On Friday, August 23 , 2019, a Florida jury convicted Michael Drejka, the handicap parking spot shooter who killed Markeis McGlockton, of manslaughter.
As a result, at his September 10 sentencing hearing the 48-year-old Drejka will likely be sentenced to a mandatory minimum of 25 years to life in prison, without possibility of early release.
My problem with this outcome has nothing to do with the fact that Michael Drejka was found guilty—maybe he was guilty.
My problem with this outcome has to do with the process by which he was found guilty, a process in which justice in general and Drejka, in particular, were badly let down by both the state, by his own defense team, and by all the supposed use-of-force “experts” called by either side, with particular respect to the use-of-force doctrine knows as the Tueller Drill.
Whether Drejka’s shooting of McGlockton was lawful self-defense on the one hand or a criminal killing on the other always appeared to me rather ambiguous given the facts of that case. As a result, I believed reasonable people could arrive at either guilty or not guilty on this case.
That said, as a lawyer I strongly believe that if a person is to be found guilty and, as in this case, sentenced to spend effectively the rest of their life in a cage, the judicial process for doing so ought to be robust, and based on truth to the extent truth is identifiable, or at least not based outright lies.
Why? Because it’s what any of us would want for ourselves or anyone we cared about who was charged with a crime, especially as serious a crime as murder of manslaughter, especially in the context of a reasonable claim of self-defense.
In the conviction of Michael Drejka, however, we see a case in which a key issue — indeed, arguably the key issue — was corrupted by the prosecution in a way that gutted the very foundation of Drejka’s self-defense justification, and thus stripped Drejka of any hope of an acquittal. Sadly, it also appears unlikely that this will prove to be a viable basis for Drejka to appeal his conviction and his effective life sentence. For all this, I fault Drejka’s defense counsel who left (presumably through ignorance) their client to be vulnerable to this.
I also fault Dr. Roy Bedard, the purported use-of-force “expert” retained by the state. I’ve no idea what caused Bedard’s misinformation about a key defense. Whatever the cause, it ought never to have happened, not with an effective life sentence in the balance.
At this point presumably everyone reading this has viewed the surveillance video footage of the attack by McGlockton upon Drejka, throwing Drejka violently to the ground, Drejka drawing his pistol, McGlockton taking a couple of shuffling steps back, blading his body either to retreat or into a fighting stance, and Drejka finally shooting McGlockton. If you have not, here it is:
Reasonable people can agree or disagree on whether McGlockton was, indeed, turning away from the fight, and thus whether the attack on Drejka was over. Even if we assume that McGlockton was retreating, however, that alone is not decisive on the issue of whether Drejka’s use of defensive force was lawful.
One of the conditions for a defensive force to be lawful is that the force was used to stop a threat that was imminent, or about to occur right now (or, of course, actually in progress).
If the defensive force is used against a threat that is merely speculative or to occur at some indefinite time in the future, that threat is not yet imminent, and that use of defensive force against that threat is not justified. Similarly, if defensive force is used against a threat is completed and no longer a danger to the defender, that use of defensive force is not justified.
Only if the threat is actually in progress or is imminently about to occur—about to occur right now—can the use of defensive force against it be justified.
But there’s a further wrinkle that must be understood.
It is not necessary that the feared threat actually be imminent. It is only required that the feared threat be reasonably perceived as imminent. And that matter of reasonable perception is precisely the core legal issue in this case.
That is, the core legal issue in this case is not whether McGlockton was, in fact, retreating on the one hand or in fact remained an imminent threat on the other hand.
Rather, the core legal issue is whether a person in Drejka’s circumstances—to wit, having just been brutally blindsided by McGlockton’s unjustified physical attack and violently thrown to the ground in the parking lot, with McGlockton standing just a few feet away—could reasonably, even if mistakenly, have perceived McGlockton as a continuing imminent threat.
Note that “even if mistakenly” phrase, because it’s critically important. The law does not require us to make perfect decisions in self-defense. It requires us to make reasonable decisions in self-defense.
It is for this reason, for example, that the shooting death of an apparent aggressor “pointing” a cellphone can be perfectly lawful if it occurs under circumstances in which the cell phone could reasonably be mistaken for a gun. Similarly, if a realistic looking toy gun in the hands of an aggressor is reasonably mistaken for a real gun.
In that hypothetical was there actually an imminent threat posed by that aggressor? No, but that’s not what matters. What matters is whether the defender reasonably, even if mistakenly, perceived there to be an imminent threat posed by that aggressor.
If so, that use of defensive force was lawfully justified, regardless of the factual error.
