In Self Defense - Episode 50: The Anatomy of a Self-Defense Trial Part 2 - a podcast by Mike Darter

Don West and Shawn Vincent continue their discussion of the Michale Drejka trial. Topics include Drejka’s statements to police, his decision not to testify, and what was learned from jurors who spoke to the Tampa Bay Times after the guilty verdict.

 

TRANSCRIPT:

 

Shawn Vincent: Hey, everybody, this is Shawn Vincent. Thanks for listening in. I'm excited about the podcast today. Today is the second part of my conversation with Don West, he's CCW Safe National Trial Council, on the Michael Drejka case. So if you remember Michael Drejka is the parking lot shooter out of Clearwater, Florida. He was getting into an argument with Brittany Jacobs over her parking in a handicapped parking spot, a disabled parking spot.

Shawn Vincent: Markis McGlockton, that's Jacobs’ life partner, the father of her children, came out of this convenience store, saw this dude arguing with his girl. He walked up to Drejka quickly, without notice or warning, he pushed him to the ground violently. Drejka pulled his licensed concealed carry pistol, and he aimed at McGlockton, who was at this point standing over him in kind of an aggressive posture. He paused for a minute.

Shawn Vincent: The video shows McGlockton take half-step back, a real slow retreat. And then he fired. That shot struck McGlockton in his heart. He stumbled back in the convenience store, fell to the ground, died at the feet of his five year old child. At first there wasn't an arrest. After some more details came out, the prosecutor charged him with manslaughter. A year and a half later, little over a year later, he goes to trial, convicted for manslaughter.

Shawn Vincent: Don West and I watched that trial. We had a lot of things to say about it. And in today's podcast, we're going to talk more specifically about the statements that Drejka made to police, and why if you're ever approached after a self-defense shooting, you shouldn't say much without the advice of a lawyer. How those statements can be used against you, whether that means you have to testify or not at trial. And we're going to look at the jurors in this case. In full disclosure I helped, I contributed in a minor way in the jury selection of the Drejka case. I helped research the jurors, and vet them to make sure that they were qualified for trial. They spoke to the Tampa Bay Times, and they give us some pretty interesting insight into what happened behind closed doors in the jury room, and how they rendered that decision. There’s a lot of great lessons for concealed carriers from that. So, thanks again for listening in. Here's my conversation with Don west on the Michael Drejka trial.

Shawn Vincent: Here's one thing that we tell CCW safe members all the time, and that's after a self-defense shooting. Don't make detailed statements to cops, without the presence and advice of a lawyer.

Don West: Right, just as a quick refresher, generally speaking, if you're involved in a serious self-defense incident, there will be a responding officer, maybe in response to your own 911 call, which you should keep in mind is being recorded and available as evidence down the road.

Shawn Vincent: Right.

Don West: You'll be interacting with a responding officer, who will want you to tell him or her what just happened. You will likely be detained. Certainly, you'll be detained at the scene for officer safety. You may be detained and taken to the police station for further questioning. You may or may not actually be arrested at that point. We don't need to go into the nuances of that. But it's likely at some point, either that evening or shortly thereafter, a detective with the police agency, who has now been fairly recently assigned to the case and getting up to speed-

Shawn Vincent: A homicide detective.

Don West: A homicide detective, yes, will want to talk with you in detail about what happened. So the general advice is that you provide enough basic information to orient the responding officers, you clearly state that you acted in self-defense because you were attacked, telling them where any evidence that may not be obvious might be, if describing the attacker or attackers if they fled. Providing the basic information that helps the police officers know you're not a threat, that you are defending yourself.

Don West: Then if being requested to provide further information, say you're happy to cooperate, but you want a counsel present. Same thing with the detective, where you ask for a counsel to be present during any sort of detailed debriefing, and there's lots of reasons for that. Part of it is legal: Why would you subject yourself to the questioning of a trained investigator, without having a trained professional helping you? You certainly are clearly at a disadvantage.

Don West: Secondly, you may very well say things in a way that you don't intend to say, because you haven't thought it through, or you felt the need to come up with an answer instead of reflecting on it. Then the trauma of the event itself. You will have undergone a life threatening circumstance, which will affect your judgment and your decision making, it will affect your perception. And it's commonly said, police officers will get a couple of three days in between the use of force incident they're involved in, until they're asked to be fully debriefed.

Don West: And that's the recognition of how difficult and how traumatic that experience is, and how it can make you unreliable when you're otherwise doing everything possible you can to tell the truth.

Shawn Vincent: So you and I had a chance to talk to Steven Maddox, that was the CCW safe member who was charged and prosecuted. You were instrumental, I think in his defense, and I got a chance to help pick the jury on that. And Stephen told us that he was trying to answer questions honestly to the investigators there, but he got things wrong, like the number of children that he had, or his address, because he was so affected by the attacks that he had endured and the stress of the shooting itself. And he wasn't intentionally trying to deceive, but he got things wrong because he was in an unfamiliar emotional state.

