An Interview with Attorney Jim Fleming
Interview by Gila Hayes
eJournal: Jim, drawing on all the years you’ve defended folks at trial, I’d like today to explore what an attorney has to do to defend someone who uses a knife in self defense, instead of using a firearm. When you, the attorney, need to explain to the trier of fact why using a knife against an assailant was reasonable and necessary, are there particular challenges you face because the defensive tool was a knife?
Fleming: There is something peculiar about the knife that does not attend the use of fists, elbows, knees or feet to try to defend yourself against some kind of an attack.
A knife is a tool like any other tool–but it is an unusual tool because, as Mas Ayoob has said several different times in different forums, this is a weapon that does not have to be reloaded, it is semiautomatic–in the sense that every time that you stab with it, every time that you slash with it, it works.
How well does it work? I don’t know, that is a different issue, but it carries with it the potential of working every time, and it never runs out of ammunition. With a knife, the only thing that could conceivably stop you would be running out of the energy to wield the weapon.
eJournal: Can you compare defending use of improvised weapons to use of knives, because many of us carry knives every single day, so we brought it with us into the fight?
Fleming: Comparing a knife to improvised weapons raises an interesting point. The knife is something you’re carrying with you to the scene and so there is the idea of the forethought. Typically, you are not going to have someone carrying around a hatchet, hammer, or other improvised weapon, so they are in an extreme situation, where they are grabbing the very first thing they can get their hands on to defend themselves.
Whether they should or not, people instinctively recoil from the idea of the knife. It has a lot to do with the way the knife has been portrayed in our culture. You’ve got, unhappily, a lot of things that are happening in the world today, where, for example, terrorists are beheading people with knives. Now, you end up with an individual who has been forced to use that same implement in self defense.
I’ll give you an example: I worked on a self-defense case that literally followed what we refer to in training armed citizens as the paradigm of the apprehension of imminent harm. An individual was being choked by one person, while being hit in the head with a hard object by another. My client rushed to the defense.
She didn’t carry a knife into the situation. The knife had been in a knife block that was knocked off the kitchen counter, it hit the floor and all the knives spilled out. She realizes that this person is in mortal danger, because of being choked and having trouble breathing, and he is also being pounded on the head with a hard object. She instinctively grabbed a knife off the floor and warned, “Let go of him, get away from him, I’ve got a knife. If you don’t get away from him, I’ll make you get away from him. I’ll stab you with a knife.”
But they didn’t. Whether they didn’t believe her or were so overcome with anger or malicious intent, I do not know, but for whatever reason, they didn’t, so she wound up going into the situation. She described to me later, “I literally forgot that I had the knife. I started hitting them.” But she is holding the knife, right?
One of the questions that came up was, is this truly self defense? When we argue self defense, we are telling the prosecutor or the jury or the judge in a bench trial, not, “Did she do it?” She did it! The question is not did she intend to do that, she definitely intended to. The question is, “Was she justified in doing what she did?” When she said, “Well, I just started hitting them and I almost forgot that I had the knife,” that is the first question you have to deal with.
Did she kill either of them? No. Did she wound them fairly grievously? Yes, she did, but both of them survived the wounding. So we had to deal with the first question: “Was this a true self-defense situation, in the sense that she intentionally acted and her actions were justified?” Her first comments were, “I literally forgot that I had the knife,” so we had to fight through that.
The prosecutor said, “Well, this wasn’t self defense.”
I said, “I am sorry to disagree with you, but self defense is exactly what it was, in the sense that defense of another falls under the same umbrella as self defense.” But that was not the actual issue.
The prosecutor’s response was, and I quote, “But she used a knife!” That is the perceptual problem and you cannot divorce yourself from that perceptual problem. You’ve got to recognize it; it is going to be there. When you are talking with the prosecutor, you are going to have to be sensitive to it.
If the case goes forward to a trial, you are going to have to be sensitive to that issue when you are interviewing the prospective jurors going through what we call the voir dire process–the jury selection process–because you are going to have to talk to them about whether or not this individual using a knife in the course of this defensive action, is, in and of itself, going to make it more difficult to determine factually that this was self defense.
You are going to run into people who tell you, “I could understand if she had used a gun. I could understand, if she used a baseball bat. I could understand if she used a hammer. But she used a knife; that is violent! There is just something about knives.” They can almost divorce in their minds the violence from firing a firearm and propelling a jacketed hollow point slug into another body. Somehow that is different, it is not as violent as when you stab somebody with a knife. It is counter intuitive, but now you are starting to get into people’s feelings. You have to say, “Well, that doesn’t follow. Think about this: she grabbed the knife because it was there.”
