In Self Defense - Episode 51: The Warning Shot Case: Part I - a podcast by Mike Darter

 

Not long ago Stan Campbell and Mike Darter spoke with Marissa Alexander about the warning shot she fired that triggered a long legal battle and some substantial prison time. In this episode Don West and Shawn Vincent draw upon the conversation with Alexander to identify the lessons learned for concealed carriers.

 

TRANSCRIPT: 

Shawn Vincent: All right. Don, what's happening.

Don West: Hey, Shawn. Good to talk with you again.

Shawn Vincent: Yeah. So, it was a couple of months ago that Stan Campbell and Mike Darter, founders of the CCW Safe, had a chance to talk with Marissa Alexander, who is actually someone who survived a self-defense encounter, and was prosecuted, and actually served time in prison, and is now out and she's an advocate that goes around talking about domestic violence, and gun rights, and educating people about self-defense.

Don West: That's right. People may not immediately know the name Marissa Alexander, but this is one of those handful of cases coming out of Florida several years ago that get known nationwide by some other name. We know the Loud Music Case: Michael Dunn in Jacksonville. I think Marissa Alexander also was a Jacksonville, Florida case.

Shawn Vincent: She was.

Don West: It's known as the warning shot case. It got lots of publicity at various stages.

Shawn Vincent: Yeah. Part of the reason that it became so well-known is this idea that it was a warning shot. Here's a self-defense case where nobody's killed. In fact, nobody's even harmed by the discharge of the weapon. A single shot was fired, nobody was hurt, and then you have Marissa Alexander looking at a very lengthy prison sentence for what she claimed was defending herself against an abusive husband, who she had a type of restraining order against, a contact with no violence order.

Don West: Marissa had just had a baby, who's in the hospital. I think when this happened, the baby may still have been in the hospital, and she was going back to her residence for the first time in a while where her husband and her husband's children were there, sort of setting the stage for the argument that then led up to this.

Shawn Vincent: Sure. She was actually nine days after giving birth to her premature baby. The baby is in the hospital. She's staying with her mother because she's got this problem with her husband, the father of that new baby. She was going back to that marital home to get some stuff that she needed, and that's where Rico Gray, that's the name of her husband at the time, now ex-husband, and his two kids encountered her there.

Don West: As I recall, there was an interesting lead-in to the argument. That's not the purpose of our podcast, but as I remember, some of the discussion that Ms. Alexander was showing Mr. Gray pictures of the baby, and actually handed him phone to him to look through the pictures, and while she was in the bathroom either collecting things or washing her face or what have you, he wound up scrolling through the phone and came upon some text messages, which apparently were between Ms. Alexander and a prior husband or someone with whom he was then accusing her of ... I guess Mr. Gray was then accusing her of some infidelity and maybe even questioning the father of the child.

Don West: So, one innocent step maybe even that was a nice gesture on her part. Foolish. Can you think about how these things just go from zero to 100 in a half a second? All of a sudden, Rico Gray is angry because he questions if he's the father of this child. Oh, my goodness!

Shawn Vincent: Alexander described it as a “jealous rage.” Yeah. I think what she said, part of it, is that some suggestion that the child that he thought they shared might not be his or some suggestion of that. So, he went off the handle. Now, clearly, with this restraining order, this contact with no violence order, Alexander had convinced the court that there was some cause for concern here to support her allegations that this was an abusive relationship. She actually claims to Mike and Stan in her podcast with them that her premature birth was induced by some of that violence.

Shawn Vincent: So, he goes into his jealous rage, and she tells the story. She's in the bathroom. He goes in, approaches her there, and chokes her or attempts to choke her in the bathroom. She struggles against him, and is able to get away. She goes out to the garage. She claims to try to escape, but she can't get out. She doesn't have her keys. The garage door won't open. She ends up getting her gun coming back inside and that's where she confronts him in the kitchen of their house.

Don West: Yes. I think that she had perhaps parked the car in the garage, but then when she went back out, she couldn't get the garage door to open, but she did have a firearm in the car, a firearm for which she was issued a lawful permit to carry concealed in Florida, and then she made that fateful decision to grab the gun, and instead of coming up with some other way to get out, she elected to go back into the house, which I would have to think she would expect there to be some verbal confrontation, if nothing else, but in any event, that's exactly as described it.

Don West: She went back inside, where Mr. Gray was and then go ahead and describe how she saw these things unfold.

Shawn Vincent: Well, I'd say since we have the benefit of Mike and Stan's podcast, let's let her tell this part of the story from her own words.

Don West: Great.

Shawn Vincent: I'll play this clip.

Marissa: So, let me be clear. When I left out the room, it was to get into my truck and leave. It was not to go and come. He was parked out front, and came in through the front door. My vehicle was in the garage. So, in order for me leave, I needed to go to the garage where my vehicle was parked. When I got there, not only did I not have a key, the garage door would not go up.

