Larry Hickey: Defending A Disparity Of Force Shooting In Court

[Kleanbore]

Posted by quatin: [The voire dire examination should be conducted]Before the jury pool is built.

Perhaps you can explain just how it is that whoever would conduct the process could have any idea what questions to ask to eliminate the jurors who would be most unsympathetic to the cause of one side or the other before it has been established what kind of a case the jurors will try.

It's still an end goal of picking the right jurors.

Well, yeah, the goal is to empanel the most fair and unbiased jury possible.

The lawyers get to pick from that group ([random draw of people, ... then segregated by a bias/personality test.... further segregated with appeals to the judge to be exempt from jury duty]), not from a random population sample.

Not exactly. Adult residents who can speak English and who are not barred from jury service for legal reasons, and who do not meet certain very limited criteria for being excused from duty, form the pool. The exclusion process (voire dire) takes place after the pool is assembled.

You have suggested that, for whatever reason, the selection process somehow be performed before the pool is assembled, and yet you also say that you believe that excluding certain people who do not meet the few basic requirements and allowing some with hardships to be excused is improper because one is left with a pool that represents something other than a "random population sample".

Which is it?

 

[Frank Ettin]

And that is the voire dire examination conducted by the lawyers for the parties to the litigation. So your suggesting that this process be done exactly when?

Before the jury pool is built.

Except now a pool is assembled for a particular case, and the voire is conducted by the judge who will preside over the trial and the lawyers for the parties to the case, so --

[1] In your model, who would conduct the voire dire?

[2] Who would be subject to voire dire? The entire population of the county? Your proposing to drag down to court a whole bunch of people to be vetted as a possible jury in an unknown case sometime in the indefinite future?

[3] As Kleanbore pointed out, voire dire now attempts to identify potential jurors who may be unsuitable for a particular case based on the nature of the case, the possible witnesses (who may be a potential juror's relative or co-worker) or other case specific issues. Someone might not be suitable to be a juror in a particular case because of a relationship with a party or witness, or because of some attributes related to the subject matter. He could be suitable to be a juror in another case, however.

...doubt that's the whole process. I was in a jury pool of roughly 25ish. Yet, only 8 people were selected out of that pool and a second jury pool had to be called out. I "suspect" that the lawyers were able to exclude several jurors without using their challenges, as they asked to approach the bench to discuss several times. Otherwise, each lawyer had up to 9 challenges each, which would be ridiculous for a pool of 25 and might as well be picking...

[1] What you may doubt without having bothered to learn really doesn't mean much.

[2] It is customary to start with a small portion of the available pool, often based on considerations of space and manageability.

[3] And yes, a lawyer is not necessarily limited to his peremptory challenges. He may challenge a juror for cause. To do so, he must demonstrate to the satisfaction of the judge that the potential juror is actually in some way biased or prejudiced. Also, a judge will sometimes excuse a potential juror at the juror's request if service would cause that potential juror a special hardship.

...I called it like I saw it. That's my impression of the jury selection process that I went to. I've discussed this with a few people I know who have been through the same thing and they tend to agree. I guess this would be what you consider "hearsay", but that's the only evidence I have....

[1] Calling things as you see them isn't necessarily a useful or helpful approach when you've seen only a small and limited piece of the total picture, especially when you don't have a sufficient foundation to understand what you are seeing.

[2] That might be all the evidence you have, but it is not all the evidence or information available to you. You could choose to better educate yourself in these matters before forming conclusion and tossing around half-baked opinions.

 

[Mike J]

I used to get called for jury duty every year and a half or so in the county I used to live in. When you got on a case it wasn't too boring although I didn't like it because it caused me to lose pay. I found it interesting that the first time I was called for jury duty a retired judge was also in the jury pool. He had been a Superior Court Judge in that county before sitting on the state Supreme Court in Georgia. Every time they took him in on a panel for questioning the lawyers & the judge sitting on the case would all greet him respectfully. He was stricken from every case.

Often you can answer questions in such a way to get yourself struck if you want out but you can still get tied up wasting days hanging around a courthouse not doing anything useful. I tend to think the lawyers on both sides do try to find people that are biased to their viewpoint. While I don't think our system is perfect I do believe it is a good system.