But what about the individual that carries the knife around with them? As a firearms instructor, I can teach an individual to be effective with a handgun in terms of defending themselves, but I am not the guy you come to for knife training as a self-defense technique. There are people out there that teach that.
When you are learning to use a handgun, you are shooting at targets, not people and so you learn how to become accurate and efficient with that handgun by shooting at paper targets. Maybe you go and do advanced training where the targets are more lifelike and maybe they move and things of that nature, but they are still paper targets. Training to use a firearm can be for a number of purposes—recreation, hunting, and self defense, of course.
Now, stop and think about knife training from the perspective of the people that are going to be judging that individual, when they find out that not only were they carrying the knife, but that they had gone out and sought out specific training in how to use that knife against another human being. They didn’t seek training in how to carve a rib eye steak; they learned how to use a knife against another human being.
eJournal: So you better also be very careful from whom you take the training!
Fleming: Yes, so that the attorney, in turn, can come back and educate those finders of facts that they are not dealing with somebody who was just carrying this knife around and started flailing away wildly and mindlessly. They are dealing with somebody that was carrying the right tool, who had taken the time to be trained with that tool to do a specific thing.
Even so, carrying a knife suggests an attitude of intent, of wanting to be prepared to use this knife against another human being. That is going to be banging around in people’s minds. As the defense attorney, if you are confronted with the case, you have got to be thinking about all these potential memes or attitudes.
eJournal: How do you defuse the suggestion of malicious intentions?
Fleming: Education. You have got to do everything in your power to educate that jury to understand the need that the individual was confronted with and the fact that at that point in time, a knife was what they had, but that they were responsible enough to understand what they had to do to go out and learn to use that properly. An individual who has been properly trained with a knife can, even though it is considered a deadly weapon, use it in a non-deadly way. They have the potential ability to use the knife in a way that can debilitate your ability to carry on an attack.
eJournal: Yes, and we can reference the whole body of work compiled by Michael Janich in that regard. (See https://armedcitizensnetwork.org/our-journal/archived-journals/282-march-2013)
Fleming: Exactly. That is a big focus of what he is teaching. What you have got to do is to educate the people who are going to be making that ultimate decision–the jurors–to help them understand that there is a difference between somebody going out and seeking that training so that they know how to use a knife properly for defense, and the person who just flails away–cutting, and stabbing and slashing unscientifically. Will they accomplish the same goal? Maybe, but they may also carry it to the extreme when they don’t need to, because they simply don’t know how to use the tool properly. They stab into vital areas that they didn’t need to attack in order to stop the threat.
eJournal: There is a timeline problem, too. Incapacitation from blood loss can take too long when the attacker is a threat to your life. So now we have your client, presumably without the benefit of training, trying for an immediate stop to the attack by two people against her companion.
Fleming: She succeeded in stopping the attack, because her attack on them was painful enough that they wanted to get the hell away from her; she was hurting them. I had to educate people so that they understood this was an individual who had little choice. This was a justified action. She did not have any more ability than the man in the moon to prevent harm either to herself or another without the use of some tool. She had to have something.
You’ve got to get to the idea that there is no difference between the individual that used that knife in self defense and an individual who had used a gun in self defense, or a baseball bat in self defense, or a hammer in self defense. The whole process is about the education.
eJournal: You noted that you start this line of education long before the facts are placed before a jury; you start trying to defuse that revulsion with the prosecutor who had to decide whether to charge your client with a crime.
Fleming: What I’d like to do is convince the prosecutor that the actions my client has taken are justified, and therefore no charges are necessary in this situation, but in this case, the prosecutor had tremendous difficulty. She said, “This can’t be self defense because she used a knife.”
My reaction was, “Wait a minute, what are you saying? Are you trying to tell me that a person confronted with a situation like that could use a gun and you’d be OK with it, could use a hammer or a baseball bat, and you’d be OK with it, but not if they used a knife?”
The prosecutor sat there and said, “That’s stupid, isn’t it? You’ve made me realize how unreasonable I was being.” This is a prosecutor I’ve known for a while and somebody that is fair about what they are doing. So I said, “OK, that’s enough for today. Let’s stop for now,” because I felt that I had gone far enough at that time. Now that I had opened up a new line of inquiry, I needed that prosecutor to spend some time doing their own thinking. As an attorney, you have to learn that there are times to shut up and that was one of those times. I said, “How about we come back and revisit this in a couple of days?”