Don West: Keep in mind too, that the investigator has a very clear role in this. They may have already decided that you're guilty. So they may be just looking to confirm things they believe they already know, and getting you to try to incriminate yourself. Others may be more genuinely looking for information, without having sort of prejudged the situation, but the rules are different.

Don West: The police can try to trick you and deceive you and lie to you about things during this interrogation process. So if you respond to that, if you become defensive, if you say things that can make you look guilty, that's going to be permanently recorded and available to use against you. I really believe that sometimes the hardest job of the defense lawyer representing an innocent person is to-

Shawn Vincent: Undo what they did.

Don West: Undo. Yes, yes. And I can think of several cases that I've been involved in, or worked on in some capacity, where it was an hour or two hours or longer into this extended interview, before the suspect even knew that the person they had shot had died. That's not a fact that's offered very often, certainly not very early, because they know how that changes the entire picture. And Maddox was one of those. Maddox didn't know for two or three hours that his attacker was dead.

Shawn Vincent: We talked about the Michael Dunn case; the Michael Dunn interrogation tape is fascinating, because Michael Dunn felt like he was justified at first, although he knew he messed up by leaving the scene. But there's this point in the tape where he realizes how much trouble he is in, and he is being nice to these guys, these investigators. He's like, "All of a sudden I don't feel very good." And the homicide officer is like, "Yeah, I bet. Because you messed up dude.”

Shawn Vincent: But it's that moment where... and I feel like a lot of self-defenders feel they're justified. They have no doubt to themselves, that they were justified, and see the law enforcement as their friends in this. That the criminal is the other guy that I had to shoot, and now I'm talking to you like we're bros here. Right? We're on the same side, because we're both against that bad guy. And then it sinks in potentially later that, "Wait. I'm the bad guy. Or they might be thinking of me as the bad guy." Because you in fact, committed a homicide. But let's look at it in terms of the Drejka case. Drejka gave pretty extensive video tape statements to law enforcement.

Don West: That's right. And they became featured in the trial, of course. So during that interview, he recreated, reconstructed the events, even with a demonstration. He answered all of the questions. And if you look at that recording, it appears to me that he was genuinely trying to answer the questions, honestly, from his perspective, that he used some language that the prosecution made a lot to do with... that he said was kind of cop talk.

Shawn Vincent: Cop talk like?

Don West: I don't know if that was or not, whether he was trying to act like he was a police officer, but that certainly is a good example of how... or act like a police officer, or just being sure that he was clear in what he was saying. But nonetheless, the prosecution made a heyday out of that, looking for any tiny little thing that could be exploited and turned against him. And there were lots and lots of those examples.

Shawn Vincent: When you say cop talk, you mean like this, he quotes this 21 foot rule?

Don West: The 21 foot rule probably falls into that category. What I was referring to specifically, was he might answer a question that would call for a yes or no answer. And he would say, "Negative." As opposed to, "No."

Shawn Vincent: I got you.

Don West: That kind of talk. But since you mentioned the 21 foot rule, that of course, was also featured in the trial. His comment referenced the 21 foot rule, and the prosecution had a heyday with that, and featured an expert witness, whose primary purpose it seems to me, was to make Drejka look bad by talking about how Drejka was wrong, the way he talked about the so called 21 foot rule.

Shawn Vincent: And the 21 foot rule is essentially, is mostly for law enforcement, right? It's how far away someone is, that they can still get to you, and the time it would take you to unholster your weapon, drop the safety, and aim and fire. Right?

Don West: It's interesting, I imagine anybody who has taken any kind of self-defense class, or probably even a concealed carry class is going to hear about the 21 foot rule. And it's unlikely that they will understand clearly what the research actually was when it was done, how it was done, what you can draw from it and over time. And of course, through the mouths of different instructors in different circumstances, it becomes all sorts of things.

Don West: One of the purposes of calling the expert at the trial against Drejka, was I think, to show that Drejka misunderstood what the significance of that is. And I think it's arguable, I think it's pretty clear, that the expert got it wrong, or at least the expert focused on some aspect of that, that wasn't completely accurate. It wasn't completely forthcoming.

Don West: Let me just take a second, and I'm certainly no expert on this. I've gathered some information on, and I know generally, what you've said, Shawn, is correct. And that is, the notion is that if someone is attacking you, that by the time it would take someone to draw a weapon -- so this is someone that has some skills, and some training to draw a weapon, prepare it to fire, put it on target and fire it. The actual drill was two times. That person can easily cover about 21 feet.

Don West: So that means basically, if somebody has an edged weapon, or a blunt instrument, a baseball bat of some sort, and they're 21 feet or closer in front of you, and they intend to seriously injure or kill you, they can cover that distance in about a second and a half.

