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It’s a pleasant May afternoon in East Helena, Montana. Henry
Johnson, 37, is having an easy day so far. There was no one present when he
broke into the home he’s burglarizing.
He’s a lifelong burglar with a lengthy history of violence
and weapon possession, though he’s not armed at the moment. He doesn’t look
like the stereotype of a burglar. He’s wearing gray sport slacks, a
button-front shirt complete with necktie, and running shoes. The only
incongruity in his garb is his mismatched gloves, worn so he won’t leave
fingerprints.
A common burglary MO is to knock on doors dressed like an
ordinary Joe. If someone answers whom he thinks he can take, the burglar can
overpower them, and if the homeowner seems too intimidating, being dressed like
a salesman allows a song and dance; it’s up to him whether to go away when the
homeowner says, “We don’t want any.” And if no one answers the door at all,
why, that’s an invitation to break and enter.
Standing over six feet tall and weighing 241 lbs., Johnson
easily broke through the unanswered door and discovered no one inside. So far,
so good. But he has carelessly left the broken door ajar and the curtains are
up. He is rifling through the china closet in the dining room when he hears a
pickup truck pull into the yard.
Looking out the front window, Henry Johnson sees a much
older man at the wheel of the pickup. Henry Johnson’s day is about to get less
easy.
Homeowner Reacts
In his mid-60s, James Stiffler and his wife of 45 years,
Sandie, are both retired. Sandie has a part-time job and Jim dabbles in real
estate sales and selling guns and accessories. A longtime gun enthusiast, he’s
had an FFL for years.
Pulling into the driveway, he’s noticed an unfamiliar sedan
parked there. It’s a time of day when his wife should be at home, but he can’t
be certain because the double garage doors are closed — so he can’t tell if her
car is there.
But his eyes take in the broken front door, and through the
window, the big stranger. Jim’s first thought is for his wife’s safety. He
can’t know if the burglar brought a weapon with him, but he assumes he has one
because Jim keeps a fully loaded SIG SAUER P220 .45 pistol in plain sight on
his bedside night table. A loaded Remington 700 .223 for varmints is in the
bedroom. He figures the intruder probably has at least one gun by now.
The location is remote, the nearest neighboring house barely
in line of sight, and the homeowner knows it will take too long for police to
get there. There isn’t time to call 9-1-1. Jim grabs the 9mm pistol he keeps in
his briefcase, a compact DA Star UltraStar, and rushes toward his house.
Confrontation
Stiffler moves cautiously through the house, gun at a low
ready. The trigger is in DA mode, his finger outside the trigger guard. With
the curtains open and the sun streaming in, he has plenty of light. He calls
out, “Is anyone here?” Suddenly, there’s a noise in the computer room. Making
his way there, with his wife’s sewing room on his left, he spots the big man
tugging at the knob of the back door of the computer room, trying to open it
and escape. But Johnson doesn’t know the door is double-locked and isn’t going
to open.
He turns angrily toward Stiffler.
The View From Behind The Gun
Henry Johnson growls menacingly, “I’m going to hurt you!” He
lunges at Stiffler. To Jim, the rest of the world falls away: There is only the
huge man coming toward him as if reaching for Jim’s gun.
Jim Stiffler is more than 60 lbs. lighter than Henry
Johnson, inches shorter, and hobbled by a bad back and a knee so bad it
requires the brace he’s wearing now. There is only one reasonable thing left to
do.
Jim Stiffler snaps his 9mm up to a Weaver stance and fires.
He sees Johnson spin away from him, moving rapidly to
Johnson’s right and Stiffler’s left, running toward the sewing room. Stiffler
stops shooting, with only the one round discharged. He sees the intruder enter
the small adjacent sewing room. Jim hears him cranking open the window and
realizes that’s where he’s going to exit. Jim heads outside to see where the
man is going.
There is a brief “WTF?” moment. Jim hears an engine come to
life and then roar; there’s a sound of spinning tires and gravel hitting the
house. Jim has made his way back outside, hobbling on the bad leg as fast as he
can, and gains the porch where he can see the sedan, its tires spinning. The
vehicle has crashed through Jim’s fence, hit a pile of concrete blocks, and
become stuck. The intruder is behind the wheel, still moving. Jim aims at the
rear tire and fires a shot and then hears the voice of his long-ago firearms
instructor Frank Lloyd telling him never to shoot at a tire. He takes his
finger off the trigger. The second and last shot of the encounter echoes away.
It takes some few moments for him to realize, but the
incident is over.
Investigation
When the police arrived, they found Henry Johnson behind the
wheel of his sedan, his head lolled back against the headrest and his eyes
closed. The evidence photos look like a man taking a nap in the driver’s seat
until you spot the bloodstained hole in the center chest.
