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.