Self-defense Instant Replay

[Muleslayer]

The Trouble with the Video Evidence in the Michael Drejka Case

 

https://ccwsafe.com/blog/30962

 

Michael Drejka faces trial on Monday, August 19, for the fatal shooting of Markeis McGlockton. Drejka shot McGlockton a little over a year ago during an argument over a handicapped parking space at a Clearwater, Florida convenience store. The shooter claimed self-defense. Initially, Pinellas County Sheriff Bob Gualtieri declined to file charges, citing Florida’s “stand-your-ground” law. However, after an investigation -- not to mention public protests and broad national media coverage -- the State Attorney charged Drejka with manslaughter.     Central to the trial will be the grainy surveillance video that captured the shooting. On the video, Drejka can be seen (but not heard; there is no audio) arguing with McGlockton’s girlfriend. McGlockton exits the store, sees the conflict, walks briskly towards Drejka and shoves him violently to the ground. Drejka sits up, retrieves a pistol holstered at his waist, aims, and fires a single round. McGlockton clutches his chest where he has been shot, lumbers back into the store, and collapses and dies at the feet of his five-year-old son.     There is no question about whether a jury will see the video. They will. But a judge recently heard arguments about how much of the video jurors would watch. Prosecutors wanted to show jurors the video of McGlockton dying as his terrified son looked on. Drejka’s lawyer, John Trevena, fought desperately to keep it out, saying “it’s really not relevant, and it’s highly prejudicial.” The judge agreed, and the heart-breaking scene won’t be shown during trial.     However, the defense and prosecution also disagree about the speed at which the video should be shown. Prosecutor Fred Schaub wants to show the video at a reduced speed. “Every sport,” he says, “slow motion video determines what actually occurred, what actually took place. Somebody can say, ‘he was doing this, he was doing that.’ You can see what actually occurred in slow motion video.” For the defense, Trevena says, “If it’s not real-time, then it’s not really representative of what occurred -- at least as the defendant perceived the events.”     When Sheriff Gualtieri justified his original decision not to charge Drejka, he introduced a caveat. “As you can see in there, there is a pause,” he said, “even if it’s only for a couple seconds, there is a pause between the time Drejka hits the ground and he shoots. That pause gives me pause. That pause gives me some concern.”     During that pause, which lasts less than two seconds, McGlockton steps back and turns slightly away. It gives Drejka what prosecutors call “time to reflect.” He had a moment to reconsider whether McGlockton posed an imminent threat before he pulled the trigger. At trial, jurors will put themselves in Drejka’s position and ask themselves what Drejka was thinking in that moment. Played at regular speed, that pause passes quickly. Played in slow motion, however, that pause seems to last much longer, giving the impression that there was more time to reflect.     The judge sided with the prosecution; he’ll allow the video to be slowed when presented to the jury.     Don West, veteran criminal defense lawyer and National Trial Counsel for CCW Safe, says that video can be a double-edged sword in a self-defense case. “The only thing the video can show is what it captures,” West says, “and video is often of poor quality, and it doesn’t always show the whole story.” That’s the case in the Drejka trial. The video is grainy. It doesn’t include audio. It only shows the shooting from one perspective, and it is not the shooter’s -- and now it won’t even be played at the speed at which the event happened.     The prosecutor used a sports analogy to justify showing a slow motion version of the shooting at trial. It’s an instant replay. It sounds like Monday-morning-quarterbacking. The lesson for concealed carriers is that, if you are ever involved is a self-defense scenario, you could be Monday-morning-quarterbacked, too. Every action you made, whether shown frame-by-frame on video or revealed with forensic evidence, will be painstakingly analyzed. Being prepared to withstand such scrutiny means maintaining a high state of situational awareness whenever you carry. You must adopt a mindset that establishes that any use of deadly force must appear reasonable -- not just from your point-of-view -- but from practically any point of view.

Edited August 18, 2019 by Muleslayer
.

[Muleslayer]

Six Jurors and Six-and-a-Half Hours

Six jurors spent six-and-a-half hours deliberating in the Michael Drejka case. Not long before 11pm on a Friday night, after two days of jury selection and three days of testimony, they delivered their verdict: Michael Drejka was guilty of manslaughter.

 

 

Full disclosure: after months of writing and podcasting about the Drejka case for CCWSafe (Drejka was NOT a CCWSafe member, by the way), I had real concerns about whether Drejka cold get a fair trial considering all the negative publicity surrounding the case. One of the services I offer under my broad umbrella of “litigation consultant” is jury vetting; my team researches the public record and complies a report on each potential juror to aid the trial team in jury selection. I reached out to Drejka’s lawyers just days before trial and offered my services pro bono. They accepted.