The police were sympathetic. Once he was ID’d, a record
check showed Henry Johnson had been convicted over the years for multiple
burglaries and crimes of violence, some committed while armed. It turned out
Jim’s wife hadn’t come home yet, but the police realized Jim couldn’t have
known that.
Then the autopsy report came in. It revealed the deceased
had tattoos depicting a Grim Reaper and lightning bolts. If body ink says
something about who the wearer is, Henry Johnson had left the message on his
corpse. But the autopsy showed something else.
The single, fatal perforating gunshot wound of the chest
had entered from the rear at the edge of the shoulder blade and exited the
chest.
Some 23 months later the District Attorney charged Jim
Stiffler with Intentional Homicide, the term the black letter law of Montana
uses for murder.
The Trial
Long after the shooting, in first quarter 2016, Jim Stiffler
went on trial in Helena. He was most ably defended by lead counsel Quentin
Rhoades, with Nicole Siefert as co-counsel. Prosecutor Leo Gallagher painted a
picture for the jury of an unarmed man, as “helpless as a baby” against the
nefarious defendant who had been shot in the back as he harmlessly exited a
window after committing a mere property crime.
Quentin Rhoades had been to the self-defense trial rodeo
before and knew exactly how to craft an “affirmative defense,” which says in
essence, “Yes, my client shot him, but he was absolutely correct in doing so.”
Among other witnesses, Rhoades called me and two other experts to the stand —
and the defendant himself.
Dr. Dan Reisberg, author of Cognition: Explaining the
Science of the Mind, educated the jury on altered perceptions during traumatic,
life-threatening incidents which occur at high speed. He explained why, though Jim
remembered firing as he faced the attacker with the back-door area behind
Johnson as he fired, no bullet was recovered there. He also explained why
tunnel vision would have kept Jim from correctly orienting his surroundings during
the sudden attack.
Gary Marbut did an excellent job of explaining the
ballistics in the case, and the angle of the shot, and why the location of an
ejected spent casing couldn’t be relied upon to show where everyone involved
was at the instant of the shot.
My role was explaining disparity of force, the situation in
which an unarmed man attacking an armed one can be devastatingly lethal.
Johnson was much bigger, younger and stronger
than Stiffler. Johnson was able-bodied and Stiffler
physically handicapped due to back and leg troubles — another disparity of
force factor. And at the moment the shot was fired, no more than 15 feet separated
the men, putting the intruder a second or less away from deflecting, and then
gaining control of, Stiffler’s weapon. I reiterated why Stiffler had reason to
believe Johnson was quite likely already armed with Stiffler’s own SIG .45.
Finally, I demonstrated to the jury the interlinked
action/reaction dynamics, which explained why Stiffler had honestly thought
he’d shot Johnson in the front.
The raising and firing of the gun happens in a fraction of a
second.
When reacting to the raised muzzle, the attacker’s reflexive
turn away from danger can cause his lateral midline to cross the muzzle of the
defender’s gun in as little as a quarter of a second.
Studies show while reaction to anticipated stimulus runs an
average of about 0.25 of one second, it takes about three quarters of a second
— or more — for a shooter to cognitively process the unanticipated stimulus of
the attacker unexpectedly breaking off the assault. The shooter goes through
the whole OODA loop of Col. John Boyd. Observe (the eyes see) what is
happening, Orient (the brain figures out what the visual input means), Decide
what to do now (stop pulling the trigger), and Act (physically stop shooting).
I stated honestly what the State was asking of Stiffler was not humanly
possible.
In his own testimony before I got there, the defendant had
conceded on cross while he thought the man had turned clockwise at the shot, he
couldn’t be 100 percent certain it hadn’t been counter-clockwise. The
prosecutor brought this up when he cross-examined me, so we did the
demonstration again, turning in the opposite direction. The outcome was the
same.
In his final argument, the prosecutor argued by entering his
own home to save his wife from a large intruder who had smashed through the
front door of their home, Jim Stiffler had become the “initial aggressor” and
was therefore not entitled to a self-defense finding.
The outcome was a hung jury, 10 voting to acquit and two to
convict. Not long after, the prosecutor dismissed the case rather than try it
again. Jim had already won his first battle — to survive. He had now won his
second and stayed out of prison with a clean criminal record. Now came his
third battle, the civil lawsuit.
The Civil Case
Plaintiffs sued on behalf of the dead man’s minor child for
wrongful death. The suit was settled out of court for $20,000 paid by Jim’s
homeowner’s insurance company. That’s highly unusual and we’ll explain why
momentarily.
Personal Aftermath
Four years after the trial and seven years after the
shooting, Jim Stiffler told me, “For about the first two weeks I had nightmares
and a hard time sleeping. During the case, neither my wife nor I could sleep,
and I lost about 20 lbs. We got a lot of help and support from the community.
