Tyme said: leadcounsel, I don't know if you're simply playing the part of a defense lawyer, but this case is very simple:
Burgarello previously stated, it appears multiple times, that he wanted to lie in wait for squatters and shoot them. If you look at the history of frustration with repeated theft, squatters, and vandalism, it becomes very unlikely he was joking.
Burgarello stated he didn't call police because the squatters might have left before the police got there. He therefore wanted something more than simply for them to leave. He wanted a confrontation. I have yet to see an explanation for why a sane person without malice would create a confrontation with intruders.
Can you just imagine what would have happened if Burgarello had taken the stand? If he wanted the squatters gone, he could have called police. He wanted to confront them... and do what? What would a confrontation accomplish that their leaving before or after police arrived wouldn't accomplish? If he didn't know how many people were inside and that they were probably no danger, he was out of his right mind trying to confront them like that. "Were you so angry about the long string of vandalism, theft, and squatting, that you didn't think of the risk to yourself in confronting them like that?" If he did know that they were probably no danger, why did he arm himself with two guns? ("Do you normally carry two guns?") If he wasn't enraged and confronted them in the heat of passion, that leaves cold, calculated premeditated murder. How would he avoid being trapped by the questioning, and by his prior statements, into admitting a passionate crime of murder, or a dispassionate one? And if those are the two options, it doesn't matter that he didn't take the stand, does it? If you as a jury member don't know whether it's first or second degree murder, but it's one of them, don't you convict on second degree?
Your view, Tyme, is totally counter to the unanimous members of the jury. A lot of "what ifs" and evidence that apparently either was speculation or unreliable or refuted at trial - where it actually matters. I appreciate the lively debate, but evidently it's not so "simple" - in fact reality is totally opposite of what you're viewpoint is. Keep in mind this was not a hung jury. It was a unanimous vote for not guilty by the jury (I'm licensed in CO and WA, and not a Nevada attorney for full disclosure, but most jurisdictions require 10 or 12 jurors for felony trials). So, perhaps a dozen people unanimously believed he did not commit a crime, or that the shootings were justifiable. That's quite powerful indeed. Heck, it's hard to get 10 people to agree on pizza toppings, let alone a Not Guilty verdict.
He gave a statement to the police, and therein he explained what he did. I have not read the entire statement, but the important bits were reported and apparently those statements were used to maximum impact by both parties. The excerpt I read pretty clearly communicated a valid self-defense case and again I stand by my statement that the prosecution brought a case DOA against responsible charging doctrines IMO.
Can you just imagine what would have happened if Burgarello had taken the stand?
He likely took good advice from his lawyer, and as we all know or should understand,
his failure to take the stand is not part of the equation in determining guilt on the principles espoused in the 5th Amendment.
Thallub said: There's a good chance the shooter was financially ruined defending himself. According to some reports that house had been empty for for years. Was it worth it: i don't think so.
i own two rural properties with old unoccupied houses. No way would i enter either of those old houses with the intention of ejecting squatters. Nothing there worth killing someone over.
We can dissect the case play by play as some here would like to do. However, having actually tried felony level criminal defense cases as both a prosecutor and defense lawyer, each case is unique down to the individual juror and their belief system. We can second guess this or that, play "what ifs" all day.
Since there's no way to effectively advise based on this or that variable, I advise based on the law and good principles of behavior and second and third order consequences. Thallub has nailed it. In short, you may win the battle but lose the war. The defendant was IMO within his rights to do what he did. However as I've now said in as many as 3 posts, it was a really, really dumb idea. It ended very badly - one dead, one injured, and a criminal trial. Obviously he could have been convicted and spent the remainder of his life in prison. He knew or suspected that possibly armed squatters were therein. He could have predicted a likely confrontation of some sort, from zero to peaceable or violent. The spectrum leads to worst case scenarios where he was either injured, or forced to shoot someone and arrested and convicted. Extremely dumb behavior when weighing the spectrum of outcomes and costs/benefits.
I've personally seen the stress of serious felony charges on a man (innocent and guilty) of long term. It's terrible. No doubt he spent the last 14 months extremely stressed, loss of sleep, and probably drained his coffers (felony murder defense generally starts mid-5 digits and can reach 6 digits $).
So, the takeaway is to do an analysis of cost/benefit and/or risk analysis of a course of action, and think a few steps down the road. If it's going to possibly end up with you forced to kill someone over property, facing criminal charges and spending $50,000 on a defense of same, then you're heading in the wrong direction.
I think the jury came to the correct decision. However, a different jury or jurisdiction could have resulted in a conviction or a hung jury and a retrial.
To be crystal clear for those wanting to pick apart...
1. Don't plan to use lethal force to protect property, settle disputes, or evict people. The Defendant made a series of gravely bad decisions.
2. While it did help him in this case, it usually does not.
Don't make casual statements to police if you're involved in a shooting with the exception if you are sophisticated and know precise language to use - for instance simply pointing out evidence and telling them you feared for your life, acted in self defense to stop a threat, and end your statement with wanting to talk to your lawyer who you have retained previously.
3. Similarly, don't have a reputation as a "gun nut" or make statements to others that you plan to lie in wait, or are going to go "kill someone" because you may or may not be joking, but those statements can be part of a charging decision even if just made in jest.
4. Ensure top notch criminal defense team. Self defense insurance is a good idea. His acquittal was likely attributed to both the facts and his lawyers expertise at impeaching the prosecutions witnesses, putting on effective defense witnesses, and making critically good arguments. That takes terrific skill and expertise.
