Court Case Evidence.

[Uncle Buck]

But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?

I really got a good chuckle out of this one.

I have found out that if I follow my lawyers advice, I tend to not have to worry about going to court to begin with.

 

[MLeake]

I don't see the advantage to handloads for carry.

I see a huge theoretical advantage to making handloads for range use that have similar recoil and POI to whatever commercial SD loads I carry, for those guns I have in which I would use reloads. (I say theoretical because I am only just getting into handloading, so it will probably be a while before I have the full setup, plus the skill to come close to duplicating a load.)

It's not like one has to buy tons of SD ammo. A box or two, every now and then, aside from the initial function testing, is all one needs.

Range ammo is something else.

So, I guess the question I have is: Even though the legal risks are small, what would I gain by carrying handloads for SD?

This is not to say I follow every bit of advice out there, even when it's not bad. The magazine disconnect safety has been removed from my BHP, but in that case I do see a clear advantage - the trigger is much smoother, and it's easier to hit the target and not hit things that are not the target. So while there may be some potential risk of being accused of not caring about safety, I feel there's a perfectly good counter argument for the safety of bystanders.

But like I said, I get a clear performance edge in that case, against a pretty low theoretical risk.

Given the quality of current SD ammo, I don't see what the performance edge would be for SD handloads that would offset the pretty low theoretical risk.

Just my $.02.

 

[Bartholomew Roberts]

I realized that fiddletown has posted a lot of links, so here is a repost of the handload cases as well as their original source:

Cases Where Handloads Caused Problems in Court
As promised, here are the sources for records for any who feel a need to confirm the cases I have referenced previously where handloaded ammunition caused problems for people in the aftermath of shootings.

As I have noted in this thread earlier, and as the attorneys who have responded to this matter have confirmed, local trials and results are not usually available on-line. However, in each case, I have included the location where the physical records of the trials are archived.

NH v. Kennedy

James Kennedy, a sergeant on the Hampton, NH police force, pursued a drunk driver whose reckless operation of the vehicle had forced other motorists off the road. The suspect ended up in a ditch, stalled and trying to get underway again. Advised by radio that responding backup officers were still a distance away, and fearing that the man would get back on the road and kill himself and others, Kennedy approached the vehicle. At the driver’s door, the suspect grabbed Kennedy’s Colt .45 auto and pulled it towards himself. It discharged in his face, causing massive injury.

The reload in the gun was a 200 grain Speer JHP, loaded to duplicate the 1000 fps from a 5” barrel then advertised by Speer for the same bullet in loaded cartridge configuration.

This was the first case where I saw the argument, “Why wasn’t regular ammunition deadly enough for you,” used by opposing counsel. They charged Kennedy with aggravated assault. They made a large issue out of his use of handloads, suggesting that they were indicative of a reckless man obsessed with causing maximum damage.

Defense counsel hired the expert I suggested, Jim Cirillo, who did a splendid job of demolishing that argument and other bogus arguments against Kennedy at trial, and Kennedy was acquitted.

This case dates back to the late 1970s. The local courts tell me that the case documentation will be on file at Rockingham County Superior Court, PO Box 1258, Kingston, NH 03843. File search time is billed at $25 per hour for cases such as this that date back prior to 1988.

NJ V. Bias

This is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way. On the night of 2/26/89, Danny Bias entered the master bedroom of his home to find his wife Lise holding the family home defense revolver, a 6” S&W 686, to her head. He told police that knowing that she had a history of suicidal ideation, he attempted to grab the gun, which discharged, killing her. The gun was loaded with four handloaded lead SWC cartridges headstamped Federal .38 Special +P.

Autopsy showed no GSR. The medical examiner determined that Lise Bias had a reach of 30”, and the NJSP Crime Lab in Trenton determined that the gun in question would deposit GSR to a distance of 50” or more with either factory Federal 158 grain SWC +P .38 Special, or handloads taken from his home under warrant for testing after Danny told them about the reloads. However, the reloads that were taken and tested had Remington-Peters headstamps on the casings and were obviously not from the same batch.

Danny had loaded 50 rounds into the Federal cases of 2.3, 2.6, and 2.9 grains of Bullseye, with Winchester primers, under an unusually light 115 grain SWC that he had cast himself, seeking a very light load that his recoil sensitive wife could handle. The gun had been loaded at random from that box of 50 and there was no way of knowing which of the three recipes was in the chamber from which the fatal bullet was launched.

We duplicated that load, and determined that with all of them and particularly the 2.3 grain load, GSR distribution was so light that it could not be reliably gathered or recovered, from distances as short as 24”. Unfortunately, the remaining rounds in the gun could not be disassembled for testing as they were the property of the court, and there is no forensic artifact that can determine the exact powder charge that was fired from a given spent cartridge.

