When trial courts go stupid on self defense law . . .

I recently came across a 2011 self defense case out of Kentucky in which the trial court apparently went stupid on the reading of a brief and rather straightforward self defense statute.  Worse, not a lawyer in the room, for either the prosecution or defense, saw the obvious error and corrected matters.  The result was that the Defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 10 years in prison.

Although the case is out of Kentucky, rest assured that similar kinds of senseless errors happen in trial courts all over the country, and all too often every expertly trained legal professional in the court room manages to miss the mistake.  This bleak reality is all the more reason why all armed citizens need a robust competence in the law of self defense–including statutes, the court cases that interpret those statutes, and the jury instructions that guide jurors in how to apply those statutes to real people in real cases.

The facts

In this particular case the evidence showed that the Defendant (Barker) was, admittedly, a bit of a jerk.  Well, a REAL jerk.  And not a very bright one, at that.

He had identified the home of someone who had been giving him a hard time.  In revenge, he slashed their car tires.  Unfortunately for the Defendant, it was the wrong guy’s car.  Even worse, the room mate of the actual owner saw the tire slashing, and he alerted the Defendant of his error.  Having been spotted, the Defendant began to depart the scene–perhaps his only non-stupid act so far.

Even worse yet, the owner of the car (the Victim) happened to be home . . . and he owned a handgun.  Alerted by his roommate to what had happened,  the Victim armed himself and set out in angry pursuit of the Defendant.

It didn’t take long for the Victim to catch up to the Defendant.  As it happens, the Defendant had a handgun, and a gunfight ensued.  When the smoke cleared, the Victim lay mortally wounded, and the Defendant was charged with murder.

The Trial

The law of self defense is intended to protect innocent people.  A person who sets out to provoke a conflict cannot normally later claim self defense as a justification for their use of force in those scenarios.  This is the law in Kentucky, as in every other state.

With that principle in mind, the trial the judge had instructed the jury:

“[i]f you believe from the evidence beyond a reasonable doubt that [the Defendant] provoked [the Victim] to use or attempt to use physical force upon the defendant, and that they did so with the intention of causing death or serious physical injury to [the Defendant], then the defense of self-protection is not available to him.”

As a practical matter, this instruction all but assured a guilty verdict.  It was uncontestable that the Defendant’s slashing of the tires had provoked the Victim’s armed pursuit.  And it was inarguable that the Victim had intended to cause the Defendant death or serious bodily force, as he had armed himself with a handgun for his pursuit of the Defendant.

Inevitably, then, the jury returned a verdict of guilty of second degree manslaughter, a lesser-included offense of the original charge of murder.  The Defendant was sentenced to 10 years in prison.

The Supreme Court

Fortunately for the defendant, the Kentucky Constitution allows a direct appeal to the Kentucky Supreme Court where a defendant is sentenced to twenty years or more, allowing the defendant to avoid the intermediate appellate court.  Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011)

The Supreme Court was presented by the Defendant with a large number of substantive reasons to reverse the conviction, along with an equally large number of responses from the Prosecution why the conviction should stand.

The Court, however, never got to any of that.  Because here, for the first time, someone noticed that the trial judge had gotten the law back-assward, a fact that not one of the many trained legal experts involved in the case up to that point had even noticed.

Now, it’s important to understand that a state Supreme Court will usually only be willing to make decisions on specific issues properly brought before it by the parties.  They don’t engage in fishing expeditions for reasons to overturn a verdict.   An issue could be real and important, but if the parties themselves haven’t appealled it, off the side of the ship it goes.

Here, though, the Supreme Court felt itself compelled to act.  The error by the trial judge was such a “palpable error” and such a “manifest injustice” that they simply could not let it stand.  As they noted:

“This issue was not raised on appeal. Neither did this Court go looking for it. However, we bump into it squarely out of the gate because of the general objection to the justification of giving the instruction in the first place. While this Court will not go looking for error not called to our attention, neither can we ignore one which is so glaring and flows naturally under our appellate review of the issue raised.”

The (Correct) Law

In Kentucky, the effect of provocation on the right to self defense is governed by statute KRS 503.060. “Improper use of physical force in self-protection”:

“[T]he use of physical force by a defendant upon another person is not justifiable when:

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person . . .”

The actual statute, like the trial judge’s instruction, has two elements.  First, did the Defendant provoke the Victim’s response–the part is the same as the judge’s instruction. Second, did the defendant intend to cause death or serious bodily injury to the others–this part is the opposite of the judge’s instruction.

The trial judge’s instruction, you’ll remember, required the jurors to determine whether the victim, not the defendant, intended death or serious bodily injury.  And there lay the error.  As the state Supreme Court put it:

“The instruction given in this case is fatally flawed because it fails to properly set out the elements of the statute. It lacks the statutory element requiring Appellant to provoke the victim with the intent to cause death or serious physical injury to him. Instead, the instruction requires that [the Victims] have the intent to cause death or serious physical injury to Appellant. The provocation exception, under KRS 503.060(2), is concerned with the defendant’s state of mind, not the victim’s. . . . [T]he jury was erroneously required to get into the mind of the wrong person.”

