Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

To Have the Quid But Not the Quo

As you may know, the U.S. Supreme Court ended its term this year by reversing the bribery conviction of Virginia’s former governor, Bob McDonnell.

Suppose the governor of your state met a local businessman while campaigning for office, and the two cultivated a relationship.

What would it take for your governor to be guilty of corruption?

In Mr. McDonnell’s case, the businessman was the chief executive of a Virginia company that sold a nutritional supplement, and he wanted the federal Food and Drug Administration to approve the supplement as an anti-inflammatory drug. But that required the company to obtain independent research studies supporting its health benefits.

To get there, the executive wanted the state’s universities to study the supplement, and he thought the governor could help with that, so he plied him with gifts and money. He loaned him $70,000, bought him a Rolex, lent him a Ferrari for a weekend, bought his wife $20,000 worth of designer clothes, and gave him $10,000 as a gift for his daughter’s wedding. Overall, it added up to $175,000.

In return, the governor set up a couple meetings for him, hosted a couple events for his company, and contacted other officials about the supplement.

For example, the governor arranged for the executive to meet the state’s health secretary, and he emailed the secretary articles about the company. He later set up a second meeting between the executive and one of the secretary’s aides. But neither the secretary nor his aide felt pressured to do anything more than have a meeting, and the secretary straightforwardly declined to help initiate the research studies.

Similarly, the governor hosted a couple events to which he invited both the executive and some researchers from the state universities. At one event, he asked the researchers for their thoughts on the supplement: whether there was any reason to explore its scientific validity, and whether it could be good for jobs and the economy. But when the executive asked him whether he’d support funding for the research, he demurred that he had limited decision-making power in that area. At another event, the governor made no mention of the company, the supplement, or the executive.

Was that enough?

To convict him, the government had to prove that he committed or agreed to commit an “official act” in exchange for the loans and gifts. It alleged that he did so by arranging meetings, hosting events, and contacting other officials to promote the supplement.

At trial, the court sided with the government, instructing the jury that “official acts” could include those that an official customarily performed, especially if they were “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”

The governor, instead, had wanted to instruct the jury along the lines that merely arranging meetings, hosting events, or making calls were not official acts unless he intended to influence a specific decision that was actually pending before the government, like passing a law, issuing a license, awarding a contract, or implementing a regulation.

The Supreme Court agreed with him unanimously.

It may be a mouthful, but the Court defined “official act” as an action or decision on a concrete, focused question, matter, or proceeding that involves a formal exercise of governmental power that’s similar in nature to a civil lawsuit, legislative hearing, or administrative determination.

The trial court’s instructions, however, permitted the jury to convict the governor for nothing more than setting up meetings, hosting events, and making calls. These were the types of things he’d done a thousand times before to help other constituents or promote business in the state. But according to the record, he hadn’t exercised governmental power to actually initiate the research studies or pressure anyone to do so.

Because the jury may have convicted him for conduct that was not unlawful, the Court reversed and remanded the case for further proceedings.

Public Corruption Meets Semantic Magic

Okay, so there’s a crime called extortion, and there’s also one called conspiracy to commit extortion, but here’s the question.

Can the government convict you of both extorting people and conspiring with those same people to extort themselves?

In a divided opinion this month, the U.S. Supreme Court said yes.

The case involved a police officer who participated in a kickback scheme with an auto-repair shop. When the officer would arrive at the scene of a car accident, he’d persuade people to tow their cars to the repair shop, and the owners would pay him $150 to $300 each time.

The scheme worked like a charm. It revived the repair shop’s fortunes, and it grew to enlist as many as sixty other officers in the police department.

It ended, however, when the officer, the owners, and nine other cops were indicted for extortion under a federal racketeering statute known as the Hobbs Act. The statute defines extortion to include the obtaining of property from another with his consent but under color of official right. In a prior case, the Supreme Court had described this type of extortion as roughly equivalent to taking a bribe, which seemed to fit the bill here. Everyone ended up pleading guilty except the officer.