 

[quatin]

Except now a pool is assembled for a particular case, and the voire is conducted by the judge who will preside over the trial and the lawyers for the parties to the case, so --

[1] In your model, who would conduct the voire dire?

[2] Who would be subject to voire dire? The entire population of the county? Your proposing to drag down to court a whole bunch of people to be vetted as a possible jury in an unknown case sometime in the indefinite future?

[3] As Kleanbore pointed out, voire dire now attempts to identify potential jurors who may be unsuitable for a particular case based on the nature of the case, the possible witnesses (who may be a potential juror's relative or co-worker) or other case specific issues. Someone might not be suitable to be a juror in a particular case because of a relationship with a party or witness, or because of some attributes related to the subject matter. He could be suitable to be a juror in another case, however.

1) Same person as it is now.
2) Everyone being called to jury duty at the court that day.
*No reason a voire dire has to be submitted in person.
*We all sit there for hours on end and it takes 5-10 minutes to fill out one questionaire. It's not like there's not enough time.
3) That's fine.

[1] What you may doubt without having bothered to learn really doesn't mean much.

[2] It is customary to start with a small portion of the available pool, often based on considerations of space and manageability.

[3] And yes, a lawyer is not necessarily limited to his peremptory challenges. He may challenge a juror for cause. To do so, he must demonstrate to the satisfaction of the judge that the potential juror is actually in some way biased or prejudiced. Also, a judge will sometimes excuse a potential juror at the juror's request if service would cause that potential juror a special hardship.

1) It means a lot to my opinion of the process.
2) Ok.
3) Good, I suspected that.

[1] Calling things as you see them isn't necessarily a useful or helpful approach when you've seen only a small and limited piece of the total picture, especially when you don't have a sufficient foundation to understand what you are seeing.

[2] That might be all the evidence you have, but it is not all the evidence or information available to you. You could choose to better educate yourself in these matters before forming conclusion and tossing around half-baked opinions.

1) It's what I have to work with.
2) My understanding of the process is as much as I am allowed without going through law school. My exposure to the jury selection process is as any other citizen limited to my experience of being called to jury duty. I feel entirely content on forming opinions of my experience through what I am allowed to see.

 

[Kleanbore]

Posted by fiddletown: [1] In your model, who would conduct the voire dire?

[2] Who would be subject to voire dire? The entire population of the county? Your proposing to drag down to court a whole bunch of people to be vetted as a possible jury in an unknown case sometime in the indefinite future?

[3] As Kleanbore pointed out, voire dire now attempts to identify potential jurors who may be unsuitable for a particular case based on the nature of the case, the possible witnesses (who may be a potential juror's relative or co-worker) or other case specific issues. Someone might not be suitable to be a juror in a particular case because of a relationship with a party or witness, or because of some attributes related to the subject matter. He could be suitable to be a juror in another case, however.

Posted by quatin: 1) Same person as it is now.
2) Everyone being called to jury duty at the court that day.
*No reason a voire dire has to be submitted in person.
*We all sit there for hours on end and it takes 5-10 minutes to fill out one questionaire. It's not like there's not enough time.
3) That's fine.

Quatin, the only difference between what you seem to be proposing and what is done today is that you have seem to have left out the step in which people who have received jury notices but who who have been convicted of crimes are excluded, and the step in which people who are eligible under the law to be excused explain that to the judge.

Those steps occur before the voire dire examination is conducted.

Just what is it that you are proposing, and how do you think it would improve the fairess of the court system?

 

[Frank Ettin]

...No reason a voire dire has to be submitted in person...

Actually, there are a number of reasons, including the following:

[1] Demeanor can be very important.

[2] For some people writing is difficult and laborious, and they find it hard to adequately express themselves.

[3] Sometimes one answer can suggest another question or call for clarification.

[4] Some people write so illegibly that their questionnaires are virtually unintelligible.

...My understanding of the process is as much as I am allowed without going through law school...

Nonsense. There are no arcane mysteries here to which one is only allowed access by matriculating in law school. There are many books on the subject accessible in ordinary libraries. Many law libraries are open to the public.

Or you can discuss this with lawyers. You're actually doing that with one right now, but you don't seem to be paying attention.

