Ayoob: Courtroom Defenses for Innocent People
This article first appeared in the Network's membership journal.
by Gila Hayes
In June, Massad Ayoob spent ten days teaching at our other business, the Firearms Academy of Seattle. Toward the end of his stay, we sat down and I had the chance to ask this unparalleled expert to share some of his knowledge with Network members. To preserve some of the flow of Ayoob’s conversation, we’ll switch now to Q& A style.
eJournal: Sometimes people have trouble recognizing as innocent someone who’s been involved in a shooting. Why does the legal system prosecute self-defense cases?
Ayoob: It is more societal and sociological, than it is the legal system. We’ve grown up in what I still believe is the best legal system that has ever existed. That said, anyone who works in the system–and I’ve worked in it for more than 3½ decades–will tell you that it is not perfect.
You’ll have X number of failures in anything. If we’re talking college grades, if your score is 98% out of 100% on a tough exam, you’ll probably get an “A.” If our criminal justice system is getting 97-98%, unfortunately, now we’re looking at the 2-3% that fall through the gaps. And when you multiply 2-3% by the volume of actions that take place just in the criminal courts, before we start talking about civil lawsuits, well, that adds up to a hell of a lot of wrongfully accused people.
eJournal: I think Network members have joined our effort because they worry about defending themselves from the legal system, just as they’ve worried about being assaulted.
Ayoob: The people who belong to the Network realize that, “OK, when I walk out tomorrow it’s not going to be 50% of the world trying to attack me. But I’d kind of like to be prepared.” That’s why they carry a gun, and that’s why they keep one at home.
But the “afterwards step”–going in to court–is something most decent people are unprepared for. They’ve never been there and they never imagine themselves being there. They live in a world where the criminal justice system by and large lives up to its name and delivers justice.
What we’re talking about here is the very rare aberration, just as certainly as having to use a gun to shoot another human being in self defense is an aberration. Most of us are going to go through our lives without having to kill somebody; most of those who do have to kill someone in self defense, will be ruled justifiable, and after that, at least the criminal side–if not the plaintiff’s side–will be over.
But every now and then, the aberration occurs. There is the false testimony by the surviving perpetrator and his partner. There are the witnesses who can misperceive what happened, who can confabulate what happened, who literally do not know what happened in front of them because they not only were not looking and therefore did not see, but had they been looking, would not have recognized what they saw in terms of the subtle cues and indications of danger.
eJournal: Now, if that happens, we’ll need an attorney. I’ve heard you speak about criminal defense attorneys who have never handled the defense of an innocent person. In a nutshell, how do those defenses differ? What should an attorney do for a truly innocent person?
Ayoob: For most criminal defense attorneys, the overwhelming majority of their practice is people who are guilty as charged or guilty of a lesser or included offense. They get very, very little experience defending the wrongfully accused innocent.
You and I saw this classically last week in the LFI I we taught. We had two very highly experienced criminal defense attorneys in the class. One had been in practice for as long as I’ve been in the criminal justice system. I asked him, in front of the class, how many innocent people, truly innocent people, do you believe you’ve defended? He said he could count them on the fingers of one hand.
The other had been doing it for 26 years and he said three or four. I’ve spoken to attorneys who’ve retired after long, successful careers in criminal defense, and I asked them, “How many truly innocent people have you defended?” and they’ve answered, “None.”
eJournal: And you believe that’s common?
Ayoob: Oh, it’s extremely common!
eJournal: Last week, those attorneys came to LFI to learn from you. Without that training, what does the average attorney do to prepare for the defense of an innocent person?
Ayoob: What anyone does–what they are trained and habituated to do. A classic example of this is the videotape you see going all over the Internet with the law professor talking for half an hour about why you should never say anything to the police. And he gives this case, and that case, and yet another case and more: this guy opened his mouth, and he said too much, and he wound up being convicted.
If you’ll actually listen, you’ll find that all but one of those cases were guilty men who thought they could outsmart experienced investigators and interrogators, who were “hung by the tongue,” as I like to say, and it literally carried them into prison.
The one exception was a mentally disturbed individual, shall we say, who said he signed the confession in hopes of smoking out the real criminal. And the lesson I take from that, Gila, is that if you are guilty you should shut up; if you are mentally ill, you should shut up and not say a goddamned thing.
But now, let’s look at the reality of it: the advice to shut up comes from attorneys who are defending men that they know, number one, lie to everybody, and may well have lied to them. You were there when I asked the two attorneys in our LFI I class, “How many times have you been lied to by your clients?” and they both burst out laughing, and, of course, both have long since lost count.