But curiously, the government charged the officer with both extortion and conspiring with the shop owners to commit extortion, even though the owners were the ones paying up. It’s unclear why the government decided to pursue this theory of conspiracy rather than one in which the officer conspired with other officers to take bribes. At trial, the officer argued that he couldn’t be guilty of a conspiracy to commit extortion unless he conspired against someone outside the alleged conspiracy. He asked for a jury instruction to that effect, but the court denied his motion and refused his instruction. A jury convicted him on all counts.

On appeal, the officer didn’t challenge his conviction for extortion, but he argued that he couldn’t be guilty of the conspiracy count because the crime didn’t involve taking property from anyone outside the conspiracy itself.

But a razor-thin majority of the Court said yes, he could, thus giving federal prosecutors another way to charge bribery cases involving state or local officials.

Criminal Threats in California

Speaking of criminal threats, make no mistake about it: running your mouth can get you arrested for, charged with, and convicted of a felony or misdemeanor, even if you thought you were just ranting or blowing off steam. See Pen. Code § 422. And if it’s a felony, it’s punishable by up to three years in state prison.

So what does it take to convict you? Well, it ain’t easy. The statute and case law say that the government must prove six things:

  1. That you willfully threatened to kill or cause great bodily injury to someone or that person’s immediate family. The term great bodily injury refers to a substantial or significant physical injury, not a minor or moderate one. But “immediate family” can include someone that the person has lived with for just the last six months.
  2. That you made the threat orally or in writing, including by electronic communication. So purely nonverbal gestures don’t count. See People v. Franz (2001) 88 Cal. App. 4th 1426, 1439-42.
  3. That you intended that your statement be understood as a threat.
  4. That your threat was so clear, immediate, unconditional, and specific that it bespoke a serious intention and the immediate prospect of its being carried out. But even arguably ambiguous words can qualify based on the circumstances. People v. Butler (2000) 85 Cal. App. 4th 745, 753-54.
  5. That the threat did, in fact, cause your target to be in sustained fear for his or her safety or that of the immediate family. Sustained fear means more than what’s momentary, fleeting, or transitory. In re Ricky T (2001) 87 Cal. App. 4th 1132, 1139-41.
  6. That your target’s fear was reasonable under the circumstances.

So it ain’t a gimme, but I wouldn’t chance it. A felony conviction is considered a “serious felony” and, therefore, a strike under the Three-Strikes Law. See Pen. Code § 1192.7(c)(38). Plus, even a misdemeanor conviction may be considered a crime of moral turpitude that affects your professional license or immigration status. See People v. Thornton (1992) 3 Cal. App. 4th 419, 422-24. So find another way to give that jerk a piece of your mind.

By the way, it doesn’t matter if you didn’t intend to carry out the threat. Pen. Code § 422(a). Nor does it matter that you conveyed the threat to someone else entirely, if the government can prove that you intended for it to be communicated to your target. People v. Felix (2001) 92 Cal. App. 4th 905, 911-13; In re Ryan D. (2002) 100 Cal. App. 4th 854, 861-62. And even if your target never receives the threat, you can still be convicted of an attempted criminal threat if the government proves that you intended to make a threat that was sufficient to cause sustained fear in a reasonable person. People v. Chandler (2014) 60 Cal. 4th 508, 525.

So take a deep breath, instead, and walk away. Loose lips, as they say, sink ships.

Social Media is not Words with Friends

Speaking of the U.S. Supreme Court, the high court delivered another interesting opinion on Monday, this time in a case that confronted tough questions about the line that separates free speech from criminal threats.

The defendant was a 27-year-old man whose wife left him in May 2010, taking their two young children with her. The couple had been married for nearly seven years, so apparently they’d met very young, and he didn’t take the split well.

The defendant listened to rap music and was active on Facebook, so he adopted a pen name, Tone Dougie, and he began posting self-styled rap lyrics that were laden with violent language and imagery about his estranged wife. The lyrics were interspersed among other, mundane posts about a movie he liked or a comedian he followed, but they definitely stood out. The defendant posted disclaimers that these rants were fictitious, and he explained to others that they helped him process his feelings. Once, he commented, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”

His wife didn’t share his sense of artistic license, however; she obtained a restraining order against him, and the authorities began monitoring his social-media activity. They even paid a visit to his home. It doesn’t appear that he ever violated the restraining order, but he kept posting lyrics, and he began taking shots at the authorities, too.

