Case Highlight: They Tried to Convict Him of Murder. We Proved There Was No Malice. Our client was confronted and violently attacked by a stranger at 3 a.m. in a parking lot. The Commonwealth argued he acted with malice, but the evidence showed a split-second, heat-of-passion response. The jury rejected the murder charge and found him guilty only of involuntary manslaughter, holding him accountable for what actually happened, not what prosecutors wished had happened.

 

This case has been going on for a long time. You heard we're talking about events all the way back in June of 2012, and [THE DEFENDANT] has been waiting for a long time to find out what's going to happen in this case. It's the most important day in his life, and today is the day that he finds out whether he's going to be spending his future in a prison cell for something that he never intended to have happen. The Commonwealth made you a promise at the beginning of this case that they were going to present evidence to you that was so compelling that at the end you were going to be in a state of near certainty that [THE DEFENDANT] intentionally and maliciously killed [THE VICTIM]. We're at the stage now where all the evidence has come and it is gone and it's failed, and it's failed for a number of different reasons.

 

I told you at the beginning that at the end I was going to be asking that you find [THE DEFENDANT] not guilty for two different reasons, one, because he acted lawfully in self-defense, he prepared himself to act in self-defense, and, two, because the Commonwealth can't prove that this was an intentional act; and those two things still apply, and I'm still going to be asking you to find him not guilty on that basis. But just for the time being, before we even get into that, move that to the side. Put it on the back burner. My suggestion to you is that when you begin your deliberations start with the issue of malice. All right. There's a lot of jury instructions. They are confusing. It's confusing even to the lawyers, and we're supposed to know what we're doing; but I urge each and every one of you to individually read over the instructions. They're your guide in this case. They're the law. And you're going to find an instruction that tells you heat of passion excludes malice. In other words, if there's heat of passion, you can't have malice. So the first question that you need to address is was this heat of passion? Of course, it was heat of passion. If this wasn't heat of passion, then I don't know what is. You've seen the videotape a bunch of different times. The whole thing takes ten, twelve seconds. And I know I probably sound like a broken record from the opening statement, but [THE DEFENDANT] is getting confronted by a man who's bigger than him, a guy -- make no mistake about it, [THE VICTIM] is the one that says something to him first, who chooses to initiate this confrontation in a parking lot at 3:00 a.m. with a stranger. He's been drinking. Take a look at the video. He's the one making all the aggressive movements. He's the one that's going forward. [THE DEFENDANT] is going backwards. [THE VICTIM] has a history of violence. He has a history of having a violent temperament. And, most importantly, and it's crystal clear on the video, he is the one who attacks [THE DEFENDANT]. There can be no question about that. It's as clear as day. He runs at [THE DEFENDANT] and he tackles him to the ground. [THE DEFENDANT] didn't make that choice. [THE VICTIM] made that choice.

 

In that sort of a circumstance there is no coherent theory of malice. It is absolutely heat of passion. But you can take a look at all of the other evidence in the case, and each and every bit of it corroborates that this was heat of passion. There is absolutely no malice. I would ask you to take a look at the jury instruction that defines malice. It talks about being motivated by hatred, rage, the desire for revenge. Well, ask yourself, if [THE DEFENDANT] is motivated by murderous rage, is that consistent with the cause of death in this case, a single stab wound? If this man is so enraged, if he genuinely wants [THE VICTIM] dead, wouldn't there be multiple stab wounds? Wouldn't he have been stabbing repeatedly? A single stab wound is not consistent with any theory of malice. I'd ask you to take into consideration when [THE VICTIM] goes back into the Waffle House. If there was malice, if [THE DEFENDANT] is so enraged, he's in this murderous rage and he wants this man dead, at that point why does he walk away? That's not coherent. That doesn't make any sense with any sort of a theory of malice. Ask yourself if this man knowingly and intentionally maliciously murdered a man, why is he going to work the next morning? Does that make any sense at all? Wouldn't you make yourself scarce if you maliciously murdered a man? There's no theory of the case that makes any sense with malice, and the video makes that crystal clear. It only really takes one viewing of the video to come to that conclusion.

 

I almost have to admire that the Commonwealth has in their closing sort of embraced the video as their own, this supports our theory of the case. I guess that's sort of the strategy where you take what's the worst thing for you and you try to make it your own. That interpretation of the video was pure fantasy. I mean, [THE DEFENDANT] is goading him to tackle him? What basis do we have to base that on? [THE DEFENDANT] takes two steps backwards. That's goading him? That's goading [THE VICTIM] to attack him? The Commonwealth focussed on completely insignificant inconsistencies in the testimony. It's really important that he said he didn't look at [WITNESS 1], but, look, he's looking at [WITNESS 1]. What does that have to do with anything? What did all of the forensic evidence that was presented to you have to do with anything? We conceded the point right of the bat it's [THE DEFENDANT]. I really didn't understand why any of that was presented other than to make you think they've got something stronger than what they've got.

