Massad Ayoob at The American Handgunner.
Another insightful and informative analysis from MA.
If you would like to be able to separate gun truth from gun fiction, MA and The American Handgunner are a good source of the former.
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Situation: Snarling homicidal threats … A big man lunges for your gun and then appears to go for his own. You perform the indicated response … and end up tried for murder.
Lesson: Too few people, even in the criminal justice system, understand the concepts of disparity of force, disarming attempts and furtive movement shootings.
It is March 8, 2022, at about 10 p.m., and I’m starting this article on my laptop in a hotel in Aberdeen, SD, where a jury just came in with a verdict in the murder trial of Jarrett Jones.
Not Guilty on all counts. Total acquittal.
Sorry if that’s a spoiler, but this isn’t about drama or suspense. It’s about lessons. In this case, there were several.
Background
Jon Schumacher and Jarrett Jones had a history. Jarrett, 48, was a prosperous farmer and real estate developer. Jon, 28, owned an excavating business. Two years before, Jon had started dating Jarrett’s then 17-year-old daughter. She had fallen in love with the tall, handsome Jon, who could be charming when he wanted to be, and she enjoyed acting as stepmom to Jon’s three young sons. Jarrett was an indulgent dad despite instinctive disapproval of the relationship and wanted his daughter to be happy.
Jarrett referred work to Jon and often helped him with manpower and equipment. Even so, Jon wasn’t making a go of his excavation business. Word was Jon was a couple hundred thousand dollars in debt. There were stories of jobs unfinished and people Jon hired going unpaid. Much of that debt was owed to Jarrett, who couldn’t say no when his daughter asked him to stake the boyfriend she loved.
It wasn’t long before the daughter discovered another side of Jon. She told Jarrett Jon beat her and, on one occasion, raped her. Jarrett had a “come to Jesus” meeting with him. Jon was meek and contrite, wanting to keep the beautiful young girl and the money Jarrett sent his way. He promised to be better.
The promises didn’t last long.
(Un)Happy New Year
Jon drowned his troubles in alcohol. There were rumors of drugs as well. We all know how much booze gets consumed in America on New Year’s Eve; by New Year’s Day of 2020, an increasingly angry Jon Schumacher was still drinking. He had borrowed a truck from Jarrett and crashed it into a snowbank. He had a Bushmaster AR15, a Beretta 391 autoloading 12-gauge and a GLOCK 19 pistol in the vehicle with him.
He called Jarrett’s daughter to come and get him. She couldn’t; she was taking care of his three sons. Jon flew into a rage and threatened to kill her if she didn’t obey him.
He had finally gone too far. She told him their relationship was over.
He was arrested for drunk driving and driving on a suspended license. When the state trooper asked him about a blood test, Jon replied morosely he would take it if it would get him free sooner. His blood alcohol content was nearly twice the legal limit.
Jarrett and one of his employees drove to the scene to retrieve the truck. Jarrett found the guns, cleared them, and put them in his safe. With them was Jon Schumacher’s coat. The GLOCK 19 had been in the coat pocket.
Meanwhile, an angry Jon had called his long-suffering ex-wife, who agreed to pick him up at the police station. He asked to be driven to Jarrett’s place. On the way, he asked her if she would come back to him. She declined. In a very short time frame, he had now been rejected by both of the women he professed to love.
Escalation
By the time a steaming Jon Schumacher arrives at the Jones place, the clock has ticked past midnight and into the wee hours of January 2. A concerned Jarrett has armed himself: In his hip holster is a subcompact 9mm 1911, a Kimber Micro 9 in desert tan color, which came with a Crimson Trace laser sight.
In the 13 minutes that follow, Jon’s rage becomes increasingly homicidal: He demands to see his ex-girlfriend and is refused by her and her dad. Jon explodes with threats to kill her, Jarrett and others. When the ex-wife demands he leave with her and he refuses, she leaves alone.
Jarrett, at one point, is far enough away from Jon that he feels safe taking a moment to turn his back to him and yells to the others to stay back. The 300-lb. employee is between him and Jon, whose back is to the door he entered through. Then Jarrett turns back to face Jon.
