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How they can save you in court.
Compare following ten cases, "done right" versus "done wrong"!

By Massad Ayoob

In street survival, the "equipment selection" is about fourth down on your list of priorities. Only after you have mental awareness and preparedness, proper tactics, and skill with the safety equipment is it time to focus on optimum equipment for the predictable threat.

In "courtroom survival," that list of priorities reverses. The selection of equipment now becomes a premier concern. It means, in this case, selection of the attorney who will represent you. Once it reaches this "second stage" of the crisis, you're not the player anymore. You're the stakes. The attorney is the player. He or she has to be the best.

Horror Stories

In Case One, an armed man shot and killed a violent attacker who was trying to take the citizen's gun and kill him with it. Three shots were fired, all solid hits from a 9mm S&W auto. The defendant told the jury under oath that all three shots, including the first double-action round, were accidental. They didn't buy it. They were right. It wasn't true- They found him guiity of murder.

I was contacted (after the verdict) by the defendant's wife. He and she both swore that their attorney had told them he had to tell the lie or be convicted. The attorney denied it.

It didn't matter. I got them the best lawyer I could find to do the appeal. No dice. You only get a new trial if you can show you didn't get a fair trial the first time. Having perjured yourself on the witness stand, whether or not the attorney suborned your perjury, doesn't mean you didn't get a fair trial. It means a fool got a fair trial. This poor guy is probably going to spend his life in prison, and I don't see much chance of him getting out.

Hopes are better for the appeal of the man convicted of murder in Case Two, so long as he bases his appeal on incompetence of counsel. A couple of huge, violent men had been stomping his brother, and this armed citizen retrieved an AMT Backup .380 from his vehicle and ran to his assistance. He ordered the men to stop the beating. One did. The other lunged for his gun, and he fired one shot, mortally wounding the attacker. My docket had been too full to take the case, so I referred the lawyer to an excellent expert witness in the midwest. The expert sat down with the attorney for hours and told him how to do the direct examination to bring out critical elements. These included disparity of force, speed of disarming, the client's inability to defend his lawfully drawn weapon from a disarming attempt, and other key factors that would have to be explained to the jury.

At trial however, the lawyer only asked his expert a few irrelevant questions, and stopped. The key information the jury needed to realize that the defendant had done nothing wrong was now not going to reach them. Apparently totally unprepared by the lawyer, the defendant got on the stand and handled cross-examination poorly. Asked why he shot the man, he replied, "He was gonna kick my ass." Seeing this distorted version of the situation and the defendant's mind-set, the jury found him guilty of murder. He is in the penitentiary as I write this, waiting for what I hope is a more competent lawyer to complete the laborious appellate process.

Top Lawyers in Action

In Case Three, a battered woman shot her common law husband while he was attacking her. As she began firing he spun. One butiet went in through the side, and another entered behind the lateral midline. The prosecutor's office saw only an unarmed man who had been shot in the back, and charged her with murder.

She had no money. However, she had right on her side. Also on her side was an entity just as important at the time, a brilliant and dedicated young lawyer named Mark Seiden. A homicide detective before completing law school. Mark was married to a detective murdered in the line of duty. He has a passion for saving good people from bad people. This woman had saved herself. Now, he would save her from The System. He took it as a charity case.

He called me, and I bought in, also pro bono. In Latin, that means "for the good," and it's lawyer-ese for doing a case at no charge. Seiden. a meticulous craftsman, dissected the state's case piece by piece. The defendant was too frail and too shattered by the experience to take the stand, so Mark used the expert witness, me, as his primary scalpel. The state said that being eight feet from her unarmed assailant, the woman wasn't yet in danger; we showed the jury how that gap would be closed in half a second. The state said not having aweapon made the dead man a helpless victim; we showed the jury how his size, strength, and ferocity had become a deadly weapon—what the law calls "disparity of force"—that warranted her recourse to a gun in self defense. The prosecutor said only malice could account for the bullet that entered the abuser's back; we clearly demonstrated how he would have spun as she was pulling the trigger for the final defensive shot and that an adult male can make a full 180 degree turn in half a second.

This was the sort of thing should have been done in Case Two. Seiden's legal craftsmanship had made the outcome a slam-dunk. The jury took two hours including a meal to reach a unanimous verdict of Not Guilty. Mark Seiden had literally saved her from dying in prison and made her a free woman.

Case Four was worth a book in itself. A violent man attacked his neighbor with a bludgeon and a gun. His skull dented, hearing his assailant growl, "I'll kill you," the neighbor drew his .357 before the attacker could trigger his .38 and fired a single, fatal Magnum hollowpoint. The first judge to review it gave the correct ruling, Justifiable homicide in self-defense. However, wealthy relatives of the deceased hired a special prosecutor to railroad an indictment for murder.

