I’ve been asked to do something on the Murdaugh trial. I want to bring you some inside information about what really happened at the Murdaugh trial. So I reached out to my colleague Larry Foreman. You may know him as The DUI Guy+ from Youtube. He covered much of the Johnny Depp trial from inside the courtroom, and also was able to get into the Alex Murdaugh trial in South Carolina. So I figured, who better to hear from than Larry. He was in the courtroom, sitting right next to some of these people, watching the reaction of the jurors, and so on. Like me, he’s a real lawyer with real courtroom experience that you can watch yourself on his channel.
I (The Civil Rights Lawyer), as someone who practices in the area of #ExcessiveForce #CivilRightsLitigation, give my analysis on the #ChauvinVerdict from yesterday. I’ll take you through the actual jury instructions to explain what the jury decided. And also what they did not decide.
Here’s the recent study data I discuss in the video. Polling data established that the media and irresponsible politicians and social justice warriors have majorly skewed public perception on so-called systematic racism in police shootings. Here’s the data to review for yourself:
So, the respondents, after being asked whether they identify as liberal or conservative, were asked,“If you had to guess, how many unarmed Black men were killed by police in 2019?” Over 22% of people identifying themselves as “very liberal” responded that they believed 10,000 or more unarmed black men were killed by police in 2019. Even 13% of people identifying themselves as “conservative” placed the number at 10,000 or more. Over 40% of conservatives thought the number was at least 100 or more.
In reality, the number is actually between 13 and 27 unarmed black men who were killed by police in 2019.
The Washington Post has created a database of every known deadly police shooting in America since 2015. As of April 14, 2021, 6,211 people have been shot and killed by law enforcement officers. 46% of them—2,883 to be exact—were white, while 24% (1,496 total) were black. Just 6% were unarmed.
One of the most pernicious myths about police shootings is that officers shoot unarmed black men at an alarming rate, when in fact just 2% of the people who were killed by an officer were unarmed and black. Since the beginning of 2015, law enforcement officers across the country have actually killed 33 more unarmed white people than unarmed black people.https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/
The statistics do show that black people are statistically more likely, per capita, to be shot and killed by police. How is this explained? The assumption used by the media and politicians is some sort of implicit or systematic racism, bias or prejudice. But that’s ignoring all other statistics.
The most recent, which was published in Proceedings of the National Academy of Sciences in 2019, found “no significant evidence of antiblack disparity in the likelihood of being fatally shot by police,” and instead determined that “race-specific county-level violent crime strongly predicts the race of the civilian shot.”https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/
Engage in more criminal activity and you have more interactions with police. More interactions with police equals more shootings, both justified and unjustified.
For instance, although blacks comprise just 13% of the US population, they accounted for 53% of the murder and non-negligent manslaughter arrests in 2018 (the most recent year for which FBI crime data is available), 54% of all robbery arrests, and 37% of all violent crime arrests. Whites, on the other hand, comprise 76% of the population but made up just 44% of the murder and non-negligent manslaughter, 43% of the robbery, and 59% of the total violent crime arrests.
Since victims of and witnesses to violent crimes are invariably the ones who report them to police—and since victims are almost always of the same race as the perpetrator—police officer racism is not a factor in the wide disparity of arrests.
In Milwaukee, for instance, The Milwaukee Journal Sentinel’s homicide tracker has recorded 890 total murders in the city since the beginning of 2015. A staggering 79% of the victims are black. In 2021, that percentage has jumped to 91%, as 31 of the 34 people killed in Milwaukee as of this writing were black.
The unfortunate reality is that just as blacks are statistically far more likely to be the victims of homicide or other violent crimes, they are also statistically more likely to commit violent crimes that would bring them into conflict with a law enforcement officer with his or her gun drawn.https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/
ETA: My appearance on the Tom Roton Show this morning:
This is it. This is the paperwork generated by the justice system during 40 years of wrongful imprisonment.
People assume that people convicted of murder get a large amount of appeals, and have judges looking over their case to make sure everything was constitutional and fair . . . . Nope. This folder contains no actual direct appeal of James McClurkin’s murder conviction.
His lawyer who represented him during the 1977 trial which convicted him dropped the ball completely. He filed the notice of intent to appeal, but never actually followed through. Apparently he was waiting on payment from Mr. McClurkin’s family prior to filing the appeal. However, James’ father, who had hired him initially, passed away two weeks prior to the trial, and had spent all he had on James’ trial. The result was that Mr. McClurkin did not receive a direct appeal for his murder conviction. The State of South Carolina filed a motion to dismiss the notice of intent to appeal based on the failure to take any action beyond filing the notice. So the “appeal” was dismissed forever. What followed is paperwork which mostly discusses legal technicalities such as failure to comply with deadlines, and the discussion of rules which forbid inmates from bringing up old issues. It doesn’t appear that Mr. McClurkin ever had the assistance of a lawyer at all up until 1992, when the real murderer confessed. Every document James filed throughout his incarceration always mentioned first that James had exhausted his appeals. Well, he never got an appeal, and it is a fiction – a lie – that he exhausted his appeals.
