Punishing the innocent and protecting the guilty

The title of this post is arguably a misnomer, as you will see, but I think the question it suggests is nevertheless sound.

I have been following the case of Jerome Jay Ersland, a case which has some interesting issues of law, crime and common sense.  The Oklahoman has been on the case and has a substantial archive, so you can "check my work" there.

The facts, as best as can be determined from news reports, are these:  On May 19, 2009, two teenagers attempted a holdup of Reliable Discount Pharmacy in Oklahoma City.  As the second robber to enter the store, Antwun "Speedy" Parker, 16, was putting on his mask, Ersland, 59, shot him once in the head.  Unconscious, the unarmed Parker fell to the floor.  The other robber, Jevontai Ingram, then 14, who was armed and had entered the store before Parker, fled.  Ersland chased Ingram for about a minute, but did not catch him.  Ersland then returned to the store, got a second gone, and then shot Parker five more times in the abdomen. 

The coroner's office determined that the wounds in the abdomen were the cause of Parker's death.  The part of the incident inside the drug store was caught on and recorded by security cameras.  That Parker and Ingram were trying to rob the store is not in dispute.
Ingram ultimately was caught and pled guilty to first degree murder and conspiracy to commit robbery.  Anthony Morrison, 45, and Emanuel Mitchell, 37, apparently had planned the robbery and recruited Ingram and Parker.  Morrison and Mitchell were convicted of, among other things, felony murder. 
Despite his claim that he was defending himself and two female co-workers, Ersland was convicted of first degree murder and was sentenced to life imprisonment.  Parker's family is filing a wrongful death suit against Ersland.

Speaking only generally, because I'm not familiar with Oklahoma law, it seems that the jury got the verdict right.  Oklahoma is a "Castle Doctrine" state, meaning you have the right to defend your home or business as if it's your castle, but you must still reasonably believe that your life is in danger before you can use deadly force.  A robber lying unconscious on the floor from a gunshot wound to the head does not qualify.  As the prosecutors in the case said, the first shot was justified, but the last five were not.  Even Ersland's son Jay said, "[the] jury handed down a decision based on the letter of the law [...]"  More on that quote later.

As you know, I am extremely tough on crime, having been a victim of it myself.  Crimes with actual victims other than the perpetrators, that is.

So I gotta wonder about the use of "prosecutorial discretion" here, who or what precisely is served by this prosecution and what good, if any, will come out of it.

The Oklahoma County District Attorney, David Prater, justified the prosecution this way:

District Attorney David Prater [...] said Ersland was found guilty by a "stoic and serious jury" that has been criticized by bloggers and others who didn't see the evidence or hear the testimony in the case.

"Me and my office have been criticized. Even the defense team has been criticized," Prater said. "The rule of law applies. No one is above it."

Right.  The world needs to be protected from the likes of Jerome Ersland.  People walking down the street at night are afraid they will be shot by people like Ersland.

For clarity's sake, that was sarcasm.

As for the quote from Jay Ersland, I used the old trick of the misleading ellipsis, but only to illustrate that the conviction is at least defensible  Here is the full quote of what he said:

"We hope that eventually our voice will make a difference in freeing him from prison," Jeff Ersland said. "While a jury handed down a decision based on the letter of the law, we do not believe that complete justice was served in this tragic case of self-defense.

"We believe that armed robbers who enter our businesses and threaten our lives bear the responsibility for the outcome of an armed conflict that they initiate."

Let me emphasize that statement: We believe that armed robbers who enter our businesses and threaten our lives bear the responsibility for the outcome of an armed conflict that they initiate.

And that's the problem I have with this prosecution.  Jerome Ersland was not threatening anybody, was minding his own business until two thugs (oooh! I'll get in trouble for that now!) came in with a gun and tried to rob his store.

Ersland's ultimate response may have been unreasonable, but it was as a result of being forced into an unreasonable situation through so fault of his own.  What would the reasonable result have been? One can argue Ersland's first gunshot.  But I'm not certain it is reasonable to expect complete reasonableness from someone thrust into such unreasonable circumstances.  Gun pointed at you, scared, adrenaline flowing, thinking of what to do ...

Parker brought this upon himself.  He chose to rob the store, using the threat of deadly force.  He and his accomplices are the ones responsible for this incident, not Ersland.  Yet the prosecution in this case -- the prosecution of this case -- failed to acknowledge that simple and uncontested fact: but for the actions of Antwun Parker, actions that constituted a serious crime, actions that threatened someone else, he would be alive today.  No one on the prosecution side of the ledger seems to acknowledge Parker's role in all this or how it should mitigate the crime of Ersland.

Part of a prosecutor's job is to protect the community.  How is the community safer because Jerome Ersland is no longer on the streets?  He shot and killed someone trying to rob him.  The robber is off the streets for good.  Did Ersland act as judge, jury and executioner? Arguably, yes.  But it's a role he did not seek, did not want.

It should be noted that I tried several searches to find what criminal record, if any, Antwun Parker had.  I found nothing conclusive indicating that he had such a record, though as a juvenile it is likely that any such record would be sealed.

This case is part of a disturbing trend in US criminal law of what I call "protecting the guilty and punishing the innocent."  Ersland, up until this incident innocent, was convicted as a way of protecting people like Parker, who at the very least was trying to commit a violent crime against Ersland.  Nail innocent people like Ersland on legal technicalities, then trumpet how you're protecting rule of law, while doing little to effectively curb the more dangerous criminal activities of people like Parker.

It's no different than groping the wheelchair-bound grandmother at an airport security checkpoint while letting the guy shouting "Allahu Akbar!" and wearing a bomb vest through unscathed.

It might be legally correct, but it's still wrong.  Dangerously wrong.