The Expert Witness and Trial Strategy from Armed Citizens Network

                                                              

An Interview with Massad Ayoob

Interview by Gila Hayes

We are fortunate to have the opportunity occasionally to share meals and hospitality with some of the genuine luminaries in the field of self-defence instruction. These include master instructor, author and expert witness Massad Ayoob. A topic of discussion during one of Massad's recent visits was cased in which he was serving as an expert witness. An expert can help myriad roles ranging from giving on-point testimony to explain facts; laypersons on the jury are not expected to readily know to work behind the scenes with the trial team to recommend how best to defend the case, essentially, guiding trial strategy. We took advantage of a recent visit to talk to Massad on the record about his experiences teaching trial strategy.

eJournal: The role of the expert witness on a trial team can have a greater depth than many of us realize because we tend to focus on what happens in the courtroom, with little awareness of what went before. With some 40+ years' experience testifying in the courts about the use of force issues, you have much to teach us about the role of the expert.

Your long experience is always enjoyable, but more importantly, a clearer understanding of the expert witness' value on the trial team stands to makes us better consumers. I have read about situations where attorneys took complicated cases to trial with no expert and lost. Today, I would like to ask what role the expert plays in helping the attorney determine how best to defend a client?

Ayoob: An expert can bring many things to an attorney, but attorneys – especially a new attorney – don't always take advantage of everything an expert can bring. If this is an attorney's first case or the attorney's first case of this type, the attorney has probably never worked in this field. An expert, by definition, works in the area, and that sort of thing is all that they do, so the expert has got a lot more experience. The attorney typically is licensed to practice only in his state or a few contiguous states, while the expert witness practices all over the country. We can hook that attorney up with attorneys elsewhere who have had similar cases and brainstorm with them about strategies that worked and didn't work for them in the past in similar circumstances. Of course, we can also do the same with experts.

The dynamics of violent encounters is a subject not generally taught in law school. A lot of attorneys, for example, have said, "Oh my gosh, he shot him in the back!" or "He shot him seven times! How can I defend that?"

As experts, we define for them the speed of fire, the resilience of the human body, and we may say, here are the books of Dr Vincent DeMaio and Abdullah Fatteh. We can say, look, here are guys who have been shot in the heart and kept going, here are guys who have been shot multiple times and kept going.

I recently did a case where the guy had been shot through the head with a .45 ACP hollow point; the wound track goes from just inside the centerline of the forehead to the ear canal. His score on the Glasgow Coma Scale was about where one of our students would be watching a video lecture right after lunch. He was responsive to questions, coherent, and unlike our students watching a video, combative. We have had cases of guys with brain matter hanging out of their heads who were still performing the conscious, purposeful activity.

eJournal: It seems another topic of considerable contention comes up in defence shootings with entry wounds in the back. I'd expect you've had your share of those.

Ayoob: My first one of those was from 1984 to 1985. It involved a battered woman. The assailant came at her expressing homicidal intent, and she took the revolver she borrowed from her son and fired: bang, bang, bang. He takes one to the chest, just behind lateral mid-line, and one square in the back that killed him. They charged her with either manslaughter or second-degree murder; I would have to go back and look to be sure. We had to go into court in a full-blown trial to explain; look, here is how fast the body turns when the guy realizes, "Oh my, I was the wolf, she was the rabbit, but the rabbit has just grown fangs and is going for my throat!" He takes the first hit in the chest, and as he is rapidly turning away, the second hit him in the side, and before she can process the change, she fires, and he takes a shot in the back.

We had to go into court and explain what we've known since our colleague on the Network advisory board, John Farnam, first published it in the 1970s: the average person can fire a double-action revolver at a rate of four shots per second counting from shot one to shot four; with a self cocking semi-automatic pistol with the shorter trigger stroke, for the average person, it is five shots in a second and many people can go faster.

That is the first of three action-reaction paradigms that we must establish and bring together to form a Venn diagram. The second paradigm is the speed of the turn. The average person can make a quarter turn, about 90 degrees, in a quarter of a double and a half turn in approximately half a second.