Marissa: So, at that point because I knew that I had no other way out other than to stay in the garage, which locks from the inside out, what I needed to go do is go back in the house and I couldn't go back in in the state that I was in with the assault that took place prior to in the bathroom and not be able to protect myself.

Shawn Vincent: So, that's what Marissa has to say about this. So, we'll talk about in a minute the problems that had caused her in her case when she actually left a place of relative safety or she left a place of danger to a place of more relative safety, and then reengaged. We described ourselves into the kitchen. So, she fires this shot.

Shawn Vincent: Well, here's another clip where she talks about encountering him there in the kitchen.

Marissa: Right. So, that was in the kitchen where he came and he confronted me. He saw me with my firearm, threatened me, and then that's when I fired my warning, my shot. He didn't see my gun and run. He didn't do that. He saw it and decided he will threaten to kill me.

Shawn Vincent: She says that after he saw the gun that he wasn't initially perturbed by this that he threatened to kill her, and that's when she fires the warning shot. So, here's a couple of questions for you, Don. How about this whole idea that a threat, a verbal threat to kill somebody? Does that open a door for reasonable fear of imminent great bodily harm or death?

Don West: Well, sometimes it can if they have the immediate ability to carry through. So, for example, if someone's carrying a weapon of some sort, and you're not quite sure what they intend, and then they announce their intent by stating, "I'm going to kill you," and they had the immediate present ability to carry that out. If it's a gun, it can be almost at any distance. If it's a knife, it's relative close proximity. Then, sure, I would think so that they have by their own action and ability to carry it out put you in jeopardy and you would have the right to defend yourself up to and including lethal force if you reasonably and sincerely believed that the threat to your safety of great bodily harm or death was imminent. That would seem to fit.

Don West: It's a little fussy and a lot more difficult to assess when the person does not apparently have a weapon. The analysis is the same even without a weapon. I'm assuming here that Mr. Gray did not have a weapon. No one's ever said that he did. He maybe physically imposing, and we know that he has a history of violence. I don't think anyone has disputed that, that there has been physical violence caused by him in the past sufficient to get a restraining order, and Ms. Alexander knew that. She knew he was capable of physical violence, but she would have to assess, and then ultimately, the police and the prosecutor and to some degree, the judge if you have an immunity hearing, and then as she did, we can talk about that later.

Don West: Then a jury, whether he in fact imposed an imminent threat of great bodily harm or death and was capable at that moment and intended at that moment to carry it out. So, in roundabout way to get to your question, just because somebody says, "I'm going to kill you," even if you accept that to be true, that is not from my perspective in and of itself enough for you to pull out a gun and shoot somebody.

Shawn Vincent: In most of the cases that we've looked at, the real controversial cases usually involved armed defender who shoots an unarmed attacker.

Don West: Yes, and then all of that analysis comes in to play the relative physical capacities, the knowledge of the history, the abilities of the individuals to defend themselves. There are several notable self-defense cases where juries have concluded that the armed defender was legally justified in using deadly force against an unarmed attacker. There is absolutely no requirement that the attacker be armed.

Don West: However, the other analysis doesn't change. There still has to be that imminent threat of great bodily harm or death, and from ultimately the jury's perspective, all of that had to be reasonable. There's this overriding analysis that looks at the totality of the circumstances. That's a common phrase you hear in legal circles, the totality of the circumstances taking everything into account. Was the response to the threat reasonable? If so, then the jury should properly acquit. If they conclude it was not, even though there may have been a real threat, then they can justify a conviction.

Shawn Vincent: Sure. On this idea of the reasonableness of the fear in the imminence of that reasonable fear, this is where we get back to what we talked about the controversy about her going into the garage and then choosing to come back into the main area of the house with the gun, right? I think that went a long way to convincing a judge in the immunity hearing, and then subsequently a jury in the trial that she wasn't that afraid of him if she's willing to go back to where he was, where she had been attacked by him before.

Don West: There's that perspective how afraid was she, and I think equally important what happened in the house was effectively over at that point. There's nothing to suggest that she wasn't safe from him in the garage, at least to the extent he wasn't in the garage. She was there, she had a gun. I don't know if there was another door. I can't remember having been in a garage that didn't have a door-

Shawn Vincent: A side door or something.

Don West: ... as well as the garage door, a side door of some sort, but notwithstanding that had she gone out to the garage and armed herself and then tried to figure out where to go and what to do and reassess. Had he come in to the garage still angry toward her, I think that completely changes the dynamic of this. For her to arm herself, go back inside expecting to confront the person that she claimed had just threatened to kill her or was capable of and intended to harm her in some serious way, I think that changes the perspective and it puts her at a great disadvantage when the jury is trying to assess whether her actions were reasonable.

