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    Accused NJ Cop Takes the Stand in MD Road-rage Killing

    Accused NJ Cop Takes the Stand in MD Road-rage Killing

    Walker testified he did not attempt to retreat because “I had a split second to make a decision.”

    Joseph Walker, the New Jersey police officer who shot and killed Joseph Harvey Jr. in a Maryland road-rage incident, took the stand this past Friday to testify in his own defense over a 90 minute period, reports The Baltimore Sun.  Walker is charged with first degree murder in the case, and if convicted faces life in prison.

    The events were recounted by Walker as follows (based on how Walker’s testimony was paraphrased by reporters):

    Walker inadvertently drifted into Harvey’s lane while turning from one road onto another.  Harvey responded by screaming at Harvey, “What’s your f*cking problem, n*gger?” followed by “I’ll f*cking kill you, n*gger!”  Walker waved his badge at  Harvey, shouting back “Police! Keep moving!”  (The 41-year-old Walker is black, the 36-year-old Harvey is white.)

    Walker heard a thump and thought something might have struck his van.  (Surveillance video from a nearby Wawa convenience store showed Harvey and his companion Pidel each buying two energy drinks–only three energy drink were later found in Harvey’s car.)  Harvey’s Honda then swerved in front of Walker’s van, forcing Walker to take evasive action. Eventually Harvey pushed Walker’s van off the side of the road, where he stopped.  “I was thinking this was done,” Walker testified.

    Walker had exited his minivan and was inspecting it for damage when he heard his wife yell that the two other men were approaching.  Walker said he first showed his badge, and ordered the men to stop. When they failed to stop, he pulled out his gun.  Walker told jurors, “I wanted to deter the situation . . . hopefully they would forget this and go about their business.”  When Harvey continued to approach, Walker shot him once. Walker testified that Pidel stopped, which is why he did not shoot Pidel.  Harvey, however, continued to approach, and Walker shot him two more times.  Harvey’s injuries would prove mortal.

    Walker’s wife testified earlier in the week, her recounting largely matching those of her husband, and noting that she was in fear for her life and those of her children.

    Other witnesses, however, provided testimony that was inconsistent with that of Walker.  Pidel, Harvey’s companion, testified that Walker never announced he was a police officer and never showed his badge.  Some other witnesses, who were driving past on the road by where the conflict occurred on the shoulder, testified that Walker stood with crossed arms as Harvey and Pidel approached, and that Harvey stopped prior to being shot.

    Key to the case, of course, is that Maryland is a vigorously enforced duty-to-retreat jurisdiction.  If one has a safe avenue of retreat available, one must make use of it before using deadly force in self-defense.  Here, the prosecution argues, Walker could simply have stayed in his minivan and driven away as Harvey approached on foot.

    Walker’s explanation for why he didn’t do exactly that? “I had a split second to make a decision.”

    Strictly speaking, if this is true it would be an adequate explanation.  The avenue of retreat available must be absolutely safe, and the duty to retreat is not applied when the attack faced is so immediate as to make safe retreat impossible.  Based on his own testimony–retrieving his badge and gun, first displaying the badge, ordering the men to stop, then shooting–it would seem that more than a split-second was available.  Whether, of course, Walker was indeed left with merely a “split second” to make his decision will ultimately be determined by the jury.

    News reports indicate that closing arguments in the case are expected to take place this coming Tuesday.

    –-Andrew, @LawSelfDefense

    P.S. The newest Law of Self Defense University Video/Podcast has just been released:  “#004: The Intersection of Tactics and Law.” Enjoy!