Applying that legal standard in this case, the core question in this case is this: Did Drejka, in the context of the circumstance that had been imposed on him, reasonably, even if mistakenly, perceive McGlockton to be an imminent threat when Drejka used defensive force against McGlockton?
If so, the shooting was lawfully justified. And that is precisely the question intended to be answered by the criminal trial of Michael Drejka in the shooting death of Markeis McGlockton.
In order to answer that question, it is necessary, of course, to know whether McGlockton could, under these circumstances, have possibly constituted an imminent threat. A useful framework for evaluating imminence is something called the AOJ triad, and indeed this triad was broadly described, and correctly, described for the jury by the state’s use-of-force expert witness, Roy Bedard.
The “AOJ” acronym consists of ability, opportunity, and jeopardy, and the idea is that if a threat possesses all three of those characteristics it constitutes an imminent threat, and the use of defensive force against it is legally justified (assuming the other requirements of self-defense are also met).
On the other hand, if any one of the AOJ components is missing, then the threat, however real, is not imminent, and the use of defensive force against it is not legally justified.
In brief, the “A” of “AOJ” stands for “ability”: does the threat have the ability to cause harm. In fact, essentially everyone, and demonstrably Markeis McGlockton, has the ability to cause at least some degree of harm, so “ability” is effectively always present. The only real question is the degree of harm one has the ability to cause—mere non-deadly harm or deadly harm—and that’s a topic for another post.
At the tail of the acronym, the “J” of “AOJ” stands for “jeopardy” (some people prefer the term “intent”): Is the threat conducting itself in such a manner that one can infer an intent to cause the defender harm. In this case the fact that McGlockton had already thrown Drejka violently to the grown, and remained in close proximity, allowed for an inference of jeopardy. That McGlockton might have been turning away at the sight of Drejka’s gun, on the other hand, argues against jeopardy, but again that’s a topic for another post.
Most relevant to this post is the “O” in “AOJ”, which stands for “opportunity.” This refers to the issue of whether an apparent threat who has both the “ability” to cause harm to the defender and the apparent intent to place the defender in “jeopardy,” also has the “opportunity” to do so.
Generally speaking, the issue of “opportunity” only really arises in the context of impact weapons, and not in the context of, say, firearms. If an attacker has a gun, it’s the nature of that projectile weapon that if the attacker can see the victim they can fire at the victim, and thus have the opportunity to act on their ability and jeopardy to harm the victim.
On the other hand, what if the attacker has “merely” an impact weapon? (Note that innocent victims are murdered by the thousands in the United States each year with “mere” impact weapons, including “merely” fists and feet).
In that case, it is necessary for the attacker to get close enough to the victim in order to have the “opportunity” to harm the victim with that weapon.
If the attacker is yet close enough for that purpose, the attacker is too far away to have the “opportunity” to bring that impact weapon to bear against the victim, and lacking “opportunity” is not yet an imminent threat, and the victim would not yet be justified in using defensive force.
On the other hand, at some (as yet undefined) lesser distance the attacker will be close enough to have the “opportunity” to bring that impact weapon to bear, and along with the existence of “ability” and “jeopardy” the attacker is now an imminent threat against which the victim can justifiably use defensive force.
Obviously, then, it is of critical importance to understand at what distance an attacker armed with an impact weapon has come close enough to constitute an imminent threat. In particular, an attacker further than that distance would not yet constitute an imminent threat, and the use of defensive force against such a too-distant attacker would not yet be legally justified.
It is here that what is commonly known as the “Tueller Drill,” sometimes referred to as the “21-foot-rule” or the “7-yard rule” becomes relevant, so some explanation of that concept is warranted.
The “Tueller Drill” was developed by a Salt Lake City UT police officer named Dennis Tueller, who was wondering about precisely this question—at what distance is an impact weapon bearing attacker demonstrating both “ability” and “jeopardy/intent” in close enough proximity to their intended victim that they now also have “opportunity,” and thus have become an imminent threat against which defensive force can lawfully be used?
Tueller naturally distinguished between the two possible outcomes in such a confrontation. In one outcome, the one we wish to avoid, the attacker successfully brings their impact weapon to bear upon the victim. In the other outcome, the desirable outcome, the defender is able to thwart the attacker’s attempt to bring their impact weapon to bear.
That more desirable outcome, thwarting the attack, typically involves the use of some defensive actions, which actions requires time.
All of this helpfully distills the relevant question down to the following: how much time is required for a defender to execute the defensive actions necessary to thwart the attack? Once that defensive time requirement is known, we by extension also know the relevant distance at which the attacker’s threat becomes imminent—it is whatever distance the attacker can cross in that same period of time.