 

Ask yourselves why did they show you the autopsy photo featuring [THE VICTIM]'s face? They did it to make you feel bad for him. It made me feel bad for him, but it didn't have anything to do with what you need to decide in this case. It's purely to try to make you feel sad, to create sympathy. And it's okay to have sympathy for him. It is sad. I'm sure everybody's sad about what happened, but there's just no theory of malice that makes any sense whatsoever. And so it sort of begs the question when you've got a case like this where it's obvious that there's not malice, that it's a heat of passion event, why is it being prosecuted as a second-degree murder. I thought that it was interesting that the prosecutor in her closing drew your attention to the manslaughter instructions, because the prosecutors, they're smart, savvy, seasoned experienced prosecutors and they want to present a middle ground to you. It's a strategy. They know that good and reasonable people like to compromise, and what they're hoping that you're going to do is compromise in this case by finding him guilty of manslaughter.

 

Now, it's true that there's no malice in this case. It's clearly not a second-degree murder case, but it's not a manslaughter case either. [THE DEFENDANT] is not guilty. This is a self-defense/accidental death case. Under the laws of Virginia, when you read those instructions, he is not guilty. And so now I'd like to shift to talking about self-defense and accidental death. At its essence the Commonwealth's theory of the case sort of boils down to, [THE DEFENDANT] brought a knife to a fistfight. And it's like we go to all these lawyer clinics and they tell you you've got to have a theme for your case. You've got to have a certain slogan for your case, and I guess that's more or less been their slogan for the case. He brought a knife to a fistfight. But I'd ask you to sort of deconstruct that theory, he brought a knife to a fistfight. First off, he didn't go to a fistfight. He went to the Waffle House to eat. That statement kind of suggests he knew there was going to be a fistfight and knowing that there's going to be a fistfight he brings a knife to it. That's not what happened. He went there to get something to eat and a guy attacked him. He didn't knowingly bring a knife to a fistfight. What about the word fistfight itself? A fistfight, a fight by its own definition means you've got two willing parties. You've got two guys who want to square off against one another. It's like a boxing match. Two guys get in the ring. We want to fight. This was something else entirely. When you've got one guy who's attacking an unwilling participant, that's not a fight. We've got a different word for that. Assault. And make no mistake about it, [THE VICTIM] assaulted [THE DEFENDANT]. The Commonwealth talks about, you know, it wasn't necessary. This is just  going to be a minor scuffle. It's not necessary to take out the knife. You know, he probably could have just turned around and walked away. And those sort of theories, they might sound good when you're in a nice, bright, calm courtroom like we're in now when you've got hours over two days to pore over all the facts, but [THE DEFENDANT] didn't have that luxury. [THE DEFENDANT] was facing a man who had a violent criminal history who's starting something with him for absolutely no reason. He doesn't know this man from Adam. He doesn't know what this man is capable of. There's no legal obligation to turn your back on a man in that scenario. There's no obligation under the law to just curl up into a ball, put yourself in a fetal position, and just hope for the best. I hope this guy doesn't beat my brains in. I hope I'm not beaten to a bloody pulp. That's not the law. Every single man and woman has the right under the law to take steps to defend him or herself. That's the law, and that's the law that's going to be provided to you. And that's not a novel concept. The right to self-defense predates writing laws. That's a natural law, and he had that right. He had the right under those circumstances to arm himself, and that instruction's in there as well, the right to arm, and that's what he did.

 

And who's to say if he hadn't taken out that knife -- what might have happened that night. I suspect we might very well have [THE VICTIM] sitting at the defendant's table. It wouldn't be the first time that he'd be on trial for a violent crime. And if the man was willing to assault members of his own family, what might he be willing to do to a total stranger in a parking lot at 3:00 a.m.? Again, that's not to say that the man deserved to die. Nobody's happy about what happened. [THE DEFENDANT] isn't happy about what happened. He didn't go out there looking to carry something like this on his conscience for the rest of his life. It's perfectly reasonable, it's perfectly okay to have sympathy for him. It is sad. It is a tragedy. He was twenty-three years old. The man had his whole life in front of him. It is sad. And when something like that happens, I do think there's a natural tendency to want to make things right. You want to do something. You want to do anything to make it right, to restore some balance; but what I'm here to tell you is there's no honor, there's no redemption, there's no justice in finding this man guilty. He acted in self-defense, and he never intended for this to happen. He is not guilty.

