When the Entire Court Room Is Wrong on Self-Defense Law

I came across an interesting, if horrifying, appellate court decision out of Alaska last week that reinforces the absolute need for each of us to have a robust working knowledge of self-defense law, and which highlights the risk of leaving yourself wholly dependent on the purported self-defense law expertise of lawyers and judges. In this particular case it is apparent that neither the prosecutor, nor the defense attorney, nor the judge understood the law of self-defense of their own state, while working a second-degree murder self-defense trial.

The case is Rossiter v. Alaska, and the decision is embedded at the bottom of this post. It’s only nine pages long and not too full of legalese, so I do encourage you to “read the whole thing,” as they say. Here I’ll just briefly summarize.

Rossiter was tried on a charge of second-degree murder for having stabbed a man to death.  The stabbing was not contested by the defendant, but he raised the legal defense of self-defense.  As those of you who have studied with me will recall, when evaluating a claim of self-defense the only perspective that’s relevant in terms of justifying whether the use of defensive force was necessary is the purported defender.  The defender’s belief must be both subjectively and objectively reasonable, of course, but the need to use force is evaluated solely from the defender’s perspective.

What is not relevant is the perspective of the person against whom the force was used, the “victim” of the defender’s force.  It does not matter what the victim might have been actually intending or believing, it does not matter whether they “deserved” or “earned” the force used against them, all that matters is if the defender genuinely and reasonably perceived the need to use force in self-defense.  If a defender genuinely believed the victim was about to shoot the defender, and that belief was objectively reasonable, it does not matter if the victim was only joking or was in fact engaged in wholly innocent conduct, or was the nicest guy in his community.

At Rossiter’s trial, however, the prosecution repeatedly told the jury that the fundamental question in the defendant’s self-defense claim was whether the victim “deserved to die.”  The prosecutor also used a Powerpoint presentation during closing, one slide of which read:  “The only way you can find the defendant not guilty of Murder in the Second Degree is: [that the victim] deserved what he got.”  The prosecutor described the victim as “married for 25 years,” a “father of three,” a “grandfather of one,” a “caretaker for his parents.”  The prosecutor wrapped up his closing statement by telling the jury: “So the only way you can find him not guilty of murder in the second degree is if you [conclude that the victim] deserved what he got — or you misunderstand the law,” and that the essence of a claim of self-defense was that “the guy deserved it.”

None of this is the law of self-defense in any state, including Alaska, for reasons already discussed.  Either the prosecutor was deliberately misstating the law or he was simply ignorant of what the law actually was.  Applying the principle of never attributing to malice that which can be attributed to stupidity, I’m going with the second option.

Tragically, none of this closing was objected to by Rossiter’s defense attorney.  The attorney would have no interest in knowingly allowing a misstatement of the law detrimental to his client to be made to the jury, so one must assume that the defense attorney, also, was ignorant of what the self-defense law actually was.  Also, failure to make an objection at trial generally fails to preserve an error for appeal–in other words, a genuine error might have been made, but the appellate courts will nevertheless not consider the error unless it has been preserved by an objection at trial.  Unless, that is, the error is tremendously egregious, what the courts refer to as “plain error.”  (Fortunately for Rossiter, that’s what this appellate court determined, which is why they took the appeal despite the lack of an objection.)

Even worse, the judge himself allowed this misstatement of the law–what the appellate court would explicitly call a “gross mischaracterization of the law of self-defense,” to be made to the jury, without correcting them.  As with the prosecutor, one must assume that the trial judge himself simply failed to understand the law of self-defense.

As one might expect, when neither the prosecutor, the defense counsel, or the trial judge understands self-defense law as it should be applied in a self-defense case, the result is a miscarriage of justice.  Fortunately for Rossiter, the appellate court reversed his conviction for second degree murder.  The state is free to re-try him if they wish, but this time the law of self-defense must be properly applied.

I’ve already seen objections from people who object to this reversal because Rossiter himself is apparently not a very nice guy.  He was apparently rifling through the car of the victim’s parents, searching for cigarettes to steal, when he was physically confronted by the victim, and the fight ensued in which the victim ended up killed by Rossiter.  So Rossiter is clearly not a “pure as the driven snow” defender in this case, and on re-trial he may very well find himself again convicted of second-degree murder.  But this time it will have been done by the rules.

The simple fact is that “nice guys” don’t generally make it into the appellate courts, and therefore don’t tend to appear in case law.  The appellate court decisions are mostly full of drunks and junkies and thieves and dirtbags.  Nevertheless, the case law created in their appellate cases is exactly what will be applied to ourselves if we ever need to raise a defense of self-defense.  And any corners cut by prosecutors in their trials that result in their conviction will be the same cut corners we could find ourselves subjected to, if such errors are not corrected even in the context of unpleasant defendants.

Remember:  We all get the benefit of due process and the law as written, or none of us can rely on due process and the law as written.  If we deny the benefits of self-defense to unpleasant people, we can’t very well demand it for ourselves.

In any case, as promised, here’s that appellate court decision:

About the Author

Andrew Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States. Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy, a former Guest Instructor at the Sig Sauer Academy, an NRA Life-Benefactor Member, and an NRA Certified Instructor. He also teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and contributor to the National Review Online. Andrew has been quoted as a SME (subject-matter expert) on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other mainstream media, including nationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Symposium on self-defense law. He is also a founding member of USCCA’s Legal Advisory Board. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.

1 Comment on "When the Entire Court Room Is Wrong on Self-Defense Law"

  1. Saw this one last Friday when they released the rulings.

    Recent article on one of thelocal media websites about an attempted break-in actually got the Senior Anchorage Assistant District Attorney to comment on the law.

    I, of course, pushed your book last week when it was posted. Just added a link to this article.

    http://www.ktuu.com/content/news/Defending-against-burglars-what-does-AK-law-allow-445858923.html

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