Tueller did some empirical study of how long it took to deploy a service pistol from a holster and use it to effectively engage an impact weapon bearing attacker, and arrived at a figure of 1.5 seconds.
The distance at which that impact weapon bearing attacker becomes an imminent threat, then, is whatever distance that attacker can cross in that 1.5 seconds (or less). Once inside that distance, the attacker can strike the defender with their weapon before the defender can thwart the attack.
Through further empirical study, Tueller determined that most people can, from a static standing position, accelerate into motion and cross a distance of 21 feet in that 1.5 seconds.
The lesson is clear: An impact weapon bearing attacker has the opportunity to strike the defender before the defender can thwart the attack once the attacker is within 21 feet of that defender. Assuming that “ability” and “jeopardy” are also present, at that distance of 21 feet that attacker has, therefore, become an imminent threat against which defensive force is justifiable.
Imagine a prosecutor faced with a case in which a defender used force against an impact weapon bearing attacker, and in which the defender has raised the legal justification of self-defense.
It is the prosecutor’s burden to disprove self-defense beyond a reasonable doubt. This can be accomplished by disproving any one of the elements of self-defense beyond a reasonable doubt. One of those required elements is imminence, and one factor of imminence is opportunity. Finally, as already shown, a key factor in determining imminence in the context of an impact weapon bearing attacker is distance—to wit, that 21-feet distance.
In such a case, it is very helpful to the prosecution if the impact weapon bearing attacker is not yet within 21 feet. If so, the attacker lacks “opportunity,” if they lack “opportunity” there is no “imminent threat,” and absent an imminent threat there is no legal justification for the defendant’s use of force. Given that claiming self-defense effectively requires the defendant to concede it was he who used the force in question, stripping away the justification defense makes for an easy win for the prosecution.
On the other hand, if the impact weapon bearing attacker is within 21 feet, that presents a difficulty for the prosecution. Now the defense can argue, based on the Tueller Drill, that although 21 feet may appear to be too far to constitute an imminent threat, in fact, the Tueller Drill informs us that such a threat that is 21 feet (or closer) is in fact reasonably perceivable as a threat that is imminent.
What if the distance between the attacker and the defender at the critical moment defensive force was used was a mere eight or ten feet, as was apparently the case when Michael Drejka shot Markeis McGlockton? In that case, the doctrine of the Tueller Drill would suggest that an attack by the prosecutor on the element of imminence would not be likely to be successful.
Unless … unless one could somehow convince the jury that the Tueller Drill did not apply to the particular facts of the conflict between Drejka and McGlockton. What if the prosecution could so greatly narrow the definition of the Tueller Drill that McGlockton’s conduct no longer fit? If so, the fact that McGlockton was well within the 21-foot distance identified by the Tueller Drill becomes irrelevant, and the Tueller Drill is no longer useful as a means to show the jury that McGlockton remained an imminent threat to Drejka at a distance of two or three paces.
Doing this, however, would require a definition of the Tueller Drill that was demonstrably false. How could any prosecution get away with communicating such a false definition of the Tueller Drill to the jury, regardless of whether that false communication on the part of the prosecutors was made intentionally or through ignorance?
Enter the prosecution’s purported use-of-force expert Dr. Roy Bedard, who provided a narrowed definition of the Tueller Drill, and the defense counsel of defendant Michael Drejka who, for whatever reason, did not seriously challenge this falsely narrow definition.
This narrowed definition of the Tueller Drill effectively removed the doctrine as a tool for explaining to the jury why Drejka’s perception of McGlockton as an imminent threat was a reasonable perception, even if mistaken. Absent that essential explanation convincing the jury of imminence became all but impossible, and the prospects for Drejka being acquitted on the basis of self-defense all but evaporated.
I suggest, based on my watching the trial via a Facebook live feed, that this falsely narrowed definition of the Tueller Drill, and the failure of the defense to seriously challenge that narrowed definition, led directly to Drejka’s conviction, and by extension to the 25-to-life prison term is will almost certainly be sentenced to next month.
In what way did Dr. Bedard narrow the definition of the Tueller Drill to remove Drejka’s defensive force from within the scope of that doctrine?
Here’s how: Dr. Bedard defined the Tueller Drill as applying only where the attacker was armed with an edged weapon. He did so repeatedly, explicitly, and with emphasis, as I’ll show shortly.
Given that everyone stipulated that McGlockton was armed only with his fists and feet, and was not in possession of an edged weapon, narrowing the definition of the Tueller Drill to the context of attacks with edged weapons effectively took the Tueller Drill doctrine off the table for purposes of justifying Drejka’s use of defensive force.
This narrowed definition of the Tueller Drill could have been countered by the defense, had the defense challenged it. Unfortunately, the defense failed to seriously challenge this definition, despite plentiful opportunity to do so.
