Friday, October 25, 2013

A too-novel legal theory of self defense

Criminal defense lawyer Andrew Branca highlights this weird story from Colorado:
A Colorado judge denied immunity under the state’s “Make My Day” law to a woman charged with 1st degree murder. The defendant, Marla Abling, has been charged with first degree murder for the strangulation killing of her estranged boyfriend, Rory Alba.
The couple had a history of alleged domestic violence, and Abling had obtained a temporary restraining order that forbid Alba from going to Abling’s apartment. Despite this, Alba was in Abling’s apartment when she killed him.
Abling made a pre-trial motion for immunity from criminal prosecution under Colorado’s “Make-My-Day” law. In relevant part, §18-1-704.5 “Use of deadly physical force against an intruder” authorizes the use of deadly force, and provides both criminal and civil immunity for such use of force, even against a person who does not present an imminent threat of death or grave bodily harm if all of the following conditions are met:
(1) The person using the deadly defensive force is the occupant of a dwelling at the time, AND
(2) The person against whom the deadly defensive force is used has made an unlawful entry into the dwelling, AND
(3) The occupant has a reasonable belief that the other person has committed a crime in the dwelling (in addition to the uninvited entry) OR the other person is committing or intends to commit a crime (in addition to the uninvited entry) AND
(4) The occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
Abling argued that she meets the conditions of the “Make-My-Day” law because (1) she was the occupant of the dwelling; (2) Alba’s entry into the dwelling was unlawful because of the presence of the temporary restraining order; (3) based on his prior conduct she had a reasonable belief that he intended to commit a crime in addition to the unlawful entry; and (4) for similar reasons she had a reasonable belief that he might use physical force against her.
Unfortunately for Abling, however, over the course of six days of testimony on the immunity motion, the prosecution presented evidence that convinced the judge that Abling’s conduct did not fall within the scope of the “Make-My-Day” statute.
There was evidence that Alba may have been invited to the apartment by Abling, rather than being an intruder. Phone records indicated ongoing and mutual communication between Alba and Abling, and the two had also been seeing together around town, despite the prohibitions against this by the restraining order.
Further, Alba’s keys were found hanging neatly on the key hook by the front door. It also appeared that Alba spent hours at the apartment with Abling before he was killed, and that the two may have engaged in consensual sex during that time. All of this seems behavior more consistent with that of an invited (and welcome) guest than of an unwanted intruder.
Most damning, however, was the prosecution witness that testified to overhearing Abling at a hair salon days before Alba’s death talking about ways to kill him. Oops.
You don't need a law degree to get to the logical heart of this self-defense claim, but Branca, a specialist in the law of self defense, gives it anyway, in the somewhat understated form for which we lawyers are generally known:
[W]hile I have seen a great many items used as defensive weapons in my years as a defensive trainer and in my legal work in the law of self-defense, the claimed necessity to kill an attacker by means of strangulation via electrical cord is certainly novel to my experience.
I wonder if Abling will next try the Chewbacca Defense.

Thursday, October 17, 2013

Book review -- John Bell Hood: The Rise, Fall, and Resurrection of a Confederate General.

Sorry for the extremely light posting. Between work and final preparations for the book, I’ve had very little time for blogging, though if you follow my Twitter feed I’ve been fairly active over there.

But it has not stopped me from reading my usual dozen or so books at one time, so let’s do a book review.

My latest interesting read is John Bell Hood: The Rise, Fall, and Resurrection of a Confederate General, by Stephen M. “Sam” Hood, who is a distant relative of John Bell Hood.

John Bell Hood is a controversial figure in Civil War histories, generally seen as brave (he lost the use of one arm and one leg to battle wounds), but overly aggressive and rather stupid. He is most (in)famous for the ill-fated 1864 Nashville Campaign, in which he led the Confederate Army of Tennessee in an invasion of its namesake, with the operational objectives of liberation of the state and potentially driving up to the Ohio River, and the strategic objectives of forcing Union General William T. Sherman to abandon his march to the sea and move west to stop Hood.

