Is it true that there is no castle doctrine in our state?

[jkeiler]

Well, no. The castle doctrine is the same if the substantive standard is the same, whether in the case law or in a statute. A statute will not protect you from being charged if the prosecutor thinks that the elements of the doctrine are not satisfied. The inquiry of the prosecutor is the same: Can I get a conviction? Doesn't matter where the standard is set forth as the instructions for the jury will be the same, regardless of the source of the substantive standard.

And yes, the MD castle doctrine is in the case law. But, self defense is an affirmative defense in all 50 states. I will point out that in MD, unlike, say, Ohio, the person invoking the defense need only introduce "some evidence" on the elements (as little as the testimony of the defendant) and then the burden shifts to the prosecution to prove beyond a reasonable doubt that one or more of the elements of the defense are not satisfied. See, e.g., Redcross v. State, 121 Md.App. 320, 708 A.2d 1154 (1998). In Ohio, in contrast, the burden of proof rests entirely on the person claiming the defense and no burden shifting takes place. See Martin v. Ohio, 480 U.S. 228 (1987) (sustaining the constitutionality of the Ohio practice). The burden of proof is hugely important in a criminal trial. This matters far more in assessing the practical availability of the defense in trial than whether the elements of the defense are laid out in the case law or in a statute. You are perhaps more likely to get charged in MD because *some* MD prosecutors are like that, but, legally, the Maryland practice, as established in the case law, is actually pretty good for defendants before a jury.

One quibble on this. The inquiry of the prosecutor is supposed to be "can I get a conviction" with a yes answer resulting in prosecution. Unfortunately not all prosecutors stick to this ethical guideline--the Zimmerman case being an example--and prosecute to make a political point or for their own aggrandizement. Although all the facts are not in, that appears to be what is going on with the current case of the Air Force NCO. This I guess would be the "some" Maryland prosecutors noted, but it is important to bear in mind that this judgment, to prosecute even when a good faith review suggests that you cannot win a conviction, is at least ethically improper.

 

[Brooklyn]

One quibble on this. The inquiry of the prosecutor is supposed to be "can I get a conviction" with a yes answer resulting in prosecution. Unfortunately not all prosecutors stick to this ethical guideline--the Zimmerman case being an example--and prosecute to make a political point or for their own aggrandizement. Although all the facts are not in, that appears to be what is going on with the current case of the Air Force NCO. This I guess would be the "some" Maryland prosecutors noted, but it is important to bear in mind that this judgment, to prosecute even when a good faith review suggests that you cannot win a conviction, is at least ethically improper.

AFAIK the grand jury was not bypassed as it was in FL. More over o do not think the public has all the facts. Again I urge that we reserve judgment. It will all come out at trial and we as a comunity should speak out if needed. By then the facts will be known and it will be just in time for the legislative session

 

[esqappellate]

One quibble on this. The inquiry of the prosecutor is supposed to be "can I get a conviction" with a yes answer resulting in prosecution. Unfortunately not all prosecutors stick to this ethical guideline--the Zimmerman case being an example--and prosecute to make a political point or for their own aggrandizement. Although all the facts are not in, that appears to be what is going on with the current case of the Air Force NCO. This I guess would be the "some" Maryland prosecutors noted, but it is important to bear in mind that this judgment, to prosecute even when a good faith review suggests that you cannot win a conviction, is at least ethically improper.

I agree completely. There is, alas, prosecutorial abuse.

 

[DraKhen99]

AFAIK the grand jury was not bypassed as it was in FL. More over o do not think the public has all the facts. Again I urge that we reserve judgment. It will all come out at trial and we as a comunity should speak out if needed. By then the facts will be known and it will be just in time for the legislative session

From reading the case file (online public case search), it appears that the case was kicked up from MD to Federal, bypassing something. There was originally an arraignment date in the middle of October, but all of a sudden that case is "closed" and a Federal one is opened up.

-John

 

[Brooklyn]

From reading the case file (online public case search), it appears that the case was kicked up from MD to Federal, bypassing something. There was originally an arraignment date in the middle of October, but all of a sudden that case is "closed" and a Federal one is opened up.

-John

Then we watch closely. These matters are not my area of experience... .any insight from those with more Knowledge will be welcomed and useful.

But then again this person is active duty military.... not sure how that plays into the federal vs state juristional issues if at all..

 

[DraKhen99]

Then we watch closely. These matters are not my area of experience... .any insight from those with more Knowledge will be welcomed and useful.

But then again this person is active duty military.... not sure how that plays into the federal vs state juristional issues if at all..

I'm with you - I always appreciate those who know more, sharing. The Military is doing its own investigation into this case, from what I've been told. I know that doesn't change its venue.

-John

 

[esqappellate]

I'm with you - I always appreciate those who know more, sharing. The Military is doing its own investigation into this case, from what I've been told. I know that doesn't change its venue.