We know for certain that the Tueller Drill is not limited to the context of edged weapons, however, because the very source of the Tueller Drill, Dennis Tueller himself told us so. Tueller explicitly described the Tueller Drill as being relevant not just to edged weapons, but to impact weapons generally.
Indeed, Tueller told us so in the seminal article in SWAT Magazine in 1983, entitled “How Close is Too Close,” in which he introduced the Tueller Drill to the world. In fact, he first tells us so in the first sentence of that article, which is about as prominently as the point can be made.
Here’s that first sentence:
The “good guy” with the gun against the “bad guy” with the knife (or machete, axe, club, tire-iron, etc.). (emphasis added)
Guess what a club and tire-iron are not examples of? That’s right, they are not examples of “edged weapons.” They are examples drawn from the broader category of impact weapons generally.
Later in that seminal article we find this sixth paragraph:
With that in mind, let’s consider what might be called the “Danger Zone” if you are confronted by an adversary armed with an edged or blunt weapon. At what distance does this adversary enter your Danger Zone and become a lethal threat to you? (emphasis added)
I suggest it is incontrovertible, based on the seminal writing on the doctrine by Dennis Tueller himself, that the Tueller Drill applies to impact weapons broadly defined, and not to the narrow scope of edged weapons only.
I caution the reader to recall that “impact weapons” in this context need not be limited to artificial objects—fists and feet are “impact weapons” for use-of-force law purposes when they are used as such to inflict physical force upon another, as would be a tree branch or a rock or anything else used in an offensive manner.
Again, several hundred people in the United States are killed each year by “mere” fists and feet used as impact weapons. Further, there is no dispute in this case that using his body as an impact weapon is precisely what McGlockton had already done to Drejka in violently knocking him to the parking lot asphalt, and arguably (for the defense) intended to continue doing.
I will also note that Teuller’s seminal article “How Close is Too Close” is readily accessible on the internet. Indeed, I just confirmed that the article can be found on the first page of search results when the terms “Dennis Tueller Tueller Drill” are Googled. You can find a link to that web page, and I’ve also included a PDF printout of that page here in case that web page goes astray:
Given how explicitly, and from the very first sentence, the article makes clear that the Tueller Drill concept applies to impact weapons generally and not just to edged weapons specifically, how it is it possible to define the Tueller Drill as applying only in the context of edged weapons?
Further, it was known to the defense team that the Tueller Drill would be an issue of this case, based both on the facts of the case itself but also because their client, Michael Drejka, had explicitly referenced the “21-foot-rule” in justifying his use of force to detectives after the fact. Yet they sat in the courtroom all but mute as Bedard defined Tueller Drill doctrine as applying only to edged weapons.
Is it possible that they themselves had not bothered to read even the first sentence of the seminal article that established the Tueller Drill as a use-of-force doctrine that for decades has been broadly taught to law enforcement and civilian defenders alike?
Is there any possible, imaginable “trial strategy” of the defense that would explain why it was beneficial to their client to have the Tueller Drill doctrine excised from his legal justification through this narrowing to edged weapons only, particularly given the facts of this case?
Is this the effective assistance of counsel to which the United States Constitution entitles all criminal defendants, including Michael Drejka?
It boggles the mind.
Now, you may be thinking, well, sure Andrew, you’ve convinced us that the Tueller Drill doctrine, as described in the seminal article that established that doctrine itself, clearly applies to impact weapons generally, and not to edged weapons alone,.
But surely you’re exaggerating the extent to which Dr. Bedard narrowed the definition of the Tueller Drill, the extent to which the prosecution emphasized this narrowed definition and the fact that it did not apply to Drejka’s defense, and the extent to which the defense failed to challenge this narrow definition?
Sadly, I am not exaggerating, and I’ve got the courtroom video, and my own transcripts of that video, to prove it (both provided below). I watched the trial via Facebook video live feed. While it’s possible there was a challenge at sidebar or in chambers, in the courtroom in front of the jury the narrowed definition was not seriously challenged.
The first testimony on the “Tueller Drill” occurred during the direct examination of the state’s use-of-force expert Dr. Roy Bedard by Prosecutor Scott Rossenwasser.