Anything that a guilty man says is either going to be inculpatory and guarantee his conviction and defeat the purpose of the criminal defense attorney, or it will be perjury and if endorsed by the attorney could theoretically have him disbarred and convicted of the felony of subornation of perjury. So obviously, they learn to tell their clients, “Shut up, Shut Up, SHUT UP! You’re a guilty son of a bitch, you can’t talk your way out of it.” And that’s the story. [Sighs]
With the innocent, it is entirely different. The truth is what sets you free. The truth is not going to change. We need to get that truth out immediately, so those who might accuse us will know that from the beginning we never changed our story. If we don’t do that at the beginning, it looks consciously or subconsciously, like what we’re saying is some bullshit that our defense lawyer and his hired gun expert witnesses came up with to bamboozle the jury.
eJournal: But there are limits…
Ayoob: Certainly, we should not spill our guts at the scene. The involved victim of the near-death experience will experience distorted perceptions: you’ll not be able to keep count of your shots, and the attacker may appear to be closer and larger than he was. Answers to questions like, “Exactly what words did he say before you shot him?
Exactly how many shots did you fire? Exactly how far was he in feet and inches and how many centimeters long was his knife?” will invariably be wrong. To people who’ve never been in that situation, it will look as if you are lying or exaggerating.
You do need to establish at the scene that you were the intended victim; he was the perpetrator. You need to establish at the scene that you are the complainant and he is the perpetrator and suspect. You need to point out the evidence before it disappears. Spent cases get picked up in shoe treads, and I’ve seen them literally blown away in the wind. You need to point out the witnesses. You tell the truth of what happened before they decide, “We don’t want to get involved,” and walk away. And then, you need the self-discipline to say, “Officer, you know how serious this is, you’ll have my full cooperation, after I’ve spoken with counsel.” And stick to that.
eJournal: And this happens between you and the responding officers, because your attorney can’t roll in with a blue light on top of his or her car and be there right after the shooting?
Ayoob: Marty Hayes and I just spent an hour this week trying to do damage control for a case I can’t discuss in detail because its not yet been adjudicated. But essentially, the guy who fired was very well trained in how to shoot but had less than I would have liked him to have in how to justify why he shot. He did what he was told, he said, “I’m not saying anything until my attorney gets here.”
Well, lies were being told by three different participants, who were the perpetrators, if you accept the defense theory of the case. The witnesses, the ear witnesses who heard shouts and gunfire, are basically fungible. The key evidence that could have been locked in at the scene has disappeared, things that should have been tested that could have determined distance and threat level have not been tested and it’s a coin toss whether we will ever be able to now.
It is much easier for the defense attorney and us, if the defendant says, “The evidence is here,” and thus that evidence is preserved. “The witnesses are there,” and now those witness statement are locked in, it’s not something they can begin to confabulate a year later, or maybe someone just didn’t want to be involved, and a year later they read in the newspaper or on the Internet, “Man Convicted,” and they go, “Oh, man, I SAW that thing. The guy was coming at him with a knife and they arrested HIM? Geez!” Well, it’s a little late for that!
eJournal: What is the likelihood of a mere mortal like myself or another Network member having the presence of mind after a life-threatening incident to say enough but not too much?
Ayoob: It would be about the same as ordinary mortals who have the presence of mind to shoot the bad guy enough but not too much, which we know happens virtually every day in America.
It still appalls me that instructors can get away with insulting the intelligence of their students! They’re saying, “I know how to teach you to shoot. So when you leave here, you’ll be able to win a battle to the death with a professional, violent criminal, but of course, at that moment, your brains will turn to instant shit, and you’ll be unable to articulate why you did what you did.” [Laughs bitterly]
“Uh, Mr. Instructor, could this be because you never worked that side of it? Maybe you never thought this might happen. Maybe to you this was all like a video game with live bullets?”
Come on! Let’s get real. If you’ve ever been in a fight to the death, you know the fight in court is going to come in some degree or another. Do not deny it. Face it as surely as you face the decision to arm yourself and protect your family. Commit yourself to being prepared to deal with the aftermath.
eJournal: So the armed citizen gets through the initial police response; now their lawyer is present. How do they keep that lawyer on the right track? What can they do if their lawyer goes off point, maybe they want to plead out, for example?
Ayoob: First, if the guy says, “Plead to something,” when you’ve done nothing wrong, fire him now! He does not understand how to defend innocent people; that is the strategy of the guilty man’s lawyer. My experience has been that a guilty man’s lawyer who gives you a guilty man’s defense, will get you a guilty man’s verdict.
When in doubt, call the Network. We’ll find someone for you.
eJournal: So don’t try to salvage that lawyer?
