First off let me state that I know getting your legal ‘knowledge’ from TV dramas is less than helpful. That said I was watching the season close to The Practice and it brought up the following question in my mind.
Setup:
In the show one of the attorneys had a client who styled himself as Hannibal Lecter. The client was accused of multiple murders and cannibalism. During the trial the client developed a preoccupation with his defense attorney who he saw as Clarissa from Silence of the Lambs. At some point during the trial the client made it known that he intended to kill his defense attorney and the attorney responded that if he came near her she’d kill him (it may be important to note that this defense attorney had been attacked twice before by previous clients including a near fatal stabbing).
The client is ultimately found not guilty and is released even though he clearly comes off (to the viewers at least) as a certifiable psycho. Indeed, the defense attorneys try to get him committed to a psycho ward following the trial because they too see the guy as a madman but they fail in this attempt. Jumping forward a few TV days the client shows-up at the house of his defense attorney. They (her husband and her) call the police immediately to report this guy’s presence in violation of a court ordered restraining order. The client tells his attorney that he is there to “take her to heaven.” (a phrase he had told her before when threatening her life). The attorney had retreived a gun immediately upon seeing the guy at the door and when he uttered that phrase she shoots him three times killing him.
In the show the attorney is charged with murder since her client was unarmed and by all appearances had seemed to be making no threatening moves (i.e. jumping at the attorney) when he was shot. The attorney’s defense was ‘battered woman syndrome’ as the attorney seemingly had a psychological break when confronted with this man after having been brutally attacked twice before.
Question:
Sorry for the lengthy setup but it’s germaine to my question which is: How far does someone have to go in threatening you before you can be legally justified in retaliating to protect yourself?
Understanding that this is just a TV show more interested in drama than correct legal theory, I don’t understand why a self-defense defense wasn’t used. You have a certifiable psycho who has threatened (very publically) your life. You have a restraining order on that person not to get anywhere near you. Now that person shows up at your door and tells you, in a repeat of an earlier threat, that he is there to “take you to heaven.”
In order to be legally justified in self-defense do you have to actually sit there and wait for an actual physical attack to happen? It turned out the guy wasn’t armed but at the time the attorney didn’t know that. I can’t see the sense in the courts telling a person that they must wait for a gun or knife to be drawn and have it used against them before retaliating in defense. If the other guy gets the drop on you first there is a good chance you’ll be the dead one.
So, does anyone know how this really works in our courts?
[sub]Obligatory disclaimer that all legal advice and theory posted here is merely for informational purposes only. Actual legal advice should be received only from paid legal counsel practicing in your jurisdiction. It is also understood that actual laws may differ between various jurisdictions and that only an overarching sense of the law is sought here.[/sub]
I just thought of another question pertaining to my OP.
Does attorney/client priviledge hamper the attorney’s ability to defend herself in this case?
Say the client, in the presence of several of the firm’s attorneys, made threatening comments to his attorney. Could the attorney being accused of her client’s murder use statements made that would ordinarily fall under attorney/client priviledge in her defense?
Well, in my jurisdiction battered woman’s syndrome is a branch of self defence. The psycholgical evidence is introduced not to demonstrate insanity but for the jury to understand the perspective of the accused.
Self defense requires the jury to stand in the shoes of the accused to determine if their belief that they were in imminent danger was reasonably held. Traditionally some personal factors were allowed such as the relative sizes of the parties. Allowing psychological evidence of battered women’s syndrome requires a fairly liberal view of the individual factors that the jury may take into account. I am not an american lawyer but it is my understanding that some american jurisdictions have rejected this expansive and highly personalized approach.
This sounds like a back door around such a ruling. All she needs to do is get the jury to accept that she was so disturbed that she viewed his mere presence as an imminent threat and it follows that she was incapable of understanding that her action was wrong satisfying the requirements of the insanity defense.
It sounds from your description like a traditional defense wouldn’t work. She has time to call the police, she isn’t alone and has a gun pointed at him. Not sure why she even openned the door. Sounds like an execution.
Well, in my jurisdiction battered woman’s syndrome is a branch of self defence. The psycholgical evidence is introduced not to demonstrate insanity but for the jury to understand the perspective of the accused.
Self defense requires the jury to stand in the shoes of the accused to determine if their belief that they were in imminent danger was reasonably held. Traditionally some personal factors were allowed such as the relative sizes of the parties. Allowing psychological evidence of battered women’s syndrome requires a fairly liberal view of the individual factors that the jury may take into account. I am not an american lawyer but it is my understanding that some american jurisdictions have rejected this expansive and highly personalized approach.
This sounds like a back door around such a ruling. All she needs to do is get the jury to accept that she was so disturbed that she viewed his mere presence as an imminent threat and it follows that she was incapable of understanding that her action was wrong satisfying the requirements of the insanity defense.
It sounds from your description like a traditional defense wouldn’t work. She has time to call the police, she isn’t alone and has a gun pointed at him. Not sure why she even openned the door. Sounds like an execution.
Certainly not, threats do not fall within the ambit of solicitor client privilege being criminal acts in themselves or discussions of future criminal conduct. More interesting would be admissions of past murders which would certainly be relevant to her state of mind. One could probably imply a waver or sneak it in through psychiatric evidence.
I always thought you were not supposed to use more force than is used against you. If you came at me with your hands I couldn’t legally shoot you. Not true?
Reeder, laws vary widely but you are not required to enter into a fair fight if you don’t want to fight at all. I would imagine that just pointing the gun would normally be sufficient to defend yourself though.