According to an attorney who represented him later, police originally believed the death to be a suicide. However, the forensic evidence testing indicated that was not possible, and it was listed as suspicious death. Based largely on the GSR evidence, as they perceived it, the Warren County prosecutor’s office presented the case to the grand jury, which indicted Danny Bias for Murder in the First Degree in the death of his wife.

Attorney John Lanza represented Danny very effectively at his first trial, which ended in a hung jury. Legal fees exceeded $100,000, bankrupting Danny; Attorney Lanza, who believed then and now in his client’s innocence, swallowed some $90,000 worth of legal work for which he was never paid.

For his second trial, Bias was assigned attorney Elisabeth Smith by the Public Defender’s office. Challenging the quality of evidence collection, she was able to weaken the prosecution’s allegation that the GSR factor equaled murder, but because the GSR issue was so muddled by the handloaded ammo factor, she could not present concrete evidence that the circumstances were consistent with suicide, and the second trial ended with a hung jury in 1992. At this point, the prosecution having twice failed to convince a jury beyond a reasonable doubt, the judge threw out the murder charge.

It was after this that I personally lost track of the case. However, I’ve learned this past week that the case of NJ v. Daniel Bias was tried a third time in the mid-1990s, resulting in his being acquitted of Aggravated Manslaughter but convicted of Reckless Manslaughter. The appellate division of the Public Defender’s office handled his post-conviction relief and won him a fourth trial. The fourth trial, more than a decade after the shooting, ended with Danny Bias again convicted of Reckless Manslaughter. By now, the state had changed its theory and was suggesting that Danny had pointed the gun at her head to frighten her, thinking one of the two empty chambers would come up under the firing pin, but instead discharging the gun. Danny Bias was sentenced to six years in the penitentiary, and served three before being paroled. He remains a convicted felon who cannot own a firearm.

It is interesting to hear the advice of the attorneys who actually tried this case. John Lanza wrote, “When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target.”

He adds, “With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load. With a hand load, you have no such uniformity. Also, the prosecution may utilize either standard loads or a different hand load in its testing. The result would be distorted and could be prejudicial to the defendant. Whether or not the judge would allow such a scientific test to be used at trial, is another issue, which, if allowed, would be devastating for the defense. From a strictly forensic standpoint, I would not recommend the use of hand loads because of the inherent lack of uniformity and the risk of unreliable test results. Once the jury hears the proof of an otherwise unreliable test, it can be very difficult to ‘unring the bell.’”

Ms. Smith had this to say, after defending Danny Bias through his last three trials. I asked her, “Is it safe to say that factory ammunition, with consistently replicable gunshot residue characteristics, (would) have proven that the gun was within reach of Lise’s head in her own hand, and kept the case from escalating as it did?”

She replied, “You’re certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, “It couldn’t have happened the way he said it did’.”

The records on the Bias trials should be available through:
The Superior Court of New Jersey
Warren County
313 Second Street
PO Box 900
Belvedere, NJ 07823

Those who wish to follow the appellate track of this case will find it in the Atlantic Reporter.

142 N.J. 572, 667 A.2d 190 (Table)

Supreme Court of New Jersey
State
v.
Daniel N. Bias
NOS. C-188 SEPT.TERM 1995, 40,813
Oct 03, 1995
Disposition: Cross-pet. Denied.
N.J. 1995.
State v. Bias
142 N>J> 572, 667 A.2d 190 (Table)


TN v. Barnes

The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

The records of TN v. Barnes are archived under case number 87297015 at:

Criminal Justice Center
201 Poplar
Suite 401
Memphis, TN 38103

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.

A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

This is now absolutely, and I hope finally, refuted.

Respectfully submitted,
Massad Ayoob

Source

 

[OldMarksman]

Posted by JerryM: I understand that there was once a problem as to powder burns and distance to the target, but I do not worry about such things either.

Should a question about the distance to the target become pivotal in a trial outcome, it might become a source of considerable worry.

The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.

The question really is one of what would happen in the unlikely event that you did have to defend yourself. It's a matter of conditional probability.

The real question is, if one did have to employ deadly force to defend oneself, might the evidence available after the fact and the testimony given at trial raise sufficient question about the justification? From that follows the OP's question: might the equipment used by the shooter have an influence on the outcome of a trial?

For example,

• had the shooter used a pistol grip shotgun with an extended magazine, night sights, and accessory rails, or perhaps an AR type carbine with combat accessories, might the sinister appearance of the alleged "murder weapon" influence any of the jurors aadversely, even if the prosecutor makes no comment about the weapon, or
• if the distance of the shooting were to come into in question, might GSR evidence prove useful in establshing the distance and substantiating the shooter's account of the incident, thus strengthening his credibility,and if so,
• will that evidence be disallowed for reasons having to due with the rules of evidence?