...I feel entirely content on forming opinions of my experience through what I am allowed to see....

And doing so results in half-baked, questionable opinions based on limited data. And it's only you who are limiting what you allow yourself to see. On any topic, there are enormous amounts of information available to anyone willing to put some effort into seeking it out.

On the other hand, are you familiar with the parable of the blind men and the elephant?

 

[merlinfire]

Am I reading this right, that basically, the authorities never noticed that he was the victim?

 

[threefeathers]

I was lucky enough to assist with this trial and I couldn't believe that charges were brought in the first place. I gladly pay my money for ACLDN membership.

 

[Comedian]

I hope for the sake of Tucson residents that this isn't a typical example of their police department's investigations. What a joke.

 

[Zoogster]

Manco said:

While this seems to go against the current mindset of saying very little without an attorney present, I think it's akin to being the first to call 911--proactively defending yourself by putting the other side on the defensive.

It is not so clear. You see 'what you say can and will be used against you' is not just a saying, but the legal fact.
But what you say cannot be used for your benefit in your defense, because your own testimony is just hearsay as defined under the law.

http://en.wikipedia.org/wiki/Hearsay_in_United_States_law

What this means is what you say to police that would benefit you can be legally suppressed in court as hearsay and prevented from being considered by a jury. But things you say that hurt your defense are not hearsay, and are valid evidence in trial.


So sometimes a beneficial thing for you is to do is point the police in the right direction to figure out the actual facts. Which might not happen without some guidance, but what you say should be very limited, and a lawyer might even lament over your statement to police if it closes the option of certain defenses.
What the police determine through investigation is not hearsay (and what they determine may be largely based on statements), and so if directed to find certain facts it could help you.



So what you say can and will be used against you if it helps a prosecution, but what you said to police is never proof of your innocence or that what you said was at all true if it benefits you and is legal 'hearsay' and inadmissible to help your defense.

What you say can and will be used against you, but what you say cannot be used for you. Great how that works right?
Any admission can be used as proof of your guilt, but any statements you make to police or investigators showing you did the right thing are not admissible on your behalf to prove your innocence and the prosecutor can suppress them if the prosecutor does not feel it will help their prosecution.

For example from the case:

As the officer escorting him asks, “What
happened? Did they come across the street?” Hickey responds, “Yes, they
ran over here and attacked us.” Not part of a formal interview, those words
are forever lost, and appear nowhere in the police reports from that night.

That statement had it actually be included would be hearsay if it benefited him, and would in no way prove anything in court and could be suppressed by the prosecutor as hearsay. Only if it somehow was used to show his stories did not match or that he may be lying would it likely be included, to help convict him, but not to benefit him.

 

[Zoogster]

This is a good case that highlights a lot of what I was saying in this thread http://www.thehighroad.org/showthread.php?t=593501

Just as in that thread the true answer of whether it is legally justified is "depends" and in this case the guy was even being attacked by three people in an ongoing attack. Far from just a single blow or threatening situation with multiple potential attackers.

There is a lot of discretion, and a jury gets to decide what a "reasonable person" would do and hence if the response was reasonable and justified, and the evidence a jury is presented with may be heavily biased against you. And just as I cited in that thread the versions of events cited by the attackers and who they were with will likely be very different and benefit them. As well as other possible witnesses, like someone that first turns and looks when they see and hear shots fired but don't understand what led up to that and so become biased against the defender.
Yet the jury and others may believe multiple portions of different stories, or think the truth is someplace in between, even when some versions are complete lies.


You can be entirely legal and go to prison, and many people do.


The other thing worth noting is the cost and resources required. Someone without those resources or a more typical public defender would have likely gone to prison.
From the bail money, to the defense money, to the need to use another home because he was prevented from being within a 5 mile radius of his own home, etc
A family man with a house, such a committed mother, and a community willing to donate significant funds is in a much better position to raise finances and create a legal defense than many other people.
He had someone let him stay with them, and got out of jail. Having to pay for a new residence while still paying the mortgage on his home that he can't go back to would have added extra difficulties to deal with at the same time. Then he had his someone to get his clothes and other things from his home as needed while he lived elsewhere.
A lot of other people made things much easier for him.
He had a whole team of some of the best expert witnesses working for free, another unlikely scenario for most people.
Someone that had remain in jail would have had great limits on their ability to even do research or rally people, even a competent attorney in jail would find it hard to put together a defense with limited resources, no access to technology, and slow tedious access to outside attorneys and maybe rare use of some law books.
Someone competent at forming a legal defense in the real world and good at doing research would be quite limited in an empty jail cell most of the day. While the days count down, time runs out to do investigations in time, and the trial gets closer.

