An Interview with Marty Hayes, J.D.
We read often about defendants in court who say, “It was self defense!” in cases involving drug deals gone bad, brawls in which both combatants were willing participants, and I even read about a teen who shot a teacher and several classmates at school who said he acted in self defense.
Clearly, sometimes decisions about how self-defense trials are conducted don’t always involve good, decent citizens like Network members, so the poor judge has to decide whether to let the lawyers lay it all out for a jury, refuse to give a self-defense instruction to the jury after all the evidence is presented, or as I understand it, the judge can refuse to admit evidence and testimony or even prohibit any mention of self defense. We turned to Network president Marty Hayes to explore why a court might disallow a self-defense argument.
For those who prefer streaming video, we offer a less formal version of this interview with Network President Marty Hayes at https://youtu.be/9geTva7NWFg .
eJournal: Marty, tell us about your background and then I wonder if you could identify common factors that you and others who work in the criminal justice system see time and time again when defendants would like to but are not allowed to argue self defense.
Hayes: I’ve been a cop for the first part of my life from the late 1970s to the early 1990s and of course, as a police officer, I interacted with many people that were involved in using force. I also had the education that law enforcement officers get. In addition, I have worked as an expert witness in court cases since the mid-1990s to present. I looked at my curriculum vitae the other day and noted I’ve been involved in more than 20 self-defense legal cases. They didn’t all go to court, but many of them did. A lot of times the charges were dropped either through a plea bargain or when the prosecutor realized that they didn’t have a winning case.
In 2008, after I spent four years completing a part-time law school program, we started the Armed Citizens’ Legal Defense Network of which I am president. That’s my background in this discipline.
eJournal: I expect we will draw on all of that today. Let’s move on to the reasons a judge might not allow self-defense arguments even if the defendant claims self defense. How and why?
Hayes: The court has a right – when I say the court I’m talking about the judge – the judge has a right to disallow a self-defense discussion in court and disallow a self-defense jury instruction. That happens for several reasons: first, the defendant committed some type of crime or was in a place he wasn’t supposed to be or otherwise doesn’t have the right to argue self defense at trial. This varies state by state based on statutory law and case-law and so I’m not going to go further with that reason.
The second reason is the defendant committed an act that would lead a reasonable person to believe that they started the altercation. It doesn’t have to be a physical fight. It can be verbal, physical gestures, and that kind of thing. Those are the two primary times when a person won’t even get the chance to argue self defense. I should add that there’s a third time: when there’s no evidence presented at trial that this was a case of self defense.
That typically happens if a defendant is represented by criminal defense attorney who believes that the defendant should not take the stand and should not discuss what was happening to him that caused him to believe his life or the life of someone else was in danger of death or serious bodily injury. If the defendant doesn’t take the stand, and if there’s no evidence to believe that his life was in danger, the judge will say, “You have not given us any credible evidence that self defense was warranted and thus I’m not going to allow you to argue self defense.”
Evidence that self defense was warranted is one of the things that we expect to hear from our members who are involved in acts of self defense. I want to know if they’re willing to take the stand because if they’re not willing to take the stand, then there’s a pretty good chance they’re going to be convicted. While we would still pay for their representation, I have to break the news to them, “You’re probably not going to have a very successful self-defense case.”
eJournal: Returning to the overview that you gave before talking about testifying at trial, you mentioned provoking the incident. I wonder if or how that overlaps with being a willing participant.
I remember an infamous quote from the Rittenhouse prosecutor’s closing statements. He said, “You cannot claim self defense against the danger that you create.” Obviously, that didn’t work out too well for that prosecutor. I suppose he would have preferred the jury not receive a self-defense instruction. How does willing participation differ from provoking the incident?
Hayes: The standard example is where two guys get into a fist fight and they’re both willing participants, as long as they’re beating each other up with reasonably equal force. If it escalates and one of them grabs his knife at one point and says, “You sucker, I’m going to stab you!” and the other guy grabs his gun and says, “No, you’re not!” neither is not going to be allowed to argue self defense because he was willingly involved in that incident to begin with.