Interestingly, the Supreme Court also noted that it appears that the trial jury was sympathetic to the Defendant.   Even with the erroneous instruction, they convicted him only of the lowest degree of homicide permitted to them, rather than the far more serious original murder charge.  The Court speculated whether an ourtright self defense acquittal might not have been the verdict had the jury been property instructed.

The manslaughter conviction was reversed.

Lesson Learned

Not everyone can be a lawyer—heck, we have too many as it is.  Also, there are lots of areas of the law which are so commonly and routinely practiced that it’s reasonably safe to leave them in exclusively in the hands of the legal experts—rules of evidence, for example, or criminal procedure.  In any case, those areas of the law are generally too complex and subtle to be conveniently mastered by a layman.

The law of self defense, however, is different matter entirely.  It is manageable enough in scope that any interested person of reasonable intelligence can become seriously competent with only a modicum of effort, if they have access to the necessary resources.  At the same time, genuine self defense cases are so rare that very few lawyers ever handle more than a handful over their entire careers—and the vast majority of lawyers will never handle even one.

All armed citizens have an obligation, to themselves and their families, to establish and maintain a robust competence in the law of self defense.  Just as the responsible CCW gets initial training in the handling and use of his sidearm, and then builds upon that with regular practice to maintain an acceptable level of proficiency, so should the armed citizen be proficient in the law of self defense in their jurisdiction, and keep up to date on changes, small and large, in the law so as to maintain that proficiency.

And remember, the law of self defense consists of far more than statutes.  Statutes may change only rarely, but the courts apply them frequently, and important if subtle changes in the law often happen in the actual court cases, with such changes being reflected in modifications to the jury instructions.  Having complete competence in the law of self defense means being up to date on all three–statutes, court cases, and jury instructions–just as effective self defense competence with your sidearm means actually having the sidearm with you when you need it, having it loaded, and having the physical and mental skills to appropriately bring it to bear.

Never forget, when you act in self defense the war for your life consists of two major battles—the physical battle, and the legal battle.  You need to win both.  And winning is a lot more likely if you are trained and competent, than if you trust to luck and a kind-hearted prosecutor.

About the Author

Andrew Branca
Andrew F. Branca is a Massachusetts lawyer and the author of the seminal book “The Law of Self Defense, 3rd Edition,” available at the Law of Self Defense website (autographed copies available) and Amazon.com (paperback and Kindle), and many other re-sellers. Andrew just launched his latest product, the LOSD Instructor Program, designed for gun safety, marksmanship and tactical strategy instructors. Be an elite member of the self defense community, understanding your state's self defense laws to a depth even lawyers rarely achieve. Check it out here.   Andrew also gives live, in-person, ~5 hour-long state-specific Law of Self Defense Seminars all over the country. Click here to find a live seminar covering your state's self-defense laws.   Andrew also produces many 4-5 hour online, on-demand state-specific Law of Self Defense training courses. These online classes are enriched versions of the live, in-person state-specific Law of Self Defense Class Andrew gives all around the country. Click here to find an online course for your state. These online classes are priced at $249/HOUSEHOLD. You can learn more details and view the first section of the training class for free (about 30 minutes worth of self-defense law training) by clicking here.

3 Comments on "When trial courts go stupid on self defense law . . ."

  1. I’m wondering how the victim (defendant), confusing use of terms in this case, managed to get his case to the supreme court directly? Your comment indicates they review automatically on cases involving sentences over 20 years but he received a sentence of 10 years. Why did they get involved in the first place?

    In addition it seems to me that the tire owner who armed himself and pursued the slasher was the aggressor in this case. I was under the impression that one could never use the “defense of justification” if one was the initial aggressor in a confrontation. The initial act of tire slashing did not constitute an initial act of deadly force aggression against the tire owner. It was the tire owner’s armed pursuit of the slasher that was the initial act of deadly force aggression and so (under NY’s Article 35) the defense of justification would be unavailable to him. Does Kentucky law operate the same way?

  2. Tire slasher was retreating; pursued by owner w/ gun; owner kills tire slasher w/ gun = owner not acting in self-defense. KRS 503.060 “[T]he use of physical force by an [owner] upon another person-[tire slasher] is not justifiable when: (2) The [owner,] with the intention of causing death or serious physical injury to the [tire slasher,] provokes the use of physical force by such [tire slasher.]” Trial Judge instructed: [i]f you believe from the evidence beyond a reasonable doubt that [the owner] provoked the [tire slasher] to use or attempt to use physical force upon the [owner], and that the [tire slasher] did so with the intention of causing death or serious physical injury to [the owner], then the defense of self-protection is not available to the [tire slasher.]” Nothing wrong w/ this instruction. It is KY Law and would have been given if owner died & tire slasher was on trial. Just needed one for the Owner saying that owner can’t claim self-defense if he provokes tire slasher to use deadly force. FL Atty. @ Law

  3. Question for Mr. Branca: Would it not be prudent for any lawyer to research and understand the relevant jury instructions of a particular case BEFORE walking in on the day these instructions are to be given to the jury, for exactly this reason and also to object to less severely flawed instructions in order to preserve them for appeal?

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