Did the Dude Deserve to Die: Trying a Self Defense Homicide
There is an old Texas Defense Lawyer saying (or so I was told):
There are only two issues in a homicide trial: did the dude deserve to die and was your guy the man for the job?
Your latest case presents itself to you…your client is charged with some degree of homicide and tells you, yes, he or she killed the deceased. While there are a number of other defenses to the charge (it was reckless, not intentional or “heat of passion” manslaughter) many of these cases will be best tried under the theory that your client acted in self defense (or defense of another person). The following outline is to assist you in identifying issues in a self defense case and bringing them alive to the jury. This article does not cover the castle doctrine; that will be covered in a separate posting.
Theory of the Defense
When trying a self defense case there is no room on the defense part for middle ground. You must convey to the jury that from where your client stood at the time they made the decision to act in self defense that there was no other choice but to act in a manner that would result in loss of life. Anything less than that cannot possibly result in a not guilty verdict; at best it will lead the jurors to convict your client of a lesser included degree of homicide. While this may be the best outcome you can get in some cases and you will want the jury to be instructed on lesser degrees of homicide than what the prosecutor charged, you still want to argue strongly that your client acted in self defense. Don’t tell the jury that it was self defense but if they disagree, they should only convict your client of a lesser. Leave arguing for a lesser to the prosecutor.
General Jury Instructions
Well written jury instructions are crucial in trying to shape a not guilty verdict in your case. Wisconsin Criminal Jury Instruction #805 states:
Self-defense allows the defendant to threaten or intentionally use force against another only if:
· the defendant believed that there was an actual or imminent unlawful interference with the defendant's person; and
· the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and
· the defendant's beliefs were reasonable.
The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.
Other key language includes that “a belief can be reasonable even if mistaken” and “the reasonableness of the defendant’s belief be determined from the standpoint of the defendant at the time of the defendant's acts and not from the viewpoint of the jury now.” Id.
Be sure that the jury instruction you submit fully explains that the prosecutor must prove beyond a reasonable doubt that your client did not act in self defense. This can require modifications to pattern jury instructions and failure to make this clear in a jury charge has been held to be reversible error, see State v. Austin, 2013 WI App 96.
Particularized Jury Instructions
In addition to the pattern jury instruction in your state, consider submitting additional instructions regarding the right to self defense based on case law. For example:
“Self Defense is an inalienable right and about as basic a moral and legal principle as there is”. Similar language regarding an “inalienable right” is found in Cochran v. State, 278 So.2d 451, 452 (Miss. 1973).
Depending on the facts of your case you may want to draft instructions regarding the following:
- Prior Acts or Threats of the Deceased
- Prior Acts or Threats by Associates of Deceased
- Prior Threats by Gang Members of Deceased’s Gang
- Prior Threats by Abusive Spouse or Partner
- Corroborating Evidence of Prior Violent Acts by Deceased
- Battered Person Syndrome
- Reputation of Deceased for Violence
- Defense of a third person
- Defense of a third person who is vulnerable (child, elderly adult, etc.)
- Defendant need not testify when self defense is issue if there is evidence of it in the record.
- Consciousness of Innocence (when Client calls police or remains at scene)
Here are a couple of examples of specially drafted jury instructions. The first is to inform that jury to consider that there was no time to call police.
The privilege of self-defense rests upon the need to allow a person to protect himself from real or perceived harm when there is no time to resort to the law for protection. Therefore, when considering whether the defendant's conduct was privileged under the law of self-defense as it has been explained to you, you are instructed to consider the defendant's opportunity to resort to the law for protection in view of the location of the incident, the time of day the incident occurred, the number of law enforcement officers reasonably believed to be on duty at the time of the incident, and the time one would reasonably expect it to take for officers to intervene.
If you client is accused of committing the homicide while using a firearm ask for an instruction about the constitutional right to bear arms. Here is an instruction given in a recent Wisconsin case:
The second is for cases where a client is accused of committing the homicide while using a firearm, regarding the constitutional right to bear arms.
Evidence was received that Mr. (name client) owns a firearm. The people of the State of Wisconsin have the constitutional right to keep and bear arms for lawful purposes, which include personal security. You are not to hold anything against or convict Mr. (name client) simply because he possessed a firearm.
Evidence was received that Mr. (name client) owns a firearm. The people of the State of Wisconsin have the constitutional right to keep and bear arms for lawful purposes, which include personal security. You are not to hold anything against or convict Mr. (name client) simply because he lawfully possessed a firearm.
