Monday, October 29, 2007


Mike Mette

Self-defense is, inexplicably, no defense

Two years ago Mike Mette, an off duty Chicago police officer visiting his brother in Dubuque, Iowa, was under assault. John Kass comments:
So Mike did what anyone would do. He threw a punch. One punch. The victim went down. Unconscious. There was no testimony that he did anything other than throw that one punch. Prosecutors spinning their local paper talk about the victim being kicked, but even the victim's friend wouldn't testify to that. The victim was released from the hospital four days later. A month went by, and Mike was charged with assault causing serious injury, which carries a mandatory five-year term
The Dubuque Telegraph Herald (my emphasis) reports:
A brief filed Sept. 19 with the court by Mette's attorney disputes Ackley's ruling, stating the trial court erred in rejecting Mette's defense of self-defense and erred in finding Jake Gothard suffered serious injury.

The seriousness of the injury and Mette's failure to avoid the fight effectively necessitated Mette be charged with a class D felony and mandated that Ackley hand down a five-year sentence, Dubuque County law enforcement officials say.

Ackley stated in her ruling, "What the defendant failed to do, however, was to retreat from the house or walk away and call the police about the disturbance."

Mette disputes the seriousness of Gothard's injuries, and his supporters insist Gothard's heavy intoxication level should be taken into account.

Gothard suffered a broken cheekbone, multiple fractures to his nose and a broken jaw, according to court records. He had multiple hemorrhages on the brain. He had bruising on both buttocks and the sides of his arms and on his ribs, and he had lacerations to his face and head.

"The emergency-room physician, who was board certified, testified that these injuries would not have resulted from one blow," Dubuque County Attorney Ralph Potter wrote in a pointed defense of the case's prosecution. "The defendant's expert witness disputed that finding, while acknowledging that some of the bruising was consistent with "defensive" injuries."

In court documents, Ackley wrote, "Looking at what the ER doctor faced when Jake was presented, serious injury existed as it was likely that without further treatment Jake was at risk of dying." But she also said, "Once the defendant was transferred to an appropriate trauma-level hospital, it was determined that Jake's injuries were not as extensive as first believed."
The article quotes Mette:
"Here's the thing. If you're attacked and a guy is in the process of hitting you, how do you turn your back? You're just going to put yourself in a worse situation."
He's absolutely right. Eugene Volokh has more:
Gothard had a blood alcohol level of .270 when he got to the hospital. The judge agreed that Gothard and a friend of his were going after Mette and five of his friends, outside of Mette's house. The judge agreed that "It was reasonable under the circumstances to believe that harm might come to [Mette or his friends]." Mette and his friends were not the aggressors. (They may have behaved badly in one respect, which is by taking Gothard's cell phone out of his hand and leaving it in Jake's mailbox, but the judge didn't seem to conclude that this was what made Mette's later actions unjustified.) The evidence the judge related seemed to say, without contradiction, that Mette had hit Gothard only once, and that Gothard had just "pushed [Mette] at least two times, maybe three."

Yet the judge convicted Mette (who had opted for a trial without a jury) simply because "the defendant failed ... to retreat ... or walk away and call the police about the disturbance. Because of his failure to take these steps, the court cannot find that the self-defense justification is available to permit the striking of [Gothard]."

That seems to me wrong: Mette should not have been under a legal obligation to either (1) leave the street where he had every right to be, or (2) surrender the right to self-defense if he didn't leave the street. Perhaps the result should be different when one is using lethal force, though I'm not sure; and I realize that even seemingly nonlethal punches can end up being lethal (or can end up escalating a fight into something more lethal). But on balance, it seems right that the duty to retreat has been almost everywhere rejected as to nonlethal force: It in effects allows bullies far too much legal authority to constrain people's freedom.
It sure does.


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