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I have no objection to it being clarified, if need be, that a person is entitled to claim self-defense if he has failed or refused to retreat in the face of an aggravated assault.

But to the extent the pending bill purports to grant some kind of prima facie or automatic immunity to anyone who claims self defense, I have serious concerns. The cases always need careful consideration by law enforcement investigators, prosecutors, and in some cases, a Wyoming jury. The law of self-defense in Wyoming already grants huge advantages to the survivor of a fatal confrontation, and I’d even propose that needs to be changed.

Many years ago I was involved as an investigator/witness in one of the most infamous murder cases in Wyoming history where a self-defense claim was made. I think the trial was probably the worst travesty of justice I’ve seen in the nearly fifty years I’ve been involved in the criminal justice system in Wyoming. The law said, and still says, the jury will be instructed that once a claim of self-defense is made, the prosecution has the burden of proving it was not self-defense.

That is a very difficult burden for the prosecution in many cases. Proving a negative is inherently difficult. But more important is the inherent unfairness of that. A self-defense claim is an accusation against the dead person that he committed a serious crime—aggravated assault with intent to commit murder or serious bodily injury. Yet, unlike the defendant on trial he has no right to appointed counsel, no right to be presumed innocent, and certainly no right to testify to tell his side of the story. The defendant, by killing him, has insured he cannot tell his side of the facts. Theoretically the prosecutor will represent him, but that’s not really the way it works. The prosecutor represents the state — not the dead victim, and in the case I’m talking about they did a poor job of defending the dead man. It’s a bit like the way we used to treat rape victims — the defense is free to say whatever they want about the victim—to slander her — without fear of being contradicted. (At least the rape victims are usually alive to defend themselves.)

So I’d recommend the Legislature add a section to this bill shifting the burden of proof to the defendant who is claiming self-defense to prove it to the jury. I know some defense lawyers will say the defendant should not have that burden — it’s a violation of due process or something. I understand that, but self-defense murder cases where only one survives and the other is not present to defend himself in court because of the actions of the defendant, are different. The dead victim should be entitled to a bit of due process as well. No one should escape liability, or even scrutiny of his actions merely by asserting “it was self-defense.”


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