Remember, being shot in the back does not necessarily mean square in the back. The legal profession uses the same standard as the medical profession: behind lateral mid-line is "in the back." If you touch your fingers to the top of your head at the crown of your skull, track down, across the ear canal, across the shoulder seam of your shirt, down the side seam of your shirt to the hem of your trousers to the common peroneal nerve, that is the lateral midline. Move ¼ inch behind that, and if hit there, you would be seen as having been shot in the back.

Finally, we have the time it takes for the individual who is shooting to perceive this unexpected change and stop shooting. If they had expected the guy to turn away, they wouldn't have been shooting at all, so the man is coming at them, and if they want to see their loved ones again, they feel they have to shoot as fast as they can.

Now, the commonly quoted reaction time for humans of a quarter of a second is absolutely true, but you have to bear in mind: that is the reaction to anticipated stimulus. Your hand is hovering over the button; you are waiting for the sound of the beep, and it is "beep!" "slap!" and you slap the button in .23 - .26 seconds or better.

What you have here is totally different from a reaction to an anticipated stimulus. If unexpected, a cognitive element is added, and you have to go through Colonel John Boyd's OODA loop. You have to observe that he is turning away. You have to orient and ask, "What does this mean?" It means he is no longer coming at me, trying to kill me. You have to decide, "What do I need to do?" Uh, stopping shooting would be a pretty good idea! And you have to finally act: the first physical manifestation of the reaction loop. That means getting the finger off the trigger. Now, remember, the extensor muscles are not as strong as the flexor muscles in hand. How long does that take? Any human would be hard-pressed to do that in under 7/10 of one second. One recent study in Australia indicated 1.14 seconds for reaction to unanticipated stimulus.

Now we bring the Venn diagram together. You are firing at a rate of one shot per .20 to .25 seconds. He can turn in as little as .25 seconds. It will take you the better part of a second or more than a second to process that, react, and stop shooting.

It gives us the nuclear-grade soundbite, "Counselor, what the prosecution demands from this defendant is not humanly possible!"

eJournal: Do you customarily present all of that science yourself, or are you one of a choir of experts?

Ayoob: I generally do it all myself because it is all within my expertise. All of us in the business teach all the time: action-reaction paradigms, OODA loop, etcetera. In the battered woman's case, the jury took two hours to determine not guilty on all charges, and three of the jurors waited outside on the courthouse steps to hug the defendant and tell her that they thought her trial had been an outrage. Lawyer Mark Seiden, who was the defence attorney, orchestrated an absolutely brilliant case.

eJournal: Was the man who attacked that woman armed with any weapon beyond his considerable, brute strength?

Ayoob: Brute strength. He was her common-law husband, was 45 years old and weighed 230 pounds. The battered woman was 63 with severe arthritis. He had gone through the usual battering husband paradigm of verbal abuse, then the push and the shove, to the slap, to the closed fist, and on the day that she told him she wanted him to get out, he became enraged and started beating her.

Remember that this happened back in the 1980s. She reaches for the wall phone to call 911; he rips the phone out of the wall, wraps the cord around her neck, throttles her until she is unconscious and leaves her for dead. He then went out, and she regained consciousness, crawled on her arthritic hands and knees to the next-door neighbour's house, and called the police. While the police were there, the common-law husband came back to the house and was arrested.

We were able to get the county deputies to come in and testify that as they were putting him in the car, he was screaming, "Mary, you bitch, I'll kill you for this." He was subsequently bonded out, and then he came back to do it. She had, thank God, borrowed her son's revolver.

eJournal: I have heard you describe different trial strategies using the terms "rifle approach" and "shotgun approach" to describe other tactics. Would you say the battered women's shot in the back defence was a multi-faceted presentation, or did it focus on a single issue?

