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New arguments filed in 'stand your ground' case

CASPER — Lawyers for a Casper man whom a local judge found immune from a murder prosecution on the basis of a new law filed arguments last week with the state’s highest court, largely outlining the issues to be decided following oral arguments this fall.

The filings stem from the first judicial test of a new Wyoming law that institutes “stand your ground” and “castle doctrine” provisions. Earlier this year, a Natrona County judge dismissed a first-degree murder case and the defendant went free, despite his lawyer’s acknowledgement that he shot another man nine times.

The judge, however, asked lawyers to appeal in order to ensure the state’s highest court had a chance to review the new law’s implementation. Now, lawyers’ filings make more clear what issues they will take before the state’s highest court in a case that could determine the implementation of legislation that was controversial even before it became law.

The case dates back more than a year, when Jason T. John shot Wesley Willow, Jr. dead near the entrance to John’s Casper home. Police arrested John in the early morning hours of Aug. 3, 2018.

When he appeared in court the following Monday, he was flanked by two public defenders, who — in a somewhat atypical appearance at a bail hearing — stated John had acted in self-defense.

“The law in Wyoming says you have a right to defend yourself in your own home,” said Rob Oldham, who has since resigned from the office to work in private practice.

Prosecutors at the same hearing charged John with first-degree murder, a count in part supported by court documents stating John had sent a flurry of text messages threatening a group of people including Willow. The case made it past a preliminary hearing, where a Natrona County Circuit Court judge ruled prosecutors had probable cause to bring the charge. The case then migrated to district court, where felonies are tried.

Before the case could go to trial, Tim Cotton, a private attorney who handles contract cases referred to him by the public defender’s office, challenged the charge. Cotton argued that a law promising protection from prosecution in certain cases meant that John should not stand trial.

The law, only about a month old at the time of the shooting, had not yet been tested in court.

During a 2 1/2 hour February hearing, Judge Catherine Wilking first ruled that the law does not specify how judges should observe it. She called for a special hearing in order to determine if John should be immune from prosecution in the case. By the hearing’s late-afternoon end, Wilking found prosecutors Kevin Taheri and Dan Itzen had not shown John could be prosecuted under her interpretation of the law.

The judge stated throughout the hearing, however, that the case should be appealed to ensure that the state’s highest court determine how to analyze the new law going forward.

“I am the first to confess that this is my interpretation of the statute and the case law and it may well be that the Wyoming Supreme Court will interpret these issues and statutes differently,” she said at the hearing. “The courts and the litigants throughout the state of Wyoming are in desperate need of guidance on how to proceed in these cases under this new statutory scheme.”

About two weeks later, the Wyoming attorney general’s office asked the state’s highest court to consider the case. The court shortly after agreed. Cotton handed the case off to the public defender’s Cheyenne appeals office, and in July state lawyers filed an outline of their arguments. Then, on Monday, public defenders filed their own arguments, making clear for the first time what attorneys will contest before the state’s highest court.

The law at issue passed through a divided state legislature only with heavy amendments, which included the removal of a passage that explicitly called for pre-trial procedure to determine if the new law would apply. That language, which law enforcement and a trial lawyers organization opposed, would have required a judge to find beyond a reasonable doubt that a person had not acted in self-defense before a case could go to trial.

The bill that became effective law in July 2018, as a result, did not explicitly state how judges should consider it. Although the new portion of law states a person who reasonably uses deadly defensive force when necessary to prevent imminent death or serious injury shall not be prosecuted, lawyers disagree on how that should be determined. The state’s lawyers offer a series of alternate arguments on the issue, most starkly stating that the law is only a directive to prosecutors and not to be enforced by judges in hearings like the one Wilking held.

And, although Cotton and legislative watchers have referred to applicable law as “stand your ground” legislation, Wilking differentiated between that and another portion of the same law, which she deemed belonging to the “castle doctrine,” a term that arises from common law tradition but has gained prominence as state legislatures across the country have passed similar legislation in recent years.

Portions of the law Wilking considered in issuing her decision to dismiss the case state that if a person uses deadly defensive force a reasonable person would deem necessary to prevent imminent death or serious bodily injury, they shall not be prosecuted. It is not required by the law that the danger be real, only that a person has an honest belief the danger exists.

The law also states that if a person uses deadly force against an unlawful and forceful home intrusion, the law presumes them to have a reasonable fear of imminent death or serious bodily injury. If somebody unlawfully and by force enters somebody else’s house, they are intending to commit a violent or forceful crime, the law likewise presumes.

If a person is attacked in a place they are legally allowed to be and while they are not breaking the law, they do not have a duty to retreat and likewise may use deadly force if a reasonable person would judge it necessary to prevent death or serious bodily injury. Wilking deemed the latter section of law the “stand your ground” portion, which is a term that has likewise gained prominence as such self-defense laws have cropped up elsewhere in the country.

At the February hearing, Wilking first noted that in four states with similar laws — Colorado, Florida, Kentucky and Kansas — courts require a dismissal hearing if such a law might be implicated. The judge concluded prosecutors should be required to show John was not immune from prosecution.

