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    Witness says off-duty “Road Rage” cop not aggressor in Maryland shooting

    Witness says off-duty “Road Rage” cop not aggressor in Maryland shooting

    A witness of the deadly road-rage confrontation consistently identifies the deceased, Joseph Harvey, Jr., as the aggressor looking to fight

    The upcoming trial of Joseph Walker involves an off-duty New Jersey police officer traveling through Maryland with his wife and small children in a Kia minivan, and Joseph Dean Harvey, Jr., traveling the same roads with his friend, Adam Pidel in a Honda Accord. A road rage incident ensues, a confrontation occurs, and Walker shoots Harvey dead on the side of the road.

    Walker, charged with first degree murder and several firearms enhancements, claims that he shot and killed Harvey in necessary self-defense, and defense of his wife and children.

    The key difficulty with the defense narrative is that Maryland is a duty-to-retreat state, under the law, and Harvey was unarmed and on foot and Walker had immediate access to a motor vehicle, under the facts.

    In such jurisdictions under such scenarios the courts almost always require that the defender make use of his operable vehicle to safely retreat from the confrontation before that defender is permitted to lawfully resort to deadly force in self-defense.

    An odd wrinkle of Maryland self-defense law appears to be that although a duty to retreat is imposed upon a defender acting in defense of himself, the duty to retreat does not apply if the defender is acting in defense of others. It has yet to be seen how this will play out in court.

    Nevertheless, a number of witness statements to police are being released and shedding light and providing context to the sharp and fatal confrontation between Harvey and Walker.

    In this post we share the testimony to police of a redacted (as to identity) witness who was the passenger in a vehicle who observed a portion of the conflict, beginning after whatever event initiated the conflict and ending before the actual shots were fired. Nevertheless, this witnesses’ testimony would appear to be of a nature that would be both compelling to the jury and favorable to Walker.

    Because the witness statement is attached as Exhibit B to the defense’s recent motion to dismiss the charges against Walker, for purposes of this post we will refer to the witness as “Mr. B.” (The official transcript of his statement is located at the bottom of this post.)

    Mr. B tells Trooper First Class Mario Farfan (henceforth, “Trooper”) that when he began observing the vehicles of Harvey and Walker it was clear that a road rage confrontation was already taking place. Mr. B was in the right front passenger seat of the vehicle being driven by his friend, and so was in an ideal situation to observe events without distraction.

    He consistently describes Harvey and Pidel as the provokers and aggressors at every stage of the conflict, to the extent he observed it.

    The gentleman in the Honda [Harvey’s vehicle] kept going up and . . . giving them the finger and all this other crap and telling them to pull over.

    The white guy [Harvey or Pidel] kept telling [Walker], “Come on. Come on. Come on. Pull over. Pull over. Pull over.”

    The Honda was way up here [when pulled over]. He had a chance to go, to leave, to get away from the premises, to go.

    The Honda pulls over first. So [Harvey and Pidel] in the Honda jump out of the car.

    [Harvey and Pidel] approach [Walker] in an aggressive way and going towards him. And I been in situations like that. And they look like they wanted some type of trouble.

    [Harvey and Pidel], as soon as they stopped, they popped the doors. [Trooper: Right away.] Yeah. [Trooper: In one second.] Yeah. [Trooper: They were out.] They popped the doors.

    The gray Honda was in front of me. [Harvey and Pidel] were just, throwing the bird up, the finger out the window, telling them to pull over, pull over.

    [Harvey] keeps going back and forth trying to cut [Walker] off and everything. So he’s giving them the bird, showing him, pull over, pull over. So eventually they get in the slow lane. And that’s when the Honda pulls up and pulls over and stops, jumps out of the car. And [Walker] stopped 40, 50 feet back.

    [Harvey and Pidel] looked like they was on a mission. Ready to fight.

    This was road rage.

    [Harvey and Pidel’s] faces was tight. They were gritting like their teeth. And they looked like they was getting ready to start a fight, man.

    [Harvey and Pidel] were moving in a fast manner.

    [Harvey and Pidel] were like trying to get there, real fast mode, like really trying to proceed.

    So [Harvey and Pidel] started aggressively coming towards [Walker’s minivan].

