Oklahoma pharmacist Jerome Ersland sentenced to life in prison

[Double Naught Spy]

As pax pointed out in Post #65, running out the door and firing at the fleeing suspect is the sort of thing anyone might do in the heat of the moment, However, it is the kind of thing against which we must program ourselves.

It is that which against apparently some of us program ourselves, but that does not make it illegal.

 

[Don P]

It is that which against apparently some of us program ourselves, but that does not make it illegal.

Illegal, no and as stated when #2 robber fled the store threat over. He could have been chased all the way to FLA. Illegal no shooting him at that point yes. No justification to shoot as the chaser could very well become the chased, and shot in self defence by the original person chased. He should have not left the safety of the store. IN MY OPINION.

 

[OldMarksman]

...that does not make it [shooting at a fleeing robber] illegal.

No, but Oklahoma case law and the jury instructions reflecting same do seem to strongly indicate that if he had hit anyone, either intentionally or through reckless disregard of foreseeable risks, it would have been illegal, unless he had reason to believe that the robber still presented an immediate threat to him.

That does not mean that he would have been prosecuted. District Attorneys in Oklahoma and Ohio and other states have declined, or stated that they probably would decline, to prosecute persons who shot at fleeing felons who had shot at them. Also, a grand jury in Lake County, IL recently declined to indict a shopkeeper who shot a robber with a pellet gun riding away on a bicycle.

That illustrates something. It is a commonly held misconception that states where it is hot and dry or hot and humid or some of each, where one can get a permit to carry a firearm on a shall issue basis, have use of force laws that are less restrictive than those "up east". That is not necessarily true. New York State, for example, actually provides more instances in which the use of deadly force against a fleeing felon is justified than do many of the southern and southwestern states.

As previously mentioned, a prosecutor's decision to not prosecute a case is not binding. The same prosecutor can change his or her mind, and prosecutors are always replaced by new ones at some point in time. Unless and until one has been tried and acquitted or pardoned, or until the statute of limitations has expired (that won't happen for murder), or until one dies, one can always be charged and tried.

I have been peripherally involved in too many cases in which that happened.

That's one case, by the way.

 

[Double Naught Spy]

No, but Oklahoma case law and the jury instructions reflecting same do seem to strongly indicate that if he had hit anyone, either intentionally or through reckless disregard of foreseeable risks,

it would have been illegal, unless he had reason to believe that the robber still presented an immediate threat to him.

I do believe that self defense statutes are still in place in OK that state one may act in the defense of others. See what DA Prater has to say about it here. Ersland could have shot the fleeing suspect in the back and justifed it as being in defense of others. See starting about 10:54.
http://www.news9.com/video?C=116601...oCatNo=default&clipId=3804065&redirected=true

So what specific case law do you have to the contrary?

 

[markj]

where killing someone for the right reasons was still accepted.

I have travelled all over the country and I have never found this to be true. Everywhere I go I see laws that dictate what is OK and what is not, never do I see any form of law says it is OK to shoot the guy after he is down and out of the fight. No where. Thats like hitting a guy after you have knocked hom out.

laid on the ground and he did bleed to death..go look at the vidoes and see how much help theyu gave him..

I watched them again and again, not once did Isee anyone take a pistol and empty it into that guy. Not even close to being the same thing. Paramedics cannot go into a fire fight to help someone is down. They are always kept off the scene until it is secured so no harm may come to them. The guy died, so what, he maybe shoulda gone to the park that afternoon....

 

[OldMarksman]

Posted by Double Naught Spy: I do believe that self defense statutes are still in place in OK that state one may act in the defense of others.

So do I.

There is apparently one common jury instruction for use in cases involving justification of the use of deadly force for self defense, but it seems to encompass more than self defense per se. It does address shooting at a felon, but not the defense of a third person. It is OUJI-CR 8-46, DEFENSE OF SELF-DEFENSE -JUSTIFIABLE USE OF DEADLY FORCE. It says this:

A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.

The committee notes refer to the relevant statute and discuss various justifications, including self defense, defense of a third person, prevention of a felony, preventing escape of a felon, suppressing a riot, or disturbing the peace. The notes go on to discuss appellate cases and to conclude that the deadly force in pursuing a felon, preventing a felony, suppressing a riot, or preserving the peace is only justified when the situation presents imminent danger of death or great bodily harm to the defendant.