During the remainder of the hearing, attorneys cross-examined a police detective before giving closing arguments. Wilking then ruled that the district attorney’s office had not overcome presumptions created by the law that would prevent it from prosecuting John.

She dismissed the case.

In a Feb. 28 written filing ordering dismissal of the case, Wilking addressed components of the “stand your ground” portions of law but largely leaned on the “castle doctrine” in making her analysis. The judge wrote John was legally present in his home, was not the aggressor and was not engaged in illegal activity. The judge determined he had no duty to retreat.

Willow, Wilking ruled, had not been invited inside, and it was he who instigated violence, putting John or others inside the home at risk of serious bodily harm or death.

Even though John told Willow to stay back, Wilking wrote, Willow “made an unlawful and highly provocative and violent entry.”

John then fired his AR-15 nine times, Wilking determined, with no discernible pause between shots. Willow’s body was later found in the home.

The facts of the case mean authorities are to assume John had a reasonable and honest belief that deadly force was necessary, Wilking ruled.

Because Willow unlawfully and forcefully entered John’s home, the law’s presumption of reasonableness then becomes effective. Prosecutors did not show probable cause to determine John wasn’t justified under the law. The judge then wrote that John should be afforded protections promised under the law prohibiting his prosecution.

About three months after the state Supreme Court agreed to take the case, state lawyers filed their first comprehensive set of appellate arguments. Although the state’s lawyers will be allowed until Sept. 24 to file another document expanding on their July arguments and replying to John’s case, lawyers have determined the greater contours of what the court will likely consider.

The attorney general’s office filed 61 pages on July 15, calling for the Supreme Court to determine that district court judges are not authorized to throw out cases on the basis of the new law. In the filing, signed by Taheri, Attorney General Bridget Hill and three lawyers from her office, the state argues the district court should not have chosen to create a new pretrial procedure for considering challenges under the new law.

“The subsection does not contain any explicit procedure for the Judiciary to overcome the Executive’s exclusive authority to initiate a prosecution based on its discretion,” the attorney general argues. “Accordingly, the district court’s creation of a procedure violated the separation of powers. Its interpretation also impermissibly extended the language of the statute.”

The only place for judges to restrict prosecutors’ latitude in charging, the state office argues, is in circuit court, during a preliminary hearing.

The state attorney general’s office proceeds to say that district court judges — like Wilking — could consider applicable immunity issues on appeal from circuit court decisions. Wilking’s dismissal should also be voided and sent back to her court where the judge could only properly consider it as a writ of review, according to the attorney general.

The state’s lawyers went on to argue that even if the Supreme Court finds against them on the other issues and determines that Wilking correctly interpreted the new law by creating a procedure specific to it, prosecutors still showed the evidence necessary to show probable cause John did not act in self-defense.

On Sept. 9, the State Public Defender’s Office filed 85 pages arguing Wilking’s decision to hold the hearing was an appropriate way to determine if she had jurisdiction over the case at all. When she found the case should be dismissed, the defense lawyers argued, she did not seize prosecutors’ power but exercised her own.

“This Honorable Court should decline the state’s offer to permit the executive branch to completely usurp the judiciary’s independent obligation and power to determine jurisdiction,” wrote State Public Defender Diane Lozano and two of her office’s senior appeals lawyers, Kirk Morgan and Desiree Wilson. “The district court in Mr. John’s case did not improperly overstep its powers in holding a hearing to make that determination.”

The public defenders also argued that prosecutors had ignored certain portions of law in arguing that judges can only challenge prosecutors’ charges in circuit court. The defense lawyers argue that Wilking’s application of law is akin to a litany of similar exercises, including judges’ suspensions of cases when defendants have mental illnesses or when they dismiss counts that have been improperly charged.

Because John had not yet been provided access to evidence collected by law enforcement, the defense team states, he could not have had a fair shot at the circuit court hearing. He didn’t yet have enough knowledge of the case — provided in the discovery process — to properly challenge the charge on immunity grounds.

John’s lawyers go on to argue that a preliminary hearing is also not designed to consider whether immunity should be applied. Law governing such hearings does not allow judges to handle issues like immunity. As a result, the defense team states, Wilking could not have considered the issue on an appeal from circuit court.

Although the defense team largely argues in favor of upholding Wilking’s decisions, they do ask for a stricter standard of evidence at such hearings. The public defenders argue that the appellate court should apply a different standard than the probable cause adopted from other states. John’s lawyers argue instead that prosecutors should have to show beyond a reasonable doubt that a defendant is not immune under the new law.

Although a “stand your ground” provision cited by prosecutors — and which, they have argued, exempts John from immunity — is dependent on a person not participating in illegal activity, the defense team points to Wilking’s factual findings in stating John had no duty to retreat. The defense lawyers asked the court to decline to consider revisiting John’s case and to keep the finding of immunity in place.

Oral arguments are scheduled for Oct. 17 in Laramie at the University of Wyoming College of Law, according to the state Supreme Court clerk.

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