In Self Defense - Episode 49: The Anatomy of a Self-Defense Trial - a podcast by Mike Darter

 

Don West and Shawn Vincent use the Michael Drejka parking lot shooting case as a vehicle to explore the different phases of a self-defense trial. It’s important for concealed carriers to understand how the justice system works, should they ever be prosecuted for a self-defense shooting.

 

TRANSCRIPT:

Shawn Vincent: Hey everybody, this is Shawn Vincent. We've got a little something different for you on today's podcast, In Self-Defense. Usually our podcasts are focused on conversations about high profile self-defense cases, and Don West and I look for the lessons learned for concealed carriers. The whole idea is to have you guys learn from the mistakes that other people made in their self-defense cases so that you can avoid the tedious fight that comes after the first fight. That's the legal ramifications of a self-defense homicide.

Shawn Vincent: Don West, if you don't know, is National Trial Counsel for CCW Safe. He's been a criminal defense attorney for more than 30 years. I worked with him first on the George Zimmerman case. He is an amazing attorney. He is super diligent. He's hard-nosed. If I were ever in trouble with the law, I'd want Don West on my side. And as CCW Safe member, you're lucky enough to have him on your side too, because should you ever be involved in a self-defense shooting and have to call CCW Safe, there's a real strong chance that Don West would be a part of your defense. He's an amazing guy. I love talking to him about these cases.

Shawn Vincent: Recently we sat down to talk about the Michael Drejka case. You might remember the Michael Drejka case is the parking lot shooter from Clearwater, Florida. He was arguing with a woman named Britany Jacobs over a handicapped parking spot. He didn't think she should be parked there so he was giving her the business. Her man, the father of her children, came out of the store, saw Michael Drejka arguing with his girl. He came up to him, in fact, real quickly. He pushed him to the ground rather violently. He tumbled backwards.

Shawn Vincent: Markis McGlockton moved in, he lorded over Michael Drejka’s prone position. He hiked up his shorts in an aggressive manner. Michael Drejka, a concealed carrier, a licensed concealed carrier, pulled his pistol from his waistband. He pointed it. He aimed. He paused for a second. There's a surveillance that shows Markis McGlockton back up a little bit, but it's not a dramatic back up. And then there's a single shot fired. McGlockton stumbles back into the convenience store, and video from inside the store shows him fall, clutching his chest, and he dies at the foot of his five year old son.

Shawn Vincent: That's the case that we were talking about. And before we got into talking about the lessons learned, like we usually do, we went off on about a one hour tear about how the trial unfolded. We had a chance to watch this, Don and I, on Court TV. Once upon a time Court TV was a cable channel, but now it's a website that is constantly streaming, sometimes very interesting, trials. They streamed the Drejka trial gavel to gavel as they say. Don and I in our respective home offices watched a lot of it, some of it at the same time. We texted each other like school children when we saw something that particularly got our attention, and knew that we'd have a lot to talk about once the trial was over.

Shawn Vincent: But we also, while we were watching it realized that it's a great opportunity ... If you've never seen a trial from beginning to end you might be surprised to see how justice in America, in the American criminal court systems works itself out. And we thought that the course of this trial might be a great example for concealed carriers who might not ever have been inside a courtroom, certainly not as a criminal defendant, to have an inside look at what the process of being prosecuted would look like from the arrest to the charging to pre-trial motions and hearings, and then the anatomy of a trial straight through to the verdict, and then potentially even the appeal that comes afterwards.

Shawn Vincent: So our next podcast is going to be about the lessons learned from the Michael Drejka case. But today we have sort of a nerdy inside baseball look at the anatomy of a trial, featuring national trial counsel for CCW Safe, veteran criminal defense attorney Don West. So I hope you'll forgive us a little shop talk. I think you'll find this informative, and here's our conversation.

Shawn Vincent: You and I were talking about how the average defendant, the average client that we interact with isn't versed in just what the sequence of a trial is, or how a trial unfolds. And I think we watched this happen on Court TV, and we're going to talk about the different stages of this trial and how they're important. Maybe it's worth talking real quick about what those phases are.

Don West: Well I think that's a good idea. Chances are this is the first time, certainly our members or anyone who is in a self-defense case of some sort is going to have been in court. Maybe a traffic ticket, but those don't even result in court typically. So let's take a minute from the top and I'll run through the stages of a criminal trial quickly. Touch upon a couple of the key aspects of each, and that'll sort of set the stage and paint a picture of how this Drejka case went, but frankly how every criminal case is going to go for the most part.

Don West: In every jurisdiction that I know of, except for the smallest kinds of infractions, the police can't formally charge anyone. It's always the district attorney or the state attorney. The prosecuting authority reviews the investigation and then makes a formal charging decision. So when you talk about being charged, that's what I'm talking about, a formal charging decision by way of indictment or information is also a valid charging instrument in many jurisdictions.

Don West: The police can place charges. In other words, that's what you get arrested for. You'll be told at the first appearance what you've been arrested for. The bail will be set or not set based upon what you've been arrested for. But those are not formal charges. That case is to be reviewed and then the formal charges will be determined, if any, by the elected or appointed prosecutor, not the police department.

Don West: From arrest and formal prosecution sets the stage for the investigation phase, it's discovery it's often called where police reports are provided, witness statements. The guts of the case from an information standpoint is exchanged. The defense typically has some reciprocal obligations. It sets the stage for evidentiary issues pre-trial. Maybe there is a statement that was made by the accused that the defense thinks was improperly given, maybe without Miranda rights, or under circumstances that make it suspect. So there could be a motion to suppress the statement. There could be a motion to suppress evidence that the claim was it was illegally obtained, without a warrant, or with a defective warrant.