Ayoob: In a rifle case, they bore profoundly and powerfully into one issue. When we say a shotgun case, we mean they're spraying everything at the defence, hoping it hits a vital target. The battered woman's case was pretty much a rifle case: an unarmed man shot in the back. What we had there was a confluence of two pervasive myths: The unarmed man, killed with a gun, tends reflexively to be seen as the victim. It is seen as a modern, well-developed nation dropping a bomb on a Third World island or something. It is seen as having taken unfair advantage.

I have talked to attorneys who never heard the phrase "disparity of force in three years of law school." Any one of us would have realized that a 230-pound healthy man in the prime of life attacking a woman who was old enough to have qualified for Social Security and who was crippled by arthritis was a clear and present danger of death or great bodily harm.

The other problem was the shot in the back. Literally, every culture sees a man shot in the back as the victim of a cowardly ambush. One would think that even if this is not taught in law school, it would at least be introduced to prosecutors or in continuing legal education (CLE), but apparently, that is not common.

eJournal: Thank goodness you had the expertise to explain why her use of force was reasonable since apparently, no one else understood it. Ideally, though, the facts you just described should influence charging decisions that prosecutors have to make and continue all the way up to decisions judges have to make about how to go forward with the trial. Were you allowed any opportunities to explain that just before it went to trial?

Ayoob: In that case, we did not. They did not bother to take depositions, and we had an unusually unpleasant, snarky prosecutor. The majority of prosecutors are not soulless politicians who pander to the public. The great majority of them already have more actual criminals than they can deal with and no interest in making criminals out of innocent people.

What I have found is that if you have a typical, honest prosecutor. You have an attorney who is respected by the prosecutor's office. If your attorney calls and says, "My client, the man you are prosecuting, would like to talk to you. I will be with him, of course, and we will record it," that is so uncommon that you may literally get a double-take from the prosecutor and hear, "This isn't something that happens every day! OK, we will give this a try."

Often, also, the attorney will make the expert available. You sit down and explain, and let your client answer the questions, and very often what we find is that if not right, then within a few days, the prosecutor will say, "We had not seen that side of it. Upon review, in light of new evidence" (which is always a face-saving thing), "we have decided that this is inexpedient to prosecute and is being dismissed in the interest of justice."

eJournal: [Ironically] Not that the defendant did what was right, but that it is not a winner for us to prosecute.

Ayoob: Occasionally, you will find a prosecutor who will stand up and say, "Dammit, he has done the right thing, and that guy needed killin'," but I would not count on it. I recall one anti-gun prosecutor in Indiana. Here's what had happened: A woman had, let's say it this way, made some bad choices in life. She winds up deep into a drug-dealing group and ends up going to prison. Her son, who by the time of the incident was 11 years old, went to live with her mother. Basically, while biologically his grandmother, she was, for all intents and purposes, his mom.

The grandmother's husband, who essentially became the boy's stepdad, had taught him things like how to change a tire, how to go fishing, and how to shoot. He kept a .45 auto in the house, and he had taught the boy how to shoot it. Well, he dies, and now there is just the grandmother/mother and the 11-year-old boy. In prison, the mother apparently told her gangbanging friends that her dad has a whole, extensive gun collection they could steal and fence.

Now, remember prescription drugs and guns are the two things they can steal from you and sell on the black market for more than their intrinsic value instead of a dime on the dollar. So, this evil POS comes to the house saying that he is a friend of the boy's birth mother. He puts a blade to the mom's throat when he enters the house and demands the guns. The little boy sees this, runs upstairs, grabs his dad's .45, comes running down, points it at the guy, and says, "Let go of my mom," which he calls his grandmother. The guy tries to use her as a human shield but spins her around so fast that she goes past him, and that 11-year-old boy executed a perfect heart shot with a 230-grain .45 calibre Black Talon bullet. The guy turns, stumbles outside and collapses and dies.