Sources: Wisconsin State Constitution Article I, Section 25; State v. Hamden, 665 N.W.2d 785 (Wisc.2003).
If your client is a juvenile, submit a jury instruction asking the jurors to consider what the reasonable juvenile would believe under the circumstances.
Click here for a sample juvenile self defense instruction.
Click here for a sample motion to instruct the jury on self defense for a juvenile.
Don’t assume that your client will articulate everything he knows about the case the first time you interview him. You want to review not only what occurred but also all relevant background material regarding your client and what led to the homicide. Interviewing topics should include:
Personal Background Information
- Taking a social history. You want to ask about your client’s family of origin, foster or adoptive families if applicable, schooling, medical history, psychological history, employment history, military history, and drug and/or alcohol usage. Find out what your client was taught to do when responding to a threat of injury or death.
- If your client was in the military, get detailed information about their experience in the service, including training, weapon handling, where they were stationed, combat involvement, and commendations and discipline if any.
- Your client’s previous experiences with threats, fights, injuries from these and any past occasion where client was forced to act in self defense, previous experience with trauma of any kind, and client’s history of peacefulness. Also find out if your client has ever been a victim or a crime.
Client’s Knowledge of Deceased
- Your client’s relationship with deceased if one exists; regardless of gender. Thoroughly review everything about your client and the deceased; how they met, how close they are, how frequently they’ve seen each other, how they got along or socialized, any past rivalries or bad feelings.
- What client knew about deceased’s previous violence acts or threats of violence, both to your client and to other persons. If there are events that your client is aware of but didn’t personally witness, find out how your client knew about them. Get specifics about when, where, weaponry used and injuries suffered.
- What client knows about deceased’s criminal record or uncharged criminal conduct.
- If deceased was a gang member, what your client knows about how the gang operates, the gang’s violent acts, threats or criminal conduct.
- What client knows about deceased’s possession of weapons and ability to fight, both in the past and the date of the event.
- What client knew about deceased’s reputation for violence or if others had opinions that deceased was violent.
The Homicide Itself
- Client’s use or lack of use of alcohol or drugs in general and on date of event.
- Events that led up to and are related to the homicide.
- Exactly what occurred at the time of the homicide. Get a moment by moment account and your client’s thought process throughout the event. Did your client feel that they were in danger of great bodily harm or death if they didn’t act in self defense? Review the language of your state’s pattern jury instruction and ask the client questions that fit within your state’s definition of when deadly force in self defense is acceptable. Whether your client felt they had any alternative to committing the homicide; could they have escaped, called 911 or if there was any less drastic alternative available to using deadly force.
The Aftermath of the Homicide
- What your client did immediately after the homicide and why, including whether they called an ambulance for the deceased, notified others to seek help, or called or turned themselves into the police
- Who your client talked to about the homicide, what they said and how the recipient of the information responded.
- What occurred during the police interrogation and why your client made the statements that she did. Most people who act in self defense talk to police afterwards. Ask why they chose to answer police questions instead of asking for a lawyer. If the statement is recorded, find out why your client chose the words they used. If it is unrecorded, thoroughly interview your client regarding the police interrogation, reconstructing what was said as best you can.
Tips for Interviewing
- Review the entire available discovery with your client, including any recorded statements by your client and witnesses.
- Use scene photographs or video to have the client point out exactly where the events occurred. If there aren’t any in the discovery, have an investigator take pictures.
- In the rare instance where your client is out of custody, go to the scene with them and have them reenact what occurred.
- Have them reenact what occurred even if you can’t go to the scene.
- Ask your client to describe things using their senses. When they were afraid, what did they see, hear, feel, smell, touch, taste.
- Ask clients questions in the present tense. Often they will spontaneously respond in the present tense, giving a sense of immediacy to what occurred. If this happens in your interview, it will likely happen when the client testifies.
A thorough investigation is critical to success in a self defense case. Hire a good investigator at the outset of the case so they can interview witnesses as soon as possible. Have your investigator accompany you to meet with the client, at least to go over what occurred; investigators who make a connection with your client and hear their story for themselves are usually very motivated when working on the case. The investigator should review the discovery before interviewing witnesses who’ve talked to the police. Be sure the investigator does not merely go over the police reports with the witnesses to the homicide; all too often investigators assume that the police obtained all the pertinent facts and accurately summarized them in their reports. If the investigator can get eyewitnesses to the homicide to point out details using scene photographs or go to the scene to demonstrate what they saw, so much the better.