It was a desperate move, but by this point in the war with the Mississippi, Chattanooga, and Atlanta now in Union hands, the Confederacy was well-past desperation.

Sherman did not move west. To stop Hood’s move, Union General George (“Rock of Chickamauga”) Thomas was collecting federal troops in a blocking position at Nashville, which had been held by the Union for 3 years and was heavily fortified. The trick was that those troops had to beat Hood’s army to Nashville.

For Union General John Schofield, this was kind of a problem, since his troops were directly in Hood’s line of march. That problem became a grave crisis on November 29, 1864, when Hood managed to outflank Schofield and get between the Union army and Nashville near Spring Hill. But through command and control problems and a poor deployment of the army, Hood’s troops did not block the road which Schofield was using to march to Nashville, and Schofield’s troops marched within a football field of Hood’s sleeping troops during the night and escaped. When Hood woke up the next morning, he went had breakfast with his senior generals at a mansion with the bizarre name of Rippavilla and supposedly threw a tantrum for the ages.

Schofield continued his flight northward towards Nashville, but was blocked by the flooded Harpeth River at the town of Franklin. As his forces repaired two damaged bridges and started his supply train across, his infantry and artillery were forced to deploy in defensive positions facing south. Sure enough, late that afternoon, Hood’s troops caught up with him.

The result was the Battle of Franklin, one of the bloodiest battles of the Civil War and Hood’s most controversial action. With the fading light, Hood ordered a frontal assault, and the Confederate infantry charged over two miles of open ground with no artillery support against prepared Union positions with enfilading artillery coverage from an artillery position on the north side of the Harpeth called Fort Granger. It was a slaughter. The Confederates suffered 6,252 casualties, including 1,750 killed and 3,800 wounded. Fourteen Confederate generals (six killed or mortally wounded, seven wounded, and one captured) and 55 regimental commanders were casualties. Among the dead were “The Stonewall of the West” Patrick Cleburne and the talented States Rights Gist (yes, that was his real name).

As one might expect given that Sam Hood is a relative of John Bell Hood, John Bell Hood is a defense of the Confederate general. In fact, it is more of a defense than it is a history, and it, while it does present excerpts of many of the accusations against Hood,   assumes considerable knowledge on the part of the reader of both the Civil War and the conventional opinion of Hood’s actions.

One might say that at times Sam Hood tries too hard to defend the general. One of the generally accepted beliefs is that Confederate General Robert E. Lee had a low opinion of General Hood and was not happy at the prospect of his selection for commander of the Army of Tennessee to replace General Joseph Johnston (himself another controversial figure) during the Atlanta campaign. Sam Hood, who is honest in presenting contradictory evidence, gives Lee’s statements about John Bell Hood to Confederate President Jefferson Davis. First is this:
Telegram of today received. I regret the fact stated. It is a bad time to release the commander of an army situated as that of Tennessee,. We may lose Atlanta and the army too. Hood is a bold fighter. I am doubtful as to other qualities necessary. (Page 12.)
Lee would later elaborate:
I am distressed at the intelligence conveyed in your telegram of today. It is a grievous thing to change the commander of an army situated as that of the Tennessee. Still if necessary it ought to be done. I know nothing of the necessity. I had hoped Johnston was strong enough to deliver battle. We must risk much to save Alabama, Mobile and communications with the Trans Mississippi. It would be better to concentrate all of the cavalry in Mississippi and Tennessee on Sherman’s communications. If Johnston abandons Atlanta I suppose he will fall back on Augusta. This loses us Mississippi and communications with Trans Mississippi. We had better therefore hazard that communication to retain the country. Hood is a good fighter, very industrious on the battle field, careless off, and I have had no opportunity of judging his actions, when the whole responsibility rested upon him. I have a high opinion of his gallantry, earnestness and zeal. General (William) Hardee has more experience in man aging an army. (Pages 12-13.)
 Sam Hood’s conclusion:

