September 2012 - Pg 5-Interview
The brother pulls a 2-inch .38 and swings it up toward Alessi, who is a career police officer. He is carrying an off-duty gun and he reflexively did what he had been trained to do. He drew and instantly fired multiple shots.
The wife, whose back is to the brother, obviously could not have seen his gun come up. All she could have possibly seen was Tim drawing a gun on her brother. She screams something like, “No!” and she dives between Tim and the brother as Tim begins pulling the trigger. One of the bullets struck her in the chest and killed her; the other two struck and neutralized the brother.
Tim, in a state of fugue, because this had literally been zero-to-sixty in one second, stumbles out of the house and drives away. He can see his wife is dead and there is nothing he can do for her. He comes to his senses and calls his attorney, who says, “Hide the gun, and then go turn yourself in and I’ll come to the station.” It was an incredibly stupid thing for the attorney to say, but then, the attorney also said, “Turn yourself in but don’t say anything until I get there.” The attorney does not get there for literally a matter of days. By that time, the thing is already rolling and Tim wound up convicted of murder.
We were able to overturn the conviction on appeal, but by that time, he had run out of money and rather than trust himself to a public defender–which I certainly would have, had he consulted with me–he was like too many cops who have the sense that public defenders are so overburdened, and they aren’t Perry Mason, and so he ended up accepting a plea bargain for manslaughter which cost him more time in prison.
The brother who survived and was the star witness said, “I went to the bedroom and got the gun after he shot me, but Tim had left.”
Well, the guy was bleeding like a stuck hog, and the blood evidence shows it, but there was not a drop of blood between the shooting scene and the bedroom, where he said he retrieved the gun.
The little boy, who the judge did not allow to testify at trial, said, “My uncle pulled a gun on my daddy and my daddy shot him.” The jury never heard that because the judge would not allow the four-year-old to testify.
Had Tim simply called from the scene and told his story, proper reconstruction would have shown what happened and shown who was telling the truth. It would have been shown to be a justifiable shooting of the brother-in-law and the death of his wife a terrible, unanticipatable tragedy. He did not. He took the insane advice to ditch the gun, and the whole “flight-equals-guilt” thing kicked in. He was seen as hiding evidence, he was seen as guilty, and nature took its course.
eJournal: This is one of those cases that people use to argue that our post-emergency mental state is unreliable. You said Tim was in a fugue, and that brings us back to being trained and being prepared for the aftermath, just like preparation for self defense. My question is this: after peering over the precipice of death, do you believe we can manage the 9-1-1 call and manage the immediate interaction with responding officers, all of which an attorney is unlikely to arrive in time to handle?
Ayoob: If you are on the precipice of death and you can outdraw the guy who is about to murder you and shoot him, that tells me you can handle yourself well enough on the precipice to do what you have mentally prepared yourself to do. If that had been an on-duty shooting, there is no doubt in my mind Tim would have simply called in with the appropriate radio code, said, “I’ve been in a shooting,” and it would have been handled appropriately.