Investigating the Deceased
Other than the incident itself, nothing is more important in a self defense homicide than educating the jury about the deceased’s violent background, use of weapons, gang memberships, threats to others, etc. Begin with obtaining a full criminal background check on the deceased. Get copies of past criminal complaints, indictments, trial and sentencing transcripts. Submit open records requests for police reports and citations to find witnesses to interview. Talking to neighbors, former co-workers, law enforcement officers, parole agents, relatives or past significant others can reveal a lot of useful information about the deceased’s history.
Electronic research may reveal really good information about the deceased. Use the people finder programs in Lexis and Westlaw to obtain personal information. Check out their Facebook, My Space or other social media websites for personal information. If they have privacy controls, you may be able to get one of their “friends” to let you on their page or share emails with you.
Battered Womens Self Defense
If you represent a woman accused of a homicide of an intimate partner, in addition to investigating the deceased's violent conduct towards your client (and possibly other women as well), consider hiring an expert familar with Battered Woman's Syndrome to evaluate your client. Expert testimony comparing the characteristics of your client to those of others who suffer from battered women's syndrome was deemed admissible in the pre-Daubert era, see State v. Richardson, 189 Wis.2d 418(Ct. App. 1994). The National Clearinghouse for the Defense of Battered Women offers free advice and assistance to lawyers representing women under these circumstances
Click here for the National Clearinghouse for the Defense of Battered Women website.
Developing Positive Character Evidence
Be sure to get names and identifying information for all possible witnesses to the events and any information you obtained from your client. In a self defense homicide, character is very important. Your investigator should interview people to see if they can testify that your client is a truthful or peaceful person. When seeking character witnesses, the relationship of the witness to your client and prestige of the witness is important. You should see if your client’s neighbors, teachers, employers, clergy, former military buddies or other people who will lend prestige to your client by way of association are able to provide testimony regarding essential character traits. Remember to instruct your investigator what the foundational requirements for opinion and reputation evidence so they know how to structure the witness interviews.
Police Standards for Use of Deadly Force
Make an open records request or subpoena your local police department’s standards for using deadly force. Except for rules pertaining to fleeing felons, the police standards often track what is permissible under the law for civilians; the police are permitted to use deadly force when they themselves or a citizen are in imminent danger of great bodily harm or death. Firing a warning shot is contrary to acceptable police practice and the standards recognize that while a verbal warning is desirable it is not always feasible. Use the standards in your cross examination of the police and then tell the jury that your client has the exact same right of self defense as a law enforcement office.
Admissibility of Character Evidence and Pretrial Motions
You must bring a pretrial motion to admit character evidence, whether it’s negative evidence regarding the deceased or positive character evidence about your client. Many times defense lawyers don’t want to reveal witnesses or evidence until the last possible moment in order to prevent the prosecution from interviewing and possibly weakening witness testimony. The court requires the defense to submit a motion in limine to introduce evidence of a deceased’s prior violent acts that were know to the client, State v. McClaren, 2009 WI 60. Don’t take a chance on exclusion! Be sure to file detailed motions in limine outlining exactly what you are trying to admit into evidence.
Under the McMorris doctrine (McMorris v. State, 58 Wis.2d 144 (1973), you are able to introduce violent acts by the deceased that were known to the client at the time of the homicide on the theory that this knowledge contributed to reasonable fear on the part of your client. You are not limited just to the testimony of the client but may introduce corroborating testimony about these incidents from other persons. See for example State v. Daniels, 465 N.W.2d 633 (Wisc.1991).
Click here for a sample motion to admit violent acts of the deceased under McMorris.
Even when your client is not acquainted with the deceased or lacks knowledge of their prior violent acts, you can introduce evidence that the deceased had a reputation for violence or opinion testimony regarding deceased’s violent nature, State v. Jackson, 2014 WI 4. The theory behind this doctrine is that testimonial purpose is to prove that the victim was the initial aggressor and that evidence is relevant and admissible on that issue, regardless of defendant's knowledge of that reputation. Wisconsin is very restrictive in this regard; you cannot admit specific acts of conduct when eliciting reputation and opinion evidence. Making a record and demonstrating to the court that you can lay the proper foundation for this evidence is crucial, Id.
Another area to consider is whether or not there are other acts of the deceased that are admissible under sec 904.04(2); for example if the deceased recently possessed a firearm that may be an issue if your defense is that the deceased pointed a gun at your client and your client disarmed and killed him. Additionally other acts may be admissible as habit evidence, sec. 904.06, if you have sufficient proof. As wth McMorris evidence, you must make a clear offer of proof as to every piece of evidence you wish to admit.