The anti-gun prosecutor was an honest man who, while he believed differently from you and me on the gun issue, saw the reality of what would have happened. He protected that kid; he would not allow the child's name to be made public; he ruled the shooting to be a justifiable homicide. When an anti-gun group demanded that he charge the mother with negligence for leaving a loaded gun where an 11-year-old boy could reach it, he told them to pound sand! Not all anti-gun prosecutors are monsters!

eJournal: We should set aside our prejudices and concentrate on building bridges between ourselves and prosecutors. What role does an expert witness have in creating those kinds of bridges?

Ayoob: Because it is not taught in law school, part of our job is explaining the use of force to the defence attorney.

eJournal: How do you get past fearful or prejudiced attitudes towards gun use for self-defence?

Ayoob: Well, I can't go to them. I can't chase the ambulance. If they come to me and say, "Here is what we've got. Can you be any help at all?" I can say, "Yes, here is what I can do for you. Here is what you can do using us and using the facts that you have. If you feel your client can handle getting his word across, sit your client down with the district attorney and the chief investigator."

I recommend that it all be videotaped, not just audio recorded, because any of us can become slightly sarcastic when we perceive ourselves to be under attack. You can end up saying something in a tone of voice with a facial expression that shows that I know this means the opposite of what I am saying. With my students, the example I use is that if someone was to say to me tomorrow, "Gosh, I think it is a tie whether Janet Reno or Eric Holder was the finest attorney general America has ever had." I might go [snorting], "Yeah! Right!"

If there was only the black-and-white of a printed transcript, it would sound like I agreed with that instead of mocking it. We are creatures of inflexion. Anytime you are sitting down and discussing your incident, you want it on videotape. Hence, in case there was some sarcastic remark, if something like that spontaneously emerges, anyone watching it can say, "Come on, it is obvious that he was sarcastic, not confessing to a crime."

eJournal: Isn't there a lot of risk for the client and thence for the attorney in agreeing to talk to the prosecutor or district attorney?

Ayoob: There is if you have a guilty client! We have to constantly remember that a high 90th percentile of the criminal defendants who are represented by criminal defence lawyers are either guilty or guilty of a lesser, included offence. That is why the whole "Never talk to the police" meme came up. What could a guilty person say that is not going to inculpate them further or now enmesh them in perjury, as well? And, if they said it under the auspices of an attorney, they are opening the door for the attorney to be charged with subornation of perjury which, where I come from, is a class four felony in and of itself and will cost you your bar card and your hard-earned occupation and career for the rest of your life. Of course, they will say, "Don't talk to the police," and the same ones say, "I never put my client on the stand."

When you have an excellent self-defence case, you have an innocent person. The truth is going to be their most robust defence, and nothing is going to change it. We saw it most recently, most starkly, nationwide in the trial of Derek Chauvin in the death of George Floyd. When he announced, outside the jury's hearing, that he would not take the witness stand, I just stood up and walked away from the television set. I knew right then that it was guaranteed that he would be convicted, and he was.

When it comes down to something like that, it is not "Who did it?" We know that you did it, and you have stipulated that you did it. The question becomes, "WHY did he do it?" Only the person who did it can fully explain that.

eJournal: When you first take a case, do you sometimes have to initially convince the attorney that his client is actually innocent?

Ayoob: Sometimes, yes. I have spent many, many years dealing with many, many defence lawyers. I spent two years in the mid-1990s as co-vice chair of the forensic evidence committee for the National Association of Criminal Defense Lawyers. The other vice-chair was Mark Seiden. We served under a great defence lawyer who chaired the committee, Drew Findling of Atlanta. I have met a whole lot of these folks. On average – not always, obviously, but on the standard – defence lawyers tend to be a bit to the left on the political spectrum. Many of them are in that particular practice because they perceive themselves to be protecting the downtrodden, if not the innocent. Many of them are anti-gun, and reviewing gun evidence or researching gun-related or violence-related evidence is as repugnant to them as if the judge had assigned them to defend a child pornographer and they had to examine the evidence. Their reaction is like, "Yuck! I don't want to touch this."