Shawn Vincent: So faster than you can get your gun out, the idea of, they're inside that circle.

Don West: Yeah.

Shawn Vincent: Your decision making is over at that point.

Don West: So the value of knowing that is, generally speaking, someone can be a lot further away than you would think, and still get on top of you and kill you, before you have an opportunity to defend yourself.

Shawn Vincent: Sure.

Don West: So in general, that's the notion behind it.

Shawn Vincent: And Drejka brings this up, because he's on the ground on his back and this guy is just a feet away from him.

Don West: Yes, he's clearly less than 21 feet. And I think what Drejka was trying to illustrate is that, he was well within that zone of danger, that meant that, if McGlockton intended to come over and kick him in the ribs, kick him in the head, stamp him to death, continue the violence that he had initiated by shoving him to the ground, he was close enough that he could have done that before Drejka could defend himself. That's the sense of it.

Shawn Vincent: Yeah. To get back to your cop talk conversation, you and I have both been involved in cases where the prosecutors have tried to use the defendant's knowledge of self-defense against them. Almost as in, you know these rules and you're trying to work around them to justify a homicide. Do you agree with that? Am I explaining that properly?

Don West: Yeah. Let me back up just a little bit and say that, when someone is involved in a self-defense shooting, the jury is asked to look at that incident through the eyes of the shooter, of the defender. And that includes, knowing what the defender knew. And that necessarily incorporates what their training may have been as well, good or bad. It incorporates what they might have known about the attacker. Did they have information beforehand? Was this guy was violent and aggressive? Did they have a beef?

Don West: All that kind of stuff is allowed to be looked at by the jury, in deciding, was there a fear of great bodily harm or death? And then ultimately, was that fear reasonable under all things known to the defender? So that's where this notion of there's the subjective view of the evidence, and that's through the defenders eyes, as the jury looks at what the defender saw, and knew, and then there's this objective view, and that's kind of this reasonable person test. The jury looks at, was it reasonable for him, knowing all that he knew and seeing it as he saw it to act the way that he did?

Don West: And I think in large part, that's the jury saying, what would I have done if I had been in that situation? So the training is legitimate. The problem is, sometimes it gets exploited. And I think, by the prosecutor and I think that's what happened here. Drejka was basically accused by the expert of the state, the prosecutor, of not knowing what he was talking about, when he mentioned the 21 foot rule.

Don West: The prosecutor's expert made a big deal, that this research that was done was based upon an edged weapon only, and that McGlockton didn't have an edged weapon. So nothing that Drejka said made sense. I think that's an overly restrictive view, because an edged weapon is a deadly weapon, but so would a baseball bat be at that point. And that doesn't change anything.

Shawn Vincent: Yeah.

Don West: Do you care, particularly if you're stabbed? Or hit in the head with a baseball bat? I think not. Both of them are going to do you harm. So I think that was frankly disingenuous. The background is, it's called the Tueller drill. The research was done by Dennis Tueller. I think it goes back to the '80s, trying to understand better what this dynamic was. And the research was duplicated over the years, that it became pretty much the standard. That's why it's called the 21 foot rule.

Don West: That is, that it takes... that a person can cover the 21 feet in about a second and a half, which is about the time that it takes to draw and fire a weapon by a trained person. So the mindset is that, if the person is 21 feet or closer, that you're in big trouble at that point, because once they get their hands on you, if they have a knife then you're done.

Shawn Vincent: I guess the lesson here is, if you rely on that rule and the police investigators are talking to you after a self-defense shooting that, that's something you want to save to talk about with your lawyer, as your lawyer can decide that, that's now one of your defenses, justifying the shooting. And I think anything that-

Don West: I think that's right. I think Drejka was inarticulately trying to explain his thinking, trying to reconstruct the events in his mind. And he had heard that from a class or read about it and thought it might help him to throw it in. Just like he thought it might help him to talk to a police officer in cop talk, because that's who he was talking to. It wasn't like he was at a cocktail place.

Shawn Vincent: Right.

Don West: And those two things backfired in the sense that the prosecutor made hay, and unfortunately, I don't think that the defense lawyers were particularly effective at blunting that or explaining it further. So in a sense, the prosecutors went there and got away with it. And the jury had sort of a bad taste, I think about Drejka, and this whole, this picture of who he was.

Don West: Now, we know that the only picture that the jury got of Drejka came from the witnesses that talked about the prior incident, when he had threatened a guy over a handicapped parking spot, the prior bad act stuff, the witnesses at the scene who described his manner after the fact as almost being matter of fact, which didn't help very much, and what he said on the statement. He didn't testify.

Shawn Vincent: Yeah, they didn't put Drejka on the stand to explain to the jurors, what his mindset was. They ended up relying on this recorded testimony.