I waited, and in a couple of days, I had to be in the courthouse and ran into the prosecutor who asked, “When you are done with your hearing, would you come back to my office?” So I go back to their office and they say, “OK, so you do a lot of work with self defense. You write about self defense; you teach self defense. So break this down for me, I understand what you said, now how and why is this self defense?”
I explained the elements of self defense, and defense of another here in MN, and went through the facts we had. Ultimately, the conclusion–which required some fighting–was made and I wound up with the prosecutor
on my team. The prosecutor was able to fight through the natural inclination of the elected official that she works for and convince them that the charges should be dismissed.
How often is that going to happen? Not often. It is going to happen every once in a while. The idea that the first job of the attorney is to get the case dismissed is wrong. That’s the first obligation that the attorney has: to try to do that.
eJournal: We profoundly hope you can do that.
Fleming: I will try. I know, but while it sounds like semantics, the minute you say, “Well, that is your job,” if I am not capable of getting it dismissed, then someone says, “You didn’t do your job.”
eJournal: Besides, you will be ready to move to step two, if the attempt to get it dismissed is not successful.
Fleming: Yes, and step two is going to be working with a jury.
eJournal: To what extent do you concern yourself with public opinion in a knife defense case?
Fleming: Very little. There are differing philosophies about this. I have an absolute, iron-clad rule: I do not try my cases in the court of public opinion. I don’t try them in the newspapers or in front of the TV cameras. I believe very strongly that getting involved in discussions with the media can backfire very, very badly, because once it comes out of your mouth, you cannot control it any more. If it is misreported or mischaracterized, I will be sidetracked from my main job, which is in that courtroom, when I have to come back and get involved with some media clown, to say, “That is not what I said,” then they will say, “Well that is what we heard you say, or that is what we inferred.” No.
eJournal: The reason I asked is because the prosecutor you brought over to your side had to go to the elected County Attorney, and change his thinking about the use of the knife. Well, he is subject to pressure from his constituents, who probably also do not understand the issues at hand, either.
Fleming: Here’s the problem. If I am attempting to do that through the media, I fall prey to what the media decides they want to say, what they want to report about the comments that are made. When I am in front of a jury, doing my closing argument and my opening statement, I can control that completely. It takes a prosecutor who has done a lot of trials to be able to control a defense attorney who has done a lot of trials.
eJournal: Something you’ve been doing for how many years?
Fleming: 34 years. Recently I was asked how many jury trials I’d had in the course of my career and I didn’t know what to say. So I went back and started looking at it. I realized that over that course of time I’ve done in excess of 340 jury trials.
eJournal: When you work to help a jury understand why a client needed to use a knife against another human being, you know many of the jurors are shuddering, “Ugh…look at this horrible carnage she inflicted with this knife.” How do you help those jurors work through their natural revulsion? What do you do?
Fleming: You start during the jury selection process, talking to them about these issues. Sometimes you have to be careful in how you approach it. There are rules in what you can and can’t do. You learn over the years of experience how to create inferences for people. For example, I will go and watch other people do trials, because you never stop learning. That is why they call it practicing law, because you never stop learning about the craft.
In one trial I watched, the attorney asked, “Are there any of you in this panel of potential jurors, that have permits to carry a pistol?” Immediately the jurors are looking at each other and some of them are clearly uncomfortable. If you get uncomfortable, what’s the next step? You are going to get angry. So this guy is creating discomfort, concern and anger with these people because he does not understand the dynamic. How about if he had asked them, instead, “I just need a show of hands: are there any of you that know people that have carry permits?”
You can create perceptions; you can create attitudes; you can cause people to question their own attitudes. But you have got to spend time thinking about it and you have got to start with the realization that this revulsion for some people is going to be there. You take a former Marine that was trained to view a knife as one of their survival tools, and say, “They used a knife!” that Marine is going to say, “Yeah? Of course they did! What’s the problem?” You get somebody who has not been exposed to that mind set, they will have a completely different perspective.
All I can do is be aware of that and think about how can I #1 humanize my client and #2 help people understand that what this individual did was justified, in the same way that it would have been if they used any other tool.