You have to explain, "No, your client shooting him seven times is not automatically indicia of malice. No, there is any number of situations that could account for that shot in the back." Again, it is not something that is taught in law school. The dynamics of violent encounters are not taught in law school, either. They may be introduced in CLE (continuing legal education) in specific seminars for cases of this type. You will find the occasional criminal defence lawyer who really knows his guns and all these dynamics. The Mark, as mentioned earlier Seiden is one good example, as are Terry Cassidy, who retired a while ago from defending law enforcement officers and use of force cases at the Porter Scott firm, and Missy O'Linn, whose sole practice is supporting police in the use of force cases, but they are few and far between.

eJournal: Now and then, I run across an attorney's bio page that includes military service, then they became a police officer and then became an attorney. That always warms my heart because I feel like someone has a broader set of experiences and is not just relying on what they were taught in law school.

Ayoob: Mark Seiden was a homicide detective from Metro Dade, Miami, before he became an attorney.

eJournal: Talk about understanding the dynamics of violent encounters! Unfortunately, I think Mark is the exception, and lawyers like him are rare. That creates such a need for an expert like you to sit down with less experienced attorneys and spell out what the science and experience shows to be true. I have always wondered how you get into their heads and help them see the human factors. No one would have wanted your 63-year-old battered woman client to have been killed, so why was there ever any question about justification for her self-defence shooting? How do you make the appeal to view that shooter as a valuable human being?

Ayoob: It is not my job, and they would probably feel insulted if I said, "You owe your client an expert witness." It is my job to tell them, "Here is how you can do your job for your client in this particular circumstance – one you have not dealt with before. Here is how other attorneys have dealt with it. Here is how you would use another expert in my field or me to deal with it." That IS a part of my job.

Like Manny Kapelsohn (another Network Advisory Board member), most of us, who does more work on the expert witness side than even I do, will occasionally lecture at CLE programs. That is our kind of giving back. We can't reach every attorney in America; we can't take every case in America. Still, we can tell attorneys all over, if you get one of these cases, here is how you can establish something that is so far out of the common knowledge that not only is it something that the jury pool will not understand and will need to have explained, but will also need to be explained for most of America's 1,000,000+ attorneys who didn't get much instruction on self-defence law in law school.

Law school is three years. When asked, attorneys' standard answer is, "Law school taught me the law. On the job training in the courtroom and CLE taught me trial tactics." That really is pretty much the case. Law school is three years of a great sea of contract law, marital law, family law, maritime law, and some criminal law was thrown in. There is no time for the subtleties or of that nuance of any given type of case. That is why attorneys network within the various lawyers' associations, talk to other lawyers about similar topics. That is why I belong to the National Association of Criminal Defense Lawyers, and so does Marty Hayes and others in our field. I am not a practising attorney, but it gives me contact with other cases and attorneys who have had issues like the ones I will be dealing with in the future. All of us learn from one another. Networking is part of education.

eJournal: Yes, it is, and ideally, education should be a life-long endeavour, so there is much yet to be done. I know you have a lot of other exciting details about the ins and outs of defending the use of force in self-defence, so in the interest of not cutting anything out, let's take a break for now and come back next month for the second half of this exciting talk.

__________

About Massad Ayoob: Armed Citizens' Legal Defense Network is fortunate to have enjoyed the guidance of Massad as part of our Advisory Board from Day One. We've been personally associated with him for quite a lot longer, with Network President Marty Hayes first meeting Massad in the early 1990s when he began hosting his classes in the Pacific Northwest.

Mas has been a court-recognized expert witness for the courts in weapons and shooting cases since 1979 and served as a fully sworn and empowered part-time police officer for 43 years, mostly at supervisor rank. Ayoob founded the Lethal Force Institute in 1981 and served as its director until 2009, and now trains through Massad Ayoob Group. He has appeared on CLE-TV, author of numerous books, articles, videos, and podcasts, delivering continuing legal education for attorneys through the American Law Institute and American Bar Association. Mas was named president of the Second Amendment Foundation in September of 2020, and he continues to teach nationwide. Check out his classes at https://massadayoobgroup.com/events/ and get registered for a course.