Don West: There's an interesting conversation to have at some point. We should get a law enforcement officer to talk with about this, but in this use of force continuum that law enforcement are taught and to some degree a civilian use of force continuum that Mike and Stan have developed, it's an interesting notion of when you introduce a firearm into an escalating event is the introduction of the firearm an escalation or is it a deescalation?

Don West: I think that it's such an interesting issue that law enforcement probably considers it a deescalation because the attempt is by-

Shawn Vincent: When an officer does it?

Don West: Mm-hmm (affirmative). Mm-hmm (affirmative). The goal at that point is not to shoot somebody, but simply to demonstrate that they have the superior force and the capability and hope that that modifies the behavior of the person that they're confronting. It might, but as we will know from other cases that we've had, it may be the very thing that causes the other person to go off. We can talk about other cases because we've had them where somebody displays a firearm expecting to deescalate, thinking the other person will back off, and it encourages them to get even more violent.

Shawn Vincent: Sure. In the cases that we looked at, we've seen a couple where the presenting of a firearm stops the conflict cold, but more often than not, it inevitably triggers a gunfight in which somebody or both people get shot and killed.

Don West: Yeah. You've just introduced fear and rage in the same mix. You're going to have a fight or flight reaction, I suspect. You're hoping for the flight of the other person, but you may very well wind up getting the fight instead. Is that what Ms. Alexander is basically saying that she made the decision. In hindsight, we can say we think it was a bad decision to go inside with the firearm. Is she saying then that once the firearm was presented, then he knew that she had it, that instead of backing off and just letting her leave as she claim was her intent, that he got further agitated and escalated his aggression toward her?

Shawn Vincent: Yeah. She says that he threatens to kill her after he saw her back in the house in the kitchen with the gun. It's clear to her that he saw she was armed, and then he threatened to kill her afterwards. That's when she decides to fire the warning shot. Something I want to talk about on this point, though, that I think is going to be relevant to the CCW Safe members is: some states are stand your ground states, and some are duty to retreat states, but what we know is that in every state, there's a version of the castle doctrine, which means that in your home, there is no duty to retreat.

Shawn Vincent: I think what an interesting thing comes up here is that even if you don't have a duty to retreat, if you do retreat, then leave the house or leave the immediate area of where the threat is, and then you decide to return to it with a weapon and reengage. Does that change the calculus on this a little bit?

Shawn Vincent: Marissa Alexander, when she talks to Mike and Stan, argues that she never left her house. The garage was still the house. It's not a detached garage, but on the same hand, I think if the garage is different from the house, it's further away from where her attacker was.

Shawn Vincent: If we look at the Zach Peters case, where the kid encountered the invaders in the kitchen, and then after he shoots them once, he goes back to his room, locks the door, and calls the police. If he had gone back out into the house and reengaged those guys, we might have a different scenario. So, what's your take on that, Don? If you've retreated from your home already, do you have a problem if you go back in to reengage?

Don West: You know it's interesting. We have a partnership with Andrew Branca who wrote the book Law of Self-Defense and regularly produces video and live content on the legal aspects of self-defense, understanding what the law is and the various jurisdictions and also the basic rules of what you should do, and what you should really avoid at all cost.

Don West: To distill this into a very simple statement, Andrew would say there's a huge difference between the fight coming to you and you going to the fight. He would say that if you go to the fight, you have changed the dynamic of everything, and you have put yourself in a legally vulnerable position, and that of those things to avoid, you should never go to the fight unless there's some other circumstance or factual need or other reasons why you had to do that to increase your own safety or to protect others.

Don West: The notion of her from a relative position of safety to going to the fight I think puts her at a great disadvantage. Whether she would lose the right to self-defense at that point, I think that's almost a discussion that lawyers would have sitting around a coffee table or in a cocktail lounge, but the lawyers don't make the decisions of whether Marissa Alexander is guilty. The jury does.

Don West: They do that by putting themselves in the position of the accused. Self-defense is pretty different than virtually any other kind of criminal defense where you are encouraging asking the jury to see what happened from the very perspective through the eyes of the person on trial, and through those eyes considering what they knew, what their background was, what their experience with this person, then all of that stuff seeing whether what happened was reasonable.

Don West: I think what that really means is when a juror looks at a case like that, they're probably saying to themselves, "I get it. I understand what she was going through. Had I been in her situation, what would I have done?" If the juror says to himself or herself, "I sure wouldn't have done that," then there's an easy way for them say, "That's just not reasonable. I can believe everything she says, but I can still find that she violated a law because it's just not a reasonable for a person to act under the circumstances.”

Shawn Vincent: Something that came up in the conversation with Marissa Alexander between Stan, Mike on their podcast was how often people who own a gun, they're concealed carriers or interested in home defense have a thought in their mind that they're reasonable people, and that should they ever be involved in a self-defense incident that it's going to be pretty cotton-dried, all the scenarios that they might pain for themselves and their mind of when they would need to use deadly force are clear, right?