 

The theory in this case that makes the most sense is accidental death. Take a look at the video. Please. I urge you to look at that video and examine it frame by frame. Consider some of the other evidence we heard in this case. All of it is consistent with accidental death. Every single witness leading up to [WITNESS 2], the last witness in the Commonwealth's case, not a single one of them testified that they saw [THE DEFENDANT] deliberately stab [THE VICTIM]. Nobody saw it. [WITNESS 2] testified that he saw stabbings. I saw him stabbing at him. He described it as being multiple stabs. That's what he said on direct examination. Of course, that's completely inconsistent with the forensic evidence. We know that there was only a single stab wound. But on the cross-examination he said, well actually I only saw the knife once the two of them had been separated and I saw [THE DEFENDANT] on the ground and that's when I saw the knife for the first time. So there's not a single witness who's observing [THE DEFENDANT] stabbing. That corroborates [THE DEFENDANT]'s version of the story. What about the wound itself? A single stab wound. Exactly what we would expect from the man rushing at a guy with a knife, tackling him, and being impaled on the knife. What about the nature of the wound itself? You saw it's a very clean wound. It's not a situation where there was a slash or somebody stuck in the blade and turned it. Just a very clean wound consistent with a man impaling himself on the knife after bull rushing and tackling a man holding a knife. What about [THE MEDICAL EXAMINER]'s testimony that there was an upward trajectory to the wound? You can picture it. That's perfectly consistent with a man who's on top tackling and falling on top of another man and falling onto a blade. All of that evidence is perfectly consistent with accidental death, and you will get that accidental death jury instruction. Please read it. Please apply it. And what it will tell you is that it is the Commonwealth's burden. It's not our burden. It's the Commonwealth's burden to prove to you that this was not an accidental death. They have to prove that beyond a reasonable doubt, and that's the standard for every single element of the offense. Okay.

 

And reasonable doubt, it is the gold standard. Reasonable doubt is the highest standard. It's the highest burden in any courtroom in this country, and their evidence has failed on multiple different levels. They haven't proved malice beyond a reasonable doubt. They haven't proved an intentional act beyond a reasonable doubt. They haven't proven that this was not an accidental death beyond a reasonable doubt. And on top of that, by law this was self-defense. [THE PROSECUTOR] highlighted one of the two self-defense instructions. There are two that are going to be provided to you. One starts with the defendant was without fault. One starts with when the defendant was with fault. The appropriate one to apply in this case is without fault. Even if there were words between the two of them, [THE DEFENDANT] didn't want to fight this guy. I mean, it's an incredible stretch to say "what's up" signaling, I'm ready to duke it out. That doesn't make any sense. There is an entire national beer campaign that's centered around the use of the word wassup. You don't say to somebody wassup and, oh, that means we're going to fight now. That's not reality. He didn't want to fight; and if you look at the video, you can tell he doesn't want to fight. You see [THE VICTIM] leaning forward, doing this. What do you see [THE DEFENDANT] doing? Step back, step back before [THE VICTIM] rushes at him and violently tackles him to the ground.

 

I'm going to be finishing up in just a few moments. Like [THE JUDGE] told you, the Commonwealth gets to make a rebuttal in this case as they call it, and it's always really painful being the defense attorney in that situation because you want to jump up and say, No, that's not the way it is, but I can't do that. But I just want to point out to you that just because they say it last doesn't make it so. They don't get the final word in this case. You get the final word in this case. And you're also going to get a jury instruction, you'll be instructed that all of you, your verdict has to be unanimous. Every single one of you has to be in agreement on what the verdict in this case should be. And I've always thought there's a little bit more meaningful way of putting that to you. The reality is that each and every one of you is individually responsible for the outcome of this case. Every single one of you holds the outcome in your hands. Any single one of you can stand up to prevent an injustice from occurring. And it would be an injustice to convict this man because the Commonwealth hasn't met their burden. They haven't proven malice beyond a reasonable doubt. They haven't proven the intentional act beyond a reasonable doubt. They haven't proven that this was not an accidental death beyond a reasonable doubt. And the self-defense instruction applies here. Read it, apply it, and when you do he is not guilty. Thank you for your attention throughout the trial. Thank you for listening to me now. Thank you for your service.