The moment comes when Jon grabs Jarrett by the throat. Jarrett breaks free and draws the Kimber, hoping its deterrent effect will bring Jon to his senses.
Every mammalian instinct, every human instinct, tells him to intersperse himself between his threat and his children. The daughter Jon has traumatized, now 19, is some 20 feet behind him in the office. So is his younger daughter, 12.
Flashpoint
Jarrett brings his pistol up in a two-hand Isosceles stance and again orders Jon to leave. He has closed the distance in hopes of moving Jon back toward the door he has entered through.
But Jon doesn’t back up. Jarrett comes to a stop. A security camera shows the men are now about five feet apart, chest to chest.
Jarrett is acutely aware his dominant right hand, the one holding the gun, is presently crippled. He has recently undergone carpal tunnel surgery and his recovery was complicated by a severe infection that has left the hand hurting, significantly weakened and encased in a soft cast. He is 5’5″ tall; Jon, 6’4″, looms over him. Having trained under instructor Justin Hoffman two years before to earn his South Dakota Enhanced Concealed Carry Permit, Jarrett is acutely aware of how quickly Jon can close the gap and snatch the gun … and how poor his chances will be to keep possession of the Kimber if a gun grab occurs.
By now, Jon has threatened to murder both Jarrett and his daughter and stated he doesn’t care if he dies himself. He has at one point threatened to kill his own three little kids. Jarrett knows if Jon tries to disarm him and kill everyone, he won’t be able to stop him. He realizes if that happens, his only chance will be to shoot Jon in time. The safety is off, and Jarrett’s index finger is poised on the front of the Kimber’s trigger guard.
He is on high alert, watching for attack signals. And what he sees now horrifies him.
Jon’s face bears a look Jarrett has never seen before, an expression of absolute hate and explosive rage. The veins in his forehead are bulging, and his eyes seem to be bugging out of his head. He has been clenching and unclenching his hands; then Jon’s fingers tighten into fists.
And now, Jarrett sees Jon’s head and shoulders come forward, and there is only one last resort remaining.
First Shot
Jarrett Jones fires. The security camera catches the little tongue of flame that licks out from the muzzle, and in an instant, Jon Schumacher pitches to his left and into the camera’s view at last. He sprawls on the concrete floor of the workshop on his left side, perpendicular to Jarrett and facing him. For a moment, he lies still.
Jarrett lets go with his left hand, and his right hand brings the gun down. He watches Jon in unbelieving horror at what has just happened. It looks as if it’s over.
It isn’t.
Second, Final Shot
Several seconds have passed. Jarrett’s hands are down at his side now, the right hand still holding the Kimber, pointed at the floor.
Suddenly, Jon’s right hand flashes toward the right front pocket of his jeans.
Jarrett has known Jon for a long time and knows the man always carries one or more guns in various places — vest, boot, pocket. He knows how fast a person can draw and fire.
He raises the pistol one-handed, thinking there’s no time to resume a two-hand hold, and the beam of the Crimson Trace Laser plays on Jon’s neck as Jarrett fires a second time.
Jon stops moving. Now it really is over.
They call 9-1-1. The first responding officer arrives in approximately 18 minutes. Jon Schumacher is dead on the scene. Jarrett waives his Miranda rights and submits to an extensive recorded interview.
Approximately 12 hours later, as he is leaving the office of attorney Marshall Lovrien, Jarrett Jones is arrested and charged with murder in the first degree. A conviction is likely to bring life without parole, and the death penalty is not entirely off the table, either.
The Justice Machine
Jones went to trial in the court of Judge Richard Sommers on February 28, 2022. Twenty-six months had elapsed since the shooting. The original local prosecutor, called a state’s attorney in South Dakota, had departed, replaced by Ernest Thompson. The latter may have simply felt a need to continue the work and wishes of his predecessor. I was informed the grand jury that indicted Jones was not given a self-defense instruction and indeed was told self-defense was not an issue, even after one grand juror repeatedly asked about it.