Here’s the video:
Here’s the transcript of that video, with emphasis added in bold-italics as appropriate:
PROSECUTOR:Now, in the defendant’s statement, he also brings up something that he calls the “21-foot rule.” Now, we’re going to talk in detail about it. First of all, have you ever heard that term before?BEDARD:Yes.PROSECUTOR:Is there such a thing as a “21-foot rule”? [Makes “scare quote” motion with fingers.]BEDARD:No.PROSECUTOR:Can you explain? [Judge interrupts with administrative question, which prosecutor addresses, then direct continues.] So, the “21-foot rule” is not really a rule, but you’ve heard of the terminology.BEDARD:Yes.PROSECUTOR:All right. What is it, what is the “21-foot-rule,” so to speak?BEDARD:A little history. 1983, a law enforcement officer from Salt Lake City, Utah by the name of Dennis Tueller discovers probably what you already know, and that is that there is such a thing as reaction time. And Tueller wrote an article in the SWAT magazine entitled, “How Close Is Too Close.”Meaning, when you are addressing a threat, as a SWAT operator generally speaking, how close is too close before you would be able to react to a very specific threat.And that threat is somebody with an edged weapon. Fast forward to 1988, a company called Caliber Press produced a video called “Surviving Edged Weapons,” and they played out the “Tueller Drill”, which is what we refer to it as, using multiple trials, multiple officers, to examine what Tueller had concluded: that it takes time for you to be able to get your weapon out of your holster when you first identify a threat.So when you first identify a threat, the assumption is, if that person is actively attacking, they are covering distance, how much space would you need to be able to actually address a knife attack, with a firearm. (emphasis added)Obviously, you have to get the gun in your hand first. And I don’t know if you’re familiar with modern law enforcement holsters, but they are designed as safety holsters to keep the weapon in. There are a lot of interesting straps and snaps and blocks that’s configured into the design, that’s very specific to hold the weapon in if somebody grabs it.And that’s good, except if you’re trying to quick-draw it takes you a little bit of time to get it out, you have to undo those straps and snaps and maneuver around those blocks to get the weapon outIt’s generally assumed that it’s going to take about 1.5 seconds. We’ve tested it, we’ve examined it several times.So, that’s what the “Tueller Drill” was. It was an expression of how far back should we start pulling our weapon and addressing the threat, with two shots, in 1.5 seconds. And when they examined it, they generally said that it takes more than 20 feet.This is all based on what we call a quarter-second reaction time. The ability to perceive something takes about 0.18 to 0.25 seconds. Your hand moving back [motions left hand to waistline as if reaching for a holstered handgun] takes about 0.18 to 0.25 seconds, grabbing the weapon 0.18 to 0.25 seconds, doing all the magic to release it 0.18 to 0.25 seconds, drawing it about a quarter-second, extending it and addressing the target about a quarter-second, so there’s about six things going on there, and if you multiply that by 0.25 you’ll come up with 1.5 seconds.So, that’s what the drill was. And it has actually had a lot of influence on training both in the civilian environment and law enforcement. There are drills now that are conducted at what we call the 7-yard line, when you qualify, NRA courses, when you qualify for law enforcement.There’s a moment when we will stand you 7 yards from a target, and give you 1.5 seconds to pull your weapon, and then address the target in that time frame. So that’s the test if you will.But it’s not a “rule,” it’s really just sort of a healthy respect for understanding that if somebody is standing close to you, they may have an edged weapon, could do real harm before you could get your weapon out of the holster.PROSECUTOR:Just a couple of things, let’s talk about. So, one, this “Tueller Drill” was really designed for law enforcement.BEDARD:Yes.PROSECUTOR:OK.BEDARD:Well, by law enforcement, for sure.PROSECUTOR:OK, by law enforcement, really, in training law enforcement.BEDARD:Yes.PROSECUTOR:All right. And, you indicated something about the holster, a holster for law enforcement may be by design be a little more difficult to take a firearm out of.BEDARD:They are significant, significantly, sophisticated.PROSECUTOR:OK, and that would then factor into the timeframe.BEDARD:Yes.PROSECUTOR:All right. It sounds like what you’re testifying is that there’s three components of this “Tueller Drill,” which the defendant refers to as the “21-foot rule.” Correct?BEDARD:Yes.PROSECUTOR:OK, so the first component, would that be that in the drill the officer has not yet unholstered the firearm.BEDARD:Yes.PROSECUTOR:Can we write that [on large clipboard] as number one? So that would be the firearm still in the holster. [Bedard does so.] Number two, you were saying that in the “Tueller Drill,” the person that had the edged weapon was advancing. (emphasis added)BEDARD:Yes.PROSECUTOR:OK, so could you put that number two, that the person or aggressor however you want to say it, is advancing.BEDARD:[Writing] It’s critical that I include edged weapon, because that’s what the drill’s about.PROSECUTOR:OK, and that was when you, the third position, the third important part of the “Tueller Drill,” which the defendant referred to as the “21-foot rule,” is that the person that is advancing has an edged weapon.BEDARD:Yes.PROSECUTOR:OK, can you put that as the third principle, call it.BEDARD:[Writing] I’ll put “retains edged weapon,” because there’s some possibility that your appraisal may include that they dropped it along the way.PROSECUTOR:Now, common sense, “edged weapon” would be a knife?BEDARD:Yes.PROSECUTOR:Anything else that you could think of?BEDARD:Anything sharp. Screwdrivers, bottles, machetes, I suppose you could even argue a ball point pen, could puncture, slash, cut, in some way, that’s generally what we’re training the “Tueller Drill” against. (emphasis added)PROSECUTOR:OK, so, for example, you have to have all three.BEDARD:Yes.PROSECUTOR:So, if you don’t have [number] one [points to clipboard], the “Tueller Drill” or “21-foot rule” doesn’t even apply.BEDARD:Right.PROSECUTOR:If you don’t have number two [points to clipboard], [Tueller Drill] doesn’t apply.BEDARD:Right.PROSECUTOR:Don’t have number three [points to clipboard], [Tueller Drill] doesn’t apply.BEDARD:That’s correct.