Don West: There are often motions in limine. Limine basically means just to limit certain kinds of evidence. And that's pretty common, especially in self-defense cases where there may be information that one side or the other wants to offer because they know that it's going to flavor or color the way other evidence is taken. And frankly because they know it will be prejudicial. They know it will impact the accused or the prosecution's case. So it could be in favor of the prosecution, against the defendant, what have you. So the parties will sort through that. One of-

Shawn Vincent: And just to add color to it. In this particular case the surveillance video that we talked about, it shows the shooting itself, but then it actually shows Markis McGlockton come back into the store. And there's video that shows him fall to the ground clutching his chest, capsizing over, and dying while his five year old little boy watched. And the prosecution, when they wanted to show the surveillance video wanted to show that part. And the defense argued vehemently against it, saying that it doesn't have anything to do with whether or not he shot him justifiable, and it's just going to be tugging at the heart strings of the jury and be prejudicial.

Don West: That's an excellent example, and it explains fully why certain evidence is attractive, because the impact of it is pretty obvious. But also why a criminal case shouldn't be decided on emotion, sympathy or anger. And that would be an example of how the prejudice was far greater than the probative value. That's sort of a test that the judge is required before admitting all evidence, even if it's otherwise admissible. If it's otherwise relevant, whether the probative value, meaning the importance to the case, outweighs the prejudice.

Don West: So if in balance the judge decides that even though the video in the store provides information, it shows for example where Markis McGlockton was, where other people were in the store at that moment. It obviously doesn't impact directly on that moment around the shooting, it's clearly after the fact. But it has high prejudicial value because it's a human being in agony shot, and in the last moments of their life. It's very hard for anyone to disregard something as powerful as that in their deliberation. So there was a motion in limine filed. The judge ruled appropriately, that that video would not be presented to the jury, so that's a very good example of it.

Don West: There are other motions in limine, which are pretty typical in a case involving self-defense where a picture of the accused is painted by the prosecution that extends far back or even forward of the event itself. And frankly that could be of the victim of a shooting, of the deceased.

Shawn Vincent: And when you say a picture, you mean not a literal picture but showing other acts, character evidence of things that they've done in the past, right?

Don West: Right. Who is this person and what do we know about them? How do they present themselves to the world? And we know Facebook is out there. We know Instagram is out there. We know neighbors and relatives and coworkers are out there that know this person, know how they present, and may know of actual incidents in their past that helps paint this picture that we're talking about.

Shawn Vincent: And that's relevant in the Drejka case because we know that he had a confrontation where he allegedly brandished his gun and threatened to shoot a guy who drove a septic tank truck in that exact same parking space at that exact same convenience store some months before. And in pre-trial hearings they argued that point, and the judge decided that that was so similar to the actual event where Markis McGlockton was shot that he was going to allow that in. Where there are other alleged road rage incidents in Drejka's past that weren't similar enough and the judge chose to not allow those in.

Don West: Yes. The judge had to examine each of them individually, look at the legal standard for admissibility, weigh the prejudice against the probative value. And the relevance, that's part of the issue there when we're talking about situations that occurred before or after that the prosecution typically wants to offer. And the explanation offered by the prosecution, why is this relevant? It's because it helps the jury understand something. Sometimes it's identity, is there an M.O., an identity of the people? We don't have an identity issue in this case, but we may have an intent issue. We may have a question was it an accident that all of this happened.

Don West: And frankly in a self-defense case there's this overriding umbrella of reasonableness. And for the jury to understand whether Drejka's actions were reasonable the prosecutor wanted to use this prior incident to basically show that he was-

Shawn Vincent: Well you have to get into his mind.

Don West: Yes. Exactly right. So that was an incident occurred a few months before, as you said, with Richard Kelly. He was driving a septic truck I think and Drejka confronted him, approached him. But I think probably where it crossed the line, Drejka apparently said, "I could've," or, "I should've shot you," as part of that conversation.

Shawn Vincent: Yeah he called the guy's boss on the how's my driving number and said, "Your employee's lucky I didn't blow his head off."

Don West: Yeah. So that, in virtually anyone's mind, is pretty outrageous conduct. It certainly may suggest an irresponsibility, hotheadedness, lack of reasonableness, especially for someone that we now know carries a gun and would've been more than capable of doing such a thing.

Shawn Vincent: But all this illustrates, the lesson here is that so much ... You can win or lose a trial before you even get to the courthouse on the first day of trial if you didn't play these pre-trial hearings right.

Don West: Well you know this is a perfect example of what looks exactly like that path. Here's the sheriff, based upon the limited information at the time of the event, doesn't think there is probable cause. And then pretty soon after that as this information rolls in, the prosecutor decides to file charges. And now on top of all of that there is this, we call it in Florida, William's Rule, or it's under the evidence code 404B section, 90.404B.

Shawn Vincent: The prior bad acts law.

Don West: The prior bad acts. And I tell you as I read the news and I've talked to colleagues, as we followed the progression of this case, once that stuff came out and then once the judge decided to let it in, knowing the jury would hear it, it became a completely different case in my mind.

Shawn Vincent: Yeah. And you know it was when the judge decided that the prosecutor would be allowed to play the surveillance tape in slow motion, which changes the whole perception on the intent and his time to reflect and the immense. The key to self-defense is the imminent threat. Well, you play an imminent threat in slow motion, it doesn't look nearly as threatening anymore. I thought that was prejudicial to the point where that was the trigger that caused me to call the lawyer and say, "I'm willing to help you help pick a jury in this."

Don West: That's another example of a motion in limine. It was clear that the videotape was coming in, or at least the central parts of it. And then the question became how would it be presented to the jury. Would it be presented in a way that would add information to help them make their decision? Or would it be, again, prejudicial and inflammatory. The argument was, as you just laid it out, that if it's played in slow motion it distorts reality.