Don West: And we could talk for an hour about what's involved in making that decision, as a criminal defense lawyer, if somebody testifies, why they don't. Let me say, first of all, that a defendant has the absolute right to testify if they choose. It is their choice and their choice alone. Of course, they would like the guidance of counsel to help them make that choice. But that's not a decision the lawyer can make for them, unlike other legal decisions.

Shawn Vincent: Mm-hmm (affirmative).

Don West: So the fact that Mr. Drejka did not testify was his decision with the counsel, and advice, obviously.

Shawn Vincent: Was an informed decision. Yeah.

Don West: Yes. In fact, I think in most cases, the judge will actually address the defendant outside the presence of the jury and ask him if he intends to testify, or if he had chosen not to at that point. Whether he understood he had the right to, whether it was his decision, whether he needed more time to talk about it for trying to protect the record, so that, if there's an appeal down the road that, the defendant doesn't come say, "Well, I didn't know I had the right to testify." Or, "My lawyer told me I wasn't allowed to." Those kinds of things, as a fundamental right.

Don West: And Drejka elected not to testify. Now, keep in mind that, by the time he would have made that choice, the prosecutor had already decided to offer the recorded interview into evidence. They did that during their case, during the prosecution case, and that was their choice. They didn't have to do that.

Shawn Vincent: Sure. In fact, in the Dunn case, they waited until the rebuttal argument to play the recording, after they Dunn testified.

Don West: Because Mr. Drejka voluntarily gave that statement, and it was otherwise admissible, it gave the prosecution the choice to play it in their case or not. It was not a choice that the defense had.

Shawn Vincent: Yeah, that's an interesting point. You need to emphasize, because you can't just offer pre recorded stuff about the defendant to testify, or I'd say evidence if you're the defendant.

Don West: That's right. Mr. Drejka, in order to get his story in front of the jury, if the prosecution hadn't offered that recorded statement he gave to the police, Mr. Drejka would have had to take the stand. Now, that statement could have been used by the prosecution as cross examination, or as impeachment. All or parts of it may possibly have been introduced, but not by Mr. Drejka. He doesn't get the opportunity to offer a prior exculpatory statement, and evidence in lieu of his testimony.

Don West: So a lot of the legal commentators wrestled, when they were looking at this case. Should the prosecution offer it? Or effectively, should they force Mr. Drejka to take the stand? And that was a strategy decision, based upon a number of things.

Shawn Vincent: Sure.

Don West: They would have had to evaluate their case, and decide whether they thought it helped them or hurt them.

Shawn Vincent: And then when you look at the contents of that, there's one segment of it where he's recalling to the officer what happened. His perception was that, Markis McGlockton, after Drejka pulled out the gun, either stayed still or stepped towards him, in direct contrast with what the recording showed. So all of a sudden, you have the defendant making statements that, whether maliciously intended, are untrue, based on the evidence.

Don West: They are inaccurate. Yeah. So it's clear that, his perception of that was wrong. It's a question I suppose, and the prosecutor gets to play with that too. Was he just wrong? And that makes it unreasonable. Or, was he lying about it? Which makes it evidence of guilt. So I assume they figured they could box him in that, since it was evident from the tape that McGlockton was backing up. I think that's a reasonable construction, when Dr. Drejka said he was actually coming forward to him, that puts the prosecutor having his cake, and eating it too. Because they get to make the reasonableness argument at the end, which they did over and over and over again.

Don West: I thought it was interesting, too, the way that Drejka explained the situation, because when he was challenged a little bit by the interrogator, by the investigating detective about McGlockton coming toward him. He actually said to Drejka, "What if there was information that he wasn't coming towards you, that he might actually even be backing up?" And Drejka said, "Then I couldn't shoot him. I wouldn't shoot him. In fact, I wouldn't shoot him or I couldn't shoot him, even if he was just standing still, much less coming toward me."

Don West: So in some respects, Drejka knew where the boundary was, that had he recognized that McGlockton had stopped or was retreating, he knew that he would not legally be allowed to use lethal force, because the attack was not imminent at that point.

Shawn Vincent: So interesting, and he seemed to me credible, when he said that. I believed him.

Don West: Yes, I didn't get the usual markers that you look for somebody that's lying about it, and trying to get away with something. No, I believe that's at least the way he was explaining it, what he thought and that was sincere. And of course, another interesting dynamic of self-defense is that the threat has to be perceived as real and actual. But it doesn't, in fact, have to be real. That you can be mistaken about certain things, as long as your perception of the threat is reasonable and that your response is reasonable.

Don West: I think where the prosecutor kind of wove the way through this was that, they kept pounding on the idea that McGlockton had stopped, and he had actually taken a step back. So that not only was there not an actual threat at that moment, but Drejka's perception, even if you gave him the benefit of the doubt, was so wrong, that it was unreasonable for him to think there was a threat.

Shawn Vincent: That's right. So if you're going to be wrong about a detail, if you're going to misperceive, the jury has to believe that you misperceived it.