Another thing to take away is that the jury makes all the difference in a discretionary situation. The law only partially matters. The makeup of the general population in an area greatly effects the odds of the typical jury.
Even in places with better laws you can sometimes have worse juries and vice-versa. Some regions of the country have jury members far more likely to convict you. For example California has some really good defense laws and has for longer than castle doctrine has existed in most of the nation, better than many other parts of the country with better gun laws, but your typical jury in California is going to be a whole lot worse than many other places.
While you might fare better in a place with worse laws but better juries.
Even in Arizona it took him two criminal trials to prevail, and he never actually was found not guilty, just got hung juries, with some of the best self defense expert witnesses possible, and he still settled the civil suit and his attackers got $100,000.
His attackers also put out a restraining order that prevented him from owning firearms after the two criminal trials and civil settlement, and even stated the primary reason for the restraining order was simply to prevent firearm ownership!

during the hearing, the plaintiff told the magistrate
that she really didn’t have any problems with Hickey, and that he was welcome
to come over to her house to have a soda if he liked so long as he
didn’t bring a gun along. She stated that she wanted the injunction to prevent
Hickey from possessing firearms.

 

[SleazyRider]

Actually, there are a number of reasons, including the following:

[1] Demeanor can be very important.

[2] For some people writing is difficult and laborious, and they find it hard to adequately express themselves.

[3] Sometimes one answer can suggest another question or call for clarification.

[4] Some people write so illegibly that their questionnaires are virtually unintelligible.

Nonsense. There are no arcane mysteries here to which one is only allowed access by matriculating in law school. There are many books on the subject accessible in ordinary libraries. Many law libraries are open to the public.

Or you can discuss this with lawyers. You're actually doing that with one right now, but you don't seem to be paying attention.

And doing so results in half-baked, questionable opinions based on limited data. And it's only you who are limiting what you allow yourself to see. On any topic, there are enormous amounts of information available to anyone willing to put some effort into seeking it out.

On the other hand, are you familiar with the parable of the blind men and the elephant?

I am paying attention, Mr. Fiddletown, and I appreciate your thoughtful posts on this matter. I have learned a great deal from you.

 

[Kleanbore]

The discussion here of the jury selection process has been interesting, but in my opinion it has led us away a bit from some very important observations and conclusions.

I think most of us here believe that Larry Hickey was justified in his use of deadly force. However, we must realize that (1) one who has shot another person cannot count on being regarded as the "good guy" from the outset, and that is an understatement; (2) when one has shot an unarmed person, one starts out at a disadvantage--the disparity of force defense can be a difficult one; (3) everything will hinge upon the evidence and testimony, and at least the latter is apt to involve contradictions; and (4) when investigators first start seeing a pattern emerge, they may well naturally tend to notice other things that seem to support their initial conclusions and to not notice, or to misinterpret, things that might lead to a different conclusion.

Oh, and (5), the old saw "a good shoot is a good shoot" means nothing of consequence.

It would appear that Larry Hickey had no choice in his actions. He was attacked by several people, he could not escape, and he was being overpowered.

The Larry Hickey case should make it clear to anyone who did not already understand it that, if one does have any choice other than the use of deadly force, including withdrawal even in a "stand your ground" jurisdiction, that choice will always be preferable.

That is in no way an indication that there is anything wrong with our laws or our system of justice. The words "immediately necessary" that appear in our state codes and in case law mean just what they say.

 

[GEM]

Fascinating read - BTW - do you note how some throwaway cutsey training cliches were used as negatives by the prosecution?

That's for folks who deny that such will be tried or might influence folks.

And as pointed out - those who say : If it's a good shoot, blah, blah - are really missing the boat.