The defendant didn't have much money. It ran out quick after he hired Attorney Gene Compton to defend him. Usually, when your money runs out, so does your lawyer. Not this time. Compton worked full time on this complicated case, paying his staff out of his own pocket to keep the office doors open, as he fought for justice for a penniless man who stood wrongfully accused. ! took the case as expert witness for the defense, again pro bono, and was there to watch Compton's exhausting, long-fought battle against false reports, "lost" evidence, and enough other dirty tricks that a book about the case would sound like a novel.

But it was worth it. In the end, Compton saw his client acquitted. The defendant went on to become not only a police officer, but a chief of police. That's the kind of dedication to justice that makes the difference between a truly great lawyer and a mere practitioner of trial law.

in Case Five, an armed robber terrorized a real estate man and his staff. As he fled, the victim told his employees to call the police and identify him, because he was going after the suspect. He grabbed a Savage 12 gauge pump gun from his office and gave chase.

When he caught up to the gunman, the latter spun, bringing his stolen .38 up to bear on him. The armed citizen fired a single blast of buckshot, killing the criminal instantly.

The city's liberal newspaper called him a vigilante who had hunted down a poor victim of society and shot him in the back over money. Indicted for manslaughter, this good citizen went through the tortures of the damned. The man who led him back out through the gates that are supposed to say "abandon hope, all ye who enter here" was an attorney named Jeff Weiner.

It never went to trial. Jeff sat me down with the prosecutor for a deposition. In the course of that pre-trial discussion, the assistant district attorney realized that we would show the jury that, with witnesses testifying that the deceased was pointing his gun over his shoulder at the defendant, the armed citizen had no choice. It was shoot him in the back or die. The laws of the state absolutely allowed the average law abiding citizen to chase a man he knew had committed a felony and attempt a citizen's arrest.
The prosecutor realized one or two things. I know he realized there was an overwhelming likelihood that he would not win a conviction in front of a jury of this man's peers. And I think—I can't be sure, but I think—that he realized this man had committed no crime.

Suffice to say, the prosecutor did the right thing. Today, that defendant is a productive member of society with a clean criminal record and a license to carry a gun. He owes that in large part to Attorney Jeff Weiner. He also owes it in no small part to a prosecutor who was able to wake up and smell the coffee. Or in this case, to wake up and smelt the justice.

Good Defense Lawyer + Good Prosecutor = Justice

The adversary system of justice is not exactly balanced. The way it's supposed to work is that the defense lawyer is allowed to be solely the advocate for his client, which some see as a role of single-minded advocate for acquittal. The prosecutor has a more complex balance of duties. He or she must never be a single-minded advocate of conviction; rather, the prosecutor must be an open-minded advocate of justice.

In Case Six, an out of stater was arrested in New York State for illegal possession of handguns, a felony. Under the McClure-Volkmer Act, Federal law allows legitimate gun owners to travel with their firearms while en route to something like a seminar or pistol match. However, a strict reading of New York State law allows this only if the event in question is a match sanctioned by the National Rifle Association or the International Handgun Metallic Silhouette Association. The event in question was sanctioned by a third body not mentioned in the New York codes.

In Case Seven, a good man got in trouble for following the common wisdom and not reading the fine print of the law state by state. Magazines for recreational vehicle owners have routinely advised that in your camper, a gun is considered like a gun in your car when you're on the road, but when you're parked and sleeping in it the vehicle becomes your domicile and you can lock and load. Parked for the night in a residential community in New York State, the traveler believed he was within his rights when he loaded his two Smith & Wessons, a 9mm auto and a .38 revolver, before turning in.

A routine police check followed, since he was parked in a public place, not having been able to find a campground. The officer asked if there were guns or drugs in the vehicle, and the honest citizen applied in the affirmative. Finding loaded guns, the officer took him in. It seems that New York State does not subscribe to the conventional wisdom, and technically, the possession of the loaded guns without a license was a felony, parked camper van or motor home notwithstanding.

I got a call from the jail, and hooked the defendant up with Stuart Blumberg. A brilliant attorney and a long-time advocate of gun owners' civil rights, Stu is highly respected by both his fellow defense attorneys arid the opposition. He knew that the chief prosecutor was an honest man who took a middle of the road stance on the "gun control issue," and played hardball with criminals but had no problem with decent people responsibly owning guns.

I knew the defendant. Stu had me fly down to talk to the head prosecutor as a character witness. This is a man who is not usually disposed to bargaining away felony charges, and who is committed to getting illegal guns off the streets and out of the hands of criminals. At the same time, he is one of those prosecutors with an acute sense of justice who realizes that occasionally, an innocent citizen who is trying to obey the law can accidentally run afoul of itstechnicalities.