Ayoob: You’ve done the right thing! Don’t plead because the guy tells you to plead because it is going to be easier for him and cheaper for you! Is it going to be cheaper for you to be a convicted felon for the rest of your life, unable to protect your family, unable to get the kinds of jobs to earn the living that you might have earned otherwise? That does not strike me as victory. It’s the kind of thing that people do when they’re terrified of things they don’t understand and they are, in essence, being blackmailed by the other side’s threats.
eJournal: If the lawyer doesn’t exactly understand how to defend the innocent client, how can you, the self-defense expert, help?
Ayoob: A good attorney has worked in enough different areas to know that he’s not an expert in any one discipline. But if he’s got the right expert, and that expert has done a great many of those kinds of cases, the attorney asks him, “OK, in all the cases you did, what was the most successful strategy, tell me why, tell me how I can use that here.”
eJournal: And those strategies are?
Ayoob: We will establish that you (the defendant) knew certain things that the average layperson on the jury does not know, or for that matter, the average law school graduate who has a job in the prosecutor’s office and ramrods this thing through the grand jury, does not know.
Because the standard is, “What would a reasonable and prudent person have done in the same situation knowing what the defendant knew?” we will educate the jury so they understand why you recognized danger cues that the average layperson would not. We’ll explain why it would not be reasonable or prudent for you to try to kick the knife out of the hand of the man who was lunging at you and your spouse.
We can do reaction, time and motion demonstrations that no material witness can.
eJournal: What’s the difference between the expert and the lay witness? Is there greater latitude?
Ayoob: Oh, hugely! The expert, once retained as such, has access to all the discovery materials, all the reports. We can interview witnesses so long as those witnesses are agreeable to it. We can literally do a full second-stage homicide investigation, and find things that might have been missed in the beginning.
If the attorney is getting his money’s worth, he’s using the expert to educate him on how to cross examine other witnesses, how to structure his defense, and establish–it is called “to lay the foundation”–to show the jury, “Here’s what my client really did. Here’s how we’ll prove this is what he really did. And here’s how we’ll show that what he did was the right thing to do.”
eJournal: It sounds like you can also coach the attorney about conducting the trial?
Ayoob: The same kind of coaching that Marty Hayes (Network President) and I give attorneys when we do CLE classes (continuing legal education). We explain problems with what they learned in the seminars and law school, that as a defense attorney you should withhold your opening statement until after the State has closed its case. That advice comes from the fact that 97% of your clients are guilty and a huge percentage of those 97% are lying to you. If they disprove one promise you make at the beginning of the trial when you don’t know what the State really has, you’ll never win and you’ll be professionally humiliated.
eJournal: What do you advise?
Ayoob: I tell them to make their opening statement at the beginning of trial. Using the unnamed case that Marty and I consulted on this week as an example, I would really like for opening statement to show the defense’s side, so they have something to compare it to when the three who attacked the defendant tell their story. The jury’s bullshit alerts will be far more finely tuned. I want the jury to think, “Whoa! Whoa! Whoa! How does that square with the other side of this? There’re two sides to this story!”
And we have nothing to lose, because we are not going to change our story based on what the prosecution says. We’re going to be telling the truth. We’ve got nothing to lose, everything to gain. I absolutely believe that the defense should put its opening statement out at the very beginning of the trial for the jury to see.
eJournal: What kinds of things do you do once the trial is underway?
Ayoob: If some new evidence comes in, which is most unlikely in a self defense shooting, I am able to advise the attorney, “OK, here’s how you would attack it. Ask him if A, how could B have happened?”
eJournal: And you also get up on the stand and give testimony. To what does the expert testify?
Ayoob: We cannot tell the jury what happened. We can tell the jury, “Here is how the certain disciplines are taught and understood. Here are the rules of engagement, the standards of the profession, of the trade, the business,” what ever is under discussion.
We can’t go back in a time machine and say, “Hey, here’s what happened.” We can say, “This evidence is consistent with theory A; we can say this evidence is not consistent with theory A; or we can say this evidence is such that theory A is physically impossible.” That’s all we can do and it needs to be laid out in front of the jury from the beginning.
eJournal: I’ve always wondered about that phrase, “Our theory of the case is…” Are you telling me that the defense can’t say, “John did this on Wednesday…” that it is not that cut and dried?
