# What (legally) would've happened to Brian Douglas Wells if he'd survived? **URL:** \ **Category:** Factual Questions\ **Created:** [October 17, 2014, 8:47am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573 "2014-10-17T08:47:26Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [October 17, 2014, 8:47am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/1 "2014-10-17T08:47:26Z")
He was, as you may recall, [the pizza delivery guy](http://en.wikipedia.org/wiki/Death_of_Brian_Douglas_Wells) who claimed to have robbed a bank under duress because there was a bomb attached to his neck. The bomb went off, and he was killed. What I wonder is, what would’ve happened if he’d survived? a) One of those responsible claimed that Wells had been part of the planning, being assured that the bomb was fake. When he found out it was real, he attempted to back out and was forced to put it on anyway. I assume, given subsequent events mentioned in the linked article (i.e. him being named as a conspirator later), he still would’ve been prosecuted. True? b) But what if he was as completely innocent in all ways, and had no part in the planning, and was just a random innocent victim? What then? c) What if he’d committed some more serious crime, like shooting a guard, in commission of the bank robbery, because he’d been told that if he failed or was captured, the bomb would be detonated? How much would it have mattered whether (a) or (b) above was true? ---
**Author:** ![TruCelt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/trucelt/32/523_2.png) [@TruCelt](https://boards.straightdope.com/u/TruCelt)\ **Post date:** [October 17, 2014, 9:56am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/2 "2014-10-17T09:56:08Z")
A lot depends upon how much money he had available to launch his defense. If he had unlimited funds, he’d have likely gone free. Patty Hearst went free, and her coercion was far more difficult to prove. He would go to trial though, and given his financial status as a pizza delivery guy is far less likely to have a successful defense. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [October 17, 2014, 10:04am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/3 "2014-10-17T10:04:46Z")
Even if (b) was proven or likely to have been true? If so, I assume that it would’ve been even more likely that he would’ve been tried under © regardless of (a) or (b). ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [October 17, 2014, 10:37am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/4 "2014-10-17T10:37:34Z")
> [@TruCelt](#): > > Patty Hearst went free, and her coercion was far more difficult to prove. > > He would go to trial though, and given his financial status as a pizza delivery guy is far less likely to have a successful defense. Patty Hearst was convicted of bank robbery. Her 35 year sentence was later commuted by Carter, and she was pardoned by Clinton. ---
**Author:** ![TruCelt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/trucelt/32/523_2.png) [@TruCelt](https://boards.straightdope.com/u/TruCelt)\ **Post date:** [October 17, 2014, 10:42am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/5 "2014-10-17T10:42:30Z")
> [@Frank](#): > > Patty Hearst was convicted of bank robbery. Her 35 year sentence was later commuted by Carter, and she was pardoned by Clinton. OMG. there’s just not enough :smack::smack::smack: in the world. My whole life she’s been held up as an example of someone who got off on a psychological defense. How is it possible that I’ve had this so wrong? I’m going to start a poll to see how many Dopers have the same misconception. Thanks, Frank. ---
**Author:** ![TruCelt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/trucelt/32/523_2.png) [@TruCelt](https://boards.straightdope.com/u/TruCelt)\ **Post date:** [October 17, 2014, 10:49am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/6 "2014-10-17T10:49:32Z")
Obviously anybody reading this thread shouldn’t vote, (or should give the answer they would have given before reading it. Honor bright!) but here’s the link if you’d like to see how it goes: [Without looking it up: Did Patty Hearst go free? - In My Humble Opinion - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=737589) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 17, 2014, 1:20pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/7 "2014-10-17T13:20:57Z")
\< here’s at least one Doper that thought so too. ---
**Author:** ![tapu](https://avatars.discourse-cdn.com/v4/letter/t/49beb7/32.png) [@tapu](https://boards.straightdope.com/u/tapu)\ **Post date:** [October 17, 2014, 4:05pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/8 "2014-10-17T16:05:50Z")
Patty Hearst served nearly two years before he sentence was commuted. The reason many think she was “let off” by a psych defense is that in the intervening decades, her experience has come to be regarded as a classic case of Stockholm Syndrome. It was, but that was not an established concept when she was on trial. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 17, 2014, 4:24pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/9 "2014-10-17T16:24:54Z")
The responsibility for the bank robbery falls on those who put the bomb on him. His decision was made under duress, and he therefore bears no blame for him. If, however, he shot a guard in the process, that’s a different matter. Duress does not excuse you from a crime that’s just as bad as the duress is. In this case, the duress was a threat of murder, and so murder of a third party does not fall under the defense. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [October 17, 2014, 4:36pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/10 "2014-10-17T16:36:44Z")
> [@TruCelt](#): > > OMG. there’s just not enough :smack::smack::smack: in the world. My whole life she’s been held up as an example of someone who got off on a psychological defense. How is it possible that I’ve had this so wrong? It’s because you eat too many twinkies. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 17, 2014, 5:04pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/11 "2014-10-17T17:04:57Z")
> [@Leaper](#): > > But what if he was as completely innocent in all ways, and had no part in the planning, and was just a random innocent victim? What then? Duress is an affirmative defense to most non-homicide crimes. Wikipedia gves a good cross-jurisdictional rule: > [@](#): > > The basis of the defense is that the duress actually overwhelmed the defendant’s will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused’s state of mind, and an objective confirmation that the failure to resist the threats was reasonable), thus rendering the entire behavior involuntary. Thus, the liability should be reduced or discharged, making the defense one of exculpation. Having said that, I would try to avoid being forced to rob a bank if you can help it. “So-and-so made me do it” testimony is frequently rejected by factfinders. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 17, 2014, 5:57pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/12 "2014-10-17T17:57:02Z")
