Legal self defense ammo?

[WhiskeyTangoFoxtrot 358]

Supreme Court of New Jersey
State
v.
Daniel N. Bias
NOS. C-188 SEPT.TERM 1995, 40,813
Oct 03, 1995
Disposition: Cross-pet. Denied.
N.J. 1995.
State v. Bias

This is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way. On the night of 2/26/89, Danny Bias entered the master bedroom of his home to find his wife Lise holding the family home defense revolver, a 6” S&W 686, to her head. He told police that knowing that she had a history of suicidal ideation, he attempted to grab the gun, which discharged, killing her. The gun was loaded with four handloaded lead SWC cartridges headstamped Federal .38 Special +P.

Autopsy showed no GSR. The medical examiner determined that Lise Bias had a reach of 30”, and the NJSP Crime Lab in Trenton determined that the gun in question would deposit GSR to a distance of 50” or more with either factory Federal 158 grain SWC +P .38 Special, or handloads taken from his home under warrant for testing after Danny told them about the reloads. However, the reloads that were taken and tested had Remington-Peters headstamps on the casings and were obviously not from the same batch.

Danny had loaded 50 rounds into the Federal cases of 2.3, 2.6, and 2.9 grains of Bullseye, with Winchester primers, under an unusually light 115 grain SWC that he had cast himself, seeking a very light load that his recoil sensitive wife could handle. The gun had been loaded at random from that box of 50 and there was no way of knowing which of the three recipes was in the chamber from which the fatal bullet was launched.

We duplicated that load, and determined that with all of them and particularly the 2.3 grain load, GSR distribution was so light that it could not be reliably gathered or recovered, from distances as short as 24”. Unfortunately, the remaining rounds in the gun could not be disassembled for testing as they were the property of the court, and there is no forensic artifact that can determine the exact powder charge that was fired from a given spent cartridge.

According to an attorney who represented him later, police originally believed the death to be a suicide. However, the forensic evidence testing indicated that was not possible, and it was listed as suspicious death. Based largely on the GSR evidence, as they perceived it, the Warren County prosecutor’s office presented the case to the grand jury, which indicted Danny Bias for Murder in the First Degree in the death of his wife.

Attorney John Lanza represented Danny very effectively at his first trial, which ended in a hung jury. Legal fees exceeded $100,000, bankrupting Danny; Attorney Lanza, who believed then and now in his client’s innocence, swallowed some $90,000 worth of legal work for which he was never paid.

For his second trial, Bias was assigned attorney Elisabeth Smith by the Public Defender’s office. Challenging the quality of evidence collection, she was able to weaken the prosecution’s allegation that the GSR factor equaled murder, but because the GSR issue was so muddled by the handloaded ammo factor, she could not present concrete evidence that the circumstances were consistent with suicide, and the second trial ended with a hung jury in 1992. At this point, the prosecution having twice failed to convince a jury beyond a reasonable doubt, the judge threw out the murder charge.

It was after this that I personally lost track of the case. However, I’ve learned this past week that the case of NJ v. Daniel Bias was tried a third time in the mid-1990s, resulting in his being acquitted of Aggravated Manslaughter but convicted of Reckless Manslaughter. The appellate division of the Public Defender’s office handled his post-conviction relief and won him a fourth trial. The fourth trial, more than a decade after the shooting, ended with Danny Bias again convicted of Reckless Manslaughter. By now, the state had changed its theory and was suggesting that Danny had pointed the gun at her head to frighten her, thinking one of the two empty chambers would come up under the firing pin, but instead discharging the gun. Danny Bias was sentenced to six years in the penitentiary, and served three before being paroled. He remains a convicted felon who cannot own a firearm.

It is interesting to hear the advice of the attorneys who actually tried this case. John Lanza wrote, “When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target.”

He adds, “With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load. With a hand load, you have no such uniformity. Also, the prosecution may utilize either standard loads or a different hand load in its testing. The result would be distorted and could be prejudicial to the defendant. Whether or not the judge would allow such a scientific test to be used at trial, is another issue, which, if allowed, would be devastating for the defense. From a strictly forensic standpoint, I would not recommend the use of hand loads because of the inherent lack of uniformity and the risk of unreliable test results. Once the jury hears the proof of an otherwise unreliable test, it can be very difficult to ‘unring the bell.’”

Ms. Smith had this to say, after defending Danny Bias through his last three trials. I asked her, “Is it safe to say that factory ammunition, with consistently replicable gunshot residue characteristics, (would) have proven that the gun was within reach of Lise’s head in her own hand, and kept the case from escalating as it did?”

She replied, “You’re certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, “It couldn’t have happened the way he said it did’.”

The records on the Bias trials should be available through:
The Superior Court of New Jersey
Warren County
313 Second Street
PO Box 900
Belvedere, NJ 07823



 

[NJGF 375]

Handloads: Not a Good Idea for Concealed Carry

http://www.gundigest.com/gun-blogs/books/handloads-not-a-good-idea-for-concealed-carry

 

"As an expert witness in shooting cases over the past few decades, Massad Ayoob has drawn a few conclusions about what works and what doesn’t. In this excerpt from his recent book, Combat Shooting with Massad Ayoob, he explains why he avoids the use of handloads for defensive purposes."