Another example is if you are committing a crime and then have to resort to physical self defense. Say you’re committing a bank robbery. You’re standing there at the teller’s window waving your gun around when the bank security guard steps out of the restroom and sees you. He pulls out his gun and there’s a gunfight. Well, the bank robber isn’t going to be able to claim, “I only shot in self defense! I wasn’t going to shoot otherwise.”
The third example is if you started the fight – if you were the initial aggressor. We see a lot of cases where you’re driving down the road fat, dumb and happy and you inadvertently cut somebody off who then has a huge problem with you. He comes up behind you or beside you and starts yelling at you and cussing and flipping you off. While you didn’t start that altercation – he did – if you pull over and he wants to claim self defense because you pulled out a gun and said, “Dude, just back away,” it’s still the first driver who started the road rage incident.
eJournal: Those are so difficult because many times people say, “Mistakes happen.” I know I’ve pulled into traffic and wondered, “Where the heck did that car come from?” Most people understand that we’re human and we make mistakes. What happens if a genuine mistake leads to escalating threats and violence? Who started it? The guy who made the initial driving mistake or the guy who reacted violently? Those chains of events get really hard to untangle and that clouds the initial aggressor question.
Hayes: If the people viewing this are not getting a clear picture in their mind, that’s because it’s not a clear subject. I recommend you get on Google Scholar, go to your own state’s case law, type in “self defense, initial aggressor” and related search parameters and start reading those cases. They’re typically reported when a self-defense instruction is not given and the defendant is convicted, appeals and the appellate court says, “No we think that the trial court should have given them a self-defense instruction, so we’re going to send it back to the trial court for a do-over.” The appellate court explains why the person should have gotten a self-defense instruction.
One of the foremost examples in Washington state is the case State v. Janes. The defendant, Janes, was an abused child. He grew up being abused and at some point in his late teens, I believe, he killed his abusive stepfather but not in the act of abuse. It was because he feared in the fairly immediate future that the abuse was going to happen again, so he grabbed a shotgun, went in the bedroom and killed his stepfather. The judge failed to give a self-defense instruction and did not allow him to talk to the court about the abuse that he suffered. The appellate court said, “No, the jury had a right to know what the defendant knew and know what the defendant saw at the time. Go back, try this over, and let the defendant explain the type of abuse that he suffered, why he felt that he was going to be abused again, and why he took matters into his own hands.”
eJournal: There’ve been a lot of parallels nationwide in domestic abuse cases. They’re tough because you don’t have an immediate, right-here-and-now fear, so it raises questions. A term that comes up when there’s doubt that the force was used to stop an immediate danger of death is “unreasonable fear.” Sometimes we read about people who were scared something was going to happen and used force unnecessarily. What’s the situation when it was unreasonable to believe that something bad was going to happen to you, so you don’t get to argue self defense?
Hayes: It’s not that you don’t get to argue self defense; it’s that the self-defense argument isn’t going to work. The jury is going to hear what you knew at the time and they’re going to be thinking, “Was it reasonable for him to use a gun and blow off the head of the perpetrator?” If they say, “No, that really wasn’t reasonable. He should have just walked away,” while he had a right to stay there, it was stupid that he did.
It’s going to be the jury that decides whether your actions were not reasonable, or if you had a reasonable belief that you needed to take action. That’s going to be case-specific. Every case is different.
eJournal: We’re trying to learn principles to govern our actions and avoid becoming the defendant. A minute ago, you mentioned failure to withdraw or sometimes, a person escapes but then returns for unfathomable reasons, so the jury reaches the conclusion that they wouldn’t have done that. It raises questions about what a jury is told, and judges have a lot of discretion! First, what are jury instructions?
Hayes: Jury instructions are basically the rules that the jury has to go by to find either a guilty or not-guilty verdict. Typically, jury instructions may be weighted towards the defense, but not necessarily. Judges don’t like to be appealed and they don’t like to be overturned, so often they’re going to kind of give the defense a fair shake but there are also plenty of times when they don’t believe in self defense, or they are anti-gun or simply have a political agenda. They’re going to let that outweigh jurisprudence.
eJournal: To get back to the factor of imminence, before acting, we have to ask ourselves, is the threat immediate, right now? Can I withdraw? Why would I go back into the fight? Otherwise, someone else is going to ask, did I keep it going or did I try to stop it?”