But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?

In any case that goes to trial, one side loses.

The outcome will depend upon a number of things other than whether the attorney "knew what they were talking about", including

• what evidence is available after the fact;
• whether scientific forensic evidence proves critical, and whether it meets the the rules of admissibility;
• jurors' impressions of the defendant and of witnesses who testify;
• any underlying sympathy felt by any of the jurors for the alleged victim;
• any adverse impressions that the type of weapon used may have upon the jurors, as discussed in the study by Glenn Meyer that has been cited in this thread; and
• other things.

If a self defense shooting occurs indoors in a castle doctrine jurisdiction, and there is clear physical evidence of forced entry, and there is no forensic evidence or other indication that the resident fired when it was not necessary, and there is no prior connection between the shooter and the person shot, none of those issues are likely to arise.

But otherwise, any of them could help determine the shooter's future.

An attorney cannot create evidence that he does not have, or use evidence that cannot be admitted, or change history to correct things that his client may have done to put himself in a less than favorable light.

 

[Don P]

I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition

Curious as to what the cost of a GOOD defense lawyer is and what the cost of the EXPERTS would be when factory ammo takes that aspect of a SD shooting out of the equation.
I'll take what Mas. has posted to heart on this subject

 

[thallub]

This Abshire thing keeps cropping up on this forum. Abshire played self appointed traffic cop: When a driver refused to slow down; Abshire went into his home, got a gun, came back outside and confronted folks by yelling and shining a light into a car. Abshire could have stayed in the house and called the cops. The police report states that Abshire had been drinking.

Abshire is not a role model for a righteous self defense case. Yep, Abshire was found not guilty in criminal court. It also broke him financially.

According to Rogers County deputies, when the motorist refused to slow down in response to Abshire’s verbal efforts, Abshire decided to try a different approach, went into his home retrieving a hand gun and chemical spray and waited for the driver to return.

Allegedly when the motorist returned, Abshire attempted to confront the driver, one thing led to another and Abshire shot the alleged speeder a couple of times which would obviously slow him down, at least for a while.

The shooting certainly slowed Abshire down for a while, as he’s cooling his heels in jail. No word on the condition of the shooting victim, although he was apparently not killed.

The Rogers County Sheriff’s offices says both men may have used alcohol and that may have played a factor in the incident…

http://bubbaworld.com/2007/09/04/shooting-speeders/

 

[Frank Ettin]

...Abshire is not a role model for a righteous self defense case. Yep, Abshire was found not guilty in criminal court. It also broke him financially....

This is neither the time nor place to re-try Mark Abshire. The points for our purposes are that he was acquitted (which means that as far as his jury was concerned he made out a prima facie case of self defense that the prosecution was unable to overcome), and it destroyed him financially.

Anyone interested, can follow the links posted in this thread (posts 37 and 46) and decide for himself.

 

[Frank Ettin]

Bart, thanks for post 43 with that lengthy quote from Massad Ayoob. I'd like to take the liberty of focusing on part of Mas' write up on Iowa v. Cpl. Randy Willems because it focuses on how GSR test data could be vital in a self defense case. Mas wrote, in pertinent part (emphasis added):

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, ... Willems shot him during the third disarming attempt, ... with one hit to the abdomen from a department issue factory round ... The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges....

... this case ...is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations ....

 

[Bartholomew Roberts]

Thallub, Abshire keeps cropping up not as a "model for a righteous self defense shoot" but as an example of someone whose self-defense shoot came at great personal cost even though he was found "not guilty."

Abshire was attacked on his own lawn by six men. He was knocked into a ditch and one man pummeled him while another kicked him. Only after having his front teeth cracked did he draw and use a gun. Last time I looked, the penalty in Oklahoma law for yelling and shining a light at a car wasn't any of those things. I'd agree it could have been handled smarter - and that is one reason it comes up in self-defense discussion a lot - there are a lot of lessons to learn from it precisely because while it was ultimately a good self-defense shoot, it isn't "the model of a righteous shoot."

 

[Glenn E. Meyer]

I personally know experts whose testimonies would shoot down such arguments regarding mods and ammunition

How much would you have to save by handloading to pay for an expert. I know experts and unless you have some deal with them - they cost a fortune.

How much 9mm handloads does it take to save up $5000 for example?

Same old arguments, BTW - as I thought. Thanks for the rational folks who point out the logic and evidence for avoiding court risks for little real world gain.

Also, thanks for blowing holes in the old chestnut about finding cases given the way legal databases work and I wonder why good lawyers read the simulation research and there are journals and newsletters for them. Of course, if you don't read that because you know better and will also have a GOOD shoot - let your appropriate deity shine over you.

Also, if you have an expert - cite that mysterious genius by name - that's how real research works.