Don West: And that it was reasonable.

Shawn Vincent: Yeah.

Don West: I really think that's where they put themselves in the case, where they look at it through your eyes as the defender, but then they also step back and say, "What would I have done in that situation?" This is an interesting case because there were some jurors... well, it was interesting because you had the video, and rarely do you have the video that shows the crucial moments leading up to and after shooting, but then there was media coverage. So you could see it gavel to gavel, and see how the lawyers presented this case, their strengths and their weaknesses.

Don West: I like to armchair quarterback and second guess. So I'm sitting there saying, "Wow, that was pretty good. I'm not sure I could have done it that way." Or, "Wow, that was terrible. I wish that I was there to ask those questions." Or where I thought evidence was available that wasn't sufficiently developed, especially knowing that he wasn't going to testify.

Shawn Vincent: We'll be right back with more of my conversation with Don west, to include a look inside the jurors’ minds. And the conversation about whether concealed carriers are compatible with vigilante justice.

Don West: We write a lot about... we talk a lot about self-defense. I write for CCW Safe, a lot about self-defense, and sometimes I get people who are angry at me, or challenge my point of view on some aspect of self-defense and what's justifiable, what's not justifiable. My answer always is, "I'm not telling you what I think. I'm telling you what my experience has been with what juries think." And in the end, if you're a self-defender, if you're a self-defense shooter, it doesn't necessarily matter what you think about whether or not you're justified. It's going to be in the hands of the six to 12 people, who come from all walks of life, and what they think.

Shawn Vincent: And in the Drejka case, a number of the jurors spoke to reporters afterwards. And that's going to give us a little bit of insight into what they were thinking. And obviously, we haven't mentioned this yet, but Drejka was convicted of manslaughter after a six and a half hour jury deliberation. And in my experience, six and a half hours is not bad. That means that they gave it some real thought.

Don West: I think that's a good comment. I think that, while there were a handful of witnesses that testified, and certainly a handful of physical exhibits that were on their way in it, this was not a particularly complicated case to unravel. It wasn't a document case, where there are thousands of documents to sort through or tons and tons of expert testimony that really mattered much in the scheme of things. So for this jury to deliberate, to just sort through the information and then the no doubt, sometimes agonizing process of trying to figure out what's right, what's lawful, what's fair. Six hours is certainly a tribute to the system working, I think.

Shawn Vincent: Yeah. And so an article from the Tampa Bay Times that covered the trial extensively, when they spoke to some jurors, said that, it was about 45 minutes to an hour in, that they took their first poll. And they said that the jurors were split between guilty and not guilty at that point.

Don West: I don't think that's uncommon and a difficult or a close case, and certainly there's nothing wrong with it. It's encouraged that one of the things the foreperson, once chosen, would do, and once they get settled down and have everything with them, and they're ready to start, there's no reason not to take a sort of a preliminary look at how people feel. And then they can start the hard work of people explaining it, and people having enough of an open mind that they're willing to re-look at things or reconsider, and -- only to comment that, sometimes the hardest thing to figure out is how to apply the law to the facts.

Don West: Once you've got the facts sorted out, the jury is supposed to do that, figure out which witness is believable, what evidence is reliable, and sort of get a handle on what happened. After they do that, they still have to then apply that to the law and figure out whether a crime was committed. And if so, what crime? In a self-defense case, it's not an issue of who committed the crime, but rather was a crime at all committed? And then they've got to dive into the deep end of the law, and as hard as the Supreme Court who drafted the instructions and the trial judge who conformed them to the trial itself, that's no easy task. Those instructions are often very difficult to truly understand, and to apply to a challenging situation.

Shawn Vincent: Sure, for the case in point, there is one jury question that came out to the judge and to the lawyers. And that was the jury asking for clarification on what reasonable doubt meant. And reasonable doubt, that's the fundamental thing a juror needs to know when they're deciding guilty or innocent, or guilty or not guilty, right?

Don West: Yeah, that's kind of the bottom line, isn't it?

Shawn Vincent: Yeah.

Shawn Vincent: It's always funny. You and I talked about, how we felt about this case and we put ourselves in the jurors shoes. And we know an awful lot about the law of self-defense. And you mentioned something that's in the instruction for reasonable doubt. And that's this idea of a vacillating conviction. You know what I'm talking about?

Don West: Yeah, let's back up a little bit. Now, this was a criminal trial in Florida, which means that, whatever the rules are in Florida are the rules that apply to this case, as opposed to a federal case that could take place in any federal court around the country, where the rules are basically the same. So what I'm saying is, every state in their state criminal courts would have their own set of jury instructions, that have been crafted over the years by their courts.

Shawn Vincent: Yeah.