These activities got him charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit a communication containing any threat to injure the person of another. It’s a felony punishable by up to five years in prison. The hook for federal jurisdiction is if you transmit the threat in interstate commerce, but nowadays, with the internet, that’s rarely a sticking point. The five counts against him were for threatening his wife, the police, an FBI agent, the local elementary schools, and the patrons and employees of the amusement park he worked at. Not in that order, necessarily, and likely to varying degrees. Mostly, I imagine, it was about his wife and related life circumstances.

At trial, the defendant testified, among other things, that his posts emulated the lyrics of rap artists like Eminem and that he’d posted “nothing … that hasn’t been said already.” At the close of trial, he asked the court to instruct the jury that, to convict him, it must find that he intended to communicate a threat. Instead, the court instructed the jury that it need only decide whether he communicated what a reasonable person would regard as a threat. Based on that instruction, the jury convicted him on four of the five counts, acquitting him of threatening the park patrons and employees. The defendant was sentenced to 44 months in prison followed by three years of probation.

On appeal, the defendant again argued that, to be guilty, he must have intended his posts to be threats, but the court of appeals disagreed, holding that the law required only that a reasonable person would regard them as such.

In a 8-1 decision, the Supreme Court reversed the case and sent it back. The Court agreed that Section 875(c) was silent on what kind of mental state makes a person guilty of the crime, but it held that this silence didn’t mean no mental state was required. Rather, under the bedrock, common-law principle of mens rea, which “took deep and early root in American soil,” a defendant’s mental state is the crucial element that separates innocent conduct—or even wrongful conduct—from criminal conduct.

Based on this principle, the Court held that negligence could not support a conviction under Section 875(c), and it reversed the case on that ground. In doing so, it considered the following examples from its own, prior cases:

  • Did you take someone else’s property? Then you can’t be guilty of stealing if you thought the property was abandoned.
  • Did you sell drug paraphernalia? You can’t be guilty if you didn’t know the stuff was for using drugs.
  • Did you misuse government benefits in some way? You can’t be guilty of a crime if you didn’t know you couldn’t use them that way.
  • Did you share child pornography? You can’t be guilty if you didn’t know the pornography depicted actual minors.

In each of these cases and others, you can’t be guilty of a crime without a guilty state of mind, even if someone else decides, after the fact, that a hypothetical reasonable person would’ve known differently.

So too, the Court held, with Section 875(c).

What is enough? Well, it’s definitely enough if you communicate a threat for the purpose of making a threat or with knowledge that it will be viewed that way.

What if you’re reckless about it? That question wasn’t presented on appeal or briefed by the parties, so the Court didn’t decide it, which is wise if the Court wants to decide it carefully on the basis of concrete facts. But the question may arise again in this very case on remand, and in any event, it may not take long for the question to present itself. As one Supreme Court justice once observed, “The life of the law has not been logic; it has been experience.”

Yippee for Tippees

Earlier this month, in a pivotal decision on how far the government can go to prosecute insider trading, an influential federal court of appeals clarified that the recipient of a juicy corporate tip is not guilty of insider trading for acting on the tip unless he or she knew that it came from an insider who revealed it in return for a personal benefit.

The appeal was based on the convictions of two men who were three to four degrees of separation downstream the passing of tips from corporate insider to one person to another (and another). Although the men were indicted alongside other, fellow “tippees” who were upstream from them, none of the corporate insiders—that is, the “tippers”—were charged civilly, criminally, or administratively for insider trading or anything else.

One of the men was sentenced to 54 months and a $1 million fine. The other got 78 months and a $5 million fine.

On appeal, the U.S. Court of Appeals for the Second Circuit, which covers New York, Vermont, and Connecticut, reversed the convictions because the jury was not properly instructed on when a tippee could be convicted of insider trading. First, a corporate insider must actually have committed insider trading, meaning the insider not only breached a fiduciary duty by revealing the information but derived a personal benefit of some kind, directly or indirectly, by doing so. If the insider didn’t derive a personal benefit, it may still be something else, but it’s not insider trading. Next, to convict a tippee, the government must prove that he or she knew the tip was dirty and the insider derived a benefit from it. In other words, it’s not enough that a tippee traded on an inside tip; he or she must also have known that a corporate insider had traded the tip for a personal benefit.

