or the risk of mental/emotional trauma to my kids from seeing Daddy knock a guy out if the situation escalates]. But that’s just me. YMMV.)

        Char Char Binks in reply to NotCoach. | June 28, 2018 at 6:37 pm

        Why would you want to do that? Escaping from an assailant, and an assailant escaping from you, are both record in the W column.

        Become a cop if you want to detain people, or MYOB.

          Char Char Binks in reply to Char Char Binks. | June 28, 2018 at 6:39 pm

          And the man wasn’t really an assailant. He was just a drunk who urinated in public. Are you on the Neighborhood Pee Patrol?

      Matt_SE in reply to Andrew Branca. | June 28, 2018 at 3:28 pm

      “But WHOSE job IS that? YOUR job? Or the guy with the badge?”

      Justice is everyone’s job.
      The problem with adopting the ‘state as sole enforcer’ view (a view prevalent in England, for example) is that it turns the citizens into passive sheep.

      On top of that, what happens when “the authorities” for any number of political reasons decide NOT to enforce the law?

      To whom do you appeal when the police are crooked?

      While it may be lawyerly prudent to always wait for the boys in blue, the British bobbies carried a whistle, not a gun. They used it to appeal to the people to come and enforce their laws. That is the true underlying tradition, the culture that we must ourselves maintain.

    iconotastic in reply to Matt_SE. | June 28, 2018 at 9:03 am

    “….choking him for, purportedly, as long as 15 minutes”

    I am having a difficult time reconciling a beat down for public urination with this act. Does there exist any man over the age of 9 who doesn’t realize that choking an opponent this long can result in death? To my untutored mind I don’t see any difference between that choking and repeatedly stomping a grounded assailant in the head and neck for 15 minutes. Both choking and stomping seem to me to be highly unwarranted overreactions to the offense of public urination or engaging in a fist fight.

    Not every one of society’s rules is worth risking a violent confrontation. If Hernandez had been raping someone–then sure, he NEEDS to be confronted (preferably with a fist to the face). But an incident like this, not so much. Or if he is to be confronted, call the cops and let them decide if this is a law worth enforcing.

rabid wombat | June 27, 2018 at 9:48 pm

Hi Andrew,

Great write up. This has been getting a lot of play in Houston. I was very surprised that the jury hung (I believe 10-2). I think the “monkey dance” sums it up. What is foreseeable, and is it worth it? Stopping to think – maybe the fight with someone peeing on a car vs attacking a family member. Who cares about an “item” vs. all in for a human. Thnk, think, think. Some problems are ripe for the Police.

Thanks for great write up.

Colonel Travis | June 27, 2018 at 9:50 pm

I’m a few hours north of Houston but hadn’t heard of this case. Fascinating, thank you. You’re a real asset to this site, Andrew.

DouglasJBender | June 27, 2018 at 10:18 pm

The only thing I think Thompson did wrong was choke Hernandez to death. Whether he intended death or bodily harm, or was just trying to render Hernandez harmless and unintentionally killed him, I don’t know.

    Pettifogger in reply to DouglasJBender. | June 27, 2018 at 10:42 pm

    The first thing he did wrong was confront Hernandez. He should have confined his response to remarks to his family about the degradation of our culture–which is real. As Thompson has no doubt painfully learned, anything else posed risk incommensurate with anything he had to gain.

      rabid wombat in reply to Pettifogger. | June 27, 2018 at 11:10 pm

      You are absolutely right, and Andrew’s point:

      “The first thing he did wrong was confront Hernandez.”

      Close The Fed in reply to Pettifogger. | June 28, 2018 at 8:27 am

      A man is out with his wife and daughters. He didn’t appreciate his daughters being exposed to such behavior.

      I’m sad the drunk died, but if he threw a punch at the Dad, then he started it, and tough luck.

      The “15 minutes” choke is a long time, but when adrenalin (sp?) is going, it’s powerful and damn hard to control.

        Close The Fed…

        But which is worse…your daughters witnessing a drunk peeing in public…or your daughters witnessing their dad choking that drunk to death?

        According to the Huston Chronicle, Hernandez’s (the drunk) wife and daughter were with him and witnessed the fight.