Don West: It makes it less fair for Drejka if the jury is trying to evaluate his split second decisions when they have all the time in the world to look at it in slow motion. And they lost. The judge said, "No, it's coming in like that." So the jury got both the bad act of the prior incident at the parking spot, and then they also had the opportunity to look at the video in slow motion repeatedly.

Shawn Vincent: Right. And I know if that were your case and you had the resources, and Drejka wasn't injured in defense and only so many resources. But you'd want to get an expert that could talk about ... You might want to be able to qualify a video expert to talk about what the difference between slow motion and real time is, potentially. That didn't happen in this case. I guess what I'm trying to illustrate for the listeners is just how much goes, every little fight that goes into just what's going to come into the court, how it's going to be seen. And then what you can actually say about that evidence, because now you have to mitigate the slow motion video for the jury.

Don West: You know people shake their head when I tell them ... I'm representing someone or I'm involved in consulting on a self-defense case, yes, it's going to take a year, a year and a half, maybe two years on a serious shooting to get the case in court. And they say, "What are you guys doing all the time? You playing golf and working on this in your spare time?" And just touching on some of these evidentiary issues, the consultation with experts, the investigation, the assessment and strategy, and then ultimately getting it into the court prior to the trial even starting to get this all sorted out takes a lot of time. It can be a full-time job almost for a year.

Shawn Vincent: For just one case. Well case in point we started out to talk about the phases of a trial and for the last 10 minutes we've been talking about pre-trial. So let's get us up to the day of trial. We've gone through all the pre-trial hearings. Sort of the week before trial I reached out to the lawyers and offered to help vet the jury, which is using public records and social media. I have a team that I work with for lots of trials to go look and see what do these folks reveal about themselves online, so that the trial team can make smarter decisions during jury selection and perhaps find evidence that would either confirm or contradict what they learn about these jurors in open court.

Shawn Vincent: They agreed, were happy to have my help. And I told them that afterwards that I still plan to continue to talk about this case. So they didn't give me any insight into what their defense strategy was. I don't know anything really that the public doesn't know about this, but I thought it'd be fair to disclose that, for the sake of due process, we were involved in this one.

Don West: Well I think that's a good disclosure, but it also ... An appropriate one, but at the same time it is a very interesting line of conversation for us because in your work, not necessarily on this case, but you have been able to find, through social media and other public available information sources, clear information that directly contradicts what someone says in court. And in some instances the juror can be confronted with it, and disqualified as a result.

Don West: Other information that you find is perhaps more subtle and not so much contradictory, but it compliments the lawyer's efforts to figure out who this juror is, how strongly they feel about certain things. And from my sort of devious mind as a trial lawyer, you find out things about jurors that unless the prosecution is doing the same thing, doesn't necessarily know. So you may very well have a more complete picture of a juror than what's being said in court, a complete enough picture that it helps the lawyers decide whether they think an individual juror is going to be favorable.

Shawn Vincent: Well case in point, in a self-defense case, if we find evidence that somebody is a gun rights advocate or a concealed carrier or a member of an organization like CCW Safe or the NRA, and the prosecutor doesn't think to ask that question, well we're certainly not going to ask it in open court. We're just going to file that as good to know, and that's an advantage.

Don West: So, without too much of a detour, thanks Shawn. I think that's valuable insight and your role in this Drejka case, while it was limited as you described, no doubt I guess was similar in that you've had in other cases, where you did learn information. You were able to communicate that information to the trial lawyers, and they factored it in as to ultimately who was on the jury.

Don West: I guess one more quick detour, and that is in jury selection, the lawyers do not get to choose the jurors they want. The system is designed to eliminate the jurors they don't want. And it's usually two stages, one is cause challenges. So if there's some part of the juror's picture that disqualifies them because they're obviously biased or they might know some of the participants or it's clear they can't be fair, they can be challenged for cause. And the judge would strike them without any limit on the number of jurors that can be released that way.

Don West: And then there's a number of what's called peremptory challenges. Those are the discretionary challenges that each side has to eliminate a juror for almost any reason, as long as it's not based on race or religion or something that would violate the Constitution. There's no reason why you can't get rid of somebody because you have a bad feeling or you don't like the way they matched their clothes that day, or the way they looked around the room when you were asking them about certain things. So yes, those are the peremptories, but at the end of the day you are not choosing the ones you want, you're getting rid of the ones you don't. And then you wind up with those that are on the jury.

Shawn Vincent: Yeah. Your jury can't be any better than the panel of folks who come in at the beginning of the day. And you're going to pick the ones you don't like. The other side's going to knock off the ones they don't like, which may very well be your favorites. And then what you're left with are, in Florida usually six folks, often 12 folks who are going to sit in judgment.

Don West: Well if the jury investigation, and if the voir dire it's called. It's pronounced many different ways, V-O-I-R D-I-R-E, French term. Basically the process of questioning the jurors. If that goes the way it's supposed to, then each side is going to eliminate the jurors that they think favor the other side. And that's what's so remarkable, if at the end of this process if there are good lawyers with good information you look up and you see the people that are left that-

Shawn Vincent: Nobody's happy.

Don West: That nobody wants, that's right. Obviously the goal is finding fair minded jurors that can follow the law. But obviously if you can find somebody that you think favors your defense, as a defense lawyer you want to do everything you can to try to keep them. In a shooting case the firearm possession, self-defense itself are all big hot buttons. And then if you add some other components, a race issue. Is there a race difference between the shooter and the deceased? That enters into it. In fact, you have to use the jury selection process to cull through all of that.

Don West: And at the end of the day you want people at a minimum that are going to be able to make their decision based upon the law and the facts without being influenced to the point of it affecting their verdict on those other extraneous things. And people are people. People are the sum of their experiences. So a lot of the jury selection is trying to divine what those experiences are and how we think they may impact their ability to make a decision.