There is no specific conclusion on defending a third person in that instruction, but there is more: This one, OUJI-CR 8-2, DEFENSE OF ANOTHER - JUSTIFIABLE USE OF DEADLY FORCE says this:

A person is justified in using deadly force in defense of his/her husband/wife/ parent/child/master/mistress/servant if that person reasonably believed that use of deadly force was necessary to protect his/her/husband/wife/ parent/child/master/ mistress/servant from imminent danger of death or great bodily harm. Defense of another is a defense although the danger to the life or personal security of his/her husband/ wife/parent/child/master/ mistress/servant may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that his/her husband/ wife/ parent/child/master mistress/ servant was in imminent danger of death or great bodily harm.

Other instructions address deadly force in the case of an intruder, battered women, situations that start out with the actor being the aggressor, and so on.

This should all teach us two things: (1) relying on a single statute without knowing the case law is a dangerous proposition; and (2) one should only rely on a practicing criminal attorney in the jurisdiction at hand.

Is the DA wrong? I do not know. Can one properly employ deadly force to defend a third person if one's own life is not in imminent danger? Yes, but whom? Perhaps a practicing criminal attorney from Oklahoma can help us here.

I do know this: shooting a handgun at a fleeing felon in an urban setting is a recipe for disaster, whether one is charged or not, in large part because of the risk to others.

As I mentioned before, some DAs have said that they thought that getting convictions would be difficult, and the DA in Oklahoma may have been trying to paint a simpler and more clear case for potential jurors and the public; Ersland had a lot of sympathizers after the shooing. I have not been one of them.

Also as I mentioned before, I do think that the DA would have had a different opinion had Ersland's actions led to the death or serious injury of a third person through his reckless disregard of the safety of others.

 

[C0untZer0]

I think we’ve all been around people – especially at work, who are functional and competent at their job, but everyone gets a sense that they’re “not all there”. Listening to Ersland’s interrogation – I get the feeling he has some cognitive or emotional problems or both – he’s just not all there. He would have been much better off trying a totally different defense. I don’t think he’d have a problem convincing a jury that he’s mentally defective and was temporarily insane when he shot that kid. He might have gotten a different sentence.

Ersland will be OK, he’ll end up working in the pharmacy in a federal prison. He’ll probably be a little sad because he won’t be able to play with guns anymore, but he’ll get by…

 

[OldMarksman]

I do not think that Ersland will serve his term in a federal prison.

 

[C0untZer0]

^ that's too bad they could probably use a good pharmacist in the pen.

 

[Double Naught Spy]

Jury instruction is fine, OldMarksman, but I didn't ask about it. I asked you about the case law. What case law are you talking about?

 

[redstategunnut]

To my knowledge, the man was convicted in a state court, so his sentence will be served in a state prison.

Why would the DA praise or exonerate Ersland for his conduct up until he fetched the second gun and shot the wounded robber as he lay defenseless?

Simple.

The DA knew he might be dealing with gun rights types in the jury box. He had to show the jury that Ersland was not on trial for being a gun owner, or for being a gun owner who shot at bad guys. He had to sell the jury that the crime was committed after a series of lawful acts involving Ersland and his gun, and the distinction between the lawful and the unlawful was therefore a clear, bright line. Nice and tidy.

This was a good strategy.

On the other hand, the DA had a video of the man shooting an unarmed, wounded 16-year-old, so he likely could just as easily have said, "roll tape, move into evidence, the State rests."

 

[OldMarksman]

Posted by Double Naught Spy: Jury instruction is fine, OldMarksman, but I didn't ask about it. I asked you about the case law. What case law are you talking about?

The jury instructions that I quoted were based on case law; the case law was cited in the summaries in the links that I provided.

 

[JohnKSa]

its wrong what he did afterwards I will agree...but shooting him on the floor was his decision and he alone should only be able to judge what he did was right or not...

That's not how the system works, and we should all be thankful for that fact.

Do we REALLY want people to be able to do whatever they think is right and then let them be the final authority in terms of judging whether what they did was right or not? I certainly don't.

When someone is murdered, the murderer is the WORST possible person to adjudicate the rightness/wrongness of his own actions.

 

[Don Glock]

Was the robber moving? The coroner says NO. Pooled blood from the head wound and related evidence no doubt also showed that there had been no significant movement, otherwise the defense would have mentioned this attribute.

i haven't read anything in depth about it as you seem to have. the video doesn't show a whole lot. if he did indeed execute the scumbag when he wasn't a threat, that obviously is a violation of the law and he should be convicted.


at the same time, the defense can bring in their own experts to say the pool of blood can be interpreted different ways. no smears in the blood around his head doesn't mean his hand wasn't raised with a gun in it. there's just too many factors to consider.


this is just a cursory observation, i haven't done any serious reading into the trial transcript, so i can't tell you what was said or done.

what was the definitive proof that led to his conviction anyway?