Click here for a sample motion to admit 904.04(2) and habit evidence.
Client Statements to Police
In most self defense homicides, the client has given a statement to the police before you entered the case. These statements often contain elements of self defense but more often that not will provide a basis for an imperfect self defense claim only. During you cross examination of the detective who took the statement, you must point out to the jury that the officer shaped the interrogation by what initial and follow-up questions he chose to ask your client, and that is why the statement falls short of perfect self defense.
The officer will probably try to justify his interviewing style by claiming he just wanted the client’s story and to ask specific questions of the client regarding whether or not he was in fear for his life would be leading the client to make a false self defense claim. In order to discover the officer’s explanation, do not waive the hearing where the prosecution must prove the admissibility of the statement. Instead use that hearing as an opportunity to discover why the detective questioned your client in the manner that he did; this will help you enormously when you prepare for the trial cross.
In the trial cross you also want to point out any other facts which lend themselves to supporting your theory of the case. Topics and chapters for cross that may be helpful are:
- Client called police or turned themselves in.
- The client was not under the influence of drugs or alcohol.
- Client waived Miranda rights and wanted to tell his side of the story
- Client never denied involvement in the death; this can be contrasted with other homicide suspects).
- The police control the interrogation and what questions to ask.
- The police are aware of the legal standards concerning self defense, including the language of the statutes and jury instructions.
- The client is a layperson who did not know the statutes and legal standards.
- The police chose to not ask certain questions, especially whether or not the client was in fear for his life.
The heart and soul of your case will be explaining to the jury exactly why your client had to take the actions that he did to protect his own or someone else’s life. In order to bring this home to the jury, take the substance of the jury instruction and convey to the jury just how afraid your client was and why his actions were reasonable. Using the technical language of the jury instructions will not do it; this has to be put into emotional human terms that the jury can relate to. Your theme should be played out from the beginning of the trial until the end; begin introducing the ideas in voir dire, discuss them in the story you tell in the opening statement, use the terms and you cross examine witnesses and have your client and others testify and hammer it home during your closing.
For example, if one of your themes is that the deceased was bigger, stronger and younger than your client, you might bring it into each section of the trial as follows:
Voir Dire: How should a person be able to respond when attacked by a bigger, stronger and younger person?
Opening: There he stood, faced down by a bigger, stronger and younger man who invaded his home.
Cross (to officer at scene): It’s fair to say that when you saw the body of deceased that he appeared to be bigger, stronger and younger than Mr. Smith?
Direct of client: What were you thinking when you saw the bigger, stronger, younger man rushing at you?
Closing: He had no other choice but to shoot as the bigger, stronger, younger man rushed at him, holding a hand behind his back like he was hiding a gun.
Here are a few other sample theme statements you may try to work in:
“Have you ever been afraid?
Ever been faced with a thug?
Ever felt the hair on the back of your neck stand up?
Ever think your next breath might be your last?
That’s what Mr. Smith felt the night of September 4th when he was suddenly confronted with two bigger stronger and younger men
And that’s why he fired one shot in self defense.”
“It’s not a crime to act in self-defense in Wisconsin. Because on June 14th Thomas Jones had to make a decision in a split second. Mr. Jones did what he knew he had to do in order to stay alive. He was confronted with a choice- would it be Stephen Sayles life or his own life? Would he be able to live to tell his story and be judged by a jury of twelve of his peers or would he have to be carried by six at his funeral?”
He came at her with his fists, fists of steel, fists of iron, fists like jackhammers. She knew she had only one way to save herself, when she picked up the knife from the kitchen counter.
Jimmie told him “I don’t want trouble"…but the large angry man just kept coming.
Jimmie shouted, “Don’t walk up on me”…but the large angry man just kept coming.
Jimmie pointed his gun…but the large angry man just kept coming.
And only when Jimmie had no other choice, he fired one shot in self defense.
Judges are increasingly restricting voir dire and setting very short time limits for lawyers to question jurors. Make the most of your time and get right to the heart of the issue in the trial. Ask the jurors right away how they feel about self defense and under what circumstances they feel that a person can justifiably and lawfully use deadly force against another. Get the jurors to be as specific as possible in their answers.