Don West: So they are different from state to state. The concept is the same, the reasonable doubt standard is the same, but the language that's used to try to explain it changes. Some is better than others, frankly. The courts, the trial judges, are really, really hesitant to change the language of those core instructions. They basically just read it the way it is, and don't deviate from it. And if the jury doesn't quite get it, it's really hard for the judges to do much about that, other than just read it again.

Shawn Vincent: Yeah, that's what happened here. They said, "Listen, it's written down." He has got to go figure it out.

Don West: So from the reasonable doubt standpoint, I don't have it in front of me just sort of by memory. Having heard it a few times, is that a reasonable doubt is explained in the jury instructions more what it isn't than what it actually is, because how do you actually define it? And there's no easy, clear way of doing it. So one of the instructions that's given is that, it's not a forced doubt or a speculative doubt. It's not a possible doubt. The prosecutors love to latch on to “it's not a possible doubt,” meaning it's possible that you could wake up tomorrow and there could be six feet of snow in Florida.

Don West: Well, yeah, we understand that. But the instructions go on to say, even if you have no reason -- let's say, if you have an abiding conviction of guilt, and that's kind of old language, I think. Who uses abiding these days?

Shawn Vincent: The Dude.

Don West: But nonetheless-

Shawn Vincent: The Dude abides. The Big Lebowski. But yeah, I get your point.

Don West: That's Jeff Bridge's moment in the sun, isn't it? Of course, he has a few.

Shawn Vincent: Sure, but that's our favorite by far. Yeah. An abiding conviction.

Don West: An abiding conviction of guilt is as close to the instructions as you get them saying, "If you believe there is no reasonable doubt." So meaning, if you have an abiding conviction of guilt, but one that waivers or vacillates.

Shawn Vincent: Yeah.

Don West: Again, pretty old language, the waiver not so much but vacillates. So if you have an abiding conviction of guilt, but it wavers or vacillates, then you don't have an abiding conviction.

Shawn Vincent: Sure. And it takes-

Don West: That's another way of saying that, if that's a reasonable doubt, then we know the standard is, if there is a reasonable doubt... some places say, "A doubt to which you can assign a reason," which is kind of the tail wagging the dog.

Shawn Vincent: Mm-hmm (affirmative).

Don West: Then the jury has this sort of mash, kind of a mash up of stuff they take in there and try to figure out what that means, and how to apply it to the case.

Shawn Vincent: Well, here's how the jury approached that problem. They had that first poll at 45 minutes to an hour in. That meant, for the next five and a half hours, they were hashing it out. One juror said that -- this 11 seconds of surveillance video, in this case, they said they re-watched that 11 seconds hundreds and hundreds of times. It was the key piece of evidence obviously.

Don West: Sure, it was. Whatever that was, for better or for worse, that's what drove the decision, don't you guess?

Shawn Vincent: I do. We talked earlier about the motions in limine, and how the prosecution won the right to show that video in slow motion. But one of the jurors actually says that, one of the witnesses talked about how that's not a accurate representation of what happened. So the video they watched over and over again was the full speed video. So I'd give the jurors a lot of credit for that.

Don West: You should. That they just didn't sign on to one side or the other from the beginning and run it through. Certainly, the prosecution showed it to them, because they were allowed to, in slow motion, but that the jury was so conscientious that they realized, maybe that wasn't the fair thing to do. Maybe that was not the due process that Michael Drejka deserved. They didn't succumb to that in the jury deliberation room. That's powerful stuff to me that the system works.

Shawn Vincent: But here's a quote here: “It really came down to the fact that once the gun was drawn, he the victim retreated. The defendant had enough time to make the decision, that once he saw the victim retreating, that he did not have to pull the trigger.” Is there any statement that you can think of, that defines this case much better than that?

Don West: No, that's right on the money. That's the moment of truth, so to speak.

Shawn Vincent: Gosh, that kind of takes your breath away, I think, if you're a concealed carrier. And you come to terms with life or death and freedom and prison. Right? That it comes down to this pause. Right? The sheriff of Pinellas County said, "That pause gives me pause." That's what kept him from charging, or making the arrest originally. But then, you get this juror that watches that hundreds of times. I don't know how many times you watched it. I've watched it at least 40 times in my analysis of this. There is that moment. There's that moment of reflection. Maybe, if he hadn't paused, he has a different case.

Don West: How incredible is that? If he had actually fired sooner, nothing else changing, if he had fired sooner, the jury may have felt that he didn't appreciate that McGlockton was retreating at that point. Now, of course, they may very well have said, that he didn't have to fire so fast. He had the situation under control by virtue of displaying the firearm. And then you start getting into the nuances of this so called 21 foot rule, right? Or, how quickly could McGlockton react to that?

Shawn Vincent: Yeah. Here's another juror -- a quote from them that I think is interesting, "I think he had the opportunity not to kill him." And that's an interesting thing to think about. Right. And that speaks kind of like it's a duty to retreat, or an ability to retreat. The juror says there's an option not to use deadly force here. What they were saying is that they didn't think that the threat to Drejka was imminent, or reached the level of force that would justify lethal force, right?

