Thursday, August 24, 2000

Validity of charges questioned

Case for self-defense very strong, lawyers say

By Janice Morse
The Cincinnati Enquirer

        As Josie Whitaker, 68, sat in a Butler County courtroom Wednesday, charged with murdering her husband, a question was raised by her children and a domestic violence group's leader: Should she have been charged in the first place?

        “The fact that they even dared to charge her, I can hardly believe it,” said Nancy Neylon, executive director of the Ohio Domestic Violence Network, after hearing a description of the situation. “What if this were a stranger that was raping her? Would she be charged?”

        The Hanover Township woman's lawyers, Jack and Pat Garretson of Hamilton, say all the evidence presented in court points to self-defense: a 911 tape in which Mrs. Whitaker reports her husband William, 70, threatened to kill her; photographs showing bruising on her neck and head; an envelope containing a weapon that Mrs. Whitaker said her husband used to sexually assault and beat her; and deputies' testi mony that she consistently repeated her statements about the incident.

        Legal rules do guard a person's right to defend oneself. But the rules also say such a case can go to a grand jury if a judge is convinced of two things: someone was killed, and the defendant probably did it. That's why cases claimed as “justifiable homicide” can become very complex once charges are filed, experts say.

        Sheriff's deputies, in consultation with the county prosecutor's office, decide which initial charges to press, then let the court system sort out the rest, said

        Col. Richard K. Jones, Butler County sheriff's chief deputy.

        Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women in Philadelphia, said sometimes it's “just the right thing to do” for officials to decline to press charges against a person claiming self-defense in a homicide, but she emphasized the need for a thorough investigation.

        Jon Paul Rion of Dayton, a board member of the Ohio Criminal Defense Lawyers Association, said authorities often are too quick to press charges in such cases, resulting in legal fees and public humiliation for a defendant who may well be innocent. “Their lives are never the same,” he said.

        But Paul Giannelli, a Case Western Reserve University law professor who lectures on battered women and justifiable homicide, cautioned: “Claiming self-defense is not the same as proving self-defense.” Ohio court rulings say homicide is justified when a person acts out of a reasonable fear of death or serious injury. “You also have a duty to retreat if you can — but not in your own house,” Mr. Giannelli said.

        Domestic violence claims of justifiable homicide are less clear-cut than those involving an attack by a stranger, said John E. Murphy, executive director of the Ohio Prosecuting Attorneys Association. There would be no reasonable motive for a person to kill a stranger, he said, but a person could have many possible motives for killing a relative.

        In both scenarios, “there are normally no witnesses other than the deceased or the defendant,” Mr. Murphy said. “I've had cases where (a self-defense claim) might be legitimate or it might not.”

        The prosecutor, who presents the case to a grand jury, must decide whether the self-defense rules apply, Mr. Murphy said, adding, “There's no sense in prosecuting a case that's clearly self-defense.”


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