In sum, the Court held that insider trading for tippees requires proof beyond a reasonable doubt of each of the following:

  1. A corporate insider was entrusted with a fiduciary duty;
  2. the insider breached his duty by disclosing confidential information in exchange for a personal benefit;
  3. the tippee knew that the information was confidential and divulged for personal benefit; and
  4. the tippee still used that information to trade in a security or tip someone else for personal benefit.

Against this standard, the government presented insufficient evidence to prove that any corporate insiders committed insider trading—and no evidence at all that the two men knew they were trading on the fruits of insider trading—so the Court reversed their convictions and sent the case back with instructions to dismiss the indictment with prejudice.

Mother of Five Gets New Trial on Capital Murder Conviction

Have you heard of Hannah Overton? She’s spent the last seven years serving a sentence of life without the possibility of parole for the murder of her four-year-old, then-soon-to-be-adopted son. But this September, the Texas Court of Criminal Appeals, which is that state’s supreme court for criminal cases, reversed her conviction and sent it back to the office of the district attorney that prosecuted her. At the original trial, the prosecutor argued that Ms. Overton tortured and killed the boy by force-feeding him salt because she couldn’t cope with his behavior. Apparently, the jury didn’t buy that, but it did convict her on an alternative theory of murder “by omission” on the ground that she did not get him medical attention quickly enough when he fell ill.

The case has created quite a stir, and you can find some local, national, and international coverage of it here, here, herehere, and here.

Ms. Overton has maintained her innocence all along, and after her conviction was reversed, she and her defenders hoped that prosecutors would not re-file the case, but they had no such luck. A couple weeks ago, the district attorney announced that his office would retry her on the original capital-murder charge.

In the meantime, family members say they have faith she will finally come home soon. One of them, Lucy Frost, wrote an open letter recently to the Journal of the American Bar Association, and the text of her letter follows below:

“Regarding ‘The Age of Innocents,’ September, page 54:  I have a family member, Hannah Overton, serving life without parole for a crime that I and others know did not occur. The Texas Court of Criminal Appeals overturned the capital conviction on Sept. 17. Now we await decisions on bail and retrial.

All the post-conviction hearings and appeals in her case suggest prosecutorial misconduct, police misconduct and a tunnel-vision investigation, as well as a medical examiner who appears to me to have been squarely on the prosecution team.

I use the qualifiers “suggest” and “appears to me” because she is legally not yet exonerated. I am 100 percent certain she is innocent. This was a tragic, accidental death of a child—not capital murder.

To say that I have lost faith in our criminal justice system would be an understatement. As a citizen, I pray it can be reformed. Because of Hannah’s case, I have come to know and believe many things, including:

  1. A national innocence board is needed—similar to the National Traffic Safety Board—a federal agency that independently investigates every exoneration and wrongful conviction, then trains and advises all parties on how to avoid the errors that led to them.
  2. The death penalty should be abolished. The system is too vulnerable to errors. I have no doubt that innocent people have been executed in this country.
  3. Prosecutors must be better trained, and there must be oversight of this role. There appear to be no checks and balances on them. Absolute power corrupts, absolutely.
  4. An innocent person must get the advice of an attorney immediately, even when they believe there has been no crime committed and they know they are innocent. The authorities are not going to figure out what happened. Sad but true is the fact that innocence is no protection.”

Why Are We Punishing This Man?

Here’s a set of facts for you.

It appears that an Iowan jury has convicted a 48-year-old man of felony drug charges for growing marijuana that he uses to treat his terminal cancer.

It appears the jury was not permitted to hear one word about why the man was growing the marijuana because there was no medical-marijuana law in Iowa, so his medical condition was legally irrelevant. (Morally, of course, it was.)

It appears the man has two prior drug convictions—one in 2000 for growing psychedelic mushrooms, and one in 2011 for the same pot growing (for the same reason) he was convicted of last week—so he may be labeled a “habitual offender” and receive a three-year, mandatory-minimum sentence. He calls it a death sentence. In 2011, he pleaded guilty to avoid jail time; this time, he took his case to trial.