 

 

In my limited interaction with Drejka’s lawyers, I discovered the entire trial team was working pro bono, as were the defense’s expert witnesses. They each believed in Drejka’s right to a fair trial.

 

 

But even in the best of circumstances, securing an acquittal was always going to be an uphill battle because the case was filled with what criminal defense attorneys call “bad facts.”

 

 

Michael Drejka shot Markis McGlockton after an argument over a handicapped parking space, and jurors would hear all about a similar incident that happened just months prior. Although jurors would see video of McGlockton violently pushing Drejka to the ground, that same video would show McGlockton beginning to retreat after Drejka pointed his pistol, and before he pulled the trigger. And of course, McGlockton was unarmed.

 

 

Over the next few weeks, I’ll be recording some podcasts with CCWSafe National Trial Counsel Don West. I’ve worked with Don on a few high-profile self-defense cases, and he and I exchanged texts like school children while livestreaming the trial on CourtTV. We will be providing some in-depth analysis of the Drejka case. It provides extraordinary examples of the myriad legal challenges a shooter can face in the aftermath of a self-defense shooting, and it provides several critical lessons for every concealed carrier.

 

 

The most notable lesson for concealed carriers is perhaps this: using lethal force against an unarmed assailant is fraught with legal peril.

 

 

This is not to say that an unarmed assailant is not capable of causing death or great bodily injury. Fists can be deadly, and just about any experienced medical examiner should be able to recall a case where someone died of a head trauma caused by a fall -- a fall not too unlike Drejka’s tumble at the hands of McGlockton. On the other hand, a firearm is very often a disproportionate use of force against an unarmed threat. Some call it “bringing a gun to a fist fight.” Nevermind that a violent shove or a punch to the face can constitute aggravated assault -- meeting such a threat with deadly force can put a defender in a murky legal twilight.

 

 

Looking back through the high-profile self-defense cases we’ve explored through our series “In Self-Defense,” so many of the close calls have been when a shooter faced an unarmed threat. Gerald Strebendt shot an aggressive motorist who, after a collision on a dark highway, advanced on Strebendt despite the fact that Strebent was armed with a .223 rifle and warned the man multiple times to back away. Michael Dunn shot Jordan Davis after Davis became enraged, issuing violent threats during an argument over loud music. Ted Wafer shot an intruder who was violently banging on his front door in the dark pre-dawn hours of a cold Michigan night.

 

 

Each of these shooters had reason to be fearful, but it was uncertain if the unarmed assailant truly imposed an imminent threat of great bodily harm or death. Mired in this uncertainty, each defender faced an aggressive criminal prosecution. Strebendt pled to a reduced charge rather than gamble his future with a jury trial. A jury convicted Ted Wafer (reluctantly, I believe) of second-degree murder. After a hung jury at his first trial, Michael Dunn was quickly convicted of first-degree murder at his second.

 

 

Cory Strolla, Michael Dunn’s lawyer for his first trial, told jurors during opening arguments, “It is better to be judged by 12 than carried by six.” While that’s probably always true, it could also be said that it is better to take a punch than be judged by twelve.

 

 

Not long ago, I spoke with Stephen Maddox, the CCWSafe member who was savagely attacked by an unarmed man, escaping his clutches only after firing five rounds from his .45. Don West contributed to his defense, and I helped with jury selection. The jury in that case acquitted Maddox after only two-and-a-half hours of deliberation, but despite the acquittal, the prosecution turned Maddox’s life upside down. Stephen told me that, if he could
 have known that he would have survived that attack, he would have taken the beating instead of enduring a criminal prosecution.

 

 

I’m not certain Maddox would have survived that attack -- not without permanent physical injuries, at least -- and based upon the short deliberation, it seems the jury had no problem reaching the same conclusion. In the Michael Drejka case, however, it’s not as clear what kind of physical peril the defender faced when he pulled the trigger, and the jury reflected that uncertainty during what I can only imagine was a difficult deliberation. The fact that they deliberated for six-and-a-half hours tells me that they gave the defense team’s argument real consideration. Perhaps a different jury would have gone a different way. It was a close call.

 

 

The justification of meeting an unarmed threat with deadly force will almost always be a close call. Often that call will be made by the members of a jury, six to twelve people who were first selected at random by the Clerk of the Court, then culled down by lawyers on both the prosecution and the defense teams -- strangers charged with deciding your fate. For concealed carriers, facing an aggressive unarmed threat can create the most difficult of self-defense scenarios, and before firing your weapon, you need to be absolutely certain you have no other reasonable recourse, and you should understand that you may likely have to justify your actions to a jury.