The notoriously racist trial judge, Judge Moss, who in 1985 created “controversy” by using the “N word” from the bench (in response to black protestors following the conviction of a black man accused of shooting a white man – ironically similar to James’ conviction). Here is an article I tracked down from January 28, 1985, as it appeared in the South Carolina Herald-Journal.
This file contains almost no discussion of the evidence upon which James’ murder conviction stands. At one point, a lawyer for the South Carolina Appellate Public Defender’s Office filed a motion to withdraw from representing James due to the case being “without merit.” He didn’t bother to mention the evidence from the 1970’s, or the lack thereof. He didn’t even look into the 1992 confession and testimony of the real murderer. This was 2004. James would spend another 12 years in prison.
This should be a real wake-up call.
We are pleased to have been hired to represent a man named James McClurkin. James was convicted of murder in 1977. In late 2016, law enforcement appeared at his parole hearing and testified that the old murder case was reopened, and that James was innocent. James was released. He was 63 years old, and had been in South Carolina prisons since the age of 18.
South Carolina is one of the states which does not provide compensation to innocent people who are wrongfully imprisoned and then later exonerated. Hopefully that legislation can soon be enacted in South Carolina. But until that happens, we are working hard to compensate Mr. McClurkin for the terrible injustice which occurred in his case.
Here are some of the media accounts of his release from prison:
James McClurkin and his co-defendant were convicted of the 1973 murder of laundromat attendant Claude Killian. James, and his co-defendant Ray Charles Degraffenreid, both African Americans, were convicted under the brutal 1970’s Chester County, South Carolina justice system, which involved, among other things, a presiding trial judge who was known for using the “N word” while on the bench.
The real murderer actually confessed in 1992, which was corroborated by the fact that he was convicted of a similar murder, and by the fact that he had no alibi on the night of the murder. However, the justice system once again failed James, and he was sent back to prison for another 25 years. Now law enforcement reopened the case, and have concluded that the real murderer was telling the truth. How did this occur? Well, among other issues, the mother of the real murderer was apparently the maid of the prosecutor who prosecuted James and Ray Degraffenreid.
This sounds like a novel, but it’s not. It’s real, and it was only uncovered because a courageous new sheriff was willing to give someone the benefit of the doubt, and double check an old case. Follow along as we jump into this case and work to reverse the wheels of justice.
IF YOU LIVE IN SOUTH CAROLINA, PLEASE CONTACT YOUR POLITICIANS AND EXPRESS YOUR SUPPORT IN PLACING THESE CASES BEFORE THE GOVERNOR OF SOUTH CAROLINA. BOTH JAMES MCCLURKIN AND RAY CHARLES DEGRAFFENREID SHOULD BE PARDONED BY THE GOVERNOR OF SOUTH CAROLINA.
You can donate in order to assist with James McClurkin’s living expenses through the following site:
There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.
He shot one of the burglars, and held the other at gunpoint until police arrived. This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).
When can you legally shoot someone in a home invasion scenario?
In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm. People tend to get obsessed with the “castle doctrine.” Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity. It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.
There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified. Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.
Everyone should think about these types of things ahead of time. You should draw a mental line in the sand regarding when you shoot, and when you do not shoot. What is enough? What if someone in a ski mask is lurking outside your house? What if someone in a ski mask is outside your house with a gun in their hand? What if someone is burglarizing your vehicle in your driveway? What if someone is burglarizing your neighbor’s home? Or car?
There is not necessarily a right answer for these types of scenarios. But you should never pull the trigger unless you really do fear for a life. It’s not that they don’t deserve a dirt nap. If it were up to me, all thieves entering your property at night should be executed. But unfortunately it’s not.
Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them. Unfortunately, here we are not allowed to use deadly force in order to protect property. For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers. Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.
1. It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”. I knife, gun, or even a stick could count as a weapon. It is never a good idea to provide your own weapon after the shooting. The facts are what they are. Never try to change them.
2. It’s always going to be more difficult to justify a shooting where the person shot was shot in the back. This would indicate that the person was walking, or running, away from you. That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving. It’s also hard to argue that the threat was imminent. But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home. Generally when we shoot someone, our natural tendency is to keep shooting. So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away. Good shoot, but bullets in the back are always going to make things more difficult.
3. In your home, it’s game on. Like I said, draw a line in the sand. If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice. But it still has to be reasonable. You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying. For this reason, always have a good home defense light. You have to know your target – and what’s behind it.