Don West: And you also start looking at the dynamics of the individuals. You look for the people you think may be the leaders, may be the person that is the foreperson of the jury because they can affect the vote as well. They can perhaps persuade weaker or less convinced jurors to go one way or the other. That in and of itself is maybe the single most important part of the trial, the more I do this I think.

Shawn Vincent: The jury selection?

Don West: Yes. In terms of the ultimate outcome.

Shawn Vincent: Yeah. And I've seen focus groups. I've got to participate in focus groups where you're behind the one way glass and they're there and they talk about the case that was presented. And very quickly a dominant personality or two rise up, and they run the show sometimes. And their impressions become difficult to overcome, so that's fascinating.

Shawn Vincent: So okay, so we've picked a jury. And in the Drejka case, the whole case was done ... It started on a Monday morning and ended late in the evening Friday night when they had a verdict. It took a week, and they spent half of it, two and a half days just doing jury selection, rooting through people because it was a high profile case. Making sure that they were honest about what they knew about the case and that they could-

Don West: As well, in a high profile case where there's a substantial percentage of the venire, of the group out there that's going to be questioned to select the jury panel. When there's a lot of those folks that know about the case, often there has to be individual, sequestered questioning, individual sequestered voir dire. And that just takes a lot of time. That's where all of the other jurors are removed from the courtroom and the juror being questioned is there asking questions from the judge and the lawyers, especially on the issue of publicity. Because their answers, if they know a lot about the case, may very well otherwise taint jurors that hadn't known that much. So you just have to go through all those steps to be sure that the jurors don't impact each other, and that you get honest straightforward answers in the individual ones that you question.

Don West: So I can go through the next phases pretty quickly, I think, without as much discussion. And the next phase after jury selection is opening statement. For the defense, and frankly for the prosecution it's optional. It's almost always done, not by the prosecution, and not always by the defense. I'll explain that in a minute. But that's the opportunity-

Shawn Vincent: And we know from experience they can go from a couple minutes to a couple hours.

Don West: Exactly right. So the goal there is to give the jurors a preview of the evidence, and to some limited degree maybe touch upon some of the legal framework of the case. It's clearly not the opportunity to argue the case. It's really to introduce them, almost a roadmap of where they think the case is going to go. The defense typically has the opportunity to follow the prosecutor with their opening statement. And in a lot of places they can reserve that, saying that we're not going to argue now, we'll wait until we're ready to offer our case and then we'll give our opening statement. I've done that a few times.

Don West: In a self-defense case, though, I don't think I would ever consider that. A self-defense case means, as we've talked about, you did what they accused you of in that you defended yourself by using force against another individual, but you were justified in doing it. So I think you have to get that out there right up front and explain in detail why that's the case, keeping in mind that the prosecution goes first because they have the burden. And they carry that burden beyond a reasonable doubt throughout the case, which is why they then put on their evidence first.

Don West: The defense has the opportunity to cross-examine witnesses, but in the prosecution case doesn't call witnesses. After the prosecution rests its case, meaning they're announcing to the judge, to the jury that that's all the evidence they're going to offer. Evidence could be witness testimony. It could be physical exhibits, pictures, photographs. It could be opinion testimony by experts, experts are the only people allowed to offer opinions about certain things, that the judge determines will be of value to the jury. And then they rest. Typically the judge at that point is allowed to dismiss the case if he or she is convinced there's just not enough evidence there to move forward, that doesn't happen very often.

Shawn Vincent: Hold on a second there. So two things is my experience, especially in criminal defense, is that most of your real heavy lifting is going to be done during cross-examination, during the prosecutor's case. Am I wrong at that?

Don West: That's the first opportunity that the defense has to get evidence before the jury. Now I know technically the defense isn't offering evidence because they aren't calling the witness, but it is evidence in the record. So it is evidence the jury can consider. And I've certainly seen cases won or lost, no doubt I've won or lost cases by the effectiveness of cross-examining the state's witnesses. Yes I think that's the heavy lifting because ... Well it's the heavy lifting in that your job as a defense lawyer is to be vigilant. And you are allowed by court procedure to ask leading questions. You are allowed to be probing and confrontational.

Shawn Vincent: When you say a leading question, that's when you say, "Isn't it true, Doctor, that the drug in his system was seven times the limit?" You can ask a question where the answer is built into it, and they have to say yes or no. Whereas the prosecution has to ask direct questions that are more open, and give them a chance to testify more freely. Is that the difference?

Don West: Yes, on direct examination, that's the questioning offered by the party who calls the witness, is supposed to be open ended, so that the answer to the question isn't suggested by the question itself. And the purpose is so that the lawyer isn't telling the witness what to say. On cross-examination, its adversarial. This is a witness who has offered evidence that is against the accused, so there's an opportunity to challenge those statements. And I think maybe as importantly that people don't always think about in cross-examination when you're challenging facts, is that's the opportunity for the cross-examiner to expose bias or prejudice, or motive, or some reason that the witness may have to favor one side.

Don West: For example, it's common ... well I'll take an obvious example. If there's an expert witness called to offer testimony that turns out to be in favor of the prosecution, the defense will explore what that relationship is.

Shawn Vincent: How much you're getting paid.

Don West: How much you're getting paid. They'll explore how many times have you testified for the prosecution and not for the defense, obvious stuff. But bias and prejudice is pretty much open season. If you can show a prior relationship with the witness and some other party, if you can show some motive. I had a witness in a case who was an expert witness who was talking about this process, this analysis that he did. And it turned out during cross-examination that we learned that this process that he was expounding on as being reliable and valid and accurate, happened to be a process that he sold and got paid for. So talk about a guy who's biased.

Shawn Vincent: Right. He's marketing his product while he's testifying.