    Mr. B also consistently describes Walker’s conduct as non-confrontational:

    And like [Walker] pulled over. And he just stayed there. And then [Harvey and Pidel] both jumped out of the car. And he [Walker] just stood by his car.

    The Honda pulls over first. And then [Walker] pulls over. And [Walker] just stands by his van.

    [Walker] just stood by his car like this, in a calm gesture, and just stood right by his driver’s door.

    [Waker] was like this [his arms crossed, like] saying “I just want peace.”

    [Walker] was just like this, wondering what was going to happen or wonder what they was going to say.

    As soon as [Walker] seen they was coming, that’s when he got next to his door and just stood there like this [arms crossed].

    When asked by the Trooper if Mr. B had seen Walker doing anything back to Harvey:

    No. He was just driving. Like I said, the black gentleman was just driving.

    [Walker] wanted to get away from [Harvey]. [Harvey] was slowing up, slowing up, slowing up, slowing up. And then [Harvey] finally stopped. And then [Walker] stopped, a good 30 or 50 feet.

    Mr. B also described a considerable disparity of force situation (but for Walker’s use of his sidearm), testifying that both Harvey and Pidel appeared considerably larger than Walker.

    Asked to describe Harvey, Mr. B stated:

    Blondish-like hair, real stocky. 250 [lbs], stocky build, 5’10” or 5’11”.

    Asked to describe pidel, Mr. B simply stated:

    The same, same build. [Trooper: Big guys. Both of them were pretty big guys.] Yeah.

    In contrast, asked to describe Walker, Mr. B stated:

    5’9” or 5’10”. [Trooper: Was he a big guy? Small guy?] No. Thin. [Skinny?] Yeah.

    Walker’s legal counsel tells me that they believe the troubling issue of his failure to adhere to Maryland’s duty-to-retreat can be legally avoided on the basis that he was also defending others—his wife and small children, and that the duty to retreat does not apply in that context.

    A quick review of Maryland’s jury instructions confirms that duty-to-retreat is not included in that context.

    And a rational argument could be made why it might not be—a person defending themselves has the decision-making power over whether they retreat or not, but they do not have that power over a third-person they are defending.

    Yet, it seems a specious argument in this case, where Walker’s own retreat would necessarily have also effected the retreat of his wife and children, as they were in the same vehicle.

    In any case, we’ll continue to analyze witness statements to police and other evidence as it emerges, right here at Legal Insurrection.

    And here’s the official transcript of the actual police interview of “Mr. B.”:

    –-Andrew, @LawSelfDefense

    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.


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    MarkS | March 9, 2014 at 4:07 pm

    Self defense? Defense from what? What was Harvey doing, at the time Walker decided to shoot him, that justified a deadly force response?

      That one doesn’t seem like the tough question to me. Two substantially larger men manifesting an intent to engage in a violent attack upon him and his family is a pretty good disparity of force argument.

      The real issue here would seem to be on the issue of avoidance.

      –Andrew, @LawSelfDefense

        JackRussellTerrierist in reply to Andrew Branca. | March 9, 2014 at 9:00 pm

        If this witness is telling the truth about Harvey’s and Pidel’s behavior BEFORE anybody stopped, then Walker, a seasoned peace officer, would have perceived the threat BEFORE stopping. Had Walker been truly afraid, called for help and kept driving, Harvey would be alive.

        Walker is not the average citizen in this case. He’s an investigator with a police background. He knew the steps that should have been taken, but he chose not to follow those steps.

        I think Walker was angry, not frightened.

    Bruce Hayden | March 9, 2014 at 6:08 pm

    This seeming trend to turn self-defense cases into 1st Degree Murder is a bit bothersome. Where was the premeditation? My understanding is that Walker was probably armed, because he has to be armed at all times (except when he goes into NYC, and there is a NJSP barracks apparently right by the border with NYC where they are supposed to store their firearms). The warning shot, followed by the two deadly shots, seems to be the opposite of premeditations – that he only shot when he believed that he had to, and that he had not premeditated shooting Harvey.

    Question to Andrew, et al. – does MD have the same sort of lesser included charges law as FL, where prosecutors can overcharge (1st degree in Dunn’s case, 2nd degree in Zimmerman’s), and then get the additional jury instructions for the lesser, more realistic, charge at trial?

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