        Don’t get me wrong…I hate drunks (I’ve worked in many a bar) but this Thompson guy is a freakin’ bonehead…(IMO)

          Char Char Binks in reply to tgrondo. | June 28, 2018 at 6:44 pm

          That’s one reason I don’t drink. I want to always be in control of myself, keyword: myself. I don’t view controlling others as my civic right/duty, unlike some others on this thread.

    If Thompson killed Hernandez unintentionally (accidentally) then he can raise the legal defense of accident, (which would result in acquittal if successful) or perhaps raise the defense of imperfect self-defense (which could mitigate what would have been murder to manslaughter).

    But if you argue accident or unintentional killing, it’s hard to also effectively argue deliberate self-defense, so it appears they went with deliberate self-defense, and it didn’t–quite–sell. Almost. But not 100%. And Texas requires 100%: unanimous jury verdict.

    –Andrew

      Self-defense is an inherently deliberate act. Period. Full stop.

      The concept that you cannot argue “accident” and “self-defense” at the same time — they are mutually incompatible — is another legal point that I believe is grossly understated in many self-defense analyses.

      Thank you for the reminder, Mr. Branca.

      Milhouse in reply to Andrew Branca. | June 28, 2018 at 1:33 pm

      Surely he can argue that his use of force was in self-defense, and therefore legitimate, and that the fatal result was an accident. He didn’t intend or expect his deliberate self-defense to have that result.

        Possibly, but it’s not likely to fly. A big guy using a choke-hold on a smaller guy and holding it long enough to cause death? Incapacitation would have happened pretty quickly, holding it after that is unreasonable.

        Plus, a choke-hold itself is usually unreasonable for self-defense, specifically because of that increased risk of serious bodily harm and/or death. I’ve known several martial arts and self-defense instructors, and every single one strongly advises against choke-holds as a self-defense tactic.

        I don’t know the specifics of this confrontation, and I don’t intend to “armchair quarterback”, but generally (and tactically) speaking there’s little a choke-hold can accomplish that can’t be done with a good arm-bar/takedown — or even a good solid punch to the midsection — and the latter options are far less risky.

        Char Char Binks in reply to Milhouse. | June 28, 2018 at 7:11 pm

        Oopsies!

The only time I myself have seen a drunk urinating in public, he was borderline too inebriated to even stand. There was obviously no useful purpose to be served by engaging him in a discussion about the merits of urinating elsewhere. The only reason to even consider approaching him would have been to exert some sort of force on him … push him somewhere else, maybe; or hell, maybe knock him down and choke him to death. It probably wouldn’t have been a challenge, as he was practically down already. But that option never even crossed my mind. Maybe customs are different in Texas.

    rabid wombat in reply to tom_swift. | June 27, 2018 at 11:18 pm

    The combination of your messages in on point, but “Maybe customs are different in Texas.” misses the mark. Matt_SE is correct in Society’s rules. The question is who enforces them. You correctly (and to Andrew’s point), indicate someone other than Thompson should have responded.

    RodFC in reply to tom_swift. | June 28, 2018 at 8:17 am

    Too inebriated to stand but not so inebriated that he could not punch the guy in the face.

I don’t know how in the world they can charge murder. Manslaughter most likely, but since race it involved and we’re talking Houston, they have to over charge because because. How do they show Thompson meant to cause death? If not, then how much of the altercation is the fault of the dead man. He chose to fight too. Thompson’s attorney should do retrial pro bono. That’s what attorneys do, right? I predict another hung jury, knowing no more than what I just read here.

He held him for 15 minutes?!

    News report. Could mean he kept him restrained for 15 minutes, not necessarily actual choking. Obviously, there’s no point to choking someone for 15 minutes, they were effectively dead 5 minutes in.

    –Andrew

      Gremlin1974 in reply to Andrew Branca. | June 28, 2018 at 3:23 am

      If he did choke him for 15 minutes, even I would be hard pressed not to see it as intentional deadly force. Most people pass out very quickly from a chokehold.

After Googling and Reading a bit about the case I put a lot of blame on the Staiger witness who took the video. Instead of helping Thompson to restrain the attacker Hernandez he was hostile to Thompson as Hernandez continued to struggle against Thompson, even testifying that he threatened to get his gun and shoot Thompson if he did not release Hernandez.

A waitress was apparently instructing Hernandez to stop struggling and a doctor testified that If Hernandez was being deprived of air then he would panic-struggle until he was dead and wouldn’t be able to hear anything anyone said.