Don West: Another example of exposing bias or prejudice is virtually everywhere if a witness has a prior felony conviction. And sometimes even for misdemeanors the existence of that felony, and sometimes the circumstances surrounding it can be revealed. The idea is if someone is a convicted felon they have ... What? I don't know how you'd explain it, some lesser moral standard, some lesser abidance to the truth, but nonetheless the jury is allowed to know if one of the witnesses is a convicted felon.

Shawn Vincent: Because they're going to decide how much credibility to give to his or her testimony.

Don West: That's what the judge will tell the jurors at the end. They get to decide who to believe, and they don't have to believe everything a witness says. They can believe parts of it and not parts of it. It's an enormous, enormous task for the juror to sort through all of that stuff in a setting that they're typically not familiar with, to figure out who's telling the truth.

Shawn Vincent: So you're about to get us to where the defense takes over and presents their case. But you talked about ... you didn't use these words, but this is where the defense can give a judgment of acquittal argument, right?

Don West: At the end of the prosecution case the defense would make a motion to the judge asking for the judge to dismiss the case on various legal grounds, primarily that there isn't enough evidence to support a conviction.

Shawn Vincent: Hey Judge, they didn't meet their burden.

Don West: Right. And the burden isn't at that stage to satisfy the judge beyond a reasonable doubt, but that there is sufficient evidence in the light most favorable to the prosecution. So if it could go either way the prosecution gets the benefit of the doubt at that stage. And the judge rarely will dismiss cases, but I've also-

Shawn Vincent: Have you ever seen that happen? Have you ever seen a judge grant a judgment of acquittal?

Don West: Yes I have. It's not the usual thing. I will tell you though, Shawn, a number of years ago I tried, as a defense lawyer, a first degree murder case. There were two guys on trial, first degree murder. And at the end of the state's case I made a motion for judgment of acquittal, and the judge courageously I think, because it takes a lot of guts to do this. He said, "I am not satisfied that the evidence against your client is sufficient to support a conviction," and dismissed the charges.

Shawn Vincent: Which meant that your guy is a free man at that instant.

Don West: He went from facing a mandatory life sentence to walking out the door, yes.

Shawn Vincent: That's incredible.

Don West: It's a comment on how bad the case was, frankly, but also how courageous the judge is. Very few judges ... And frankly, especially in a high profile case. The one I'm talking about, nobody cared about particularly, I don't think. And I don't mean that in-

Shawn Vincent: There wasn't a lot of public pressure on the judge in this case.

Don West: Correct. I don't mean disrespect to anybody involved in it, and certainly not to the family of the deceased. But it wasn't a case with cameras in the courtroom, and there was going to be no ripple effect in the media because of it.

Shawn Vincent: Right. To speak to the point of how rarely they're granted, we were watching the trial coverage and talking on the phone a lot while it was happening. They didn't even show the argument for judgment of acquittal. I think the commentators were talking about the case. It happened real quickly and wasn't even talked about on television. They just skipped right over it and got right to the defense presentation.

Don West: I'll tell you one more quick war story about that stage of the case, the judgment of acquittal. Prosecutors are sometimes accused of overcharging. And what I mean by that is that with the facts and the law that would apply to a given incident, the prosecution has a wide variety typically of charges to file. Commonly, they file the highest charge they feel like they can support. But sometimes charges are filed for which the evidence might be somewhat questionable, even though there might be a more solid charge for a lesser offense.

Shawn Vincent: Sure. I've been involved in murder cases where the charge was first degree murder, and our whole argument to a jury was just that, "No, this is second degree murder."

Don West: Yes, exactly.

Shawn Vincent: That was the whole case we're trying to make.

Don West: Mm-hmm.. And without going into those details now, there's a huge difference to the accused whether he or she is convicted of second degree as opposed to first degree, in terms of sentencing discretion and such. Well this self-defense case I was trying was a serious case, it was a lethal self-defense shooting. My client was on trial, he had been charged with second degree murder. And at the end of the state's case I argued, very aggressively, because I really believed that even in the light most favorable to the state, meaning most favorable to the prosecution, second degree murder wasn't established.

Don West: And the judge was very serious about it, listened to the arguments, reflected on it, reviewed the cases. And we spent quite a while at it, and at the end of all of that the judge agreed and didn't dismiss the case, but dismissed the murder count and essentially reduced it to manslaughter. So when the case went to the jury, instead of having second degree murder, manslaughter, or not guilty to consider, they had manslaughter or not guilty. So you could imagine how that might affect the way I presented the defense in the case. All of a sudden the murder charge was off the table, now we would focus on manslaughter or nothing, as opposed to hoping that the jury wouldn't convict him of second degree murder, but maybe compromise if they wouldn't acquit him of manslaughter. We took that away. So I was able-

Shawn Vincent: Yeah it's a much different case.

Don West: Much, much different case. And this was a nice guy involved in a terrible situation. Had to shoot a guy who was unarmed, frankly, who was very violent and attacked him. So we had that built in argument, brought a gun to a fist fight kind of thing. And without belaboring the point or going into much detail, at the end of that process the jury acquitted him. So he went from second degree murder, which would have most likely resulted in a life sentence or most of his life, to walking out the door and going home.

Shawn Vincent: Yeah, extraordinary. All right. So judgment of acquittal, it works, it doesn't work, you get charges reduced, you get it dismissed, or more likely the judge says, "No, keep going." As a defense attorney you can decide whether or not you need to make a defense presentation. And very often I've found the defense presentation is shorter than the prosecution's presentation.

Don West: Well as we've touched on before and we'll emphasize here now, in a criminal case the prosecution has the burden of proof. They have to convince the jury of guilt, which means on each and every element of the crime charged that there's enough evidence of guilt to establish proof of that guilt beyond a reasonable doubt. And a very valid and commonly employed argument by the defense is, "Sure there's some evidence, but there's just not enough evidence to eliminate reasonable doubt." So the argument is the evidence is insufficient.