Shawn Vincent: We found in all the cases that we looked at that there are all these weird little factors whether you've misperceived a detail or you've mistaken an identity or there's these scenarios you can't imagine that complicated, right? So, here's-

Don West: Right. The analysis of that is done after the fact like people in a somewhat sterile environment with all the time in the world to assess the reasonableness of the defender's conduct that probably took place in a half a second. This case, I think, more than any that we've talked about really turns on some of these little details that got lost in the media discussion that the public perception of this case is very different than what the actual facts demonstrated.

Don West: We're calling this the warning shot case, for example. It's clear that Mr. Gray was not killed, and injured as you said earlier, but we also know from the physical evidence that the shot was pretty close to his head. It was shot in the room where he was in his direction. I think it went through a wall, and then ultimately into a ceiling where the claim was that it post a danger to his children, keeping in mind not her children. It was his children. So, when she went back in the house, she wasn't there to protect her children from him.

Shawn Vincent: Right. They weren't there.

Don West: He was there with his children. So, defense of others was not an issue. So, the people that called it a warning shot felt that it was in a sense an attempt to deescalate, to prevent him from being able to fulfill his threat to kill her. Others look at it as a miss, that this was an attempted murder and a miss, which is a completely different legal context than a warning shot.

Don West: So, when I talk about little details, for example, you take a look at where the shot was fired from, where the bullet landed, and what the immediate risk was. Had that shot been 90 degrees, had it been fired into the floor of the kitchen or even into the refrigerator or someway where it was absolutely clear that it was not intended to hit him, then we have a true warning shot situation.

Don West: Frankly, I think the analysis of the case changes. Certainly, the emotional impact of the case changes. Angela Corey who was the elected prosecutor in Jacksonville at the time would be far less able to stand behind a microphone and say that Marissa Alexander fired out of anger, not fear.

Shawn Vincent: Yeah. Before we wrap up this section, this segment of our conversation, so she claims that she absolutely could have hit him if she wanted to. She was a licensed concealed carrier, she had trained with a gun. Her father was in the service for 27 years, and was a concealed carrier I believe in gun rights and self-defense. So, she's pretty adamant that it was a warning shot, but to your point, as a warning shot a few inches above and a few inches to the right of his head. So, there's some ambiguity there.

Shawn Vincent: We talked earlier about you don't brandish your weapon. You don't defensively display a weapon unless you had been justified in using the deadly force. I think we got close enough to this where we think at that particular moment deadly force was not justified. Would you say that's right?

Don West: Not to go on a side trip, but brandish is the notion of waving a gun around in a threatening way. Displaying it may be quite different than that if it's done for defensive purposes. Brandishing is a question of degree, frankly, whether it's a lawful display given the context or whether it's a crime of recklessness and threatening behavior. All of that stuff has to be analyzed exactly under the circumstances under which it arose.

Don West: People that claim they displayed the gun in self-defense could wind up being arrested and prosecuted for a brandishing type offense because the prosecutor didn't buy the story or that sort of thing, but separate and apart from that, when you draw a gun and you point it in the direction of somebody, and you fire the gun, you have committed a crime right then, a very serious crime unless you have the legal justification to do that. Firing a gun is the use of deadly force. It may be arguable that displaying a gun isn't necessarily using deadly force, but certainly, there's no doubt that firing one is.

Don West: Now, is there any legal difference between firing an obvious warning shot and shooting in the direction of somebody and missing? Not necessarily. The prosecutor in Ms. Alexander's case chose not to charge her with attempted murder, but they charged her with aggravated assault with the discharge of a firearm.

Don West: Under Florida law, when you commit the crime of aggravated assault and pulled the trigger, you have taken a crime that is a serious crime, nonetheless, it's punished by a maximum of five years in prison. There's a three-year mandatory minimum for the aggravated assault, but when you pull the trigger and discharge it in that kind of threatening way even without the intent to kill, you now have a 20-year mandatory minimum. That's in fact what she was prosecuted for, and ultimately what she was convicted of. That's how she got the 20-year sentence, a sentence that the judge had no discretion, could not impose one day less than 20 years.

Don West: Well, we'll talk more about that. I think the legal context of this case is really fascinating. I'm sorry I didn't really respond to your question, specifically, but-

Shawn Vincent: Well, this wasn't a cross-examination, so you have the discretion to go off on a tangent, but to bring it around, I think we can argue and, obviously, because this is controversial, that at that moment after coming back in and reengaging with him across the kitchen unarmed that she was unjustified in shooting him at that point.

Don West: Yeah. I think that's fair. That's certainly what the judge decided, and then ultimately what the jury decided.