So Thompson was stuck with a madly struggling attacker. He obviously could not just let go and give up his upper hand, especially when the main other figure on the scene seemed to be on the side of the aggressor.

If he had some help the situation would have been very different. If only Staiger had assured Thompson that he would help him to control Hernandez so that Hernandez could not attack again, then get in and do it: “Ease up a little and I’ll get his hands,” then shout for people to call the police, shout that he needs some rope “to tie up this black guy here,” showing that he isn’t stopped by political correctness to identify by race which combatant needs to be restrained, race being the only clear identifier available.

But Staiger is clearly not that type. He may even be an SJW who automatically takes the side of a black attacker (Trayvon Martin, Michael Brown, Alton Sterling, Charleena Lyles, etcetera ad nauseum) over a white person trying to defend himself against attack.

Just the reaction of pulling out his video camera instead of trying to actually be of help is a big problem but his clear hostility to the man who was defending himself turns his role from worthless to actually counterproductive.

    Close The Fed in reply to AlecRawls. | June 28, 2018 at 8:33 am

    Dear Alec Rawls:

    Thank you very much for this information. In many videos I’ve seen, I’ve wondered if the photographer should be helping. Most of the time not, for one reason or another, but this situation clearly sounds as though the photographer’s lapse helped a man die.

    Char Char Binks in reply to AlecRawls. | June 29, 2018 at 12:24 pm

    He tried to help the man, but Staiger only weighs 120 pounds, and tried and failed to push Thompson away.

Where did you get that Hernandez was “black”, Andrew? I’ve never seen that reported anywhere.

And why did you leave off that Thompson’s Hispanic wife was (not anymore) a Harris County Sheriff’s Deputy, and faces her own trial in the Hernandez death?

    If you’re talking to me, I never mentioned that Hernandez was “black.” He was reportedly Hispanic, as I noted in my piece.

    As for the racial facets of the case, I explicitly refer to those in the second paragraph of this post, and inform readers that I do not intend to cover those racial facets in this post. I also link to the news report, which does address those racial facets of the case, for people who care about such issues

    Who are you, and why should I care what you think about anything?

    –Andrew

      “Who are you, and why should I care what you think about anything?…”

      Im still laughing!

      Bravo.

        “Who are you . . . ?”

        It’s painfully obvious Andrew has been on Sabbatical. LMAO. Best news of the week ( and this weeks SCOTUS news was manna from heaven), is that we will be treated to a weekly dose of Mr. Branca’s knowledge and wisdom relating to self-defense issues.

        Life is good!

      Pettifogger in reply to Andrew Branca. | June 28, 2018 at 5:21 am

      See the end of your second paragraph. Probably typed “black” when you meant “Hispanic.”

        healthguyfsu in reply to Pettifogger. | June 28, 2018 at 7:54 am

        Yep in parentheses:

        (Also racial issues, because Thompson was white and Hernandez was black, but we’ll not discuss those here today.)

      Milhouse in reply to Andrew Branca. | June 28, 2018 at 10:28 am

      Yes, you did say that he was black. It’s perfectly fair for someone to ask where you got that information, and you should care because you write for readers, so when readers ask questions in good faith about something you wrote you should answer them.

      Ragspierre in reply to Andrew Branca. | June 29, 2018 at 12:11 am

      Who am I?

      I’m a fellow attorney who has admired your work for years, BUT never without critical thinking.

      Why should you care?

      You wrote what you wrote. I asked a civil question regarding your reporting. In response, your anger overcame your integrity. You changed your piece, and never acknowledged what your misreported, instead attacking me. After changing it, you never apologized.

      You never addressed the other question I raised about Thompson’s wife being a LEO and ALSO being charged. All of which changes the dynamics of your analysis.

      Too bad, Andrew.

        Your appeal to authority carries no weight with me.

        The error you pointed out was corrected, as I presume you desired.

        You’re tiresome.

        –Andrew

        Ragspierre in reply to Ragspierre. | June 29, 2018 at 2:55 am

        An appeal to authority is a fallacy. I asked a question. You admitted your error and corrected it, but only after attacking, failing to admit your error, and failing to apologized for your unwarranted attack. I used no fallacy.

        You continue to ignore the SECOND question regarding Thompson’s LEO wife. I’m disappointed in you.

    Close The Fed in reply to Ragspierre. | June 28, 2018 at 8:35 am

    Re: Rags:

    Hit the “up” button by mistake.