We’d be at dinner and people would come up, tell me I did the right thing, and
slip me $100. Even during the trial at the courthouse people would come up and
slip C-notes into my pocket. My friends in the realtor community put on a big
fundraiser gathering about $40,000 for the defense.”
I went through the trial with his lawyers, good ones who
don’t come cheap. They sympathized with Jim and gave him a $300,000 defense for
$100,000, with an estimated $60,000 additional in related expenses. Jim wound
up getting a reverse mortgage on the house he and his wife had almost paid off
and cashing in stocks he thought would fund his retirement. “I spent two years
in a PTSD group, peer support, and saw a therapist for about a year,” Jim adds.
Lessons
Don’t count on a jury of your peers. Quentin Rhoades had
meticulously selected jurors who all said they could render a not guilty
verdict in a self-defense case. It turned out the two jurors who insisted on
conviction told the rest of the panel shooting someone in self-defense was
wrong; Rhoades learned this after debriefing most of the other jurors subsequent
to trial. The two holdouts for conviction wouldn’t talk to him.
Don’t expect your jury to learn how bad a “bad guy” your
aggressor was. Prior acts by your opponent, if not known to you at the time you
harmed him, will generally not be allowed in front of the jury. Some version of
Federal Rule of Evidence 404(b) exists in almost every state. You’re being
judged by the reasonable man standard: What would a reasonable and prudent
person have done, in the exact same situation, knowing what you the defendant
knew at the time? There are work-arounds and some state supreme court case-law
precedents have worked to reverse this in the past, but that’s not yet
universal and didn’t apply in Montana. The jury in Stiffler’s case was never allowed
to know Henry Johnson’s savage
Criminal Background.
Be prepared to take the witness stand. In a self-defense
case, who shot who is stipulated from the beginning: It comes down to why did
the defendant shoot the person, and only the defendant can truly answer this.
Stiffler handled himself very well on the stand.
Expect dirty tricks. Let’s say you were a store owner
lawfully detaining a shoplifter when the thief suddenly pulled a knife and you
had to shoot him. Expect opposing counsel to ask you something like, “Do you
think someone deserves capital punishment for petty theft?” Sure enough, on
cross-examination the prosecutor asked Stiffler if he thought Henry Johnson
deserved to die for stealing mere property. Stiffler’s answer was a right cross
knockdown punch which brought this line of questioning to an abrupt end. “I
didn’t deserve to die, either,” he said.
Don’t try to pinpoint your exact position in a fluid
life-or-death situation. Trajectory evidence showed the men were placed
slightly differently than Jim remembered, because the acute tunnel vision he
predictably experienced made him unable to perceive background.
Don’t leave guns lying around the house where a
burglar might take them — he might just have them in hand when you confront him.
Johnson apparently never got to Jim’s SIG or Remington, but Jim’s reasonable
fear of such was an element in the case. He now carries on his person a Kimber
Micro 9 most of the time and a 10mm GLOCK 20 when he’s in the mountains.
Don’t presume a self-defense immunity statute will
keep you from being sued after you’ve been cleared by the criminal justice
system. Quentin Rhoades tells me they have such a statute in Montana, but the
plaintiff’s lawyers tried to get past this by arguing the shooting was
negligent. Such statutes protect from lawsuits only those who intentionally
fired in self-defense, and a negligence argument can circumvent the protection.
Don’t count on your homeowner liability insurance to
protect you in a civil suit after a self-defense shooting. There is no such
thing as a “justifiable accident.” An intentional shooting of another person is
argued by plaintiffs as a “willful tort,” an intentional act that harms another.
Read your homeowner’s or automobile liability policy — they usually expressly
exempt the insurer for having to pay for a willful tort. Stiffler’s insurance
company, because the plaintiffs alleged negligence instead of willful tort,
paid off the $20,000 because it was much cheaper than going to trial on the negligence
allegation. I also suspect the plaintiff’s counsel gratefully accepted the
$20K, a pathetic “chump change” settlement in a world where verdicts for the
plaintiff in wrongful death cases normally run into seven figures, because they
knew they were unlikely to prove negligence at trial.
When you’re in such a situation, get the best lawyers
for the job. The job in this case was not criminal defense, but affirmative
defense. The best criminal defense lawyers got their reputation by getting off
guilty people. The strategy for defending the rights of the guilty is almost
180 degrees opposite from the strategy needed in an affirmative defense case
like this, where you need to show the jury while you did the act, you were
absolutely correct in doing so. Rhoades and Siefert accomplished exactly that
and gave Jim Stiffler and his wife their lives back.
Finally, consider joining a post-self-defense support
group. I was already on board as a staff member with the Armed Citizens
Self-Defense Network (www.armedcitizensnetwork.org) when I took this case.
Stiffler didn’t have this kind of protection. You just saw how brutal a
financial hit Jim Stiffler took to get his and his wife’s lives back. I had
seen it before. And, sadly, we will all see it again.
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