In the morning, Lee had rejected not Hood, but rather the act of changing the Army of Tennessee’s command. However, later that same day, after considering the broad geopolitical and military consequences of losing Atlanta, Lee agreed that a change in commanders was necessary. Lee, upon further thought, seemed to endorse Hood, making five positive comments and one negative about his former subordinate. Lee […] noted only Hardee’s previous army management experience but had nothing else to say about him. […]

Lee’s cautious advice to Davis about one of his favorite former subordinates an hardly be taken as a rejection of the proposal to install Hood, although many authors and historians have stated that Lee advised against elevating Hood. The full text of Lee’s longer reply to Davis, rarely provided by authors, speaks for itself. (Page 13.)

Indeed it does, but it does not say what Sam Hood says it says. He calls Lee’s response “cautious” and says Lee “seemed to endorse Hood.” Really? Given that John Bell Hood was indeed one of Lee’s favorite subordinates, don’t you think he would have given a more glowing endorsement than this? If Lee was endorsing Hood, so you think he would have ever said “I am doubtful as to other qualities necessary?” Lee compliment’s Hood’s bravery and fighting ability, but little else. Lee’s statements read like specifically not endorsing Hood while not coming out and saying as much, so as not to be seen as betraying a friend.

For a second example, Sam Hood tries very, very hard to refute the charge that John Bell Hood accused his troops of cowardice, especially after the “affair” at Spring Hill. He does present the quote that is used to support the charge, which comes from John Bell Hood’s own memoirs Advance & Retreat. The quote is a full paragraph:
The best move of my career as a soldier, I was thus destined to behold come to naught.  The discovery that the Army, after a forward march of one hundred and eighty miles, was still, seemingly, unwilling to accept battle unless under the protection of breastworks, caused me to experience grave concern. In my inmost heart I questioned whether or not I would ever succeed in eradicating this evil. It seemed to me I had exhausted every means in the power of one man to remove this stumbling block to the Army of Tennessee. And I will here inquire, in vindication of its fair name, if any intelligent man of that Army supposes one moment that these same troops one year previous, would, even without orders to attack, have allowed the enemy to pass them as Rocky-faced Ridge, as he did at Spring Hill. (Page 214.)
 Sam Hood comments:
Nowhere do the words “fear,” “bravery,” “cowardice,” or “courage” appear in this or any other paragraph relating to this event. All Hood explained was his frustration at the army’s apparent unwillingness to accept battle unless from behind breastworks, which he believed was a “stumbling block” instilled by the tactics of the previous commander. (Page 214.)
A fair interpretation, but by no means the only one or, in my opinion and that of many other historians, the most likely one. For one thing, you do not need to use the words “fear,” “bravery,” “cowardice,” or “courage” to accuse someone of cowardice. Just call them “chicken.” Accusing someone of an “unwillingness to fight” someone unless behind breastworks can reasonably (and easily) be interpreted as cowardice. 

Such stretches are found throughout the book. But that is merely a minor note. Most of Sam Hood’s defenses of John Bell Hood are well reasoned, worthy of consideration, and in many cases persuasive. For instance, as ugly and perhaps Quixotic as the Nashville campaign was, it was done with the complete knowledge and support of Jefferson Davis. Far from keeping Richmond in the dark as to the desperate plight of his army, Hood kept them well informed. Hood also did try his best to take care of his troops, requesting reinforcements and supplies at every opportunity, only to be repeatedly turned down. Sam Hood presents John Bell’s Hood’s tactics as desperate but defensible, which is a reasonable position.

Sam Hood’s John Bell Hood is more case than history, and not always a convincing case, but it presents enough of a case to merit a re-examination of John Bell Hood. And it is a very enjoyable read. The publisher Savas Beatie has made a habit of making high-quality history books focusing on the United States. This is yet another. While not agreeing with all of Sam Hood’s conclusions, it is well worth it to buy John Bell Hood: The Rise, Fall, and Resurrection of a Confederate General and decide for yourself.