More to the point, Blumberg knew this too. An unethical defense lawyer could have just sat on his butt and milked the case for $30,000 or more in legal fees. There would have been an excellent chance of conviction, since the McCiure-Volkmer defense that would normally be employed for a traveler with secured firearms did not apply to loaded and readily accessible handguns.

In this particular case, two fine legal advocates became more than the sum of their parts. Convinced that there had been no intent to commit a crime and no danger to the public, the chief prosecutor approved a plea bargain that involved a conditional discharge, in which the arrest and plea would be expunged from the record in a matter of months. With no time served except for his initial jailing upon arrest, the citizen would not lose the concealed carry permits he held in many states and would have a clear record.

Even a trial lawyer as famously skillful as Stu Blumberg would not have a guarantee of winning an acquittal in this case. I don't know a prosecutor who would have investigated so deeply and found a defendant who didn't deserve to be prosecuted, as the district attorney in this case did.

What happened instead was one of those small miracles. A top defense lawyer spoke with a top prosecutor who had earned his respect. The top prosecutor listened to the top defense lawyer who had earned his respect. The result was justice.

I saw the same phenomenon in action in Case Eight, where a wholesaler had gone to collect an overdue bill from a couple of deadbeats who thought they'd teach him a lesson by brute force. Realizing that this was turning into a cripple-you-for-life beating, the businessman drew the .380 Beretta he was licensed to carry. A shot went off during the struggle, harming no one but allowing him to escape. His assailants got to the phone before he did and became complainants: the victim with the gun was charged with aggravated assault.

He was smart enough to hire Bruce Lyons, who didn't get to be president of the National Association of Criminal Defense Lawyers for nothing. Lyons in turn was smart enough to realize that educating the assistant district attorney in charge of the case was his best bet. The lawyer brought me in for a deposition. When it was over, the prosecutor had a much better grasp of why the defendant had drawn the gun. The charges were dropped. Good defense lawyer, good prosecutor—it's a combination that saves tax dollars, and saves the citizens from in|ustice.

Locked in Trial Battle

Not all cases conclude satisfactorily without trial like examples five through eight. When it goes to trial, you can't afford less than the very best. This is usually a lawyer who, among other things, is "gun literate." But not always. Roy Black, the famed Miami trial lawyer, chooses not to own guns. When firearms are an issue in that case, he leaves it to trial team partners who are into that. I did aa couple of trials with Roy where his then-co-counsel was the above-mentioned Mark Seiden. They were a fabulous team- Roy wrote about both trials extensively in his currently available book, "Black's Law."

In Case Nine, a cop was wrongfully accused of manslaughter after killing a man who was trying to draw a gun on him and his partner. Roy expertly took apart the state's fact witnesses while Mark adroitly handled all the forensic testimony. They burned the state's put-up case to ashes, and after eight weeks of trial won an acquittal with only two hours of jury deliberation. In Case Ten Black and Seiden teamed up on behalf of a young man who tried to keep his girlfriend from committing suicide with his revolver. The gun went off in the struggle, mortally wounding her. The prosecutors didn't believe him and a charged him with first-degree murder, seeking the death penalty. Once again I was part of the defense team, privileged to watch two masterful attomeyswin an acquittal for an innocent man, whom they literally saved from the death chamber.

Final Advice

In 21 years of expert witness work and two yearsas co-vice chair of the forensic evidence committee of the National Association of Criminal Defense Lawyers, I've been privileged to meet some of the finest men and women on both sides of the criminal trial bar. I've been able to name only a few of them here. (I've also met some of the worst, but that's a topic for another time.)

You'll note that while I was happy to give recognition by name to the superstar lawyers in the above cases, I have not mentioned any of the prosecutors' names. That's because prosecutors face a problem defense lawyers don't.

In many communities, "anti-gun" forces are extremely vocal and very politically powerful. It was such sentiment that resulted in some of the cases mentioned above. While each of the defense lawyers I've spoken of is in private practice, each of the prosecutors is either an elected or an appointed official. vindictive anti-gun zealots can and will mobilize to drive from office prosecutors who do justice where armed citizens are involved. I'll not expose these good people to that. Hence, though they know who they are—and they know they have earned my respect—they will remain nameless here.

Remember that when you stand accused, the attorney is the strongest bulwark that stands between you and a wrongful verdict against you. Put all the lawyer jokes aside, and be looking around beforehand for the kind of attorney described above. If the worst comes to pass, you'll be glad you did. •

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