Don West: So at the end of the prosecution case, when the defense decides what to put on, assuming they have evidence to put on. They are in no way legally required to offer any evidence whatsoever. And without any evidence by the defense the jury's role is the same, to decide if the prosecution has proven the case beyond a reasonable doubt. I've tried lots of cases where I put on no evidence at all, and that means I didn't offer the accused's testimony either.

Shawn Vincent: Sure. The only time in a criminal defense trial that the defendant would testify would be during the defense presentation, and only if the defendant chooses to do so. He's not required to do so.

Don West: Absolutely right. Not ever compelled, that's the Fifth Amendment at play. So gauging how well the prosecution case was presented, the defense will evaluate their case. It happens very quickly of course, because you can't control the witnesses the prosecution puts on. You certainly hope you are effective in cross-examination, but you can't truly control that. And then you start looking for holes to plug and better arguments to make. And I've been involved in cases where we had, shoot, 30 or 40 potential witnesses that we could call, and for reasons that were developed during the trial pared that down to half a dozen. Sometimes that might include an expert witness to respond to an expert that the prosecution called. It might be other eye witnesses or ear witnesses. Sometimes it can be character witnesses. And in many instances it's the accused, the defendant himself or herself.

Don West: So that next phase is when all of that happens. And then when the defense rests, that's when all of the evidence has been introduced in the case. That's the sum total of what the jury has to consider. So what happens typically between the end of the evidence, when the defense rests, and the actual closing arguments themselves, is a meeting with the judge. And that's to review the proposed jury instructions. It's often called a charge conference, and a lot of the times much of the work is done even before the trial starts. But there will be a meeting where there's an agreement on which instructions are to be read. Each side can propose individual instructions that may not be contained within what are called the standard instructions. If there are disagreements and objections, then the judge can rule. And ultimately there are a set of instructions that each side knows will be the ones read to the jury.

Shawn Vincent: Sure. And in a self-defense case in a state like Florida, the stand your ground language, all the language from the self-defense statute becomes very important. And we've seen some cases that were appealed because this jury charge wasn't given properly.

Don West: It's critically important in a self-defense case that the jury knows whose job it is to prove the case. You would think that in a self-defense case you have to prove self-defense. And in a very limited degree it's correct in that during the course of the evidence, it could be during the prosecution case or it could be in the defense case, there has to be enough evidence in the record to establish a possible claim of self-defense. And when that happens, the burden shifts right back to the prosecution to prove that it was not self-defense.

Shawn Vincent: That absolutely could not have happened.

Don West: Yeah. So it's critically important for the jury to know, when they're making their decision about the guilt or innocence of the accused, that they have to look at whether the prosecution has convinced them beyond a reasonable doubt that the accused did not act in self-defense. And any jury instruction that might shift the burden to the defense or confuse the roles that each side play in this could very well be enough to make the trial unfair. And as a result, if the person is convicted, it's not uncommon for the appellate court to reverse the trial and provide a new trial, claiming only that the instructions were inadequate or misleading or in some way shifted the burden. We've seen that ourselves in some of the cases we've talked about.

Shawn Vincent: Sure. Yeah we talked about that in the Gyrell Lee case.

Don West: Exactly. So back to the point. Once the jury instructions have been settled on, in some cases the judge now reads the instructions to the jury prior to the arguments themselves. That might be a better practice, I don't know. It gives the jurors the framework from which to hear the arguments. Traditionally most of my experience though the arguments take place after some very preliminary instructions prior to closing. And then at the end of the instructions the jury is charged they call it, they charge the jury by reading the instructions.

Don West: In closing argument, it is called argument for a reason, as opposed to opening statement, which is a statement of the case, and not an argument. In the closing argument the lawyers are allowed to argue their case and implore any reasonable inference to be drawn from the evidence to the jury. So they can argue how certain evidence should be viewed by the jury, the meaning of it, how they should put it in context.

Shawn Vincent: So we talked earlier about how the judge tells the jury how much credibility to give to each witness and what to believe. And this is a chance for the lawyers on each side to say, "Hey, here's the evidence I think is important. Here's why it's credible and why I think you should believe it and give it weight."

Don West: Yes. And of course an effective argument ties some of the evidence into some aspect of the jury instructions. So if the jury is told this is the way you should view this and the lawyer points out that evidence, and it's consistent, then obviously that's more persuasive than if it's just a naked, standalone argument that's not connected directly to one of the legal instructions they're going to get.

Don West: So the prosecution's argument typically has to be comprehensive, because they have to convince the jury that they did prove each of the elements of the crime beyond a reasonable doubt. The defense argument typically can be much more focused. It could be focused on one aspect of one element. Because if the prosecutor hasn't proven the case, as to each element, beyond a reasonable doubt, then the jury's only lawful verdict is not guilty. So never does the jury decide the person is innocent, they might believe that, but that's not part of the verdict. If they aren't satisfied that all of the elements are proven beyond a reasonable doubt, then they check not guilty, even if they suspect the person might be guilty or they're even pretty sure of it, but not convinced.

Shawn Vincent: He just didn't prove it beyond a reasonable doubt.

Don West: So here's an interesting dynamic of that. It kind of puts it on its head, especially if you look at a self-defense case from the perspective of say one of CCW Safe's partners, Andrew Branca, who has written extensively about the law of self-defense. He blogs and has an excellent video course, a live stream course, not about tactics and operation of a firearm, not that kind of stuff, but the law of self-defense, the parameters, the legal boundaries. And he breaks down self-defense into five elements.