Shawn Vincent: Right, and our general rule here is that if you're unjustified in shooting someone using deadly force, you're also unjustified in either displaying the weapon in an aggressive way or firing a warning shot.

Don West: Certainly, firing, and what we don't know for sure is whether the jury concluded that he didn't post an imminent threat to great bodily harm, that her claim that he was trying to kill her wasn't supported by the record. That's a possibility or that they didn't ... For all we know, they didn't agree that it was in fact a warning shot. They may very well have concluded that they thought that she just missed. The sanctity and security of the jury deliberation process unless they come forward and want to explain their thinking, they're certainly not required to. You may never know what it was that was important that pushed this thing one way or another.

Shawn Vincent: Fascinating. Well, now, let's take a quick break. I want to talk next about her post-incident actions and some things that occurred immediately after this warning shot that caused her troubling her legal defense.

Don West: Sounds good. Thanks, Shawn. Talk to you soon.

Shawn Vincent: All right.

Shawn Vincent: All right. Don, so we're talking about the Marissa Alexander case, the so-called Warning Shot Case. In our last segment, we had talked and gotten ourselves right up to the point where she fired the warning shot and Rico Gray leaves the premises. He was with his two children. They were, as Marissa Alexander explains it, at the threshold of the house on their way out when she encountered Rico Gray in her kitchen. He saw that she had a gun. She said that he threatened to kill her. She fires this so-called warning shot that was just a little above his head, and a little bit to the right, and then he leaves.

Shawn Vincent: So, then here's part of it that's amazing to me, and it's a piece of her mindset perhaps. After this happens, she doesn't call the police to report it. She figured that she fired a warning shot, he left, and that was the end of it. I'm going to play a quick clip of what she said to Mike Darter and Stan Campbell in her podcast with them.

Don West: Okay.

Mike: So, what happened? Did somebody else call the police? Did he call the police? How did that transpire after that?

Marissa: After that, he called the police. He called the police.

Stan: Yeah. We talked to our members about this all the time being the first one to call 911. Us being police officers, we always state that usually the way we look at it, the one who called 911 is the victim. Is that pretty much what happened where you had the opportunity to do so or you felt that the warning shot would be enough to back him off, and you didn't need to call the police on it?

Marissa: Right. So, that's basically what happened. To be honest with you, I didn't think I did anything wrong. I was in my home and nothing happened. So, I thought that that would be enough, and if he had come back, then I probably would have to, but at that point, that was my thinking. So, like you said the first one to call is apparently the victim.

Shawn Vincent: So, she says, "To be honest with you, I didn't think I did anything wrong." What are your thoughts about that, Don?

Don West: There's so much to unpack on that. I have to take her comment to mean that she was expressing that she indeed felt threatened, that he had expressed the intent to harm her, and that by firing the shot, she was completely legally and factually justified. So, in other words, she felt that she needed to do it in order to save herself, and that she hadn't broken any laws when she did it. I don't know how else you want to interpret a comment like that except I can offer that in many, if not most self-defense cases, certainly in all plausible self-defense cases, the person who defended and used force to defend themselves believes they didn't do anything wrong. They felt justified. That's the crux of the whole thing. That doesn't necessarily mean that you've stayed with, painted within the lines or that you're within the legal parameters and boundaries, but I think it's a common feeling that you didn't do anything wrong. You had to do what you had to do.

Don West: Shawn, I think what we're leading up to, though, is the fact that she didn't call the police. So, even if she didn't feel that she did anything wrong doesn't make sense if you accept her at her word, doesn't make sense that she wouldn't call the police to explain that she was attacked in her home, that she had to display a weapon, and ultimately fire it to prevent this guy with a history of violence from making good on his threat. Go ahead.

Shawn Vincent: I was going to ask, have you ever seen the show The Office, the American show with Steve Carell?

Don West: Oh, sure.

Shawn Vincent: Yeah. Do you remember the episode where we found out Michael Scott's in terrible debt, and somebody talks to him about the option to declare a bankruptcy and convinces him that he needs to declare bankruptcy? Then he decides that, yes, he's going to and he walks into the office and just yells out, "I declare bankruptcy." Someone has to explain to him that he can't just declare it, that it's actually a legal process. This is what I think about when I hear Marissa Alexander saying she didn't think she did anything wrong. It's like she just declared to the sky that that was self-defense.

Shawn Vincent: Listening to you talk about the ramifications of that, in that feeling that you were justified, I have to look at it like this, and maybe we'll do a thought experiment. Anytime a gun is displaying in a threatening manner, discharged in a threatening manner or used to shoot somebody, I think we should assume a crime has been committed. Now, it's a question of whether that crime was justifiable or not, right?

Don West: I think that's fair. Yes. We live in a community of very strict laws on the possession, ownership, and certainly the discharge of firearms. The presumption is if a gun is fired, something bad happened.