    Sorry!

I think I would have kicked the living crap out of the worthless POS.

But I wouldn’t have killed him.

Living the rest of his worthless life would have been enough punishment for him.

LOL

    CKYoung in reply to franker. | June 29, 2018 at 12:26 pm

    I can show you many cases of one punch leading to the death of the receiver. Usually it’s because of the short fall and the head striking the ground. The legal process that follows, even if you’re determined to be justified, can ruin your life. Not worth it. If it’s that important, call the police, be a good witness.

I first discovered the LI site during the Zimmerman trial. I was very appreciative of the coverage and insight into self-defense law provided by Mr. Branca. I very much look forward to this weekly addition to LI.

One less obnoxious, violent bum on the planet.

Now, if he was whizzing on frank marshall davis’ grave…

Leaving aside the report about his holding him for 15 minutes, I don’t understand how Thompson’s defense can be considered disproportionate to Hernandez’s attack. Both were unarmed; either using ones bare hands is deadly force or it is not. If the fact that Thompson killed Hernandez is enough to demonstrate that the force he used was deadly, then surely it also goes some way to demonstrating that Hernandez’s force was also likely to be deadly. The alleged 15-minute chokehold, if true, kind of puts the kibosh on that argument, but without it where’s the flaw?

    IANAL, but I believe it’s an extension of “disparity of force”, which is not as simple as “armed vs. disarmed”.

    A much larger/stronger person can bring to bear more force than a smaller/weaker person. This is known as “disparity of size/strength”. I don’t know what Hernandez looked like, but based on the picture Thompson at least was not a small man, so there’s that.

    A well-trained person (say, a martial artist or active-duty soldier) can fight more effectively than an untrained person. This is known as “disparity of training/skill”. (I don’t believe this came into play in this case, but it’s worth mentioning.)

    But I believe the key point in this situation is “disparity of ability”. Hernandez was drunk, and Thompson was (presumably) sober. Alcohol is a depressant; it slows thought processes and reflexes and adversely affects balance and coordination. Thus, a sober person has quicker reflexes, better balance and body control, clearer thought processes, etc., than an intoxicated person. This puts a drunk individual at a severe disadvantage (barring a lucky sucker punch) in terms of how much force he can effectively exert.

    I’m not saying you shouldn’t defend yourself from a clearly-intoxicated person, but you should be aware that a DA can argue your sobriety as an unreasonable advantage if you go too far.

    Mr. Branca: By chance, would you know of a case in which this might have happened, and if so could we discuss it in a future article?

While public urination is vile, it is something that happens when excessive alcohol is involved. Unfortunately, I can see where in a confrontation with someone who is drunk will escalate rather quickly, yet, you don’t always think of that in beginning of a confrontation when you are offended highly (his daughter was there which probably raised his level of being offended by the guy having his wiener out).

Confrontations between alpha males can have both losing perspective.

Choking for 15 minutes, I take it this was a choke hold, arm around the neck not hands squeezing the throat, is still excessive. This is where his guilt becomes a bit more secure. 15 minutes is a long time, and if he had a choke hold on him for just a minute it should have incapacitated the drunk.

I can see the prosecution going for it again, yet it is expensive going to trial, bringing in expert witnesses, and both sides knowing well what the other side will generally say. Thompson will be ruined financially, most likely from the first trial, a second one harms the family even further. In the case of weighing the expense, of course you would do what you could to pay to stay out of jail. I don’t see a lawyer doing a second trial pro-bono. Would a public defender be able to do the job in re-trial using the same material as this first trial? Would a public defender put on as rigorous a defense as one who is paid by the defendant?

Poor decisions were made all around. I know it is difficult to walk away when tempers rise, yet, despite going all alpha, Thompson should have noticed that Hernandez was drunk and walked away. I don’t know what was said between the two prior to the fight, but unless he tried to walk away and Hernandez followed and pushed the issue, I would have a hard time saying he isn’t guilty of manslaughter. The trial might have persuaded me otherwise, but as laid out above, excessive actions happened, and we are supposed to be responsible for our own actions.

Very interesting case, and write up of the summary of this.

In China people will never get involved in any altercation. They know the government will crack down on them whatever the reason, so why get involved? I read further about this incident. Thompson was holding an angry drunk in a choke hold. If he lets go he’s in a fight for his life. He held on until Hernandez stopped struggling. He probably assumed he was unconscious not dead. That’s the problem with getting involved, you never know what the result will be.

