Media Sloppiness

From Hudson News 12, via Andrew Branca:

ANNAPOLIS, Md. – A New Jersey detective was acquitted today of all charges in the killing of a driver during an alleged road-rage incident.

Joseph Walker, an investigator for the Hudson County Prosecutor’s Office, has been cleared of first-degree murder in the death of 36-year-old Joseph Harvey, of Lansdowne, Maryland.

Prosecutors say Walker, 41, shot Harvey after the two pulled over in Millersville on June 8, 2013 after some traffic jostling. Walker’s lawyers have said their client thought he, his wife and three children were in danger when he fired his gun.

"Traffic jostling." It was reporting like this that led me to think, when this case first made the news, "Great. Another trigger-happy cop, off duty and out of his jurisdiction, exercising privileges the rest of don't get, guns down an unarmed citizen. The police will ignore it out of professional courtesy."

But then I read the cop's testimony (again, courtesy of Legal Insurrection):

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.

Apparently, up to this point, none of Walker's testimony is contested. So already, characterizing this as "traffic jostling" is grossly misleading, implying as it does that both parties were engaging in it. (This is roughly like the media's penchant describing an anti-Christian pogrom as "The Muslims and Christians are fighting . . .")

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.

Those last six words strike me as the most important. How drivers-by were able to take that in when Pidel himself didn't mention it (according to this account) is beyond me, but if it's true, it really does sound like Walker shot Harvey in revenge for the racial taunting.

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.

"Duty to Retreat" is a good policy but a bad law when it's used to deny a self-defense claim. Yet that aside, even under an interpretation of the testimony most favorable to the state's case, it's hard to argue that "driving away" constitutes a safe avenue of retreat from a person who has already run you off the road. But there are other interpretations as well: that Walker thought that the display of his badge would deter aggression, and didn't believe deadly force was warranted until it was too late to retreat.

Bottom line: this is a closer call than the Zimmerman case, but I'm inclined to think the jury got it right.