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.
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.DONATE
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