It appears that his full-time, caretaker wife was convicted along with him, and his parents, who are in their mid-seventies, have also been charged with running a drug house because they allowed their cancer-stricken son to move in and grow marijuana in their home.

The man’s name is Benton Mackenzie, his wife is Loretta, his parents are Charles and Dorothy, and his sentencing is set for August 28.

And boy, is he suffering. In 2011, he was diagnosed with severe angiosarcoma, a rare and aggressive cancer of the blood vessels that produces large, nasty skin lesions. If you’re not faint of heart, you can see a photo of them here, but beware, it’s graphic.

Just this year, the Iowa legislature passed a narrow medical-marijuana bill that permits the parents of epileptic children to use cannabis oil as a treatment. The same cannabis oil Mr. Mackenzie uses to treat his lesions and obtain relief from his terminal cancer.

But there’s no other law on the books to cover anyone else, so Mr. Mackenzie wasn’t allowed to breathe a word to the jury about medical necessity or any such defense, and now he’s a convicted felon again.

Is that what one looks like?

Bank Fraud. Even If You’re Not Trying to Defraud a Bank.

Two days before the Supreme Court’s watershed opinion on cell phones, it published another unanimous opinion on a more esoteric topic: bank fraud. Yeah, that’s right, bank fraud.

In Loughrin v. United States, the Court held that the federal bank-fraud statute can cover cases in which you intend to defraud someone or something other than a bank. How can that be?

The Court began with the text of the statute. It punishes anyone who knowingly executes or attempts to execute a scheme to do one of two things: (1) defraud a financial institution; or (2) obtain money or property owned by, or in the custody or control of, a financial institution “by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1344. The defendant was convicted under the second clause.

So what did the defendant do? First, he pretended to be a Mormon missionary going door to door in a residential neighborhood. When people weren’t looking, he’d raid their mailboxes and steal any checks he could find. Next, he’d alter the checks, either by washing, bleaching, ironing, and drying them until they were blank and fit to use or by simply crossing out the name of the payee. Then he’d take the checks to a store, pose as the accountholder, and use them to buy stuff. Lastly, he’d return to the store and return the merchandise for cash.

At trial, the defendant requested a jury instruction that, to be guilty of bank fraud, he must have intended to defraud a bank, not just a store or accountholder. The trial court denied that instruction, and the defendant was convicted under § 1344(2).

On appeal, he argued that if the statute were not read to require a specific intent to defraud a bank then it could potentially apply to every run-of-the-mill fraud that happened to involve a check. In fact, it would even apply if the check itself were perfectly valid, as when a guy sells you a knock-off handbag that you think is Louis Vuitton, and you hand him a check. This result, the defendant argued, would greatly expand the criminal jurisdiction of the federal government into areas traditionally reserved to the states.

The Court disagreed. It ruled that the statute had two clauses for a reason, and defendant’s interpretation would make them redundant because § 1344(1) already required a specific intent to defraud a bank. The Court agreed that § 1344(2) was not a “plenary ban on fraud” that applied to every “pedestrian swindle,” but it held that the statute was limited to cases in which a defendant schemed to obtain money or property “by means of” a misrepresentation, so that his false statement was “the mechanism naturally inducing a bank” (or its custodian) to part with money. The false statement, in other words, must “reach the bank,” which would not happen in the knock-off-handbag example.

That’s all good and well, but the Court’s decision still potentially converts every bad-check case into a federal offense. Despite the Court’s consensus that § 1344 should not be read that way, the only things standing in the way may be the resources and discretion of federal prosecutors.

It’s All Just Harmless Error, Except When It’s Not

We say you’re not guaranteed a flawless trial, only a fair one, so even when there’s error, we don’t reverse a conviction if the error is deemed to be harmless overall.

But a federal court of appeals recently reversed a state murder conviction because of a legal error that several courts before it had deemed harmless. The case takes an interesting look at the weight and power of jury instructions in a murder trial, and it begins with a shooting outside a Las Vegas hotel, with a guy who’s convicted of second-degree murder and sentenced to life in prison.