    Yes. The other problem is financial ruin, whether or not you are exonerated.

    I’ll never forget a case in Durham, NC back in the 1990s. Homeowner shot some teens who had broken into his house. Because he shot one in the back as he was fleeing, he is charged with murder. The jury acquitted him on self defense grounds, but he had to sell his house to pay his legal fees.

    Char Char Binks in reply to Jackie. | June 28, 2018 at 7:03 pm

    For most of time Thompson was holding him, Hernandez wasn’t an angry drunk; he was a helpless, desperate drunk who couldn’t breathe with 200-plus pounds of fat, and precious few ounces of brain, bearing down on him.

      paracelsus in reply to Char Char Binks. | June 28, 2018 at 8:36 pm

      you state facts as though you were there

        Char Char Binks in reply to paracelsus. | June 29, 2018 at 12:22 pm

        I’m referring to the video that I saw, which gave me a view as good as being there.

        True, I don’t know about the full encounter, but during the part shown on the video, Hernandez was helpless while his life was being squeezed out of him under Thompson’s body. People were exhorting Thompson not to kill the man, because they could clearly see what was happening, while disgusting sh*+heads were trying to prevent anyone from coming to Hernandez’ aid, and from recording the video.

A simple phone call to 911 and the day would have ended, well enough, for all involved. Terry Thompson left the safety and quiet enjoyment of the restaurant with specific intent to engage with Hernandez.

To my view, Mr. Thompson is as guilty as they come. Hernandez’s family could and should file a wrongful death action against Thompson, even if there is little financial incentive.

There is no justification for pummeling a drunk for pissing in a parking lot.

    Immolate in reply to NotKennedy. | June 28, 2018 at 9:40 am

    Perhaps there is insufficient reason for approaching a drunk peeing in the parking lot, but I would assume that pummeling a drunk would be justified by a drunk first pummeling you. Choking him to death, not so much.

    Unless someone is threatening you or someone else, or violating your property, just call the police, people. And if the former, call the police as well as defending (if possible).

Andrew’s comment that Lawful Conduct can result in a loss of innocence is an important warning. In this situation, innocence could more easily be maintained by a restaurant manager, security guard or police officer. But a 15 minute choke hold (if true) is hard to explain.

    Arminius in reply to dystopia. | June 29, 2018 at 9:03 pm

    “…innocence could more easily be maintained by a restaurant manager, security guard or police officer.”

    As a former restaurant owner/operator I can vouch for that. But then I wasn’t in anything like this situation. It was St. Paddy’s day a few years ago. Some belligerent guy comes in and tells me he’s parking in my lot and going to the bar across the street. I didn’t smell alcohol but he appeared high on something. I told him he couldn’t park in my lot because I need the spaces for my customers, so if he parked there I’m having his car towed. He tells me not to have his car towed and it sounds like a threat.

    So, I have his car towed. It’s a few minutes after we have closed and he comes barging in angry out of his skill, swearing a blue streak at me. I’m kicking myself for not locking the door but we only had one door and I need to leave it open so the employees can take the garbage out.

    So I look around at all the things in the restaurant he can knock me out with, and then I look at the three waitresses and I’m scared what he’ll do to them if he does knock me out with a chair or something. And Like I said, we only had the one door and he’s between us and it. So the only thing I could think of doing is to tell him we’re going to take it outside. On my way out I tell the ladies to lock the door and call 911.

    As soon as we’re outside he starts wailing away with the punches to my face. I couldn’t box with him because I just got the cast off my recently healed broken leg. He’s not really hurting me but I can’t let him keep throwing punches at me all night because as someone already mentioned he might get lucky. So I wait for my opportunity and take him down to the ground. And I put him in a choke hold. It was the only hold I could get. Also I wasn’t on top him. I had him in a choke hold from behind, so I can hook my feet between his legs and stretch him out.

    I released him as soon has he tapped out. He started getting confrontational again but fortunately that’s right when the police show up. So he takes off on foot and is easily caught because now he’s drunk and high after spending a few hours in one of the bars around there.