    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 (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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    Comments



     
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    Richard Aubrey | July 29, 2014 at 4:21 pm

    A.B. My point about 1 & 2 is that they are mutually exclusive, yet both must be true.
    1. If W is required to retreat when H is afoot, then H must be reasonably seen as threat. Bumper cars solved that. Anybody who’d do bumper cars is by nature a threat. So W should have driven away, that being a safe avenue of retreat and H being an obvious threat.
    2. The state must prove–this is the state asserting coulda/shoulda–that W would know driving away is safe because H could in no way be expected, in fact the thought should not even have occurred to W, to restart bumper cars. It would be unreasonable to think driving away would also be dangerous because of…..look, a squirrel! The bumper cars we told you about earlier…we were lying. Never happened. That’s why H was a threat when we need him to be a threat and not a threat when it would be inconvenient to the state’s case.
    All very clear.

    This brings up another question: Couple of buttheads walking down the sidewalk emitting thuggish menace (TM). Honest citizen coming the other way is assaulted and one or both buttheads lose bigtime.
    In a DTR state, is the honest citizen guilty for failing to sense the TM?
    And do cops have TM meters? “Excuse me, sir, I’ll have to place you under arrest for excessive TM.”
    Seems to me that the honest citizen is required to react to something which is not illegal in case the butthead decides to assault him.
    DTR cedes the public spaces to thugs and bullies even before the thugs and bullies do anything illegal.


       
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      bildung in reply to Richard Aubrey. | July 29, 2014 at 8:22 pm

      Good points, Richard–there’s a whole lotta ‘shoulda, coulda, woulda’ in AB’s presumptions about Walker’s supposedly feasible line of retreat.

      One would think even minimally competent defense counsel could sow that sort of reasonable doubt with the jury.


         
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        bildung in reply to bildung. | July 29, 2014 at 8:26 pm

        PS Richard

        I like your observation about DTR ceding the public space to thugs.

        But that is precisely the leftist mind set–look no further than current Obama policy in the Gaza war: Israel shouldn’t defend itself, since its in no real imminent danger of extermination or even real harm.

          “I like your observation about DTR ceding the public space to thugs.”

          A very legitimate policy position. I hold it myself.

          But irrelevant in this case, as the MD legislature has discarded it, in their adoption of DTR.

          Oofah.

          –Andrew, @LawSelfDefense


             
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            bildung in reply to Andrew Branca. | July 29, 2014 at 10:06 pm

            It is irrelevant in a formal, structural sense–true enough.

            But it will not be irrelevant if several jurors hold the same ethical views of DTR as you, myself, Richard and others.

            In fact, I should think such ethical views would be widespread, even in blue MD, but as a life long red stater I may be mistaken.

            My vote to acquit would be unshakeable, regardless of the brain numbing, eye glazing legalistic transubstantiations submitted, in writing or otherwise, by judges or prosecutors.

            These legal techs, and that’s all they are, do not own the law or Walker’s fate.

            Only the jury does now.


     
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    Gremlin1974 | July 29, 2014 at 10:23 pm

    “But it will not be irrelevant if several jurors hold the same ethical views of DTR as you, myself, Richard, and others.”

    While I agree with you in principle, I wouldn’t hold my breath.


     
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    Richard Aubrey | July 29, 2014 at 11:04 pm

    I do have a philosophical difference with MD’s DTR law. But my major point here is that the state needs my #1 and # 2, both. And they’re mutually exclusive.

    Depending on the ink this gets in the state, it’s possible a good many of the citizens will be astonished at what the clowns they so carelessly elected have foisted on them.

    Even in a DTR state,a person shouldn’t be pursued by an angry legally intoxicated person filled with road rage. Detective Walker had the right of self preservation against an angry drunken aggressive person,even in a DTR state.

      The legal duty to retreat is not suspended merely because the aggressor is intoxicated and/or angry.

      If it were, it would hardly exist at all.

      And in MD it DOES exist. Very much.

      –Andrew, @LawSelfDefense


       
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      Gremlin1974 in reply to m1. | July 30, 2014 at 4:48 pm

      I agree, a person “shouldn’t” have to retreat in the face of a criminal ever. However, regardless of your or my belief the law in the state in question disagree’s with us and the law wins.


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