Think of all the objections a potential juror could have to a person using deadly force in self defense and be sure to discuss these with the jurors and find out what they think; for example, if your client fired multiple shots, under what circumstances does a juror find this acceptable. Does the juror think a person should run away; how will they deal with jury instructions on retreat. Does the juror think that anyone using a firearm in self defense should fire a warning shot or give a verbal warning before shooting? Will a juror blame your client for staying in an abusive relationship and decide against self defense because your client could have broken off the relationship? These are all things you want to learn during the voir dire process; not when the jurors are discussing the case and reaching an adverse verdict for your client.
Direct examination is usually not exactly the phase of the trial that gets criminal defense lawyers all excited about their case. We think of ourselves as artisans of cross, crafters of opening, brilliant orators exhorting the jury inclosing to acquit our clients. We’ve been taught from law school that prosecutors are good at direct and defense attorneys excel in cross.
But in a self defense homicide (and many other cases as well), the greatest moment of drama in the courtroom is when your client takes the stand. The very thing that moved you to take on your client’s cause with every inch of your being now has to be personally shared with the jury. Your client’s jury should be well prepared to hear his story from the trial themes you’ve expounded on beginning with voir dire , the story you told in opening and the points you’ve driven home in cross. Now a persuasive direct will be the piece de resistance that wins the case for your client.
Don’t conduct direct like a prosecutor! Their directs often consist of little besides asking the witness their name, directing your attention to the date, what if anything unusual occurred and a string of questions that mainly ask “What happened next?” A powerful direct examination will depart from this paradigm.
Use plain “people speak” language in your questions. What is the purpose of saying “directing your attention” and asking “What if anything happened”? When we ask questions like these, we are mindlessly regurgitating what we’ve heard others (prosecutors) do in the courtroom. While headlines or topic starters are a smooth way to being an examination or transition from one topic to another, we can use more jury friendly language such as, “I’d like to ask you some questions about the day you had to take a life” and go from there.
Preparing to assist your witness to tell their story in an effective and persuasive manner takes some thoughtful work on your part. A useful technique to design the most powerful testimony is to write a summary statement of what your client has to say. You don’t need to include every detail, but make sure that all of the important points of their testimony are in the statement. Then take some time to review the summary you’ve prepared. What is the best way to unfold what happened? Is there a key detail that is particularly attention grabbing which will engage the jury? Where is the emotional center of the story? What is the final thing in the story that the jury should be left with?
Chronology is a good way, but not the only way to tell a story. Remember the rules of primacy and recency; begin with an interesting point and end with something memorable that gives a sense of closure to the testimony. Animportant detail or emotional statement is an excellent starting point in order to get the jury engaged in your client’s story. For example, if your client’s been a crime victim before and keeps the gun he used in self defense in his glove compartment, you might begin the direct by asking him why he keeps his firearm there. It is not a good idea to start by asking your client if he killed the deceased in self defense; the jury should hear his full story before being prepared to accept this conclusion about what happened.
Books are organized in chapters and a story told in the form of a direct examination should be structured in chapters as well. Begin a chapter with a topic heading; this will help orient your client as he testifies and focus the jury on what will be discussed. Then prepare questions that will thoroughly explore that topic until the story is ready to advance to the next chapter. You can make a list of all the chapters that are required in order to present your client’s story testimony. Then the chapters can be arranged so they flow in a smooth and persuasive order.
You want to be sure that key points in the testimony are highlighted so the jury will remember them. Often you can help the jurors visualize what happened by first setting the scene and then placing the action in the scene. When your client states an important fact, take the answer and include it in the body of the next question. When use this looping technique at crucial junctures in the testimony, the story your client tells will be more memorable and have a greater impact on the jurors.
While redirect is always available to clean up any confusion or misimpressions caused by the cross examination, your direct should be comprehensive enough to preempt the major areas where the prosecutor plans to score points. For example the prosecutor may plan to cross examine your client about why he didn’t leave or call the police on the person he injured or killed instead of shooting them. This area should not be left untouched in your direct. Ask your client why they couldn’t leave. Be sure the jury knows that you want to bring out the entire story for them to hear and answer all of the questions they may have.
We’ve all heard the phrase, “the best laid plans…” and know that disaster lies ahead. Direct examination cannot be prepared in a vacuum. This is one of the two parts of the trial (the other is voir dire) where we are not the star of the show. Unlike cross where we are seeking control to impart information, in direct we are acting as a facilitator for our client’s story. They are the star of the show and the salesperson for our side of the case. This means that they are a partner in the preparation of their testimony. You should review your client’s testimony with them and prepare them for what questions the prosecutor will ask by doing a practice cross examination – preferably in the style that the prosecutor in your case will use- and giving your client feedback on handling the situation.