Juries are interesting! People constantly ask attorneys, “What are my chances at trial?” All these years, I have carried one of my father’s silver dollars with me because I know that question is going to be asked. I take it out and set it down, and I say, “Pick it up and flip it and call it in the air. Those are your chances at trial. They are 50-50. Either you are going to win or you are going to lose.” Nobody is going to make that better for you, no matter what they say and what they promise. They can’t. There are too many intangibles that come up in the course of a jury trial.
I want juries to know that I am about as common as you are going to get. I am from Nebraska and I drive a pick up truck. I hunt and I fish, and I make my own beer. I am not a polished individual, but there is one thing you can count on: I won’t lie to you, ever. I just want them to trust that I am not going to lie to them.
You say the wrong thing, or you misjudge a juror as to where they are really coming from in terms of the case, and it can backfire on you and you’ll never know. I’ve lost cases that I really thought I was going to win, and I’ve won cases that I really thought I was going to lose. Afterwards, you shake your head and ask, “Where did that come from?”
In any group of people you are going to have the alphas and the people that are the followers. The alphas will drive the decision. I’ve literally seen situations where we could hear the yelling that was going on during deliberations, or people have come back into the courtroom with a question for the judge and it was obvious that they had been crying. You have got to try to figure out who are your alphas and who is going to be the leader. It is an imperfect system and sometimes you are going to be right and sometimes you are going to be wrong.
eJournal: That’s a delicate approach when the jury contains people of widely divergent backgrounds. We use the phrase “jury of your peers,” as something of a sacred thing, but there are times when a judge alone will hear and decide the case. Let’s imagine you defend a member who, maybe used a knife where a gun was prohibited. Would you prefer to appeal to a jury to understand that or would you think it better to ask for a bench trial to just a judge?
Fleming: I’m always going to look at a case–and most attorneys will–and ask, “Do I want to go to a bench trial?” That means the judge becomes not only the trier of law, which they are always going to be, but also becomes the trier of fact. Might there be cases where I am going to want a bench trial as opposed to a jury trial? Yes, there are cases where I would really, really like to have a bench trial, but I know the judge who has been assigned to preside over the case and so, no, I am not going to expose my client to that kind of risk.
eJournal: If you opt for a bench trial, doesn’t that put even more pressure on you, since now one individual decides the whole thing? Do you know who is going to be the judge?
Fleming: Oh, yes, most definitely. There are a number of terms for it, but a common term is the case has been “blocked” to that judge, meaning that the judge has been assigned to handle that case from a certain point forward through the trial. You are going to know who that is. You might look at it and say, “This particular judge…”
For example, I know a judge quite well that is, for most attorneys, not the judge they are going to want to have in a firearms case. But I know this judge, and I have spent a lot of time over several years educating this judge. I’ve said, “Hey are you interested in reading an article I wrote that appeared in such and such a magazine?” or something of that nature, or “I would like to give you a copy of my book.” I’ve been having conversations with him and realizing over the course of time, the hardline attitude is starting to change. Now, if I make an argument in front of that judge, I believe I am going to get a better reaction than if somebody else does. But it is an educational process, and I have an individual there that I have spent a lot of time working with.
So, I might be willing to do a bench trial there, because I am dealing with a judge that is so professional that they can divorce themselves from all the emotional and personal histrionics that go along with these deals and they are going to focus on, as Jack Webb used to say in Dragnet, “Just the facts, ma’am.”
Other times, the judge may not have much experience. It takes a judge quite a while to grow into their robes. They wear the robes from Day One, but do they have the experience yet? It takes a while for a judge to work into the role so they can become an effective jurist.
I am not trying to pick on anybody, but you get a judge that has spent six or seven years of their time working in the law library checking the work of other attorneys, who has never tried a case; they apply for appointment to the bench and because of political connections, they are appointed. Now, all of a sudden, they are presiding over jury trials with seasoned, hardened attorneys that have done one hundred, two hundred, three hundred trials. Number one, they know that they don’t know as much as the attorneys do, so there is a tendency to be very conservative as a result. Sometimes they make a lot of procedural mistakes.
In one trial, I was going after a law enforcement officer. I’m an ex-cop, but that was that job and this is this job, and they are very different. Because I’m an ex-cop, a lot of my friends are either former cops or active-duty cops. They know that I have a job to do and that I take that job seriously. They also know that I am not going to lie, I am not going to cheat, I am not going to backstab or play any tricks, but we will be in situations where they will end up testifying as a witness. I know what I need to get from them. I know they won’t give it to me unless I ask the right questions. You can see it in the eyes. Often they are smiling with their eyes–even if they can’t smile with their mouths–as if to say, “Go ahead, give it your best shot. Let’s see if you can get there.” They are not trying to hide anything; they are doing their job, too.
