during the jury selection process called voir dire, was just too dangerous to keep around. This, apparently, was enough to satisfy the prosecutor.
The state took the rest of the day to establish its case. A story emerged of a nice twenty-something kid, an immigrant from the Middle East with no record, who accidentally cut in front of a motorist who must have been one of those Angry White Males. The driver had boiled up in road rage, followed him for several blocks, pulled in behind him and pulled out a big silver pistol, with which he threatened to “blow his brains out” along with those of his equally innocent twenty-something friend, an immigrant from Eastern Europe, who had done nothing but come out of his apartment building.
The cops took the stand. Yes, said the arresting officer, he had been called to the scene of a crime of threatening to shoot someone without reason…found two complainants willing to testify…found the defendant who admitted having a gun just like the one the complainants had described…and determined immediately that he was guilty and placed him under arrest. Much emphasis was placed on the large caliber of the weapon. The prosecutor elicited from the officer that the hollow-point bullets, 230-grain Federal Hydra-Shok, were designed to expand and tear “larger wounds.” And, oh my God, there were two spare magazines! Enough bullets to kill two dozen people!
On the morning of December 7, the assistant district attorney would announce that her case was closed. Attorney Paul Grant had chosen to call only two witnesses: the defendant, and me. The ADA strenuously objected to my presence, so an informal hearing was held on the record in chambers.
Reloaded ammo is great for practice, hunting, and competition, says author, but he strongly recommends against it for defense use.
It seems that when Grant had sent the routine list of witnesses he intended to call to the prosecutor who’d had the case previously, the fax had not gone through. He hadn’t known that. When he mentioned to the new prosecutor on the case the week before that he would be calling an expert to testify, she went through the roof.
The judge was not happy about the glitch. However, he was diligent in his duties and he recognized that the defendant had certain rights. The prosecutor’s questioning of the arresting officer the day before had elicited testimony that made the pistol seem an avatar of malice because of its caliber, its spare magazines, its hollowpoint ammunition; Grant, who had seen that before, argued that he had a right to rebut those arguments. Incredibly, the prosecutor argued that since it came through a material witness instead of an expert, that material could not be rebutted by an expert. Grant responded, successfully, with a logical argument: whoever had said it, the poison was in the water, and he had the right to administer an antidote of his choice. The judge agreed.
Grant wanted me to testify also as to the standards of care for private citizens in such things, the rules of engagement as it were. The prosecutor adamantly objected. I was, she said, going to tell the jury that the defendant’s use of the gun was justified, and that issue was something only the jury could determine. The judge asked me what my take was on that.
I explained that I had no intention of going to “the ultimate issue,” the guilt or innocence of the defendant, and that I agreed this was a question that only the triers of the facts could answer. However, I added, I believed the defense attorney’s job was to show the jury that a reasonable, prudent person, in the same situation and knowing what his client knew, would have done the same thing. The element of “knowing what the defendant knew” required him to show the jury how such decisions are made by lawfully armed citizens, and what the rules of engagement are understood to be. It was to establish those parameters that he had brought me in.
And, of course, the judge agreed.
I went on the stand first thing after court convened. The prosecutor stipulated to my credentials and expertise, a professional move by any advocate against an adverse expert witness because it limits how much of his qualifications and background the jury will hear in the opening moments of testimony.
Defense attorney Grant asked the right questions, and I laid out those “rules of engagement,” which will follow shortly in this chapter. We explained the “furtive movement” element: that when someone such as the young Iranian immigrant made a move consistent with going for a gun, and not reasonably consistent with anything else under the circumstances, it would reasonable and prudent of someone such as the defendant to immediately draw his own gun and take him proactively at gunpoint.
One by one, we cut down the shibboleths that had built up around the defendant’s choice of gun and ammunition during the prosecution’s case. The 45-caliber pistol was quite common in America, very popular in law enforcement, in fact approved for the Denver Police Department and carried by a great many of its officers. The type of gun the defendant had employed was adopted by the United States Military in 1911, had been standard with our armed forces until the mid-1980s, and was still used by our military among pistol teams, the Army’s Delta Force, and the Marine Corps’ Recon unit, which in fact had recently purchased a quantity of Kimbers functionally identical to the Kimber 45 in evidence.
I explained that generations of American service personnel had returned to civilian life after completing their terms of service, and had decided that if the 1911 45 pistol was good enough to be issued to them by Uncle Sam to protect their country, it was good enough for them to purchase to protect their home and hearth and loved ones. In turn, countless Americans who had never joined the military had been taught by their parents to use those same 45s, and bought one or more when they in turn grew up and made the lawful decision to have a gun to protect themselves and their loved ones. This was why the 1911 was so very popular and common among armed citizens, and also the fact that its design features made it ideal for many forms of pistol matches, which the defendant would testify he had competed in regularly until becoming too physically debilitated to do so.
The two spare magazines that augmented the loaded pistol? I explained that this was a typical “load-out” for those who carried a gun. Since before any of us was born, the standard law enforcement rule was a loaded gun plus enough spare ammunition for two full reloads. I told the jury that they would see uniformed officers in the courthouse during their breaks, and that they would notice each had a double pouch on their duty belts to carry two spare magazines to complement their fully loaded weapon. Since many of them had high-capacity pistols, some would be carrying as many as 54 duty cartridges on their person, i.e., a fully loaded Glock 17 with 18 9mm rounds in it and two spare 17-round magazines in the pouches. The military load-out, since the 45’s adoption in 1911, had been loaded gun in holster plus two magazines in pouches. I pointed out that testimony would show that the defendant had served for some eight years as a USMC combat photographer in Vietnam (where he had been wounded in action) and that every day there he carried what the Government issued him: a 1911 45 auto with an empty chamber and full magazine, and two spare fully loaded magazines, in the holster and double mag pouch he was issued. This was exactly what he’d had in the car with him on the day in question, albeit with eight-round competition magazines instead of seven-round GI mags.
As a competitor for many years, the defendant needed at least two magazines to shoot even prosaic NRA bullseye matches, and three to shoot a stage in IDPA. If he just stopped at the public outdoor range for some shooting – which, records would show, he had done just a couple of days before the incident – there would be a finite amount of actual shooting time in between stand-downs to examine and change targets. During those stand-downs, there would be time to refill the magazines. Then, when it came time to shoot, the guy who came to shoot could spend his shooting time doing more shooting, just as the guy who came to a golf course to play golf would rather play eighteen holes than nine. I could see some of the jurors nodding their heads in affirmation. And of course, should a defensive pistol have to be used for serious purposes, more ammo could be required, or a spare magazine might be necessary to clear a malfunction.