Shawn Vincent: Yeah, and a self-defense claim is a legal claim. You can't just say it to make it self-defense. It makes me think. We talked about the Michael Dunn case, talked about Jacksonville, the loud music trial that Michael Dunn somehow in his mind, he tells his fiance Rhonda Rouer, "Don't worry. It was legal. It was justified. It was self-defense," as some excuse of why they would speed away from the scene of the shooting and not report it.

Don West: Some of the materials in another podcasts and video series we did a while back, we talk about the aftermath of a shooting, and we talk about the reasonable responsible way to interact with law enforcement. We also talk about the importance of declaring, declaring that you acted in self-defense, that, sure, you were the person with the handgun, yes, you were the person that fired it, but that you were legally justified in doing it.

Don West: Let me digress for just a moment to put this in context. When you get to trial, the prosecutor has to prove it was not self-defense, and that's true all across the country. However, until there is evidence in the record, it doesn't take a lot and it doesn't have to be all of that persuasive, but there has to be evidence in the record in support of a claim of self-defense before the judge will recognize it and give an instruction on self-defense, which allows the jury to consider it.

Don West: Unless you get some of that evidence in the record, then the judge is not obliged to instruct the jury and the jury may not even be able to consider self-defense as a legal affirmative defense. So, there is a responsibility on the part of the accused to have some evidence, whether it's their statement about what happened or a witness' statement about what happened or some physical evidence that's compelling, that shows that the force that was used was in response to a threat, and therefore, there's evidence of self-defense.

Don West: So, for Ms. Alexander to say, "I didn't call the police because I didn't do anything wrong," in no way puts her in a position of carrying that initial burden to demonstrate ultimately at whatever stage this case got to that she acted in self-defense.

Shawn Vincent: Sure. Stan Campbell brings this up in that conversation from a police officer's perspective, whoever calls 911 first is the victim, right? So, the police come to this discharge of a firearm with only Rico Gray's side of the story. Let me play another clip from this conversation. This is from Marissa Alexander.

Marissa: Well, you know somebody at some point they were contacting me on my phone, but I did not have my phone. So, once they were able to get a hold of me, and let me know that ... I believe he told them that I had barricaded myself in the house. So, that was the time from what I understand it was a call for SWAT to come out. I had no idea because I did not know where my phone was, but when I did find my phone and my sister was like, "Hey, down here," and I was like, "Okay." I took the officer's call and he asked me where I was. I told him. I told him I was going to come out. I told him I have my hands up, one hand on the black cellphone, and one up, and just don't shoot me.

Shawn Vincent: So, the big thing I take out of this is that she believed Rico Gray told the cops that she had barricaded herself in the house, and that the police had considered calling the SWAT team to come. So, not only is there not a self-defense claim filed here, the police are acting as if they've got an armed deranged individual inside of this house, and they're attempting multiple times to call her on her cellphone to bring a peaceful resolution to this. That is the wrong foot to start off on when you're making a self-defense claim.

Don West: Yes, I agree. I think that Ms. Alexander was probably agonizing over this for a minute even though she didn't think that she had done anything wrong. Legally, she had to have know this was messed up, and that maybe she was taking that risk like when you go to Vegas and you put everything on red or you pick on number out of 30, what is it? 36.

Shawn Vincent: I don't know that. I'm a terrible gambler.

Don West: Not a roulette player. You just hope that your number comes up or you hope in someways your number doesn't. I suspect that in her mind, her best outcome was probably if nobody calls the police under these circumstances and maybe she thought that because of Mr. Gray's prior history with the law and violent history with her that maybe he wouldn't either, and hope upon hope that this thing would just go away. If that's what her thinking was, then she miscalculated.

Shawn Vincent: She made a bad bet.

Don West: Yeah, she did. As I remember, though, some of the materials, this is a very convoluted and complicated case to sort out factually because Mr. Gray gave extensive interviews and statements. In Florida, you can do depositions in criminal cases on felony. He changed his story a lot. He was against her, and then he was in favor of her. So, factually, it was really hard to get a clear handle on it. Let's not forget that his two children were there, and I think they were both old enough to be competent witnesses, whether they were good witnesses or not, I don't know, but competent meaning that they know the difference between right and wrong. They are able to know the difference between a lie and not, that they were old enough that they could testify.

Don West: I didn't read their statements exactly, but if they told the police that their dad didn't threaten to kill her, that when she came back in with the gun, the first thing she did was point it at him and fire it, and there was no actual threat, then there's a big problem with the case factually from a self-defense standpoint notwithstanding all the stuff that you and I have talked about so far.