The guy never denied the shooting but argued it was in self-defense. Self-defense, of course, is a complete defense if you can “perfect” the defense, meaning you can establish not just that you sincerely believed that using force was necessary but that your belief was reasonable. Otherwise, “imperfect” self-defense, where your honest belief is judged to be unreasonable, is not a complete defense, meaning you don’t just walk. In some jurisdictions, though, it’s enough to reduce murder to manslaughter, because an honest belief in the need to use force, even if later judged unreasonable, means you didn’t act with malice, so you can’t be guilty of murder (the classic definition of which is an unlawful killing with malice aforethought). But other jurisdictions don’t lean that way, including Nevada.

In this case, the jury convicted the guy of second-degree murder, so they don’t appear to have accepted a complete self-defense theory, but they could’ve convicted him of manslaughter, and they were given the option to do so. In fact, they received instructions on each of first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. Voluntary manslaughter, they were told, was the unlawful killing of another without malice but rather upon a sudden quarrel or heat of passion caused by sufficient provocation. They were told that sufficient provocation could include an attempt by the person killed to commit a serious personal injury on the person who did the killing.

The problem was that the jury instruction on self-defense confused the interplay between murder and manslaughter. They told the jury that an honest but reasonable belief in the need for self-defense did not negate malice and did not reduce murder to manslaughter. That was flat wrong. An honest and reasonable belief in the need for self-defense always negates malice. The court had meant to say “unreasonable,” not “reasonable,” but it was a clerical mistake, and no one ever caught it. The court even corrected another typo in the same instruction and advised the jury about it, which may have reinforced to the jury that the rest of the instruction was correct.

On appeal, the Nevada Supreme Court agreed that the instruction was wrong, but it held that the error was harmless given the totality of the jury instructions and the evidence admitted at trial. The defendant filed habeas corpus petitions in the state courts as well as in federal district court, but they were all denied.

Finally, on appeal from the district court’s denial, the court of appeals ruled that the error was not harmless, and it reversed. The court held that the error had a “substantial and injurious effect or influence” on the jury’s verdict because it lowered the state’s burden to prove murder by confusing the kind of provocation that could reduce murder to manslaughter.

So was the error harmless, and was it murder or manslaughter? You can decide for yourself. Most of the facts of the case were not in dispute, including the following.

The defendant had met up with his girlfriend and two younger brothers at a nightclub in Las Vegas. When his girlfriend tried to leave, she encountered the alleged victim, who was a neighborhood rival, standing next to her car with his friends. She asked them to move so that she could leave, but they wouldn’t get out of the way. As she tried to back her car out, she hit the alleged victim in the arm, and the guy got upset, kicked her car, and screamed obscenities at her. When her boyfriend (the defendant) came out of the club, the other guy began yelling at him, too, and in the moments that followed, the other guy pulled a box cutter from his pocket. He may have been fixing to use it, too, but one of the club’s security officers grabbed him by the arm and restrained him, and there was no further incident at the club.

The defendant and his brothers left the club and drove to a casino, but the other guy and his friends followed them there, making threatening gestures at them along the way. When the defendant’s crew pulled into the parking lot, so did the other crew. Apparently, the ensuing commotion was loud enough that the casino’s security wouldn’t allow either group inside, so things went from bad to worse outside. A fistfight broke out. Then someone in the other guy’s group began throwing rocks at the defendant’s group. Then the other guy brandished his box cutter again and threatened to cut the defendant’s face off.

Amid the commotion, at some point, the alleged victim went back to his car and got in from the passenger side, without closing the door. At that point, the defendant went to his own car, retrieved a gun, ran to the other guy’s car, and shot him four times.

At trial, witnesses testified to a history of confrontation between the two men in which the alleged victim was always the aggressor. Even one of the alleged victim’s own friends testified that his friend was always the aggressor; that the defendant was frightened that night; and that the defendant tried to de-escalate the situation. A psychiatrist who examined the defendant testified to a reasonable degree of medical probability that the defendant honestly believed he and his family were in danger of being killed. Although some witnesses testified that the altercation was over by the time the alleged victim went to his car, others did not, and one testified that he heard the alleged victim say just before going to his car, “You can dodge this knife, but you can’t dodge these bullets.”

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