(a) First off, conspiracy to commit bank robbery doesn’t get cancelled off because your co-conspirators turned on you. Perhaps they would have trouble with the actual robbery charges, since there did seem to be an element of duress; but the trick would be who to believe? They guy who claims he was forced, or other participants who claim he was a willing participant trying to look realistic? That’s why they have trials. (b)© As mentioned, duress is a defence, but a person cannot commit a crime as serious or worse than what they are trying to avoid themselves. The trick would be to convince the jury that you were under duress. The aggregate of evidence, that he knew the conspirators and met with them at an odd address, suggests the defence might be challenging. IIRC, the onus is on the defence (“affirmative defence”?) to prove that the acts were committed under duress; basically conceding that the crime was committed, “but here’s my excuse”. If the jury believes him, he’s free. If he’s not convincing, he’s convicted. Obviously, the DA will want to be sure he has enough information to rebut a claim of duress before going to trial. The risk too is that the other conspirators would cut a deal and claim he was involved. So often in serious cases one turns states evidence to cut a deal, If the evidence is not a stretch, that could make the case tougher. (I.e. knowing the conspirators, having met with them before, etc.) I would think it would be in the DA’s interest to come down especially hard on the guy carrying the bomb if he thinks he’s guilty, and send the message that running around with a bomb is a really bad thing no matter what act you put on with it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 17, 2014, 7:08pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/13 "2014-10-17T19:08:40Z")
Criminal defendants in the US usually do not have the burden of proof on affirmative defenses.\* They have the burden of production, which means coming forward with enough evidence to make the defense _plausible_ (usually this just means something more than the defendant’s own unsupported assertion.) The prosecution then has the burden of disproving the defense beyond a reasonable doubt (or sometimes by a preponderance of the evidence.) \*strictly speaking, they are no longer affirmative defenses if the burden is shifted to the state, but they’re usually still called that. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 17, 2014, 7:15pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/14 "2014-10-17T19:15:11Z")
I would think that, given the evidence of a real bomb that really was strapped around the guy’s neck, a defense of duress would be quite easy to support. ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [October 17, 2014, 10:19pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/15 "2014-10-17T22:19:40Z")
> [@Bryan\_Ekers](#): > > It’s because you eat too many twinkies. You probably already know, but I talked with a man the other day that did not. The twinkie defense did not work. White was convicted. Here is something I just learned today: > [@](#): > > Twinkies were never mentioned in the courtroom during the White trial, nor did the defense ever claim that White was on a sugar rush and committed the murders as a result. However, one reporter’s use of the term “Twinkie defense” caught on and stuck, leading to a persistent misunderstanding by the public ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [October 17, 2014, 10:22pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/16 "2014-10-17T22:22:04Z")
> [@Chronos](#): > > Duress does not excuse you from a crime that’s just as bad as the duress is. In this case, the duress was a threat of murder, and so murder of a third party does not fall under the defense. Is there an “official” hierarchy? For example, I see debates all the time on whether rape is worse than murder, and I’d think that such debates legally would be “settled” by now, if it could come into play. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 17, 2014, 10:51pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/17 "2014-10-17T22:51:00Z")
There isn’t really a hierarchy at all. Some states may provide by statute that it’s not a valid defense against, say, battery, but at common law the rule is that duress based on a threat of physical violence is valid as to any crime but homicide. ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [October 18, 2014, 12:31am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/18 "2014-10-18T00:31:34Z")
> [@Typo\_Negative](#): > > You probably already know, but I talked with a man the other day that did not. > > The twinkie defense did not work. White was convicted. I’d say it did work, as White was convicted of manslaughter rather than first-degree murder and only served five years. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 18, 2014, 2:51pm UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/19 "2014-10-18T14:51:34Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Criminal defendants in the US usually do not have the burden of proof on affirmative defenses.\* They have the burden of production, which means coming forward with enough evidence to make the defense _plausible_ (usually this just means something more than the defendant’s own unsupported assertion.) The prosecution then has the burden of disproving the defense beyond a reasonable doubt (or sometimes by a preponderance of the evidence.) > > \*strictly speaking, they are no longer affirmative defenses if the burden is shifted to the state, but they’re usually still called that. Thanks. > [@Chronos](#): > > I would think that, given the evidence of a real bomb that really was strapped around the guy’s neck, a defense of duress would be quite easy to support. They would also have to show that he did not agree to have it placed there to make a fake claim of duress. Knowing the other conspirators, meeting with them, etc. - certainly convincing evidence that he was part of the scheme. Prosecution unable to show link between him and conspirators, unable to provide evidence to refute claims of duress - pretty good indication of innocence. Head blown off - pretty good evidence that he was not a willing participant (but double-cross can’t be ruled out). Remember, just because you are double-crossed, you might get jury sympathy or a nice casket but you are still technically a conspirator. ---
**Author:** ![handsomeharry](https://avatars.discourse-cdn.com/v4/letter/h/e9c0ed/32.png) [@handsomeharry](https://boards.straightdope.com/u/handsomeharry)\ **Post date:** [October 19, 2014, 3:21am UTC](https://boards.straightdope.com/t/what-legally-wouldve-happened-to-brian-douglas-wells-if-hed-survived/701573/20 "2014-10-19T03:21:05Z")
> [@Bryan\_Ekers](#): > > It’s because you eat too many twinkies. I think that, in a court of law, before 12 men good and true, there would be no such thing as ‘too many twinkies’. IANAL, and I am not YOUR lawyer.