Don West: So, without her explicitly saying what her thinking was other than, "I didn't do anything wrong," I'm going to speculate and say that she thought that maybe directly involving the police wasn't in her favor and she would hope that he didn't either. As it turns out, he gave his phone to one of his kids and it was one of the kids, I think, that called 911 to initially report it.

Shawn Vincent: That might be the case, but in what Alexander told Mike and Stan in their podcast was that essentially the father gave the statement to the police in the presence of the kids, then the oldest gave his statement, which essentially echoed what the father had said, and then the youngest was too young for them to really take that statement, so they didn't. They just did what the eldest son had said. Anyways, he had-

Don West: Well, we've had cases and I've counseled people in cases whether they should call the police under the unique facts of their circumstances. It's not as clear as you would want it to be because sometimes you have no reason to think that the other person involved is going to call the police, no injuries, maybe no shots fired, that it happened very quickly, and that you're not sure that you want to involve the police either and start admitting that you had a gun and that you displayed it under questionable circumstances. That's a very difficult thing.

Don West: On occasion, maybe from a strategic standpoint, the decision can be supported that you don't. That's pretty rare in my mind and I don't know that it's ever happened in experience when shots were actually fired at other human beings I would think. Our advice has always been get on top of that, get ahead of this because like you say, the first person to the phone is often identified by the police as the victim, and in this case, the story that the police got was the one most favorable to Mr. Gray, and then that was compounded by the lack of communication with Ms. Alexander, this notion that she was barricaded, and then by the time they actually had contact with her, this whole narrative of her being violent and armed and all of that was out there. So, she probably in some ways didn't get a fair shake in telling her side of the story. The snowball was already going down the hill at that point.

Shawn Vincent: Let me play another clip, if you don't mind, from this conversation. She talks about once she surrendered to the police with her cellphone in the air walking out with her hands up what she experienced.

Marissa: They "detained" me, and we just came out doing a proceeding, but they detained me and put me in a car, in the back of the car seat. I did not know that I was going to be arrested. I thought, "Well, okay. He was telling the truth. What happened?" The truth was not very helpful for me. So, yeah, I ended up ... Once I let him know I had a restraining order in place, I said, "Listen. This happened. Look it up." He did. He verified it, but essentially, it was their word against mine.

Shawn Vincent: Right? So, she talks about now that she's surrendering to the police, and we've just been discussing how she surrendered to the police who have the other side's version of the story that's not kind to her, she starts talking to the police about what happened. She said, "Tell them the truth," but the truth wasn't on her side. When she says that the police detained her, she says in the way that has air quotes around it, where she feels in retrospect that she was under arrest from the beginning, even though they didn't tell her that she was. At a certain point, she realized she was in trouble.

Shawn Vincent: She's not doing a great job now. She's behind the ball at getting her narrative out there once Rico Gray and his kids have already told their side of the story.

Don West: I agree with that assessment. At that point, I think that probably from the very beginning that she should have taken the initiative and obviously in hindsight it's very easy when you see what this case turned out to be an absolute nightmare for her. We'll talk in another segment, I hope, about some of the legal process that she found herself in, and what was driving that, and how very, very quickly she was completely out of having any control over her life. She didn't write the laws that impacted her to the extent that she could have handled it differently at the beginning. She didn't.

Don West: Then pretty soon, she was at the mercy of a very aggressive prosecutor. This became a political case. It was in the midst of other things happening in the media. This was going to trial around the time of the George Zimmerman-Trayvon Martin case that had started with the shooting in 2012.

Don West: This turned out to be a really big deal. When we sit here at our kitchen tables or wherever we happen to be at the moment and look back on it, it's easy for us to say what might have been different. I'm not criticizing Ms. Alexander. What I'm trying to do is point out at those moments when a different decision from our perspective may have resulted in her being treated differently, the case being viewed differently and possibly even a different outcome.

Shawn Vincent: Sure. That criticism is an opportunity to learn lessons from her mistakes. Before we wrap up this segment and start talking about what her legal challenge looked like, which we'll do in our next podcast episode, one thing I think is fascinating about the self-defense cases is this first encounter with law enforcement because we say that we want you to be helpful and courteous to the police. We want you to make yourself defense claim, but we also don't want you to talk about a lot of details about the case or about what your experience was before you have a chance to meet with a lawyer, and do so only with their council, right?

Shawn Vincent: That's easy to say, but you and I sat with Stephen Maddox, who gave in-depth recorded testimony, interviews with police about his experience and he knew intellectually that you shouldn't talk to police, but he also felt that he was absolutely justified. He was the one who called the cops, originally, and felt like he was making his claim and supporting his decision.

Shawn Vincent: So, it's one thing to say don't talk to police, but a whole other thing to now have been part of the shooting to believe you're correct to feel now the weight of law enforcement coming on you and wanting to seem like the good guy.