 

"While it’s a slam-dunk to defend your use of hollow point ammo, the use of handloads in a shooting presents much more serious problems to your defense team. Defensive shootings are often very close-range affairs in which gunshot residue (GSR) from your muzzle is deposited on your attacker’s body or clothing. This can become a critical evidentiary factor if the other side insists he was too far away from you to endanger you at the moment he was shot. The distance testing is done with exemplar ammunition, that is, ammo identical to what was in your gun, but not the same exact cartridges. Don’t count on the crime lab testing the remaining rounds from your weapon as taken into evidence at the shooting scene. If the fight was sufficiently intense, there may not be any rounds left in the gun that saved your life. Even if there are remaining cartridges in evidence, they may not be tested. The prosecutor can argue, “Your honor, firing those cartridges consumes them! It’s destructive testing! The defense is asking the Court’s permission to destroy the evidence! You cannot allow it!” Do you think that’s a BS argument? So did I…until I saw a judge accept it, in a case where handloads were used in the death weapon, but the state crime lab tested with a much more powerful factory load, based on the headstamp on the reloaded casings. That gave a false indication of distance involved, and the defendant – whom I have strong reason to believe was innocent – was convicted of manslaughter."

[WhiskeyTangoFoxtrot 358]

This as been the subject of much debate.  Like anything, to each his own.  Do as you please and wish.

 

TN v. Barnes

The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

The records of TN v. Barnes are archived under case number 87297015 at:

Criminal Justice Center
201 Poplar
Suite 401
Memphis, TN 38103

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.

A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

This is now absolutely, and I hope finally, refuted.

Respectfully submitted,
Massad Ayoob

[fishnut 2,358]

Thank you WTF for providing real case law and not someone's expert opinion

[gunnarsport 13]

And *if* that happens you don't care anyway..........right?  It's a sport to you and nothing more..........  you will just move on..... 

 

Exactly. Firearms is NOT my life! My family is!

[GRIZ 3,369]

The "law" doesn't really matter in a courtroom.  The prosecutor will lie through his teeth to convince the jury to convict.

 

Let's just say you have a SD good shoot in Newark.  The victim, jury, prosecutor, mayor, police all from Newark.

 

Prosecutor will point out your pistol is an aggressive "assault pistol" outside of the norm, the bullets are not normal bullets but are ones designed to maximize lethalness.  You were wearing 5.11 tactical pants so you were looking for a fight.  You "Liked" George Zimmerman's facebook page.  You do this thing called USPSA on weekends where you pretend to shoot people.

 

Low info jury members will eat it up.  Your public defender who is incompetent does not know what FMJ or HP means.

 

It's the difference between walking away a free man and a manslaughter conviction.  The only people who get justice are the ones who can't afford anything better.

If you have a "SD good shoot" how did it wind up in a criminal court? A good shoot is determined by the police investigation, the prosecutor's decision to prosecute, and the grand jury. All the things you mentioned might be brought up in a trial if they are deemed material to the case. If you're on trial there's good reason to believe it wasn't a good shoot.

 

If you're charged in a shooting many people say get a gun lawyer. You don't need that. You need a good criminal defense lawyer. Yeah the same guy that gets criminals off. He or she will ensure most of that immaterial stuff isn't brought up by the prosecutor.

[WhiskeyTangoFoxtrot 358]

If you have a "SD good shoot" how did it wind up in a criminal court? A good shoot is determined by the police investigation, the prosecutor's decision to prosecute, and the grand jury. All the things you mentioned might be brought up in a trial if they are deemed material to the case. If you're on trial there's good reason to believe it wasn't a good shoot.

 

If you're charged in a shooting many people say get a gun lawyer. You don't need that. You need a good criminal defense lawyer. Yeah the same guy that gets criminals off. He or she will ensure most of that immaterial stuff isn't brought up by the prosecutor.

Do you think George Zimmerman's shooting of Trayvon was a "SD good shoot"?

[JackDaWack 2,895]

And *if* that happens you don't care anyway..........right? It's a sport to you and nothing more.......... you will just move on.....

 

Exactly. Firearms is NOT my life! My family is!

What are you going to do now to ensure your kids live a wonderful and free life when they grow up?

 

Your family cant mean that much to you if your willing to give up their freedoms, and for what? What do you think someone like Clinton will do for your family?

[JackDaWack 2,895]

Thank you WTF for providing real case law and not someone's expert opinion

Just make sure your PD rounds are super dirty.....?

[fishnut 2,358]

Just make sure your PD rounds are super dirty.....?

I dont understand? Possibly due to baby induced sleep deprivation sorry.

[Purple Patrick 638]

The case he listed had 0 gun shot residue on the "victim" thats why they didn't think it was a suicide

 

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[fishnut 2,358]

Ok I get it now. LoL. I'm not firing on all cylinders today.