Hayes: You know, that was the argument in the Spencer Newcomer case which we’ve written about (https://armedcitizensnetwork.org/anatomy-of-a-self-defense-shooting) and which is back on TV on the Oxygen Channel (https://www.oxygen.com/kill-or-be-killed/crime-news/david-wintermyer-fatally-shot-by-neighbor-after-feud-over-dogs). There was a discussion during the case whether Spencer had a chance to drive away.
He was in his car driving away when the deceased started yelling and screaming at him. At one point the deceased says, “I’m going to kill your dogs!” Spencer stopped and backed up and said, “Nope, this is going to stop right here.” If he had just driven away, then obviously nothing would have happened. At that moment, Spencer didn’t know whether the guy was actually serious about getting his dogs. The threats extended out to his girlfriend, who would protect the dogs, so he stopped and got out. The prosecution said, “He didn’t have to do that.” Spencer said he did, and the jury believed it was reasonable for him to do that.
eJournal: His girlfriend’s possible involvement in defending the animals must surely have influenced the jury, because that concerns a human life. I’m not sure it is related to the Newcomer case, but maybe you should clarify what is imperfect self defense. Is it a defense against a murder or manslaughter charge? How does that work?
Hayes: Imperfect self defense is basically where you screw up one of the factors we’ve already talked about. Yeah, it was self defense but you started the fight and thus you didn’t have the right to finish it. You shot the bank guard and called it self defense because he shot at you first. You don’t get to argue self defense. That was imperfect self defense. Do a Google search on imperfect defense.
eJournal: One term that comes up when we’re talking about making a self-defense argument is excessive force. I tend to associate that charge with police-involved incidents, but what happens to private citizens if the force used exceeds that used against the defendant?
Hayes: That’s not a case where the defense won’t be allowed to argue self defense but it is likely the self-defense argument will not prevail with the jury. A perfect example is a case I had a couple years ago concerning two co-workers who didn’t really get along with each other and were arguing in the cab of a big Ford F350 crew cab. The defendant stated that the driver reached over to take the defendant’s gun out of his waistband. The defendant countered that and after little bit of struggle, pulled out his gun and shot.
I was brought in as a weapons retention expert to show how easily that could have happened. The problem though – and this is the reason why he’s still sitting in one of the prisons in Washington state – arose because he shot the deceased 10 times. One time might have been very defensible, but not 10 times, including a shot to the brain from the top after the deceased got hit in the torso and as he fell over. The defendant kept shooting, including the last couple of shots in the top of the head and in the neck.
That was a case of excessive force because he didn’t have to shoot that many times. Unfortunately, we’re seeing it more and more in real world self-defense cases because the vast majority of people are using high-capacity firearms now which aren’t necessarily powerful enough to stop somebody with one or two shots. They end up perceiving that they need to shoot more than a couple of times.
eJournal: I doubt there’s rarely an immediate effect from a pistol caliber, so the threat doesn’t cease immediately. The problem you just explained relates to stopping after the threat is no longer imminent or has broken off the attack. Sometimes people chase assailants who give up and try to run away from them. Can they pass scrutiny over whether they were still threatened?
Hayes: Another case I had was where this lady was assaulted in her bedroom by her boyfriend. She got to the gun and used it and continued to use it as she chased him outside the house. She shot half a dozen or a dozen times and with one or two shots hitting him as he’s going down the front steps and yeah, that was excessive force.
eJournal: You brought up a concern early on to which we ought to circle back because it is the nuts and bolts of this discussion. Does the individual who used force need to testify to explain to the jury and the judge why their actions were so necessary? I’ve heard many reasons given by attorneys for not wanting to put their defendant on the stand. Some seemed quite straightforward. I remember talking to the late Jim Fleming about this and without giving specifics, he talked about clients who, while you wouldn’t say they were mentally impaired, they were pretty scattered. He felt like they would come across as maybe even mentally incompetent on the stand and he thought it cruel to even expose them to cross examination. I remember that so well and conclude that we can’t paint with a broad brush and say criminal defense attorneys are wrong when they say don’t put the defendant on the stand. Is there a risk benefit analysis?
