The real injustice is that this poor property owner spent the last 14 months on trial for murder and attempted murder. I've seen this type of political charging and it's baloney. This should have never seen a courtroom. It was an injustice to the defendant, and wasted probably six-figures in public tax dollars for a non-crime. Burgarello told the cops during his interview that he saw what he perceived as a gun (a black flashlight located under the body of the deceased), from the two meth addicts who had trespassed and were squatting. He told them he feared and fired in self defense. I hope he pursues malicious prosecution action. This prosecutor has no business bringing cases (as evidenced by this atrocious lack of legal expertise and waste of tax dollars), and should have a bar compliant filed against him. He had no probable cause in light of the obvious self-defense evidence, and his only witness was easily impeached. On top of that the defendant was quite sympathetic as a person and probably to the community (an elderly schoolteacher checking on his property), and several witnesses were in support of the defendant, including at least 2 medical doctors and a firefighter witness.
Lot's of experts here, even some personal attacks (which are presumably not in TFL policy once again).
Frank Ettin: Really now? "Possibly", "potentially" indeed. A new standard falling well short of even "reasonably articulable suspicion"? And from someone claiming to be a lawyer?
Incorrect. Reasonable belief of imminent serious bodily harm. Apparently that standard was reached. Reference the jury verdict as exhibit A.
Per the article link below: As indicated by the verdict, the jury unanimously agreed that the State prosecutors had failed to disprove self-defense beyond a reasonable doubt (the legal standard in every state except Ohio).
Tom Servo: What they might do is beside the point. Any invited houseguest might turn into a rampaging maniac after a couple of drinks. Any person on the street might be a terrorist. It is not my place to make that call, and what someone might do isn't grounds for lethal force.
Someone pulls a gun on you, giving you apprehension they *might* shoot you. Hence, reasonable belief of imminent serious bodily harm. Hardly "beside the point." Reference jury verdict of not guilty.
Glenn Meyer: Not a lawyer here, but it seems you are arguing for preemptive use of legal force for crimes that might have occurred or might occur in the future. That is not accepted for an excuse to use lethal force.
Tom Servo: I'm not standing my ground if I actively seek to engage someone who might be committing a nonviolent crime. On my property or in public, the principle is the same.
And there was evidence of this, that the defendant sought to murder?
Tom Servo: Age may affect character, but it doesn't determine it.
Point again missed. Age/profession directly impact subjective/reasonableness of fear (we'd expect a different analysis for a 25 year old MMA fighter versus a 75 year old retired schoolteacher).
Here are a few points from an actual criminal trial lawyer (me) who has real world trial experience, who actually understands the law, citing open source news:
http://legalinsurrection.com/2015/05/verdict-in-squatter-shooting-case-not-guilty/
Burgarello entered the apartment, guns in hand, and called out to the squatters, 34-year-old Cody Devine (male) and 30-year-old Janai Wilson (female), both habitual meth users. Wilson had so habitually squatted in the apartment that she’d changed her driver’s license to reflect that address and was seeking to obtain outright ownership via “squatter’s rights.”
In laymans terms this is breaking and entering and intending felony theft (stealing ownership of the building presumably via adverse possession (possession via use) by habitual meth users (known to be violent and attract violence).
Burgarello told police that he had perceived Devine pointing a gun-like weapon at him in the darkness. Although no weapon was found at the location where the squatters were shot, a black flashlight was recovered from under Devine’s body. The fact that Devine may not actually have possessed a weapon is, of course, legally irrelevant. The legal question is whether Devine’s conduct with whatever object he possessed might have been reasonably perceived to have represented an imminent threat of death or grave bodily harm.
Bingo.
Defense Attorney Ristenpart argued to the jury that he had a right to arm himself and check his properties, stating that “Wayne could have had 10 guns that day, and that is still lawful and legal.” She further claimed that Burgarello first shouted into the dwelling numerous times, asking if anyone was inside and telling them they needed to come out. This narrative was buttressed by the testimony of a retired firefighter who witnessed the events.
Other defense witnesses who owned adjacent rental properties testified about times they had squatters threaten them with knives, after which they had armed themselves with handguns much as had Burgarello.
Ristenpart also argued that it was the squatters, not her client, who:
"created the dangerous, threatening situation, trespassing, getting high on meth and being where they shouldn’t be, where they had no right to be. . . . The aggression is against Wayne. . . . Here are two people who broke into your home to use drugs and trash the place. That’s the aggression, and that’s what caused this threatening situation."
Exactly.
It should be noted that the surviving female's testimony was entirely discredited by other witnesses to her character and actions afterward which were disproven, painting her testimony as unreliable.
http://www.kolotv.com/home/headlines/Burgarello-Trial-Continues-With-Defense-305371381.html
Trial testimony from the article:
1.
Burgarello's vision was slightly diminished by March of 2014, just weeks after the shooting Burgarello says happened in a darkened room because he saw a gun.
That equates to reasonable subjective fear in legal terms, and reason to mistake a flashlight for a gun in the dark room.
2.
Toxicologist Dr. William Anderson testified Cody Devine, shot and killed by Burgarello, had high levels of methamphetamine and amphetamine in his system when he was shot.
I'm no doctor, but as an experienced criminal trial lawyer this goes directly to the behavior of the deceased (propensity for drug use and violent crime from being high on meth).
3.
Burgarello has many health issues, including having had two strokes and a heart condition.
Frail condition of the elderly accused goes directly toward reasonableness of subjective fear.
To all of this I'll simply say the jury found him not guilty. I ain't none to smarts but I sorta rememerz thems jurors needbe all believe he didn't dun it. And I gots a few trials under my belt.
Edited: Getting past the bickering, there is a lesson here: In conclusion - it was indeed unwise to go to his property if he suspected dangerous squatters. But it was not illegal. Illegal squatters don't get to effectively block you from your property. The lesson here is that he should have just called the police and had them remove the squatters, and then decided how to handle the vacant building security.