Don West: And what he points out is if your claim of self-defense fails on any one of those elements, then your entire claim of self-defense fails, which means that a guilty verdict would be proper. So the prosecution's job in a self-defense case is not to disprove self-defense across the board, but it frankly is ... To disprove rather, to disprove only one aspect of the self-defense case, sufficiently that the jury is satisfied beyond a reasonable doubt that it did not occur ... that it was not a self-defense shooting because of one aspect of it that fails.

Shawn Vincent: It wasn't imminent enough or he wasn't reasonable enough or he had malice.

Don West: Yes. Or for example, that the person who was the attacker did not have the ability to inflict serious bodily harm or death, or didn't intend to. So, that's one of those disproportional things when you shoot an unarmed person the jury is going to focus on. Was this guy a real threat? Even if he intended to hit him, even if he had the ability and the opportunity to do all of those things, was it really a life threatening attack? In other words, was the use of deadly force disproportionate?

Shawn Vincent: I'm thinking about, if it's not a self-defense claim, if it's a robbery, right. If it's a robbery than you might argue that this is just the wrong guy and then there's just one thing you have to win on, was it him or not, right. But if you're a defendant in a self-defense case, now you've got five fronts that all have to be satisfied. Any one of them comes down and you're going to jail. So it's kind of a precarious defense.

Don West: Yes. Not only do you have to have all of those elements, and sometimes one of those elements is avoidance. There are duty to retreat states. So even if you were attacked by someone who intended to seriously hurt you or kill you and you had the legal right to use deadly force, if you're in a duty to retreat state and you don't first take the opportunity to get away if you safely can, but resort to deadly force, then you're guilty. I'm involved in a case right now, consulting, where that was the issue. Was that it happened in a duty to retreat state, the person drew the gun in the face of an attack, and did not retreat first. And the argument is, could have, could have avoided the whole thing.

Don West: So anyway, we're at that closing argument phase of our discussion where all of that stuff comes into play. And then at the end of that either the jury will be further instructed, if they weren't completely instructed before. Or, once that's done they'll be sent off to deliberate. So that's the last part of the trial phase itself -- is the jury deliberations.

Shawn Vincent: Would you agree, Don, that for the lawyer, is perhaps the hardest part of trial. Because there is nothing more you can do, and you're not allowed to go more than 10 minutes away from the courthouse. You have to be there to be called back for any questions that the jury might have. And all you have to do is to sit, in a probably uncomfortable chair and think about whether you've done enough.

Don West: Well, yes. In my personal experience there's sort of two opposing emotions at that point. One of the emotions is a great sense of relief in that you've been living in a pressure cooker for up to a year. You have been on stage, I'm talking about me personally as a defense lawyer, not the accused who has his own set of issues to deal with because he just went through the most traumatic experience of his life without any ability to control it. He wasn't even getting to ask the questions and stuff.

Shawn Vincent: And any moment he could be given news that he's either free, or going to jail for a little bit of time, or going to jail for a very long time. And to be in that crosshairs, it's tedious.

Don West: Exactly. So from my selfish perspective as a lawyer I've been through that ordeal too. I've lived with the case the whole time. I have stressed and lost sleep about how to ask questions, what witnesses to call. More importantly probably, what not to ask, not to undo something that went well. And then at the end, once it's done, it's done. So there is a sense of relief there, but it doesn't last very long because that's when the hand wringing and more importantly I suppose, in terms of the impact, is the second guessing.

Don West: So now you're sitting there, it's all behind you and you're looking back saying to yourself, "Oh my goodness, I could've done this differently. I could have done this better."

Shawn Vincent: And then all of a sudden the court lets you know that the jury has a question about some piece of evidence. Or as in the case of the Drejka trial that we're looking at, the jury wanted to know what is reasonable doubt. Something so fundamental all of a sudden you get some insight into maybe what the jury's thinking or what they understand and what they don't understand.

Don West: And then you wonder yourself, you start second guessing and say, "How could they ask that question? What didn't I do that I could have that might've made it so clear, because it seems so obvious." Now keep in mind there's going to be at least six people, and most cases 12 people back in there deliberating. And if they are acting responsibly they're going to review those jury instructions again in detail, because they're most likely going to have a written set of them.

Don West: They probably will have the physical evidence. They may or may not have the firearm, but they would have the physical evidence to review. And in this case the video of the Drejka incident to review as many times as they wanted. And it's entirely common for questions to come up during this process. Maybe one juror is stuck on something and just can't get past it. Now juries they have to be unanimous. So everybody has to decide guilty or not guilty.

Shawn Vincent: So sometimes the jury will say, "Hey Judge, we can't decide," and the judge will declare a mistrial, or what is it -- an Allen charge where he says, "Go back and try harder."

Don West: If a jury comes out ... Well, you're right. A jury has to be unanimous. If it gets to the point that a jury has concluded that they cannot reach a unanimous decision then that would be called a hung jury. As a result of a hung jury, since they can't go forward without a unanimous verdict the judge would grant a mistrial, which basically means everything they've done is over. The jury is dismissed and the prosecution can decide whether to try the case all over again with a different jury, and call the same witnesses and such.

Shawn Vincent: Sure. We saw that in the Michael Dunn case, the loud music case. That first jury, they convicted him of some lesser charges, but they actually told the judge we can't make up our minds unanimously on the murder charge.

Don West: Mm-hmm. And that's true, they can take a split verdict, a mixed verdict of guilty, not guilty, where they are unanimous on some counts, and then miss try some of the others.

Shawn Vincent: Then we had the Gyrell case, the Gyrell Lee case the jury late at night went to the judge and said, "We can't decide," and the judge said, "No. Go back and try harder." And then they came out an hour and a half later with a guilty conviction.