By the way, under Florida law both sides in a criminal case have the privilege to question (take a deposition of) the other side’s expert witnesses. There is no way, then, that this testimony could have—or at least, no way it should have—surprised the defense at trial. They had plenty of opportunity, both based on their client’s own reference to the “21-foot rule” while under interrogation and based on their (presumed) deposition of the state’s use-of-force expert Bedard to be prepared to decisively challenge this false characterization of the Tueller Drill doctrine, and to catastrophically impeach Bedard as the use-of-force “expert” the state purported him to be.
So surely the defense spent some time on their cross-examination of Dr. Bedard on this narrow definition of the Tueller Drill doctrine to only apply to edged weapons? Especially given how vitally important the Tueller Drill was to explaining to the jury why Drejka’s perception of an imminent threat was arguably a reasonable perception?
The state spent about 48 minutes questioning Dr. Bedard on direct examination. Care to guess how much time defense law Trevena spent on cross-examination of Dr. Bedard?
Four minutes.
Care to guess how many of those four minutes of cross-examination were spent on the matter of Dr. Bedard’s falsely narrow definition of the “Tueller Drill”?
Zero.
That’s not a typo. Zero minutes. Zero seconds. The defense never so much as whispered a reference to this falsely narrow definition of the “Tueller Drill” that so thoroughly gutted the arguable reasonableness of Drejka’s perception of an imminent attack by McGlockton.
Think that’s bad enough? Wait, it gets worse.
The defense in this case retained its own use-of-force expert, Mr. Sean Brown. Mr. Brown runs his own security firm, is a former Marine, and has a variety of other use-of-force qualifications.
Direct examination of Mr. Brown was performed by defense lawyer Theresa Jean-Pierre Coy. Care to guess how many questions defense attorney Coy asked Mr. Brown about the “Tueller Drill”?
One. One question, on this doctrine that’s critically important to the defense. And even that one question was not at all substantive, nor leveraged to the credit of Drejka’s innocence.
COY:“There’s some terms that have been brought up during this trial. Are you familiar with a term called the “Tueller Rule” or the “21-foot rule”Brown:“Yes.” [Mr. Brown then gives ~60 second a history lesson on the Tueller Drill, more or less accurately, but without ever clarifying that the doctrine applies not just to edged weapons but to all impact weapons.]COY:OK, now let’s talk a little bit about civilian concealed weapon training and law enforcement training? Are those the same thing? And excuse my inexperience and what not, can you explain that to the jury?And with that, Attorney Coy left the subject of the Tueller Drill behind, never to touch upon it again, and moved on to other matters entirely.
In particular, there was nothing said by either Ms. Coy or Mr. Brown during her direct examination of him that connected the doctrine of the Tueller Drill to Drejka at all. Not to the reasonableness of Drejka’s perceptions, not to the reasonableness of his decision-making, nothing. Nor did any subsequent part of the defense case make any reference to this facet of Mr. Brown’s testimony.
In particular, the direct of Mr. Brown did absolutely nothing to correct the narrow definition of the Tueller Drill as repeatedly stated and emphasized by state.
Did the defense not know that Dr. Bedard’s description of the Tueller Drill was badly mistaken, and mistaken in a manner devastating to their client? Again, had they not even read the first page of the seminal article on the Tueller Drill written by Dennis Tueller himself? Did they read it and not understand the significance? Was there some trial strategy that justified not addressing the state’s mischaracterization of the Tueller Drill? If so, I can’t imagine what it could be.