    But there was never any question about my innocence in the matter. It never even came up, although it helps that the cops knew I was exactly who I said I was and I know most of the Dallas prosecutors. It was different, of course, except for the part about me putting him in a choke hold. I didn’t believe I had any choice, and I still don’t believe I had any choice in the matter. We were just sitting down to our employee meal when the guy barges in, extremely belligerent and clearly spoiling for a fight. And there is no talking to a belligerent drunk/druggie in that condition. But I was worried about really hurting him which is why I released the choke hold and let him up when he tapped me on my leg.

rorschach256 | June 28, 2018 at 10:34 am

A few points left out of your article. The defendant and his wife were both off duty cops. The DA is a Democrat.

It wasnt just a supermajority that were voting not guilty, it was a OVERWHELMING supermajority. 8-4 not guilty on all charges, 11-1 not guilty of murder.

4th armored div | June 28, 2018 at 10:39 am

1 – i am NOT a lawyer, but i can read.
why was not noted (and commented upon) here the issue that
Hernandez was Black a question of bias ?
2 – what prompted Thompson to confront Hernandez,
did he note Hernandez staggering before urinating in public ?
3 – was T arguing with his family, did they egg him on to do something ? IOW what was T’s state of mind.
4 – That T got a 10-2 not guilty, why is the prosecution state that they are going to retry, what was the MSM screaming 7/24 in Houston ?
I have no personal view, just have questions.

    4th armored div in reply to 4th armored div. | June 28, 2018 at 10:42 am

    5 – what sort of training does T have in LEO/military type training? How old is T ?

      A big observation in the “trained” community is that a lot of LEOs have not been trained on this (or trained well)… and hence people end up dead. The LEOs I train with (and have had to use force at work) agree with this. There is a huge difference between a couple of weeks of basic training with sporadic follow ups vs tapping out 50 times a week for a few years.

      It gets even dicier for the ER staff- who usually incur injuries because they can’t use violence in response.

        Gremlin1974 in reply to Andy. | June 29, 2018 at 2:14 pm

        ER violence got so bad here that they changed the law to make hitting medical staff is the same charge as hitting a cop.

    4th…

    I looked at the links here and also the ones from the CBS news story…There is a pic of Hernandez and he’s Latino not black.

    There’s also some video of Thompson being arrested and he appears to be a good sized guy…(he towers over the arresting officer)

    Thompson is 42 and according to the article has some MMA training…but that could mean he works out with some MMA yahoos at the local gym….(sorry, but I hate this MMA fascination some people seem have)

    From the Dennys vid it looks more like Hernandez was squashed and inadvertently choked to death by “fat-ass” Thompson who thought he was in the octagon….

      Gremlin1974 in reply to tgrondo. | June 28, 2018 at 2:29 pm

      Uhh, the story was corrected with Hernandez’s correct race hours ago.

      They tried to claim the “white Hispanic” marshmallow known as George Zimmerman “trained in MMA” because he had a membership to a gym that caters to the MMA crowd. But all credible sources said he only went a few times over the course of a year or more, and Trayvon laid him out with a single punch.

      Without proof, I take everything the MSM says about a person’s “training” with a grain of salt (and a slice of lime, and a shot of tequila; “Demonize the Defender” is a great drinking game! :D).

    Char Char Binks in reply to 4th armored div. | June 28, 2018 at 7:20 pm

    “why was not noted (and commented upon) here the issue that
    Hernandez was Black a question of bias ?”

    He was latino, but not Black. This has been noted and commented on here.

    If I understand your question, and I’m not sure I do, are you implying that T was NECESSARILY racially biased simply because he’s white and the man he fought was not? Is he guilty of implicit bias? Could Hernandez have had a bias against whites? Is that something that could be alleged with some kind of evidence, or is it implicit?

    So much for burden of proof and innocent until proven guilty.

If I was a member of that jury, at least with the information I have so far, I would have voted “not guilty”.
The 15 minute choke hold, if true, can be justified by the fear of losing the upper hand, as AlecRawls said above.

In the same situation, I would have likely avoided confronting the drunk man, just to keep my family out of an unpleasant situation. But I can understand if somebody else did, and it sucks to see somebody’s life ruined when they did nothing wrong.

    Andy in reply to Exiliado. | June 28, 2018 at 12:27 pm

    The 15 minute choke hold is like saying you don’t know what the trigger does on a gun. To a jury stupidity is going to be less compelling than imminent danger.

      Close The Fed in reply to Andy. | June 28, 2018 at 12:59 pm

      Okay, I just want to say as a female, that I have no idea how to do a choke hold or what it causes.