Ayoob: We’ll show that John did this, we’ll show that John did that; we’ll show how the prosecution has misunderstood what John did; we’ll show why the prosecution’s theory that John did not have to do this is wrong. We’ll educate you to the level that John knew and you’ll see why John recognized a danger cue that the witnesses did not. Nine out of ten witnesses say the man didn’t raise the knife when John was yelling drop the knife. Well, we’ll be able to show why nine out of ten witnesses were probably looking at John, not the guy with the knife. We’ll be able to show that probably nine out of ten of those witnesses probably did not catch the subtle drop of the shoulder and setting of the flexing knee that telegraphed the knife lunge that John had been trained to recognize in time to save his life that they didn’t recognize because they had no idea what it was; it was as foreign to them as a foreign language that they did not understand and which they did not look for because they were looking at John.
eJournal: And that is the power of what you go into court and do…
Ayoob: It is the power of what all of us do together as the defense team. The defense attorney is the one who will cross examine each witness and be able to say, “Look, you don’t have to believe this witness has malice in her heart and is lying; you simply have to believe this witness could not have seen what she says she saw. You have to believe that this witness did not recognize what was there because she didn’t know how to look for it, and we’ll show you why.”
eJournal: So you get through the trial; do you, as the expert, sometimes play a role during appeals? How does that work?
Ayoob: Yeah, I am brought in occasionally on a post conviction relief, and usually it’s to explain why–quite frankly, in my experience, it has been to explain why defense counsel in the first trial was incompetent. We had one where one of the key issues was that defense counsel was incompetent because he did not bring in expert testimony that would have refuted the prosecution’s case. We won a new trial for a man who had been convicted of murder in the first degree.
Hopefully when he gets his new trial, I will be on board to explain it to the trial jury and we’ll rectify the injustice. But, he has been in prison for three years. That’s how long these things take. His conviction has been reversed. He was still arrested for murder, with a one million dollar bond he cannot afford to pay. The reversal doesn’t mean, “OK, everything’s alright now!” It means, “Yeah, you’ve lost a significant percentage of your life, but we may be able to get some of it back.”
To give an analogy, Gila, if we were on the Internet and I said, “Hey, this thing about knowing combat shooting, that’s bullshit. I was in a gunfight; I didn’t know combat shooting and I missed the other guy and he shot me; I wasn’t able to work for three years; they had to replace my hip and it really hurts all the time, but I survived. So you don’t need no combat shooting.”
You’d laugh me off the Internet! And yet, some one will say, “Well, so and so got convicted, but a few years later he won his appeal and soon he’ll get a new trial, so what went before doesn’t matter.
It [legal preparation] is the same exact thing. People do not think ahead because they haven’t been in that situation; they haven’t seen anyone go through that terrible suffering. They don’t know how important this is.
eJournal: In summation, in your 35 years of doing this you’ve probably got a case or two that gives you the most satisfaction. If you had to pick one, which would it be?
Ayoob: Not one, not one. Roy Black was kind enough in his book, Black’s Law, to credit me with having won the Hicks case for him. Stephen Hicks had essentially tried to get the gun out of the hand of the girlfriend who was attempting suicide and the gun went off in the struggle. He tried to get her to a hospital. She died and he panicked; did all the stuff some bozos on the Internet will say; you know, plant the body somewhere and lie about it. They were trying him for premeditated murder with a death jury.
I was called by Mark Seiden, his attorney–I’d worked with Mark on several murder and manslaughter cases that we won. And I said, “Mark, for Christ’s sake, I mean, this guy sounds guilty to me. You know better than to call me with this.”
And he says, “Mas, trust me, look at the discovery.” The discovery is the pre-trial evidence. I looked at it, and I said, “Holy Shit.” By the evidence, the kid was telling the truth.
I mean, this was an ordinary kid, of average IQ, who owned one firearm that he didn’t really know how to operate. When he realized the girlfriend was getting suicidal, he tried to unload it. There was one cartridge stuck in the chamber of the revolver that he could not get out because he did not know there was such a thing as an ejector rod. So he wrapped up the gun and buried it in his bureau. And he gets home and finds the girl has the gun in her hand.
They analyzed the evidence. It was absolutely in many subtle ways consistent with his account; this kid could not possibly have faked it. It was totally inconsistent with the State’s theory of the case and I made that point in court. To make a long story short, it’s Florida v. Stephen Hicks. It’s in Roy’s book, Black’s Law. Because that was a death penalty case and we literally saved the kid from death, I was pretty proud of it.
Any time you give somebody their life back, any time you give somebody their future back, any time you give somebody back the estate they built for their family from some rapacious lawyer, some lying dirt bag who didn’t appreciate being shot while he was trying to rape them, anytime you can do that, that feels good. So your question is kind of like asking which of your kids do you love the most. Gila, I’m goddamned proud of every one!
eJournal: Rightly so! And we are so very fortunate to have you working on these kinds of things, Mas.
Ayoob: Well, we’re fortunate to have you and Marty, too, with all the work you are doing for the Network, and it is something that has been long overdue and God bless you for it.
eJournal: Thank you, Mas.
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