Don West: Being in that position having been involved in a self-defense incident whether it meets the high standard ultimately, checks off all the boxes that it was legal self-defense, we're talking about those especially using deadly force where shots are fired. I think when a shot is fired, whether it's characterized as a warning shot or a miss or something in between, it fundamentally changes the nature of the case.

Don West: We've had lots of cases where guns were displayed, threats may have been made, but it's a whole different category when somebody pulls the trigger. I think law enforcement looks at it differently. I think the entire criminal justice system looks at it differently because when the bullet leaves the barrel of a gun, it's death in the air. If it hits somebody, there's a high probability they will die as a result of it.

Don West: When you are involved in a situation like that, you can expect that you will be considered a suspect, truly a suspect. The police don't know what happened. They're working on limited information when they respond. If you weren't the one that called the police, they have some misinformation, no doubt. Certainly, they have one-sided information and for an individual to subject themselves to the investigative process on their own without the benefit of council is a highly risky and, in my view, a foolish thing, not just because of you don't understand how the system works. People that are friendly aren't necessarily your friends, and you won't understand the meaning, the real meaning of the questions. You won't know how to modulate your answers to say what's true without saying things also that could be construed or misconstrued as harmful.

Don West: Plus, you've got the trauma that you've just gone through destroying your perception and making you perhaps feel that you really, really, really need to explain yourself, but we know in the Maddox case is the perfect example that you're not going to be very good at it.

Shawn Vincent: So, he is in accurate about simple things like where did he live and how many children does he have-

Don West: Yes. Here's a guy-

Shawn Vincent: ... that you couldn’t possibly get wrong.

Don West: Super professional guy, highly educated, lots of life experience, and you wouldn't know that he's so wrong when you listen to the recording. You would think this is a guy who's telling it like it is and yet when you go back through it, and you pick out some of these things, you'll realize just how much of what his statement was was a byproduct of that traumatic experience he'd been through. Frankly, some of it was simply unreliable. The most obvious being when he got that kind of stuff wrong.

Don West: So, if we're going to take Ms. Alexander's situation and try to get some lessons from it, she should have called the police. I think that's pretty evident, and maybe said as little as, "I was attacked by my husband. He threatened to kill me."

Shawn Vincent: "I have a restraining order."

Don West: Yes. "I had to fire a shot to keep him from killing me. Fortunately, nobody was injured, but I wanted you to know that," or what have you. Then once the investigators and the detectives get there to conduct a formal interview, you do as we've always said which you provide the basic information enough to stake your claim of self-defense, and then you acknowledge that you will continue to cooperate, but you'd like the benefit of council before a formal interview.

Shawn Vincent: Law enforcement will understand that.

Don West: Well, that's the law, and they do understand it. They will acknowledge or respect it. If for some reason they don't and they try to trick you or come at you a different way, then what you say should not be admitted in the court against you. That's the whole notion of Miranda Rights.

Don West: Secondly, you cannot be compelled to make a statement against yourself or you can't even be compelled without court process to make any statement at all. The idea is that you have the right to make a statement or not at your choosing, and if you want to make a statement, you certainly should have the benefit of council in such a high stakes circumstance.

Shawn Vincent: It's a really difficult position to be in, but I think the lesson from all this is that you have to, and this is from the first segment, too, where Marissa Alexander said she didn't really think she had done anything wrong. If there's a discharge in the firearm in self-defense, you have to assume that you've committed a crime until it can be demonstrated that it was self-defense, and that you have to interact with a police as if you're the suspect of a serious crime or else I think in our case, nine times out of 10 it's going to blow up in your face and cause you trouble down the line.

Don West: I think that's fair and good advice. In this case, it wouldn't have taken much of an investigator to walk inside the house and take a look at where the bullet entered the wall and positioned the people, and immediately conclude that she fired at him. He may have been or she may have been wrong about that, but the physical evidence becomes an incredibly important part of this.

Don West: Having been through a traumatic situation, self-defense shooting, you're simply not going to be presently aware of all of the things that are important, the things that you may very well need to think through carefully to be able to explain convincingly when it's time to do that. It's so easy if you decide to give a detailed statement before you've processed it and digested it and better understood what the legal issues are, what's important and what isn't for you to make a statement that you simply can't recover from.

Don West: I've said this before. I'll repeat it that I've tried a lot of self-defense cases. Frankly, the ones that are the hardest to try are the ones when we have to explain what the client said to the police and why that isn't accurate or why it wasn't complete or why, frankly, it wasn't lying if it was inconsistent.

Shawn Vincent: Yeah, a nightmare. Well, that's a great preface for the long legal road that Marissa Alexander faced after the shooting. So, let's call that quits for today, and our next podcast is going to be dedicated to the torturous, twisted legal odyssey that she went through after that day.

Don West: Thanks, Shawn. Looking forward to it. Talk to you soon.

Shawn Vincent: All right, Don.

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