      So if I’m on that jury, I’d have to be educated.

        Medically- 3 things…
        1- blood choke to the corroded arteries on the side of the neck renders someone unconscious in under 7 seconds (sometimes as few as 3). If held for any period of time (like 30 seconds), you are causing serious damage because the brain is being deprived of blood/oxygen. Think of a stroke. Often the chok-ee doesn’t even realize they are going to lose consciousness.

        2- An air choke. This is on the trachea. In an altercation, adrenaline makes this a tough one to do, but given the size of the big boy, he could have done this. Since this is airway, it takes a while for this to cause damage. This one hurts like hell.

        3- Trauma to having the neck torqued. Less likely, but possible against someone who lives on chips and booze and is not in good shape. Having a large dude torque your neck around is going to definitely have ramifications. If violent enough, you could be breaking some C-spine stuff.

          Gremlin1974 in reply to Andy. | June 28, 2018 at 2:25 pm

          What I am actually wondering is if he accidently broke the Hyoid bone that supports the trachea. With adrenaline pumping he very well could have applied far more force than he intended when initially applying the hold, but that is speculation without seeing the post mortem.

          The problem with a chokehold is if not done correctly it can be completely ineffective and/or cause far more damage than you intended. Most self defense instructors I know don’t actually recommend using chokeholds since it is usually best to concentrate on breaking away.

          paracelsus in reply to Andy. | June 28, 2018 at 8:43 pm

          corroded arteries?
          carroted arteries, Bugs?
          carotid arteries: please.

        Char Char Binks in reply to Close The Fed. | June 28, 2018 at 7:21 pm

        Anybody can choke or strangle someone.

      Exiliado in reply to Andy. | June 28, 2018 at 2:52 pm

      NO, Andy. You are wrong.
      Most people would probably don’t know the difference between “enough” and “too much” when applying this kind of force. It is perfectly possible to not know that you are actually killing the other person.
      Personally, I am somewhat** confident that I can keep you on a choke hold for more than 15 minutes without killing you, provided that you don’t try anything stupid while I am holding you.
      (**Somewhat because I don’t know you and because I’m kinda old and rusty now.)

        Andy in reply to Exiliado. | June 28, 2018 at 9:10 pm

        I think you missed what I was saying: “I didn’t know he was dead from me choking him for 15 minutes because I don’t know WTF I’m doing” is not a good defense strategy. Same as saying I don’t really know jack about handling a gun, but carry one anyone (and break dance while carrying with a round chambered if I’m in the FBI)

        I noted in other comments that if you actually “train” you know when to let up. The problem is, as Char char noted…anyone can choke someone and its even worse if you have learned how to do it but don’t train because you will get the position and use too much force.

          Exiliado in reply to Andy. | June 28, 2018 at 11:28 pm

          I guess I missed what you were trying to say, but now that you clarified it, I noticed that you are misrepresenting my original statement.
          I never said “I didn’t know he was dead […] because I don’t know WTF I’m doing”.
          What I said was “I didn’t let go because I was afraid that if I did my life would be in danger, because he would come at me again with the help of the guy that was shooting the video.”

A useless and ill-mannered drunk died. I shed no tears. Given the facts, manslaughter was the worst possible charge they should have went for – and I probably would have added to the supermajority.

Learn how to fight. Anyone with even a month of BJJ knows to let loose on a choke after about 10 seconds if the other guy is not moving. You can always cinch it back if he’s faking.

    Andy in reply to Andy. | June 28, 2018 at 12:22 pm

    I was pulled into what could have been / would have been a lethal exchange 2 years ago. I wasn’t carrying that day, but I would have been forced to unholster. Instead it was a massive exchange of concussions. Though my side “won” against a much larger out of control aggressor, everyone walked away with some major hits to the skull and other injuries.

    Later that month I started with a BJJ gym… and if you want to see amazing, watch a 110lb brown belt female square off with a 220 lb dude. Net net… those physical altercations (and avoiding them) are different when you’ve had real training and can subdue a larger/stronger aggressor.

    I still carry- and living about 15 miles from that Tumwater Walmart where that pastor killed the carjacker, I have no illusion that lethal self defense isn’t required at times. However the guy in the peeing story had no (real) training and someone ended up dead who didn’t need to be.

    Get trained.