Anyway, I was going after this cop pretty hard, there’s an objection and the judge says to me, “You know, Mr. Fleming, that police officer is not on trial here.” And because I am old and I have lost a lot of the fear of the robes that I once had, I looked at the judge and said, “I’m surprised that you don’t know that when a police officer is on the stand in a criminal trial, they are always on trial because their credibility is on trial. Perhaps it is because you have not been on the bench very long that you don’t know that.”
The judge realized, “Oh, boy, he’s right. I don’t like him and I wish he would choke on his tie, but he’s right. How do I get out of this?” And then I said, “I don’t think you have any choice but to overrule the objection.” The judge said, “Overruled,” and we went right back to it.
You run into that sometimes, so you have to think about all these things. I have to go through the trial and convince that jury of my client’s innocence. Sometimes people say, “Well that’s not true: you’re presumed innocent.” Any attorney that’s done more than a dozen trials comes back and says, “Well, guess what Sparky? That is not really the way that works.” So I’m going to have to convince that jury of my client’s innocence, but at the same time I also have to make sure that I create a pristine record. If the case gets appealed, all the appellate court has is the written record of that trial; they weren’t there. When the attorney is in the courtroom, there is a lot going on. A tremendous number of things are happening.
I always tell clients, “During the course of the trial if you have something you want to say to me, unless we are in recess, write it down. Don’t tap me on the arm and try to whisper in my ear. It will distract me from what’s going on and I might miss something that has happened where I need to make an objection or I need to stand up and make an argument and I’ve missed that opportunity. It is not me who is going to suffer for that, it is you. So write it down.”
eJournal: The attorney’s craft is complex beyond what many realize and that doesn’t even begin to address our topic today: defusing responses to a knife used for personal defense. What’s the bottom line for those of us who have trained and chosen to carry a knife, perhaps as back up or into areas where guns are illegal?
Fleming: I would leave people with this idea: I am not suggesting they should not consider using knives as self-defense tools. I am saying that you must understand the limitations, understand the practicalities, and if you are going to carry knives, train with somebody who really knows how that tool is used, and really train with them.
Don’t just carry a knife around in your pocket because you can. That is no smarter than going out and buying a firearm and packing a firearm around and saying, “Well, I’ve got a carry permit so I’m prepared.” No, you are not. Get the training you need. In the course of that you are going to learn a lot that you need to know about all these different issues.
eJournal: Wise words from one who knows! There’s a lot more of your wisdom in your book Aftermath, and there’s even more in my personal favorite, your book about the history of the Second Amendment.
Fleming: The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege deals with the history and development of the Second Amendment. Where did that concept come from and why did so many Founders feel so strongly that it needed to be drafted into the first ten amendments to the U.S. Constitution? There is a long history that goes back hundreds and hundreds of years of which our Founding Fathers were very aware at the time they were drafting the Constitution. The book is a historical study that takes you clear back into about 800 and moves you rapidly forward into the 1600s and the 1700s and then turns it around and starts talking about the common misconceptions.
People say, “Well, I have a copy of the Constitution, that is all I need.” No, it is not. Because that Constitution has been interpreted by appellate courts that tell you what the law says those words mean. The rest of the book is a study of the cases that take us up to Heller and MacDonald and beyond.
In Heller and MacDonald both, they said this is not where it all ends. There is disagreement among the Federal Circuits where there are literally issues that are just crying out for the Supreme Court to take a look at them and the Supreme Court has not gotten to it yet. Where is the Second Amendment going?
eJournal: That book did a great job of answering that. I cannot recommend strongly enough that our members get your books and study them. I have learned a lot from your books, and more today, from talking with you. Thank you so much for sharing your knowledge and experience, both as an attorney and a writer, and also as a member of the Network Advisory Board.
Jim Fleming is an attorney of more than 30 years trial and appellate court experience in MN, NE and has argued both civil and criminal appellate cases in the State appellate courts as well as before the Eighth Circuit Court of Appeals. Jim and his wife Lynne Fleming operate the firearms training school Mid-Minnesota Self-Defense, Inc. where Jim is the lead instructor. Learn more about Fleming at http://www.jimfleminglaw.com/about-1.html.
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