Don West: That's what you're alluding to when you use the term Allen charge. An Allen charge is based upon the name of a court case. And that's considered somewhat drastic. It's not uncommon, but because of the power of influence that a judge has there are legitimate questions about whether it unduly influences a jury to go back and reach a decision when they really shouldn't. But the Allen charge, as you said, is when a jury has announced that it isn't unanimous, that they're hung. And the judge reads the jury an instruction, implores them, makes them concerned about their civic duty. I think probably even includes a comment that if they can't reach a verdict then the case will be mistried, variations of that.

Shawn Vincent: Really tries to, "Figure it out if you can." But what I'd love to talk about really quickly here though is that there's so many factors that go into what motivates a jury to keep trying harder and how hard they're going to try to come up with a verdict. You get a case that goes to verdict on a Friday afternoon, everybody wants to go home that weekend, the judge wants this trial over, and there's pressure to get a verdict tonight. Whereas a trial that goes to verdict on a Wednesday morning, right, that means that jury has business hours and there's not as much pressure.

Shawn Vincent: When we talk about the members, all the little nuances that can effect whether they were considered justified or not. Imagine just the time of day or week that a case follows up, could make an impact on the verdict I think.

Don West: Imagine if you are the lone juror who disagrees with the majority, and you want to hang in there because you firmly believe that the case has been proven or you believe that the case hasn't been proven. And everybody's ganging up on you and you dig in and say, "No. It would be wrong for me to vote otherwise." And then all of a sudden it gets to be late at night and-

Shawn Vincent: You're on the eve of a holiday weekend or something.

Don West: And then you're worried about being blamed for the mistrial that follows. I tell you, Shawn, what I think happens more often than that scenario where somebody really digs in and mistries it, or sometimes just caves in. Now we've both seen jurors come back and render verdicts where one or more jurors were crying, so it was a huge emotional experience for them. But what I'm referring to now is I think what happens pretty often in a case that's perhaps even high publicity, controversial, even a close case sometimes where there's plenty of evidence, but as one of the jury instructions often says before you can convict somebody you have to have this abiding conviction of guilt that doesn't waver or vacillate. So I think there's cases where people are pretty well convinced the evidence is solid, but there's just a little bit of reservation, just wavering and vacillating.

Don West: What I'm getting to is I think what happens are what I call compromised verdicts. And that might be where some of the jurors are adamant about the main charge. Some other jurors may be almost as adamant, maybe not quite as adamant about not guilty, and there's some middle ground, a lesser charge where they'll say, "Well we don't want to miss try this case, we think that he's probably guilty of something," so they'll reach a unanimous decision on a lesser charge.

Don West: Of course rarely does the jury actually know what the range of sentences are. They wouldn't know typically if there's a mandatory minimum sentence. So they would be placing their faith in the judge to impose the right sentence in a very difficult case. And we can have this conversation another day, a lot of times the judge's hands are tied. They have absolutely no choice but to impose a mandatory minimum sentence that the legislature creates in the law.

Don West: Every once in a while the jury itself imposes the sentence. That's what Texas does. So interesting, fascinating, complicated process.

Shawn Vincent: So then it's late at night usually, in my experience any way.

Don West: I've had juries deliberate for only a few minutes. I had one jury that came back in four minutes.

Shawn Vincent: And you're like: this is either really good news or really bad news.

Don West: And I had another jury that came back in about seven. And frankly, one was guilty one was not guilty in that amount of time. And then on the other extreme I've had a jury that has deliberated for a week that came back six days in deliberation.

Shawn Vincent: Holy cow.

Don West: Yeah. And you just really can't predict, although I think typically in state court as, opposed to federal court, the trials themselves are shorter. And I think the deliberations are shorter. A few hours.

Shawn Vincent: Yeah, about 4-6 hours.

Don West: A few hours is common. So anywhere from two hours or more, I think, would suggest the jury was wrestling with it, they really gave it serious thought and went through all of the evidence. That takes time, just to go through it.

Shawn Vincent: So this whole exercise in exploring the phases of trial ... We talked loosely here about the Drejka trial as the example for it, is just what goes into ... You're going to make a split second decision in self-defense. And you're either justified or not, and it's going to take perhaps a year, perhaps longer. It's going to take multiple pre-trial hearings, and then this whole trial process we discussed to get to a handful of people who are going to, over the course of a few to several hours, make the ultimate determination of whether or not your use of deadly force was justified.

Don West: And just like you pointed out earlier, in some cases the goal of the trial is to get a conviction to a lesser charge than what's been filed. And that's not uncommon, a claim that it wasn't a robbery it was a theft. Or it wasn't a burglary it was a trespass. But in a self-defense case it's typically all or nothing. The claim of self-defense, the law of self-defense applies to the main charge and all lesser charges. So in my experience, more than any other kind of criminal case, is the person sitting in that defendant's chair facing what may very well be life in prison versus not guilty across the board.

Shawn Vincent: It's an all-in poker hand.

Don West: It is. It's all-in. All-in.

Shawn Vincent: All right Don. Well I think that's a great cross section of what the legal defense looks like for someone whose charged with a homicide in a self-defense claim.

Don West: Well good. I enjoyed it. I love this stuff, it's been my entire professional life and it gets a little nerdy from time to time, but the idea of being able to dissect this process and help show what the framework is I think is really valuable. We've talked about that next fight. You know the first fight being the one you're in to save your life in the face of a life-threatening attack. But the second fight, the one when you're navigating the legal system-

Shawn Vincent: The nerdy fight, for soft-handed people who don't have calluses.

Don West: Well you know nobody likes criminal defense lawyers until they need one.

Shawn Vincent: Until they need one, yeah.

Don West: And when you need one you really, really do.

Shawn Vincent: All right guys. That's it. You made it through all the phases of the trial. I hope you enjoyed it. I hope you learned something. I hope you never have to experience it firsthand. Next week we're going to dive into the lessons learned for concealed carriers from the Drejka trial. But until then, stay safe out there.

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