srothstein wrote:b322da wrote:Who most likely had the burden of proof in Oklahoma to prove the deceased was no longer a threat to the defendant when the latter shots were fired? The state? The defendant? My question itself of course assumes that this was a question which might have even been posed to the jury.
I am no expert on any of this, especially if there is anything different in OK, but there are some general rules I know.
The prosecution must prove the elements of the offense beyond a reasonable doubt. In this case, it means they must prove that the pharmacist killed the robber, that the robber was a human being (yeah, generally a given but it really is an element of the offense), and that there was malice aforethought. No one really contended the act of killing, and no one contended the humanity of the robber. So the critical point is if there was malice aforethought (and yes, that is the term OK law uses - I found that much). My opinion is that this was proven sufficiently by showing he came back in and reloaded/switched guns before the second shooting. That might be debated.
Then the defense must prove any defense they claim. In Texas, some
defenses must be proven beyond a reasonable doubt while others only need the preponderance of the evidence. Some defenses may even be alleged and the prosecution required to disprove. This is the critical point where we don't know enough Oklahoma law to say what evidence is needed and who has the burden.
If the defense were to allege the second round of shots was still self-defense, they would need some evidence to show that the threat still existed. A jury would be the initial factor in deciding how much evidence that is. The pharmacist making the claim may be believed and sufficient for one jury, while another would want more. Then the prosecution would get a chance to disprove any claims the defense made. Int his case, the coroner would show if the robber was moving when shot the second time. After all this evidence is presented, the jury decides which side had more evidence and how good it was and makes a ruling.
One of the grounds for an appeal may be the lack of sufficient evidence to prove guilt. The appellate judges may then review the evidence (and I think they take it in the light most favorable to the defense but I am not sure) to see if it really was sufficient or not. I, again, am not sure but pretty confident that they tend to give a lot of deference to the jury decision because the jury is the only one who gets to weigh the credibility of the various witnesses.
So, from what I have read in the papers and here, the pharmacist may have one real hope. I think the changing of judges without declaring a mistrial may be the best chance for a new trial. Other than that, unless the coroner testified the robber was moving like the pharmacist claimed, I think the verdict will stand. From my brief review of the OK statutes, the pharmacist really needed the Texas "heat of the moment" clause to lower the offense and it does not exist there. He might be able to get probation or shock probation but I don't see much hope for him, at least the way the media is reporting it.
Ah... now I see.... So Oklahoma law
might have shifted the burden of proof onto
the pharmacist. In which case, he is royally
. He can't prove a thing because the person being shot was off-camera.
I think his best bet is to show that he did not murder the robber because the initial shot to the head was going to be initially fatal. He needs to pay off a gaggle of credible doctors for expert testimony. Ergo, the follow-up shots to the chest had no effect on the outcome because the shot to the head was already fatal. Also, he needs to get a mistrial declared due to the judge switching in mid-trial by saying that there was some evidence that should not have been allowed that was allowed. All they need to do is find one shred of evidence that was allowed by judge 1 that would've been barred by judge 2. In the mountains of evidence during discovery for a capital trial, there should be at least one tiny shred of evidence that would've been barred by judge 2. Then, he needs to hire an ex-spook (CIA or DIA) body language reader to discern which jury member to choose for jury selection. He needs to fill that jury box with pro-2nd A activists. Finally, to ensure an incompetent defense, he needs to hire some "messers" to mess with the lives of potential competent prosecutors so that their lives are too busy to take a capital case. This is to encourage by process of elimination the filling of the prosecutor's chair with an incompetent prosecutor, if there is more than one possible prosecutor available to take the case. He also needs to hire some "messers" to effect the choice of a 2nd A friendly judge. For example, if someone were to date someone else who had a lot of drama in their life, that someone else would be a "messer". Or, if someone won the lottery, the stress of their vulture relatives and friends hounding him for money would be a real "messer". Certainly, making your enemy win the lottery is not illegal. There's no bribery here because it's not quid pro quo, so "messers" are perfectly legal. Finally, to intimidate and psych out the prosecution, you'd need to have a legal team with 3 or more high priced and famous lawyers working against one state prosecutor. Finally, to ensure that the jury would be selected from an empathic pool, you'd need to hire a P.R. firm to spin his story to the media in his favor. O.J. had Johnny Cochran do this for him and it costed O.J. 6 million dollars in legal fees alone in the 1995. Factor in inflation and in today's dollars, it would cost $12 million in legal fees alone. Add to this the fees for the expert testimony from world-class doctors with impeccable credentials to withstand cross examination, ex-DIA body language readers, "messers", and the final cost for him to walk like O.J. would be roughly $24 million. That would be his best bet to walk. The 2nd best bet would be an executive pardon from a greasy politician like Clinton. Clinton pardoned Marc Rich, who sold arms to Iran (isn't that
treason?), for roughly the same amount of money. To make a pardon stink less to the press, you'd have to hire straw men, each requiring a percentage, to make the donations for you. For example, one of Marc Rich's straw men was his ex-wife, who donated $450,000 Clinton's presidential library. She also donated over $1 million to Clinton's political campaign. Ol' Marc had a dozen such straw men but only his ex-wife was caught because she was too obvious a straw man. Either way, he needs $24 million to walk free. Otherwise, he's going to be doing a lot of sudoku for a couple of decades....
He is just as dangerous as guys who rob places. I sure am glad I never cut that guy off in traffic. An unstable person like that would shoot out my windows for sure.
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