-John

Interesting development. If he is active duty military he can be tried by the military under the UCMJ no matter where the alleged crime. If the crime was in a state it can be tried by civilian authorities. Or it can be prosecuted in both military and civilian courts (two sovereigns) one after the other. The state and the federal military authorities will typically coordinate to see where the case wil be tried and who goes first. Sounds like the AF wants to go first and the state agreed. Does anyone know if federal charges have been filed? It could be a general court martial.

 

[fred2207]

I've brought up this case on a different thread but it bears repeating due to the reasonable person standard mentioned here.

Here in TX there are different rules. This is a case where a homeowner had some potted plants on his porch that kept going missing.

He caught a person in the act who retreated to their truck and the homeowner shot them in the head.

San Antonio is liberal by TX standards but the Chief said the man wouldn't be charged because he was protecting his property.

http://www.kens5.com/news/Potted-plant-thief-shot-in-head-by-homeowner-SA-police-say-139363363.html

Shooting someone who is retreating from the act of steeling potted plants, without presenting a clear threat to life and limb, does not seem reasonable to me...Now on the other hand, if the retreating thief, once at or in his vehicle, pulls out a hog-leg, or any weapon and presents a threat, then I believe the need for and use of deadly force would be reasonable and expected...Taking someone's life over potted plants would be a hard sell if I was on a jury...

 

[jkeiler]

If it goes to a General Courts Martial, I think that the defendant will be better off in this case.

First, he will get an Article 32 Hearing instead of a Grand Jury to recommend an indictment, if any. The Article 32, unlike a Grand Jury is an adversarial proceeding in which the Defendant and his attorney can appear, challenge witnesses, and if they want, present evidence. Also, in a GCM, should the Article 32 go against him, he would presumably have a more sympathetic jury. The only downsides are that GCM verdicts do not have to be unanimous, and in the event he is convicted, he might be looking at a harsher punishment.

Still, were I the Defendant, I'd rather the GCM than a prosecution through the MD system.

 

[Brooklyn]

Shooting someone who is retreating from the act of steeling potted plants, without presenting a clear threat to life and limb, does not seem reasonable to me...Now on the other hand, if the retreating thief, once at or in his vehicle, pulls out a hog-leg, or any weapon and presents a threat, then I believe the need for and use of deadly force would be reasonable and expected...Taking someone's life over potted plants would be a hard sell if I was on a jury...

In TX you can use deadly force to defend property.. so it was not in fact a self defense claim at all as I understand it.

Now if you consider that property on the high plains is a matter of life and death you can see that it might make sense once.

I were in the back country someplace and you took my transport or my water or my rations --- that is a threat to life..

TX law still recognizes that I guess.. Now a potted plant --- lets just say cases like this can make a good argument for NEVER allowing defense of property with lethal force..

I expect more good sense from the public I hope he is at peace with his killing over a plant ...

 

[JettaRed]

Was it a potted plant or a pot plant? Just wondering.


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[Tac]

I expect more good sense from the public I hope he is at peace with his killing over a plant ...

This perpetrator had repeated gone on another mans property with the intent to steal his possessions. It's not about what he stole. Once ok. Twice okay. But the criminal had made a conscious decision that he could take from this man, when he wanted. I don't think the owner should have waited for the criminal to go beyond the porch and push inside the house on a visit. Maybe it would have taken a few more times, who knows, but this man simply defended what was his.

Maybe the monetary value is low at first but knowing that people would come take things off the front of your house has to wear on you. I feel horrible for the owner and the criminals family. I feel nothing for someone who repeatedly victimizes someone.

 

[JettaRed]

Really tough call, and we don't know all the facts. But not all possessions have equal value. That's a truth as old as man. When God favored Abel's sacrifice (animal) over Cain's (plants), it was because of the greater value of the sacrifice. Animals have a greater intrinsic value over fruit because of the cost to raise, feed, etc and animal versus a plant. The fruit of a plant is replenished. And animal is gone forever once consumed.

In Texas, I've got to believe the law was base on cattle and horse thievery (at least that's what Hollywood would have you believe.)

So, it is more that the principle at stake.


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[Brooklyn]

This perpetrator had repeated gone on another mans property with the intent to steal his possessions. It's not about what he stole. Once ok. Twice okay. But the criminal had made a conscious decision that he could take from this man, when he wanted. I don't think the owner should have waited for the criminal to go beyond the porch and push inside the house on a visit. Maybe it would have taken a few more times, who knows, but this man simply defended what was his.

Maybe the monetary value is low at first but knowing that people would come take things off the front of your house has to wear on you. I feel horrible for the owner and the criminals family. I feel nothing for someone who repeatedly victimizes someone.

The failure to act in a proportionate manner is why defense of property with lethal force is no longer lawful at all most states..

He was driving away and was shot in the head. -- what would Frosh do with that ?

Think before you shoot. Collateral damage is also possible -- may it was justified, but I am betting it was more range than justice ...