Where I live, you are entitled to use deadly force in repelling an assault if you reasonably fear death or serious bodily injury AND reasonably believed you could not have defended yourself any other way. I think they are considerably more lax in many american jurisdictions particularly on your own property.
In real life of course you avoid these situations in the first place. I should also add that in many jurisdictions when you provoked the attack in the first place your rights of self defence are diminished.
This is still where I get hung-up on how the law works. In the premise I laid out in the OP the attorney certainly feared for her life. Her former client had been accused of serial murders and cannibalism and she had reason to believe he was in fact guilty of those crimes. During trial her client had to be straightjacketed and have a face guard put on (ala Hannibal Lecter in Silence of the Lambs) due to his penchant to quickly and without warning lash out at those around him (he bit the nose off of his previous attorney which caused the court to force the attorney in question to represent him).
So now you have this guy standing at your door. The attorney’s reason for opening the door in the first place was that she refused to live cowering in her own home. Whether she had a peep hole I don’t know but if she did she didn’t use it. She did state in her testimony that for some reason she suspected it was this guy. Upon answering she told him to leave and her husband came along to help get the guy to leave. She went and called the police and then retreived her gun. She never threatened the guy with it (I don’t think) but didn’t shoot him immediately either. The discussion between her husband and the man continued for a few moments when the man saw her standing there at which point he said he was there to “take her to heaven.” She then raised her gun and shot him three times.
My sticking point is should a person be expected to wait for the violent assault to happen before responding? This guy was known to lash out quickly and without forewarning. There is also no way the attorney could know if he was armed or not. She had herself, her husband and her home to protect. Given the history I don’t see how she should be expected to wait.
As an aside do ‘battered woman’s syndrome’ laws only apply to women or do they apply to anyone who has been systematically abused?
I don’t think you have to wait for an attack if you have reason to think it is imminent and you wouldn’t survive it. But in this case, it seems to me that she could stand 10 feet away from the fellow with the gun trained on him. His saying he’s going to kill her is just hot air until he moves towards her, at which point she may indeed be justified in stopping him. But if he’s just standing still making threats, I don’t see where self defense applies.
I agree, the situation as described doesn’t seem to be a reasonable fear of imminent danger. If the guy had actually made a threatening move of some kind, then that’s different. Just speaking words doesn’t usually create a reasonable fear of imminent harm.
I see your point Gary T. Does the fear of future attacks enter into this at all? I can see how the courts wouldn’t be keen on such a notion. Nevertheless is it a possible defense (or mitigating factor) to say that this guy is going to come back again and again till he succeeds in his mission to kill me? I thought that this is at least partly what battered woman’s syndrome rests on. The assumption that the woman will be abused again and again till a point is reached where she can’t take it any longer and lashes out at her tormentor. In some places, at least, this is considered a viable defense and is apparently what the TV show attorneys tried (and failed) to prove. It seems silly to ask anyone to get their ass kicked more than once before pre-emptively defending themself. Does the court have any objective criteria that states you must be abused X number of times before such a defense is permissible?
Yes, the key is that there must be an imminent threat. However one aspect of the battered women’s defence is to justify preemptive strikes. Here we have had the defence used successfuly when the husband was sleeping. In cases like that the defence obviously widened the concept of imminent quite a bit but that has to do with the lack of alternatives she reasonably perceived given her history.
It was really a pretty shitty defence for this woman, particullarly if they admitted by implication that it was preemptive, as it requires first; a high degree of familiarity in order to convince the jury that she knew a particularly savage attack was coming and second; a state of learned helplessness which preempted running away or seeking help.
I suppose it sounded good to the writers but it really doesn’t apply very well. The hardest part to swallow is that a seasoned criminal lawyer didn’t manage to experience a brief dissociative state or at least see him reaching for something.
And yes, Whack-o-mole it would apply to anyone under similar circumstances.
It really does vary widely according to jurisdiction. Louisiana, where I am from, has very liberal (sounds funny in this context) laws for self-defense on your own property. Generally, you can shoot to kill any person that is breaking into your house while you are home. The act of occupied home invasion is seen as sufficiently threatening in and of itself to warrant deadly force even if the criminal has no weapon. This is not an acedemic matter. I have known two people who have done so and no charges are filed or the charges are dropped by the DA shortly after the investigation reveals that it was an occupied home invasion.
Also, you are allowed to use deadly force if a trespasser refuses to obey orders to leave the property regardless if they are armed or not.
The way The Practice set it up, she couldn’t successfully use the defense of self-defense. Hannibel admitted to eating women, but denied killing them. Part of the defense used doing is trial was that a similar crime happened in the same location while their client was in jail. So, they have a suspicion of his being a killer.
When he came to the door (they didn’t have a peephole - I was looking for one, but its existence would have ruined the ending) he claimed to be warning her of danger from the real killer. (Note to prosecutors, when a criminal on the stand says he knows the real killer is planning on killing one of his defense lawyers and the criminal has been in jail for months, it might be a fruitful line of questioning to enquire into his basis for this knowledge.) The lawyer had an opportunity to walk away - indeed she did so to get her gun. Hannibel never entered the apartment, so her huband could have easily shut the door. At trial, her defense was that other clients have attacked her, so it was reasonable for her to kill this one. Deadly force can’t be preemptive - even battered women’s defenses rely on a history of abuse. The analogous battering case is that a battered woman leaves her batterer, finds a new man, this new man one day threatens to hit her, so she kills him because the other man had hit her in the past.
And as a part of the show, what really bothered Lindsay, the lawyer, was that everyone she knew assumed from the beginning that she had murdered the man.