To an untutored eye that didn’t know what to look for, it was easy to miss Jon’s right hand going toward the pocket, even though Jarrett had told police he knew Jon always carried one or more guns. Later, ace defense investigator Mitch Vilhauer found multiple people who claimed Jon had pulled a gun on them, usually a snub-nosed hammerless revolver, when angry. The defense couldn’t get that in because, being unknown to Jarrett at the time of the shooting, these incidents were not formative to his decision and action and therefore were inadmissible.
Jarrett had described Jon’s movement precipitating the first shot as a “lunge.” As I had occasion to testify, the Oxford English Dictionary defines a “lunge” as “a sudden forward thrust of the body,” which is precisely what Jarrett described. However, most perceive a lunge to involve large movements with arms outstretched. Jon, Jarrett said, had his fists clenched close to his body as if coiled to punch at the final moment he started to come forward.
Until he fell from the first shot, all the camera could see of Jon was the front of his left boot in the lower left corner of the frame; Jarrett dominated the viewer’s eye in his resolute Isosceles stance, gun extended and the muzzle flash. After Jon fell, anyone not watching his hands could easily miss the reach for the pocket.
That reach created a “furtive movement shooting,” a movement consistent with reaching for a weapon and not reasonably consistent with anything else within the totality of the circumstances. Many lawyers I’ve discussed it with don’t recall being told about furtive movements in law school and, similarly, pass their bar exams without having heard of disparity of force. The latter means a situation where the opponent, while ostensibly unarmed, possesses such great physical advantage over the defender that a bare-handed attack will likely cause death or great bodily harm. Factors include such disparity as Jon being 6’4″ and 28, and Jarrett, 5’5″ and 48, and the able-bodied Schumacher versus Jones and his crippled gun hand.
Moreover, while the eye of the untrained sees an “armed man shooting helpless unarmed man,” use of force professionals look at such a situation and see the exact truth: a man coming as if to punch you in the head and take your gun is a man going for a gun!
SA Thompson reached out for reinforcements from the South Dakota State Attorney General’s Office: first Kelly Marnette, and subsequently the highly experienced Brent Kempema. Early on, during an informal deposition, Ms. Marnette suggested Jones had nothing to fear because his employee, whom she described as a “300-lb. linebacker,” would protect him. I replied it would be foolish to count on protection by a third party from an attacker so close and noted that, in any case, the man did nothing but move away during the actual shooting.
These are things it takes a skilled defense team to get across to the jury, and Jones had that. Lead counsel Marshall Lovrien crafted the defense expertly and brought in as co-counsel the very able Bill Gerdes, who was said to have more experience with homicide trials than any other lawyer in the region.
Trial
With the State’s own witness, the forensic pathologist who did the autopsy, they established that while Jones appeared to be firing straight ahead, his Kimber was angled slightly upward. The 115-grain Winchester 9mm full metal jacket bullet entered the chest, pierced the heart, exited the back and kept going, punching a neat round hole through the steel door behind Schumacher at a height indicating an upward trajectory. The projectile was never recovered. However, the wound path went down through the body, front to back. Lovrien established with the doctor there was only one explanation for this: Schumacher’s upper body had to be angled distinctly forward when hit, consistent with aggressive forward movement. The doctor put a wooden dowel through a skeleton Lovrien had brought to court, vividly demonstrating for the jury.
This correlation between autopsy and video — hard scientific evidence — was irrefutable. It was a cornerstone of the defense.
Cross-examining the lead investigator, the defense established this was his first homicide case. He had never been explicitly trained in homicide investigation and he had never explored the elements of self-defense by Jones.
Self-defense is an affirmative defense, meaning, “The defendant did the act, but he was justified in doing it.” The defendant should usually take the witness stand in an affirmative defense because it’s no longer a “whodunnit,” it’s a “Why did he do it?” and only the defendant can truly answer that.
In this case, Jarrett had done something virtually every defense lawyer and I would advise against: He waived his Miranda rights and answered every question that night without counsel present. While some things sounded out of sequence, he got the basics right — and still in the grip of the emotion of his near-death experience, came through with sincerity and honesty. There was little he could add that would be worth the risk of being tricked by a crafty cross-examiner. Thus, he did not take the stand.