    Gremlin1974 in reply to Andy. | June 28, 2018 at 2:26 pm

    Same for Judo and Aikido, well most martial arts that involve any form of grappling should teach that, I would hope.

Once again we see that the process becomes the punishment and the state has a lot of advantages.

Can’t something be done to limit this sort of financial double jeopardy?

    Gremlin1974 in reply to jakee308. | June 29, 2018 at 2:16 pm

    The “problem” as I understand it is that with a hung jury there is no “verdict”, just a mistrial so double jeopardy doesn’t come into play.

As an off duty cop, shouldn’t T’s defense be covered by the Union; PBA; or PD? T appears to have been or be acting as a cop—judging from what I am reading !!!! ABJ

Everyone has a cellphone camera, take his picture and call 911 wait for the police, present your evidence.

There is a good chance that the state will never get a unanimous decision one way or the other. Normally, with an 11-1 or 10-2 vote for acquittal, a prosecutor would not attempt to retry. Unless the jury was totally unrepresentative of the jury pool, it is extremely unlikely that the prosecution can obtain a conviction on the same evidence.

There a couple of things to remember about this case.

First, Thompson was the victim of a violent attack. Unless Thompson made a move which was obviously indicative of an immediate violent attack upon Hernandez, Hernandez committed a violent crime and Thompson’s initial response was lawful self defense. Thompson has every right to express his displeasure at Hernandez’s commission of a criminal act, public urination.

Second, it is unclear from the reports, what Thompson’s intention was when he was keeping Hernandez secured. If it was done in a reasonable belief that releasing Hernandez would result in Hernandez continuing his attack upon Thompson, this would probably be lawful. If he was detaining Hernandez pursuant to the direction of his wife, a deputy sheriff, and his wife was acting within her jurisdiction, then he derives a certain amount of immunity for his actions.

Third, we have a big problem with the cause of death. The coroner seems to be unsure what exactly what killed Hernandez. he has essentially listed two competing causes of death, manual strangulation and thoracic compression. Now, either could have resulted in asphyxia, leading to brain death, or a combination of both may have led to asphyxia. Unfortunately, as, the “choke hold” was applied for a period of from 10-15 minutes, it is unlikely that it was the primary cause of the asphyxia, as death from sufficient pressure to the trachea/carotid artery usually causes death within 2 minutes. Thoracic compression is much more likely to be the cause of the asphyxia, but as it is often very difficult for a person to ascertain that the lungs are being sufficiently compressed to cause asphyxia, this lends itself well to the death being ruled an accidental homicide, rather than even a negligent homicide.

This case was doomed from the start and was largely a political indictment due to the BLM hysteria. And, it is very likely that any further prosecution would also result in the same result.

As to whether Thompson should have spoken to Hernandez at all, this is a good point. Historically, we have seen citizens ignore homicides, rapes, violent assaults child abuse and just about every other criminal act because they did not want to endanger themselves. And, most people decry this type of behavior as being a negative social characteristic. When a person has to fear being directly endangered by the government, this has a very chilling effect upon the behavior of the citizenry. Hernandez chose to respond to Thompson with armed physical attack. he could just as easily have resorted to the production and use of a deadly weapon. The point here is that Thompson was the victim of a violent criminal attack because he told Hernandez that he (Hernandez) was committing a criminal act in public and then, when he defended himself, without using a deadly weapon, Hernandez died and the state prosecuted Thompson for criminal homicide, even though NO evidence was produced at trial that Thompson intended or even desired to kill Hernandez.

    Mac45 in reply to Mac45. | June 28, 2018 at 10:26 pm

    “Hernandez chose to respond to Thompson with armed physical attack. he could just as easily have resorted to the production and use of a deadly weapon.”

    This should read: “Hernandez chose to respond to Thompson with AN UNARMED physical attack. he could just as easily have resorted to the production and use of a deadly weapon.”

    RobM in reply to Mac45. | June 29, 2018 at 12:09 am

    Very well stated. This is a ” Houston” issue.. this prosecution. And surely BLM tainted. The DA in Houston is a political actor. I predict a lot of fuss and press statements, and in a year the DA will quietly decide not to retry.

The very sad summary of all this: no good deed goes unpunished.

Perhaps as adults begin to populate the Supreme Court again, the times will change.

I would tell the Manager and call the cops because anyone that would urinate in public would probably be violent. Best not to “go there”.

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