Due Process

The national news today reports that the shooting death of a 52 year old former Olympic medalist, Dave Laut, has led to the arrest of his wife. That he was an Olympic medalist in the past is noteworthy; that he was shot and killed by a spouse is not that remarkable. Too many marriages end in violent tragedy.

Jane Laut was arrested and charged with murder. Her lawyer, Ron Bamieh, immediately issued a statement that she ADMITS to the killing. Wait a minute!! Aren’t lawyers supposed to deny their client’s culpability? Don’t lawyers obfuscate and confuse so the truth is lost somewhere? You are probably thinking, “With lawyers like this who needs the prosecutor!?” Lawyer Ron is not off his legal rocker, nor is he committing legal malpractice. Shrewdly, he has reacted to set the stage for a battered wife self-defense.

Universally the laws in this country recognize the affirmative defense of self-defense. One is permitted to use reasonable force, even deadly force, to protect yourself, and others. Generally, most self-defense statutes have core requirements. First, there must be a reasonable belief that force is about to be used against you. If you perceive that deadly force is about to be used then you may respond by using deadly force. Measuring that belief requires defendants, in almost all circumstances, to testify. Lawyer Ron has simply set the table early.

The law also requires in most instances that you must first retreat to a barrier; that is, don’t shoot if you can run away or hide. The use of force must be a reasonable reaction to an immediate threat. One can’t be confronted with possible violence, escape it and then later think about coming back to fight back. This is the issue that arises in most battered spouse defenses. Did she shoot when immediately confronted with impending harm, or did she simply tire of the beatings and decide to finally fight back? The former is self-defense; the latter is murder.

How does a jury gauge what is a reasonable reaction to impending deadly force? Does the law require that to legally shoot an assailant one must wait until he is just about to pull the trigger? Is it enough if he simply says he is going to shoot, but displays no weapon? How about if he is reaching into his coat as he is voicing the same threat? There is no hard and fast rule. Juries are instructed that it isn’t their belief that governs but what they conclude the defendant’s belief was at the time of the confrontation. That is, what is a “reasonable belief” of impending harm is measured by jurors putting themselves in the defendant’s place at the time of the incident.

Oliver Wendell Holmes, the noted Supreme Court Justice and legal scholar, once wrote, “Detached reflection cannot be demanded  in the face of an upturned knife.” Calm reflection in the jury deliberation room, distant from the threat, isn’t the guide. Lawyers, like this one, need to reconstruct the scenario in such vivid, dramatic fashion, that a reasonable juror would say, “I would have shot, too.”

Or as the famed trial lawyer, Gerry Spence, is rumored to have once said, “Some people just need killing.”

It’s not vigilante justice; it is a reflexive reaction to perceived harm triggered by our instinctive fight or flight response.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.