It’s outside the home, where most of the grey areas live. So be very careful venturing outside your castle with a gun in the dark of night. Know where your line in the sand is.
As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story. Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion? If so, good shoot. If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.
4. Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class. A basic concealed weapons class does not qualify as training. This is me at a handgun class a couple of weeks ago. It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.
In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.
A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children. She apparently shot her husband with a shotgun while he was sleeping on the couch.
This was basically a “battered woman syndrome” self-defense case.
The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.
Syllabus Point 3 of the Opinion held that:
Where a defendant has asserted a plea of self-defense, evidence showing
that the decedent had previously abused or threatened the life of the defendant is relevant
evidence of the defendant’s state of mind at the time deadly force was used. In determining
whether the circumstances formed a reasonable basis for the defendant to believe that he or
she was at imminent risk of serious bodily injury or death at the hands of the decedent, the
inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is
to say that the defendant actually believed, based upon all the circumstances perceived by
him or her at the time deadly force was used, that such force was necessary to prevent death
or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the defendant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732
(1927), is expressly overruled.
Where it is determined that the defendant’s actions were not reasonably
made in self-defense, evidence that the decedent had abused or threatened the life of the
defendant is nonetheless relevant and may negate or tend to negate a necessary element of
the offense(s) charged, such as malice or intent.
An occupant who is, without provocation, attacked in his or her home,
dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be
upon the premises, may invoke the law of self-defense and in such circumstances use deadly
force, without retreating, where the occupant reasonably believes, and does believe, that he
or she is at imminent risk of death or serious bodily injury. In determining whether the
circumstances formed a reasonable basis for the occupant to believe that he or she was at
imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry
is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that
the occupant actually believed, based upon all the circumstances perceived by him or her at
the time deadly force was used, that such force was necessary to prevent death or serious
bodily injury. Second, the occupant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the occupant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110
(1909), is expressly overruled.
You know, sometimes prosecutors should come to the conclusion that the guy deserved it. They should have given this woman a break. She was protecting her children. The police wouldn’t have stopped him from killing her, or the children. That’s why we have guns for self defense. It’s each of ours individuals responsibility to protect ourselves and our children. The prosecutors were trying to victimize these children by turning them into orphans.
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died. The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
As was reported in the Register-Herald this morning, a 2nd degree murder conviction being appealed by myself and Tom White of Lewisburg was denied by the West Virginia Supreme Court of Appeals last week. The vote was 4-1 – Menis Ketchum, a Justice having criminal defense experience, having voted to hear to hear the appeal. One of the issues appealed was the admission of a “dying declaration,” which is an exception to the hearsay rule. Justice Ketchum noted during the hearing that there has been a nationwide trend questioning the dying declaration exception, such as has long been the case in Alabama – See Hutcherson v. State, and indeed apparently even in India. Exceptions the hearsay rule still have to hinge on the reliability of the statements. If the dying person had a motive to lie, then the reliability of the statement should be questioned and it possibly should not be admitted.
In Hutcherson, the Court of Appeals of Alabama noted that “[t]hough a dying declaration is not presumed involuntary as is an extrajudicial confession, yet it must be treated with a jaundiced eye. It is predicated on the assumption of death-bed freedom from vengefulness and mendacity. The validity of this assumption would seem difficult of demonstration. Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177 (1958).
The Alabama court cites a prior Alabama case which gives this warning:
“There are many reasons why dying declarations should be received and weighed with great caution. First, They are necessarily wanting in that greatest test of the credibility of oral testimony, cross-examination. Second, The jury are without the opportunity of observing the temper and manner of the declarant.Third, Such testimony is generally given by relatives and friends of the deceased, who had watched by his bed-side, and bias in his favor is to be expected.Fourth, All narrations of the other men’s sayings should be scrutinized with care, because what men say is so liable to be misunderstood. This is shown in the fact that when two or more witnesses, no matter how respectable, attempt to repeat a conversation that was heard by each, very marked differences will frequently be observed in their several narratives. Fifth, Many persons, even in serious conversation, assert as facts those things of which they have only strong convictions, but have no knowledge derived from the senses. Well may we, in the language of the judges and text-writers, say that such evidence is received from necessity, and to prevent the escape of offenders who commit the awful crime of murder. * * *”
Shell v. State, 88 Ala. 14, 7 So.2d 41.
Note: this is is no way represented as a comprehensive legal argument regarding dying declarations – only some off-the-beaten-path language that I encountered and felt was pertinent – probably only useful in attempts at encouraging a trial judge to second guess the reliability of a dying declaration sought to be admitted to a jury. There are obviously better appellate arguments grounded in law. This is not that.