Don West: That's a beautiful, beautiful assessment of the case by the juror. It touches on all of these elements of self-defense in a way that is particularly human, if you think about it. It's in our genes to preserve human life. You preserve your own, but you preserve everyone else's too, as long as you can. That he didn't have to do it. And if you heard the prosecutor say, unreasonable, or it wasn't reasonable, one time, it was said 50 times. And that's this notion that he didn't have to do it. Because he did, it was unreasonable.

Shawn Vincent: Sure. And another part of that is, we're looking at it from the law, but we're also putting ourselves in the shoes of the defender, right?

Don West: I feel bad for McGlockton. I mean, what a tragedy. A guy, not quite 30 years old, I think, who was shot and killed and no longer on this earth. He has young children. He was in a long term relationship with Brittany Jacobs. He did some stupid things. He exercised really bad judgment. He was high. But in his mind, he was coming to her rescue. He did it illegally and wrong.

Shawn Vincent: But of course battery is never punished with executions, right? We don't execute people for battery charges.

Don West: Exactly. I also feel bad for Drejka, of course. Because he made equally bad decisions. He stuck his nose in something that wasn't really his business, at least not in a confrontational way. He could have handled it very differently and still made his point. Shawn, I was struck by the testimony that Brittany Jacobs told Drejka, when he said, "You don't have a parking permit. What are you doing in this parking spot for handicapped?" There were no other people using that spot. There was another one available, I think. And her response was, "My guy or my husband is in the store. As soon as he comes out, we will move. There are a couple of young kids."

Don West: So she wasn't agreeing, but she wasn't being particularly defiant either. She just was saying, "Look, it's just not a big deal, because I'm going to move as soon as he comes out." It wasn't like she parked there and left. And there wasn't any immediate use for it. And Drejka, that wasn't good enough for him. He didn't say, "Whatever," and walk away. He continued to escalate it. And of course, that's the problem.

Don West: You get two confrontational, aggressive guys in something, one that's not hesitant at all to be physical and the other who's armed. And by the Williams rule, I guess the prior bad acts stuff we were talking about, arguably, is looking for a reason, itching for something. Man, you've got the makings of a bad outcome, and that's what we had here.

Shawn Vincent: Yeah. We have a quote I want to talk about from another juror. That the law says... we have this one who said that, she didn't think that it was necessary. He had the opportunity not to shoot, right? And that's not necessarily the legal stuff standard. But, we ask a jury to put themselves in the shoes of the defender, right?

Don West: Yes.

Shawn Vincent: Even if we know that he misperceived it. You've talked about before, legally, you're allowed to misperceive it, as long as you are honest about that, and you are still reasonable under that perception to act, right?

Don West: Well, I guess, rather than perception, you should use the threat. The perception of the threat. The threat itself does not have to be real. So in other words, you're allowed to make certain mistakes. Part of that, if you fast forward to the Amber Guyger trial in Dallas, where she's went-

Shawn Vincent: She is the one who went to the wrong house and shot the occupant, thinking he was a burglar?

Don West: That's right. She made a huge mistake. Her perception of the threat was wrong. But that does not prevent her from melting an effective self-defense claim. There were other problems in that case, but-

Shawn Vincent: Which I can't wait to talk to you about, by the way, on another day.

Don West: Yeah, that's going to be interesting stuff. The threat doesn't have to be real. The perception of the threat has to be reasonable. So in other words, other people are going to have to say, "Yeah, I would have seen it like that too."

Shawn Vincent: And here's what this juror said. He said, "I had a hard time seeing what he saw." So here's a juror who watched this 11 second video hundreds of times. And even though Drejka gave statements to the police that were recorded and shown to the jury, saying that from his point of view, he was moving forward, that this juror said, "I just didn't see it. I had a hard time seeing what he saw." It's tough to overcome.

Don West: It is. Yes. And I think that juror was being honest with-

Shawn Vincent: When he said something like, "I had a hard time seeing what he saw," meant that he tried. Right?

Don West: Mm-hmm (affirmative).

Shawn Vincent: He tried to see it the way he did, and just couldn't, when it came down to it, when he had to make the decision.

Don West: In some ways that gives Drejka the benefit of the doubt. That's kind of what this whole notion is, with the prosecution burden having to disprove self-defense beyond a reasonable doubt. When the juror says, "I tried to see it the way Drejka did, but I couldn't," that tells me that he was genuine and sincere in his role as a juror.

Shawn Vincent: Yeah. So going back… the lessons for the concealed carrier, there's a ton of them in this case, but the ultimate lesson that we always come down to is, I think this one juror said it best, "If you have the opportunity not to use lethal force, you got to take it." Legally, you should take it. Because that's going to... if the jury thinks you had an opportunity to avoid it, whether the law says it or not, they may hold that against you.