Mr. Brown’s testimony on the Tueller drill was literally, simply a one-minute history of the Tueller Drill with no connection drawn to the actual facts of this case, and no particular relevance to it, and in no way clarifying the misinformation previously provided to the jury by the state. As near as I could tell it served no purpose whatever. It may as well have been random information shared with the jury for no particular reason.
But where the defense appears to have dropped the ball, the state prosecutors saw an opportunity, and they grabbed it with both hands on cross-examination of Mr. Brown. Cross was performed by Prosecutor Fred Schaub, who almost gives away the huge advantage on this issue that the defense has handed him.
Prosecutor Schaub repeats the notion that the “21-foot rule” applies only to edge-weapons, and is promptly pushed back by Mr. Brown, as we see in the video and transcript of this exchange below.
SCHAUB:Let’s talk about the “21-foot rule.” BROWN:OK.SCHAUB: Because you listened to his [police interrogation], Mr. Drejka’s, “the 21-foot rule, the 21-foot rule, the 21-foot rule.” Right?BROWN:Yes.SCHAUB: As a justification for what he did. Correct?BROWN:I say that was a justification, but he did use that terminology.SCHAUB: Right.BROWN: Yes.SCHAUB: You wouldn’t say it was a justification, because let’s talk about the “21-foot rule.” It deals with a person advancing towards another person. Correct?BROWN:Correct.SCHAUB: It deals with, it’s a scenario where the officer has a firearm.BROWN:Yes.SCHAUB: And, he has not pulled out that firearm yet.BROWN:Correct.SCHAUB: And, the perpetrator has a sharp-edged object.BROWN:Negative. It can be any form of weapon. Or that individual just being aggressive on his own, himself.SCHAUB: Sir, the Tueller Rule, the “21-foot rule,” deal with someone with a sharp-edged weapon.BROWN:Not necessarily true, sir.SCHAUB: All right, we’re going to differ on that, OK?
So, the good news in this exchange (which good news doesn’t last long, as we’ll see) is that Brown pushed back on the notion that the Tueller Drill requires that the attacker be armed with an edged weapon.
Unfortunately, because this is cross-examination and it is the prosecution who is setting the scope of the exchange, Prosecutor Schaub is free to tactically retreat from this blunder as soon as he sees it’s not going his way. On direct, the defense could have expanded on this correction relentlessly, but of course on direct the defense didn’t touch upon any correction at all.
Conversely, the bad news in this exchange is that it allowed the state to introduce two additional misconceptions about the Tueller Drill, both of which if believed by the jury would appear to invalidate that applicability of the Tueller Drill to the facts of this case.
One of those additional misconceptions is that it applies only where the aggressor is actively advancing, and the other is that it applies only in circumstances where the gun is still holstered.
In fact, the Tueller Drill obviously applies where an aggressor could advance, not just when they are advancing. The Tueller Drill, after all, begins with the mock-aggressor in a standing still position.
Second, the lesson of the Tueller Drill is the relationship between speed of attack, and thus distance that can be crossed, relative to speed of defense. Having a gun already out of the holster doesn’t eliminate the lesson of the Tueller Drill, it merely adjusts the speed of defense from the 1.5 seconds of the holstered pistol to some lesser time span (perhaps 1.0 seconds). The fact that the gun is in the hand doesn’t reduce reaction time to zero, it merely reduces reaction time to something less than when the gun starts from the holster.
Neither of these misconceptions is corrected by Mr. Brown, in part because he appears ineffective at differentiating between how the Tueller Drill is demonstrated as an exercise and how the lessons of the Tueller Drill are applied in practice.
The cross-examination of Mr. Brown then proceeds on to other topics, before circling back around to the Tueller Drill again about 15 minutes later, and again it’s not helpful to the defense:
SCHAUB: All right, the Tueller Drill. [Schaub now has some papers in hand, brought to him by Prosecutor Rossenwasser, but they are not here identified for the court.] My partner here got me these, because I wanted to have you take a look at that. [Hands the papers to Brown.]BROWN:Sure. [Looks over papers.] I’ve seen this already.SCHAUB: And in that scenario, and in every scenario—every scenario—it deals with an armed assailant.BROWN:Correct.SCHAUB: All right. So it deals with somebody with a sharp-edged object.BROWN:Correct.SCHAUB: Not an unarmed man.BROWN:[Pauses.] Well, it depends. It depends on the individual’s level of training, as well. Here’s a good example, my level of training could be totally different than everybody else’s level of training here in this room.SCHAUB: But the Tueller Rule is the Tueller Rule.BROWN:Would you consider an ink-pen a weapon?SCHAUB: I don’t know. A sharp-edged object?
So, here we have Brown again pushing back on the notion that the Tueller Drill covers only edged weapons, but ineffectively. When he seeks out an example to illustrate his point he comes up with—a pen that could arguably be used as a sharp weapon.