Isn’t it frightening that you can be convicted of murder in West Virginia and not be able to appeal your case? We need either an appeal as of right for certain criminal cases, or an intermediate court of appeals. And we can afford it, we just need to cut out some of the entitlements that are handed out so generously in our state.
– John H. Bryan, West Virginia Attorney.
From the Charleston Dail Mail:
Apparently, there was an autopsy performed on this child back in 1981 which indicated that the infant died as a result of being shaken, but it was never delivered to the prosecutor’s office. Talk about gross incompetence…
Just remember, these are the same medical examiners that make mistakes in the other direction as well. Medical examiners for the most part couldn’t get a job working in a hospital, or in private practice working on actual living beings. Their incompetence and skewed sense of purpose can’t maim or kill a cadaver, but they can cause an innocent person to get convicted.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
A story in the Charleston Daily Mail today reported that a Kanawha County mother was charged criminally with the death of her 22 month-old son.
Elizabeth Dawn Thornton, 21, was arraigned in Kanawha Magistrate Court in connection with the death of Constantine Alexander Washburn, known as Alex.
Lt. Sean Crosier, of the Kanawha County Sheriff’s Department, said the infant died May 31 as a result of injuries received May 26 in his Cross Lanes home. Crosier said the boy’s severe brain injuries and other injuries would have required immediate medical attention, but that Thornton did not seek help until a friend called an ambulance on May 29.
Crosier said authorities waited several days before charging Thornton. “This is a very, very serious allegation and we wanted to make sure everything was right,” he said. He said authorities are still questioning other family members, including the boy’s father, 31-year-old Christopher Washburn.
Police believe the elder Washburn may have been present when the boy was injured. Crosier did not know if other charges are pending.
According to the criminal complaint, both parents told police Alex Washburn bumped his head on a table and hit his chin on a toilet. But doctors said the boy’s severe brain injuries and bruising on his neck did not support their stories.
As a criminal defense attorney, this is the most upsetting type of case, because babies are innocent 100% of the time and have been robbed of their life. Secondly, there are many types of accidental situations that could be construed to be child abuse or neglect, resulting in essentially murder charges against parents who have suffered a great tragedy.
In these types of cases, there is a very fine line between parents who deserve to rot in prison, and parents who are either innocent, or unintentionally harmed their child. What separates the two? The medical examiner who performed the autopsy. The ME will come up with some reason why the injuries do not corroborate the parent(s) version of what happened. Therein lies the problem: what happens when two doctors disagree on the autopsy results and their necessary conclusions? You have a situation where two doctors testify against each other for opposing parties in a court room. But this is not a civil case, this is a criminal case, with everything at stake, not just money.
Case in point: I had a similar case where a 6-month-old child died tragically. The autopsy was performed and it was ruled SIDS (sudden infant death syndrome) by the ME. Law enforcement thought something was fishy, and they didn’t like the ME’s conclusion, so the ME was fired, and a new ME was brought in to take a second look. Guess what? The second ME ruled the death a homicide, based on the conclusion that blood in some cavity of the body meant it must have been murder, or that someone was lying. So the investigators leak the story to the newspapers and start interrogating the parents.
So what happened? After being devastated by the death of their infant, the parents were already at the end of their rope. Within months, both parents committed suicide. Tragically, an entire family disappeared from the world.
The point is, that investigators better make damn sure they know what they are talking about, and the parents better run – not walk – to an independent physician to review the ME’s findings.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Bluefield Daily Telegraph:
A Bluefield man facing first-degree murder in the 2007 shooting death of a another Bluefield resident entered into a plea agreement Tuesday in Mercer County Circuit Court.
Ronald Jerome Finney, Sr., also known as R.J., 53, pleaded guilty before Judge Derek Swope to a felony charge of voluntary manslaughter. Finney was indicted in February on first-degree murder in the Oct. 31, 2007 shooting of Donald Lamont Greene, 32, of Bluefield. Greene died as the result of a gunshot wound to the chest.
Finney was apparently claiming that he fired in self defense, stating that he was in fear for his life. However, the situation stemmed from him attempting to purchase crack-cocaine – not exactly a “clean hands” position to be in. Furthermore, his story was pretty shaky. Finney said in his statement that he waited outside [the drug dealer’s house], and that Greene later came up to him, threatened him, and “he acted like he had something in his pocket, so I just shot him,” adding that he fired a second time when Greene “then tried to get something out.”
Finney must have been pretty believable though, because prosecutors gave him a pretty good deal – voluntary manslaughter – only carrying a determinate sentence of 3 to 10 years (compared with life for first degree murder, or up to 40 years for second degree murder). This was well-worth accepting in lieu of taking a chance with the jury and possibly facing life in prison.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.