The jury heard from his daughter. There were tears in the jury box when they heard her smartphone recording of one of Jon’s vicious attacks upon her. The hired man, who first told police Jon lunged at Jarrett, changed his story and said there was no lunge. The State hung a lot of its case on that. Later, when I was on the stand, I was able to show the jury on the surveillance video that this man was looking off to the side at the moment of the shot and couldn’t have seen whether Jon had lunged or not.
Jarrett had taken South Dakota’s Enhanced Concealed Carry permit course from Justin Hoffman, who now works for Blackhawk. Logistics kept Justin from getting there in time to testify himself, but he provided his PowerPoint program delineating state law and a thorough, detailed affidavit. I was allowed to work from that and show Jarrett’s training had “checked every box” for what the state itself considered to constitute justifiable use of deadly force. This, in turn, gave Attorney Lovrien the nuclear-grade statement he made in his closing argument: Jones had literally done everything the law demanded for this homicide to be justified.
Before trial, I had done video demonstrations of how quickly Jarrett could have been disarmed and killed by a man in Jon’s position and how swiftly a man down on his side could draw a gun from his trouser pocket and shoot another man five feet away. It has been my experience some judges prefer video only, and some demand such demonstrations be done live in the courtroom. This trial was my first in 43 years as an expert witness where the judge would allow the jury to see neither demonstration. Nonetheless, having done them did allow me to testify that the disarm could be accomplished in two or three seconds, and the downed man’s draw to the shot from the pocket in under two.
In the disarm video, it took only six-tenths of a second to deflect the muzzle of the gun, another six-tenths to rip the small auto pistol out of my opponent’s hand, and a little over than one second more to re-grasp the pistol, point it at the center of his head, and pull the trigger. From the first movement to the “fatal shot,” the disarm had taken 2.23 seconds. Jarrett had been on the razor’s edge of losing his life. The pocket draw to fatal shot had taken 1.63 seconds, starting with the hand outside the pocket as Jon’s was in the video.
There was no gun in that pocket, but Jones could not have known that. He did know the man was known to carry guns in his pockets. Remember, Jarrett had removed a GLOCK from Jon’s coat pocket that night — and he believed Schumacher was going for one. Instead, what had been in his pocket was a front-opening switchblade, the double-edged Benchmade Infidel. It was still wrapped in the plastic evidence bag the troopers had put it in before they gave it back to him upon his release that night. When he cross-examined me, prosecutor Kempema made a big deal about it being in a bag and not readily accessible. I replied it was irrelevant because Jones believed the man was reaching for a gun. “You don’t have to be right; you have to be reasonable.”
From Gerdes’ powerful opening statement to Lovrien’s crushing close, the defense had brought the truth to 12 people who ultimately knew it when they saw it … and delivered justice.
Lessons
Juries have to be educated. If attorneys overlook concepts like disparity of force and other dynamics of violent encounters, what we now call “force science” thanks to the brilliant Dr. Bill Lewinsky, you can’t expect ordinary people in the jury pool to intuit them.
Document your training. It is a winning strategy to show the jury you did what you were trained to do, and what you did was, in fact, the right thing to do. South Dakota v. Jarrett Jones was a classic example.
Train with instructors who will stand up for you in court. Not all of them will, even in the police sector. Justin Hoffman did, and he had a big part in the defense’s victory.
Understand the cost of a trial. Jarrett Jones estimated he had spent at least $300,000 in legal fees and expenses when it was over. Consider joining a post-self-defense support group. For me, it’s the Armed Citizens Legal Defense Network. Full disclosure: I’m on their advisory board. You have many such organizations from which to choose. Read the name of this case: State v. Jarrett Jones. When the power of an entire state is against you, you don’t want to be fighting alone. A lawsuit by the family of the deceased is pending.
The decline and the self-precipitated death of a 28-year-old man were tragic, and hearts, including mine, go out to his parents and loved ones. At the same time, the pattern of Jon Schumacher’s escalation in his final hours indicates Jarrett Jones very likely saved more innocent lives than his own.