 

[Bartholomew Roberts]

Zoogster, there are a lot of exceptions to the hearsay rule. While I agree with the general advice you are giving, your post gives the impression as if nothing you say can be used to help you, and that's not accurate.

For example, public records and reports are exempt from the hearsay rules and are an exception. So had the statement been included in a public report, it would be admissible as evidence.

 

[threefeathers]

It is interesting to note that after the trial the MAG 40 class in Sierra Vista was filled with folks who had followed that trial very closely. Mas Ayoob did a good job of breaking the trial down and Marty Hayes was there to add his observations.
Fiddletown this is a class you would have enjoyed, for several reasons it was the most intense MAG 40 I've been involved in.

 

[Ala Tom]

This has been very informative. Closest I've gotten to the legal system has been serving in a jury pool twice. I have a permit to carry but only so I can drive with my guns and ammo to a shooting range. I have never intended to carry my gun on me in public. I have had no training in assessing situations in which deadly force should be used. That is for cops and I intend to stand back and let them do their job without me in the way.

I will, however, defend my home. But I will only shoot at people who have entered my home with obvious intent to do harm.

 

[quatin]

[1] Demeanor can be very important.

[2] For some people writing is difficult and laborious, and they find it hard to adequately express themselves.

[3] Sometimes one answer can suggest another question or call for clarification.

[4] Some people write so illegibly that their questionnaires are virtually unintelligible.

1) There was no one to judge our demeanor while we filled out the questionnaire.
2,3,4) Follow up questions weren't possible until the jury pool was taken to the court room anyways. Why waste all that time in between?

Nonsense. There are no arcane mysteries here to which one is only allowed access by matriculating in law school. There are many books on the subject accessible in ordinary libraries. Many law libraries are open to the public.

Or you can discuss this with lawyers. You're actually doing that with one right now, but you don't seem to be paying attention.

That would imply you're trying to teach me something then, so other than, each lawyer has his/her clients best interest in mind. Why is it that so many people have a negative reflection of jury selection? You have said yourself that to us uninformed, jury-selection bashing is fashionable. What information is it that we're missing that is causing this negative image?

And doing so results in half-baked, questionable opinions based on limited data. And it's only you who are limiting what you allow yourself to see. On any topic, there are enormous amounts of information available to anyone willing to put some effort into seeking it out.

On the other hand, are you familiar with the parable of the blind men and the elephant?

I don't see how forming opinions would limit my learning curve. If I hadn't brought this up, how would I have gotten your lecture?

 

[Frank Ettin]

....There was no one to judge our demeanor while we filled out the questionnaire.....Follow up questions weren't possible until the jury pool was taken to the court room anyways. Why waste all that time in between?...

Sorry everyone didn't get back to you as quickly as you would have liked, but they were probably conducting other business that goes on in court in connection with trials.

....That would imply you're trying to teach me something then, so other than, each lawyer has his/her clients best interest in mind. Why is it that so many people have a negative reflection of jury selection? You have said yourself that to us uninformed, jury-selection bashing is fashionable. What information is it that we're missing that is causing this negative image?...

You clearly have a number of misconceptions about the jury selection process. I've explained how it works from a lawyer's perspective. You can either learn from that or not -- your choice.

...I don't see how forming opinions would limit my learning curve....

Becoming firmly fixed in opinions formed with limited data, and an unwillingness to seek more information, limits your learning curve.

 

[quatin]

Sorry everyone didn't get back to you as quickly as you would have liked, but they were probably conducting other business that goes on in court in connection with trials.

Exactly. The questionnaire could've been done in parallel instead of in series.

You clearly have a number of misconceptions about the jury selection process. I've explained how it works from a lawyer's perspective. You can either learn from that or not -- your choice.

What misconceptions would that be? Just, because a lawyer is expected to work the system to his/her advantage, does not mean I should agree with it.

Becoming firmly fixed in opinions formed with limited data, and an unwillingness to seek more information, limits your learning curve.

I'm not fixed in any of my opinions. Just set unless convinced otherwise. If I wanted it to be fixed, I would keep my opinions to myself.