Don West: Yes, that's a fundamental and a valuable lesson to learn. That's a direct window into how jurors look at these hard cases. And that's a valuable lesson. There are of course, lots of other lessons too. And the obvious lesson is, if you're the guy with the gun, you may just want to mind your own business.

Shawn Vincent: Well, isn't that a huge lesson in this? Because, they made hay in the... like, although that spot was painted handicapped, it wasn't an official city designated handicapped spot, that she wouldn't have gotten a ticket for parking in that spot. We talked over and over again that, if you are armed, if you choose to carry a concealed, then you sort of have an obligation to avoid unnecessary confrontations.

Don West: One of the arguments that the prosecutor made and I thought he made it effectively is that, Drejka was the guy with the final solution. So he didn't have to care about putting his nose in other people's business, or how far he took this thing, because he knew he was equipped with the final solution. That scares the hell out of most jurors, don't you think?

Shawn Vincent: I think so. We talked a little bit about doing his recorded statements with cops. He had this quote unquote “cop talk.” And we encountered this in Zimmerman. I've seen it before. It gets brought up in some self-defense cases, where they project a law enforcement mentality on the defendant. Right? If you're defending your home, that's one thing, but if you're out, seeming to be enforcing parking permit law, or somehow patrolling the neighborhood, if that was the suggestion.

Shawn Vincent: Cops are trained to be armed, and to approach people who are breaking the law, and citizens are not. So I think, if you're armed and a private citizen and you put yourself in a position where you're encountering a would be criminal or some code violator, then you're not trained like a cop necessarily. And you don't have the legal standing. You're just putting yourself in a potentially no-win scenario.

Don West: There's certain hot button descriptions that, words that are just thrown out there because people know the kind of reaction that they cause. And in a firearm incident of some sort, if you throw the word “vigilante” out there, you've just pushed all those hot buttons that makes everybody-

Shawn Vincent: Bristle.

Don West: Yes, yes. And that was the word that was used for Zimmerman of course, and that's the word that comes to mind with Drejka. It's easy to paint him as the parking lot vigilante.

Shawn Vincent: Yeah.

Don West: That's a lot of ground you have to make up, if you're trying to defend that guy, if that name gets associated with him and sticks. And just like any other scenario where you're having to overcome a negative perception right from the beginning, associated with somebody who arms themselves, goes out and sticks their nose into other people's business.

Don West: By the way, let me say, Drejka did nothing illegal, except when the jury determined that he committed the crime of manslaughter. Up to that point, he didn't commit any crimes. He just exercised questionable judgment. And it's not against the law to go up to somebody and express your displeasure at the fact that they are parking where they're not supposed to be. You can raise your voice and call them names as long as you're not threatening in some way.

Don West: But that's all protected by the First Amendment. The first crime in this scenario was committed by Markis McGlockton, when he shoved Drejka to the ground. But that would not have happened, and no way justifying what Markis McGlockton did. But that would not have happened had Drejka just let it go and backed away, anyway.

Shawn Vincent: But that's what we talked about, when you are armed and you enter a conflict, you can't control what the other person is going to do. We see these dominoes fall to so many scenarios, where the shooting becomes almost inevitable.

Don West: This is an expression that one of the guys at CCW Safe used just offhand. I don't know where it came from. We were just talking about some self-defense scenario. I don't remember if it was even one of the ones in the news, but something that he knew about, and we talked about. He just kind of shook his head and said, "When assholes collide."

Shawn Vincent: Right.

Don West: It's a little descriptive or overly descriptive, but at the same time, man, does it say it all.

Shawn Vincent: Yeah. And you and I have talked about before that, when you carry a concealed, then you give up your right to be an asshole. If you want to be an asshole, don’t bring your gun, right?

Don West: Good enough.

Shawn Vincent: I think that's the final word, Don.

Don West: One of my favorites, one of my favorites.

Shawn Vincent: All right. Thanks again for taking the time to talk.

Don West: Enjoyed it, Shawn. This has been a fascinating discussion. It's a fascinating case. It's as you point out, one that you can come at from many different perspectives and learn so much about it. I greatly enjoy talking with you about these cases. It makes me think about stuff I haven't thought about in a long time, or thought about in a particular way. And I think whether you're visualizing yourself in a restaurant and wondering who could be coming through the door, and how you might react if somebody approaches you in a parking lot, trying to figure out what their intentions are.

Don West: Anytime you see something in your mind and discuss it from beginning to end, you're going to come out at the other side, better prepared to deal with it if it actually happens.

Shawn Vincent: I agree, Don. So thanks again for going through that exercise with me.

Don West: Thank you Shawn. Look forward to the next time. Bye, bye!

Shawn Vincent: Bye.

Further episodes of CCW Safe

Further podcasts by Mike Darter

Website of Mike Darter