Hayes: I am reminded of the Kayla Giles case. She had a cognizable, perhaps reasonable right to shoot her ex-husband, but the jury never heard what was going through her mind at the time she pulled the trigger. Of course, the defendant always has a right to testify but defense attorneys can be pretty persuasive, so Kayla chose not to testify. The jury never heard that he had hit her before. They never heard about his martial arts background. They didn’t hear the fact that he threatened her, and he grabbed and opened up the car door before she decided she had to shoot. They did not hear any of that because she didn’t get a chance to talk. All the defense could do was to try to stab holes in the prosecution case and it wasn’t enough.
Having seen case after case after case after case where their criminal clients get up on the stand and just totally blow it and basically convict themselves defense attorneys say, ”Don’t ever take the stand.” I argued with my law school professor in criminal law about this over the internet when she lectured on self-defense law and talked about the witness not taking the stand. I said if you’re a good attorney you would be putting him or her on the stand. You obviously have not done self-defense cases and she blew up. She wasn’t a very experienced criminal defense attorney but at that point I knew that what the students get in law school isn’t necessarily cutting edge.
eJournal: Law school notwithstanding there’s also that experience factor. Harking back to conversations with Jim Fleming and other attorneys, if your criminal clients have erred so badly a dozen times, you probably would get gun shy and conclude that there’s a lot of risk to letting your client talk. Add to that natural human aversion to risk. Then we must factor in the very public prosecution of George Zimmerman by the state of Florida that we all watched, in which the defendant did not testify. Why was he exonerated?
Hayes: He was not convicted because he already told his story to the police on videotape and the police prosecution played that for the jury. Zimmerman was basically able to testify in his own defense without having to subject himself to cross-examination. That was brilliant.
I don’t think he thought it out that way; he was just trying to help the police investigate. He was just truthful and told them what was going on. The witnesses in the area heard and vaguely saw what was happening, so they backed up his story. It was very credible. Now, we don’t recommend that you sit down with the detectives and give a two-hour taped statement.
eJournal: I found it remarkable that the state didn’t ask the judge to suppress showing the Zimmerman videos. What limits can a judge impose, presuming the prosecution would say, “No, we really don’t want the jury to see this.” Can a judge limit a defendant’s testimony whether in person or via video?
Hayes: There’s pretty much no time where a judge would not allow the defense to introduce prosecution audio or videotapes. If they did, it would very likely be overturned on appeal and judges don’t like to be overturned on appeal.
eJournal: That creates the very records we’re learning from, since the decisions of appellate courts are accessible to us as laypersons who want to learn when mistakes are identified and remanded back to a lower court. I’ve always wondered if the same judge has to hear the same material or do retrials go back to another judge who might see things differently?
Hayes: They’re usually remanded back to the first judge. I’m sure there are cases where it wasn’t, but from what I’ve seen, it goes back to the trial court, which is the first judge.
eJournal: I’m reminded of an Attorney Question of the Month we ran last year highlighting how hard it is to win on appeal https://armedcitizensnetwork.org/august-2023-attorney-question. Marty, can you draw a bottom line or distill for us the takeaway about being allowed to argue self defense in court? What do we need to keep in mind? What’s paramount for us to know?
Hayes: The courts pretty much allow you to argue self defense if there is credible evidence that this was a case of self defense to present to the jury.
eJournal: What’s credible?
Hayes: Credible means that a reasonable person would believe it or likely believe it or even possibly believe it. If there’s no way that anyone would believe that nonsense, then it’s not credible and the judge might disallow it. Then again, judges don’t like to leave issues open for appeal and so they may say, “I’ll allow it.”
eJournal: That’s good. Thank you for the explanation and examples, Marty.
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Marty Hayes, J.D. is president and a founder of Armed Citizens’ Legal Defense Network. He brings 30 years experience as a professional firearms instructor, 30 years of law enforcement association and his knowledge of the legal profession both as an expert witness and his legal education to the leadership of the Network.