When you conduct direct, be sure to ask questions in a manner that sounds like you care about what you’re discussing with your client. Jurors will know if you sound interested in what he has to say or if you are just going through the motions. They can also detect fakery such as a lawyer pretending they’ve never heard your client’s story before or hyperbolic responses to their testimony.
Remember what happened when you interviewed your client in the present tense? This is an excellent technique to use at the critical moment in your client’s case when they had to make the split second decision to save their own life. Speaking in the present tense will lend power and immediacy to your client’s testimony and make the threat they face at the time alive to the jury.
Exhibits and Reenactments
A well tried case uses plenty of show and tell, so we should be prepared to use demonstrative evidence in every phase of the trial to help visualize the story and maintain juror interest. Use exhibits in your opening as you tell the story of what happened to the jury. Prepare any exhibits or demonstrations that you plan to use when your client (or any other witness you call) in advance and review these with your client so they know what to expect. Nothing is worse that a bumbling reenactment which opens the door to a “if the glove doesn’t fit…” line in your opponent’s closing.
If the deceased rushed at your client, tape the distance on the courtroom floorand reenact how short a time it took for the aggressor to rush at your client. You can do this during opening, cross examinations, your client’s testimony and closing argument. Be aware of how your body moves as you do this; we tend to swing our arms when we run or walk quickly, which may give a jury the erroneous impression that your client could see the deceased’s hands and therefore knew he was unarmed.
Don’t be afraid of the weapon that the prosecutor will introduce into evidence. The evidence is not the personal property of the state; you can introduce the weapon into evidence before they do, making it in effect your evidence at the trial. A caveat about weapons, particularly guns: if you want your client or other lay witness to handle it as an exhibit during their testimony, you may want to notify the court in advance of your plans rather than have panic stricken bailiffs try to stop the testimony because your client is handling a disabled firearm (yes I know, it doesn’t make sense since it’s not dangerous, but they do get very upset, so be prepared to argue your client’s constitutional right to testify, including to use exhibits available to the prosecution).
Here a few other ideas for exhibits and demonstrations in self defense cases:
- Have your client demonstrate the movements of the deceased, how he held his fists, etc.
- Have witnesses reenact the way the deceased was shouting or using foul language.
- Using an Elmo or power point to magnify the scene pictures. If the scene was very dark and was illuminated by police to create photographs, be sure to point this out repeatedly; the jurors will otherwise think it was well lit.
- If there is a tape of your client’s statement, play all the important and helpful parts yourself. Prosecutors will only play the part that is favorable to them- if they play it at all.
Closings are always a fun part of the trial because the handcuffs are off and you’re free to argue the case in whatever way you find the most effective. You can use all kinds of creative techniques; for example pretend you are the deceased and tell the story from his point of view as the aggressor who would have killed your client if he had the chance. There are many stories and analogies that are helpful in self defense cases: here are just a few.
Compare your client to a police officer: If your client had been a police officer and had acted just like the client acted, there would be no question that he was acting in self defense. But because the (name client) is an ex gang banger he is seen in a different light. Call your client Officer (client’s last name) for the rest of the closing.
Multiple Gunshots: When your client shot in self defense but shot more than once (over kill), compare it to killing a rattlesnake or vicious animal. Tell the jurors the animal strikes swiftly and their bite is deadly. No person defends themselves from being attacked by a vicious animal by only striking or shooting it once; they have to make sure the threat is gone. When danger springs into your path, you react. And you react to remove the danger. It’s kill or be killed.
Battered woman: There is a flower in South America called the bird of paradise, and it is named after a bird, so small and so beautiful that people go to great lengths to win the bird so as to always possess its beauty. Because the bird is so very small and its beauty so very delicate and subtle, the only way the bird’s beauty can truly be appreciated is for the bird to be perfectly still. So the bird is caged, over many months in increasingly confining cages. Towards the end, the cages are so small that the bird can neither fly nor walk. And then the cage can be taken away because the cage becomes part of the bird’s mind. It is all she knows. That is the phenomenon the psychologists term “learned helplessness” And that is why, my client could not leave after years of brutal abuse, the cage was in her mind.
 Thanks to Attorney Craig Albee, of Federal Defender Services of Eastern Wisconsin, for sharing this jury instruction.
 Thanks to Jodie English, who developed the “fists of steel” language
 Thanks to Attorney Bert Nieslanik, from whom I stole these examples.