Which, of course, McGlockton also didn’t have on his person at the time he was killed, so it’s in any case as irrelevant to the facts of this case as a hypothesized knife would be.
After this there’s a bit more cross by Prosecutor Schaub, then some re-direct and re-cross, but nothing that ever again touches on the Tueller Drill for the remainder of the trial.
At least, not until closing arguments.
At the end of the trial, after both sides have presented all their evidence, we have what are called closing statements or arguments. This is where both sides have their final opportunity to share their narrative, their story, of the case with the jury. The prosecution naturally tells their story of guilty, and the defense their story of innocence (or, at least, lack of guilt beyond a reasonable doubt).
For these stories to be compelling they must naturally emphasis the evidence and arguments that most effectively and powerfully align with those narratives.
The way Florida manages closing statements is that they allow the state to speak first. Then the defense gets to make their closing statement. Finally, the state gets to rebut or contest the defense closing.
The state’s initial closing statement was presented by Prosecutor Scott Rossenwasser, who you’ll recall conducted the direct examination of the state’s use-of-force expert Dr. Roy Bedard.
Are you wondering if Prosecutor Rossenwasser thought it was important in his closing to once again argue to the jury that the Tueller Drill doctrine could not justify Drejka’s shooting of McGlockton because Drejka himself was mistaken in thinking the “21-foot rule” (as Drejka refers to the “Tueller Drill”) applied to his encounter with McGlockton?
Wonder no more:
ROSSENWASSER:
Then, as justification, and again, you’re going to watch the entire [police interrogation] video again yourself [in deliberations], OK, [Drejka] doesn’t throw the “21-foot rule” there just to say it. [Drejka] says it because it’s relevant to him. Because he doesn’t know what the rule is doesn’t mean Markeis pays for it with his life. Think about that. [Drejka] doesn’t know what the “21-foot rule” is, and Markeis is dead. That’s not justifiable use of deadly force. You can’t do that. You can’t be mistaken and kill somebody.
After Prosecutor Rossenwasser was done with his closing the defense got to present its closing statement. This was done by defense attorney John Trevena. I’ll come back to this in a moment, because first I want to address the state’s rebuttal that followed the defense closing.
The state’s rebuttal was presented by Prosecutor Fed Schaub. Are you wondering if Prosecutor Schaub thought it was important in his rebuttal to argue to the jury that the Tueller Drill doctrine, referred to here as the “21-foot rule,” could not justify Drejka’s shooting of McGlockton because the Tueller Drill applied, as per “expert” Dr. Bedard, only to edged weapons?
Wonder no more:
SCHAUB:
It’s not reasonable. What [Drejka’s] saying isn’t reasonable. The “21-foot rule” he relies on as justification for doing this, and the rule doesn’t even apply. The rule doesn’t even come into effect. Because the man’s retreating, number one, the man has no weapon, number two … the “21-foot rule,” everybody said this, and [defense use-of-force expert] Mr. Brown is a nice man, but the “21-foot rule” is somebody with a sharp edge coming towards you.
What about the defense closing statement? Surely they spent some time on addressing the fact that, per the Tueller Drill doctrine, Markeis McGlockton was more than close enough to the downed Michael Drejka to present the reasonable appearance of an imminent threat?
The defense closing consumed about 70 minutes, excluding various breaks. Care to guess how many of those minutes were spent countering the state’s narrow definition of the Tueller Drill?
Zero minutes. Zero seconds. Wasn’t even mentioned.
The jury was allowed to go into deliberations convinced—and why not, it seemed all sides agreed—that the Tueller Drill, so essential to any claim that Drejka’s perception of an imminent attack by McGlockton was reasonable, simply did not apply to the facts of this case, because the doctrine (they were told) only applied if McGlockton had possessed an edged weapon, and McGlockton clearly had no such weapon.
That, folks, is not justice. It is a travesty of justice.
If it sounds like I’m offended at these legal proceedings, that’s because I am. And I’m offended not over any particular personal interest in Michael Drejka. I have no personal interest in Michael Drejka. Perhaps Drejka would have been convicted even without this inappropriately narrow definition of the Tueller Drill, and the outcome would have been the same.
In that case, however, he would have been convicted justly. This conviction, based on this misstatement of a possible defense, and without any substantial challenge even by the defense, is not a just conviction.
Maybe that consequence is deserved by Mr. Drejka, and maybe it’s not. But this travesty did not justly make the point either way. And that’s wrong.
Drejka deserved better justice than what he got in his trial, not because he’s Michael Drejka, but because all of us, even the very worst of us, deserve better justice than this.
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Remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program
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