 

[icedog88]

There was no gun to raise as he was unarmed. Even if he had a knife, he was on the ground. Ersland was mobile and walked back over to him.

 

[chadstrickland]

Lol..that's not how the system works...the only time I ever seen the system working first hand I was about to be getting screwed by it...and only saved not from the system but because my brother woke up and was able to tell them....so you preaching to me how good and true the system is would be like a catholic priest asking a muslim to go to church....I know you have seen things to make you believe the way you do johnska...but I have also seen things as well..and no I don't believe the system works at all.....someone in here asked me what would I do if somone broke into my house while I was sleeping but in a attempt to rob me or kill me fell down the stairs and landed unconscious....I would laugh at the irony as I am a humorous person and call the cops...however I have to ask you a question..what would you do if the same thing happened except he wasn't fully unconscious his gun laying safely at your feet and he looks up and says the cops can arrest me now but ill get out in a couple years pleading insanity and when I do ill come back and kill your wife and kids while you are at work one day.....are you going to roll the dice and see if the system works..or commit cold blooded murder and shoot him..because you and I both know it would be a shaken house owner found robber laying on floor and executed him.....in my opinion ersland pretty much did the latter...if that guy with the head wound ever recovered he would have probably wanted revenge for being so messed up and stuff...so no I say it was his call to make and he did...you can say this is all some wild theory but nobody knows what was going on through his head that night...was ersland scared of retaliation or not..idk but I say it was his call

 

[OldMarksman]

what was the definitive proof that led to his conviction anyway?

1. Video that showed him returning to the building after having left for a place of safety, obtaining a second weapon, walking over to the victim, and firing multiple shots at him at point blank range;
2. forensic evidence indicating that the unarmed victim, though alive, had not been not moving and did not pose an imminent threat of death or serious bodily harm; and
3. multiple entry wounds fired at the victim while he was lying on the floor.

 

[OldMarksman]

Posted by chadstrickland: ...if that guy with the head wound ever recovered he would have probably wanted revenge for being so messed up and stuff...

"Would have probably wanted revenge" is a long, long way from posing an imminent threat of death or serious bodily harm.

But let's weigh the risks anyway, and see if murder would have prevented that or other possible future harm. So, the murderer is imprisoned. Who will protect his family against the thousands of other violent criminal actors roaming the streets and alleys?

 

[chadstrickland]

Very true..there are thousands of them..but he only shot one of those people in the head and only one of them would have been permanently screwed up for life..and that's the one he killed

 

[Double Naught Spy]

i haven't read anything in depth about it as you seem to have. the video doesn't show a whole lot.

Okay, for the second time in this thread, see the following video. Prater specifically states that there is evidence from the medical examiner and forensic evidence from the scene that the downed suspect wasn't moving about.

http://www.news9.com/video?C=116601...oCatNo=default&clipId=3804065&redirected=true

at the same time, the defense can bring in their own experts to say the pool of blood can be interpreted different ways. no smears in the blood around his head doesn't mean his hand wasn't raised with a gun in it. there's just too many factors to consider.

They could have, only they didn't have an expert to testify that the suspect remained perfectly still while still raising the imaginary gun that he didn't have that would have been necessary to justify Ersland shooting him.

So this gun that the expert would testify the robber raised. Where did the robber get it? It wasn't seen in the video when he came in. And what happened to this gun? The only indication that it was ever there was based on Ersland's statements. Of course, Ersland's statements have been full of fabrications such as claiming that the suspects shot at him and that he was shot by them. He claimed to have killed lots of people in Desert Storm and been wounded in a morter attack whilst his service record shows he was at Altus AFB in OK.

So since you are so sure the downed suspect had a gun as well, how about producing it. Nobody else can.

what was the definitive proof that led to his conviction anyway?

LOL, aside from what OldMarksman has covered well in summary and which is all public information and covered multiple times already, a better question would be what proof do YOU see lacking? The jury had no problem with the information, so what is it that you know that indicates that Ersland fired those 5 shots in self defense? Was it is casual demeanor as he walked by the unconscious suspect multiple times? Was it how he turned his back on him several times? Was it how he casually walked over and executed him?