 

[Kleanbore]

Quatin, my experience on being selected and/or not selected for juries for both civil and criminal trials goes back some years, and I'm afraid I do not recall a questionnaire.

Was the questionnaire you are describing intended to determine whether you were eligible to serve on a jury, or was it used to give the attorney some idea of your background and associations and possible sympathies and predispositions?

If you do not know, just describe some of the things on the questionnaire and state whether they seemed redundant with any of the questions put to you by the attorneys.

Also, I still do not understand what you are proposing and how it differs in substance from current practice; perhaps you would be so kind as to try to clarify that.

And finally, having done that, perhaps you could then explain how you think that that proposal might have affected the proceedings in Larry Hickey's trials.

 

[Frank Ettin]

...What misconceptions would that be?...

As far as I'm concerned, it's all already has been covered. Your posts are here for all to read, as are my responses and those of Kleanbore.

I see no good reason to continue down this already well trod path -- especially when we're getting too far off the topic of this thread, the Larry Hickey case.

 

[RTR_RTR]

I didn't think there was any way I'd read that when I saw how long it was, but it went quickly (and is making me miss out on my sleep!). Scary as hell.

Press charges against the three.

 

[quatin]

Quatin, my experience on being selected and/or not selected for juries for both civil and criminal trials goes back some years, and I'm afraid I do not recall a questionnaire.

Was the questionnaire you are describing intended to determine whether you were eligible to serve on a jury, or was it used to give the attorney some idea of your background and associations and possible sympathies and predispositions?

If you do not know, just describe some of the things on the questionnaire and state whether they seemed redundant with any of the questions put to you by the attorneys.

Also, I still do not understand what you are proposing and how it differs in substance from current practice; perhaps you would be so kind as to try to clarify that.

And finally, having done that, perhaps you could then explain how you think that that proposal might have affected the proceedings in Larry Hickey's trials.

The questionnaire had both of those types of questions.

What I didn't like about the jury selection process was on my second post:

If you're asking me on what I would change in the jury selection process. There should be a competency/bias test (the voire dire) BEFORE people are entered into the jury pool, not after everyone has been selected. Furthermore, there should be no efforts to force people to serve on a jury if they obviously do not want to. This creates lackluster juries with minimal deliberation just to "get it over with." Trial lengths also should no revolve around the 3/5 (can't remember) days before the court has to pay you. There's too much cherry picking going on in the jury pool that trials are won and lost before they begin.

I'm still convinced there is cherry picking going on in jury pools. Despite equal number of "opportunities" for each lawyer to remove jurors to get the supposed balanced jury, this assumes equal competence and a balanced jury pool to begin with.

How this affects Hickey. I can't fathom how 2 sets of balanced juries would get hung, and most favoring to convict. One jury set I can believe is a statistical anomaly, but not two in a row. I remember from Psychology, that firmly religious people are more apt to punish and therefore prosecute on a jury. I'm sure there are other characteristics some lawyer has found. I don't believe two random sample sets of the population would even give this result.

 

[Kleanbore]

Posted by quatin: There should be a competency/bias test (the voire dire) BEFORE people are entered into the jury pool, not after everyone has been selected.

One simply cannot devise a "bias" test before knowing what kind of case the jury will try.

Consider these questions:

Are you a landlord? Have you ever been evicted? Do you carry a gun? Have you every held a position in a collective bargaining unit? Do you work for a bank? Are any of your family members employed by a lending institution? Do you own stock in Exxon Mobil? Were you ever a conscientious objector? Are any of your family members pharmacists?

I could go on and on, but (1) each of those qustions would be legitimate a question for a voire dire process for a particular trial, depending upon the nature of the case at hand; and (2) none of them would be appropriate for use in selecting a jury pool.

One cannot administer a bias test before knowing what the trial will be about.

How this affects Hickey. I can't fathom how 2 sets of balanced juries would get hung, and most favoring to convict.

Well, consider that when a gun guy shoots at unarmed women, he starts off at a disadvantage when it comes to a defense of justification. Compound that with the fact that the investigation started off disadvantageously for the shooter, and add the evidentiary problems citied in the article. With the exception of participation of the lawyer, who should have been excluded, I do not see any reason to believe that Hickey's case was harmed by the jury selection process.