Want to restore the idea of self defense in America -- don't kill over trial issues --

 

[Brooklyn]

Really tough call, and we don't know all the facts. But not all possessions have equal value. That's a truth as old as man. When God favored Abel's sacrifice (animal) over Cain's (plants), it was because of the greater value of the sacrifice. Animals have a greater intrinsic value over fruit because of the cost to raise, feed, etc and animal versus a plant. The fruit of a plant is replenished. And animal is gone forever once consumed.

In Texas, I've got to believe the law was base on cattle and horse thievery (at least that's what Hollywood would have you believe.)

So, it is more that the principle at stake.





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That is very true-- but it would have been more than one head of cattle, and the horse was transport. I can make the case in both those cases even today.

The law expects proportionality and when that does not occur the law removes discretion and we all loose --

 

[JettaRed]

Agreed. You made the point I was trying to make.


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[iH8DemLibz]

This perpetrator had repeated gone on another mans property with the intent to steal his possessions. It's not about what he stole. Once ok. Twice okay. But the criminal had made a conscious decision that he could take from this man, when he wanted. I don't think the owner should have waited for the criminal to go beyond the porch and push inside the house on a visit. Maybe it would have taken a few more times, who knows, but this man simply defended what was his.

Maybe the monetary value is low at first but knowing that people would come take things off the front of your house has to wear on you. I feel horrible for the owner and the criminals family. I feel nothing for someone who repeatedly victimizes someone.

Very well said.

What thieves really steal is piece of mind and a bit of your human soul. It has nothing to do with the item or the value of the item.

The only thing worse than a thief is a person who lies. They rob you of trust which is not easily replaced. We are currently being told one lie after another in this country to the detriment of its citizens.

You want something, buy it yourself. Leave other people stuff alone. Thou shalt not steal rings a bell.

I say bring back 19th century law regarding personal property on private property, but that's just me. Theft would drop 97% overnight.

The more I read on this site, the more I realize it's a lot of Liberal minded people in Gun Owners clothing.

 

[Brooklyn]

Very well said.

What thieves really steal is piece of mind and a bit of your human soul. It has nothing to do with the item or the value of the item.

The only thing worse than a thief is a person who lies. They rob you of trust which is not easily replaced. We are currently being told one lie after another in this country to the detriment of its citizens.

You want something, buy it yourself. Leave other people stuff alone. Thou shalt not steal rings a bell.

I say bring back 19th century law regarding personal property on private property, but that's just me. Theft would drop 97% overnight.

The more I read on this site, the more I realize it's a lot of Liberal minded people in Gun Owners clothing.

Just out of curiousity do you know the man was a thief of are just taking the word of the guy that killed him?

In fact all that would happen is that thieves would kill their victims first... That in fact is the lesson of history...

 

[Tac]

The failure to act in a proportionate manner is why defense of property with lethal force is no longer lawful at all most states..

He was driving away and was shot in the head. -- what would Frosh do with that ?

Think before you shoot. Collateral damage is also possible -- may it was justified, but I am betting it was more range than justice ...

Want to restore the idea of self defense in America -- don't kill over trial issues --

I agree in principle and am going off of very limited facts. I don't approve of shooting anyone in cold blood but likewise I don't feel sorry for the thief or think the home owner should go to jail. I think most likely you're right the homeowner was reacting out of adrenaline and anger. IMO the thief created that response though through intentional action. If I steal from a store I know what I'm going to get. If I violate someone's home repeatedly, I expect anything can and will happen. I'm not saying it's legal I just think it carries with it a different impact on a persons mental state, and this I have a harder time condemning the home owner. The great and wonderful state of Maryland would probably disagree with me however

I feel bad for the homeowner and the suspects family. Not so much for the suspect.

FYI sorry for intentionally derailing I just wanted to clarify I DO NOT have an itchy trigger finger for the first Girl Scout or magazine salesman that steps onto my property. Lol

 

[fabsroman]

That is very true-- but it would have been more than one head of cattle, and the horse was transport. I can make the case in both those cases even today.

The law expects proportionality and when that does not occur the law removes discretion and we all loose --

All I have to say is "STAY OFF MY GRASS". Want to contact me, send me a letter. You can see my address online, from the street, etc. Don't come up here selling steaks from the back of your truck. Do not come up here to preach religion to me. The world is not what it used to be. Once upon a time, we knew our neighbors in the community. The community was small and nobody was unknown.

Now, we have BS like the game "knockout". I just saw a news article on it, and it is disgusting.

Some idiot stole something off of my lawn tractor sweeper that I had underneath my deck and it was a PITA. My wife and I both felt violated because we thought we had moved into a place where that did not happen.

Just up the road from me off of Marriotsville Road, a buddy had his snow blower stolen and his neighbor had his splitter stolen. Now, I keep everything locked up in my garage with plans to build a huge stand alone garage/barn.

When somebody steals something I have earned, they have in essence stolen a part of my time on this world, which is limited. I had to spend my time earning the item, and that time CANNOT be replaced. Raising crops isn't easy either.