[10X 3,301]

The case he listed had 0 gun shot residue on the "victim" thats why they didn't think it was a suicide

 

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So...Dragon's Breath rounds in the home defense shotgun?

[Purple Patrick 638]

If you don't want to leave any evidence because your house burnt down then yes

 

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[GRIZ 3,369]

Do you think George Zimmerman's shooting of Trayvon was a "SD good shoot"?

Ultimately yes as he was found not guilty. There were several things Zimmerman did wrong AFAIC. First was not listening to the dispatcher who told him not to follow Martin. Changing his story and going on national tv didn't help him.

 

Few SD shootings wind up with with criminal charges being pursued. You can find exceptions to the rule or prepare for the most likely scenario. Statistics I consider reliable show about 50% of SD shootings result from burglaries or home invasions and 25% from robberies.

[WhiskeyTangoFoxtrot 358]

Ultimately yes as he was found not guilty. There were several things Zimmerman did wrong AFAIC. First was not listening to the dispatcher who told him not to follow Martin. Changing his story and going on national tv didn't help him.

 

Few SD shootings wind up with with criminal charges being pursued. You can find exceptions to the rule or prepare for the most likely scenario. Statistics I consider reliable show about 50% of SD shootings result from burglaries or home invasions and 25% from robberies.

 

From Wikipedia:

Zimmerman shot Martin, who was unarmed, during an altercation between the two. Responding to an earlier call from Zimmerman, police arrived on the scene within two minutes of the shooting. Zimmerman was taken into custody, treated for head injuries, then questioned for five hours. The police chief said that Zimmerman was released because there was no evidence to refute Zimmerman's claim of having acted in self-defense, and that under Florida's Stand Your Ground statute, the police were prohibited by law from making an arrest^. The police chief also said that Zimmerman had a right to defend himself with lethal force.

 

As news of the case spread, thousands of protesters across the country called for Zimmerman's arrest and a full investigation. Six weeks after the shooting, amid widespread, intense, and in some cases misleading media coverage, Zimmerman was charged with murder by a special prosecutor appointed by Governor Rick Scott.

 

 

Zimmerman was a douche, no doubt, but it was a good shoot and the police agreed.  He still got charged anyway after Lebron and D. Wade and the Miami Heat put on Trayvon hoodies in protest.

 

I understand "there are exceptions to the rule or prepare for the most likely scenario".  But, I've seen a video of an attorney getting arrested and read her Miranda rights by NJSP for ironically remaining silent.  I know a guy from Essex Fells who go arrested and charged with rape in the Duke Lacrosse scandal by a D.A. who later got jailed for his conduct in the case.

 

So yeah, I'm of the mind that things end up in criminal court that shouldn't be there in the first place.  To me, the most likely scenario is that the police and D.A. will try to jam you more often than not but that's my personal opinion.

[GRIZ 3,369]

 

So yeah, I'm of the mind that things end up in criminal court that shouldn't be there in the first place.  To me, the most likely scenario is that the police and D.A. will try to jam you more often than not but that's my personal opinion.

True there are things that wind up in criminal court that should have never gotten there. Police and prosecutors usually have too much to do to "jam you up more often than not". I make the statement having been involved in the criminal justice system for over 30 years.

 

You are, of course, entitled to your opinion.

[JohnnyB 4,326]

Let's face reality here. It is an unfortunate reality, but true nonetheless. If your skin color is white, think twice before shooting an adversary whose skin color happens to be black!

When was the last time you saw a news story of riots due to a white on white, black on white or black on black shooting(the most common)? I am Not racist, only factual!

 

Zimmerman made mistakes by not taking the advice of the police dispatcher. He could have avoided the situation and he should have! Did Trayvon Martin deserve to be shot?

I say yes, based on Florida law. Had the same incident occurred in New Jersey George Zimmerman would not have had a gun and would most likely be dead today and it would have

been on page 16 of the local newspaper.

[ted527 21]

If i ever felt the need to shoot, skin color would be way down on my list of concerns.

[45Doll 5,877]

Does anyone know for a fact what specific round(s) the NJSP use? Are they limited to one round type across the state, or is it a multiple choice?

[PK90 3,570]

The NJSP are only one of thousands of different organizations that carry firearms in NJ, but I am certain that over 90% use HPs. Why wouldn't they carry the best proven design out there?

 

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[45Doll 5,877]

Does anyone know for a fact what specific round(s) the NJSP use? Are they limited to one round type across the state, or is it a multiple choice?

I didn't ask the question to join the argument. I would just like to know if the NJSP operates as a single entity, and if it's specified what round (or caliber for that matter) all NJSP troopers must use. Or are there options?

 

For example, are they required to carry Speer Gold Dot 9mm +P 124 gr. JHP? Something different? A multiple-choice list? Or do they all just do what they want?

[Purple Patrick 638]

My local PD has 45 gold dots

 

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[PK90 3,570]

 

 

I didn't ask the question to join the argument....

Sorry, I just didn't get the point of the question. I assumed you thought the NJSP are the guiding light for all of NJ. They are but a small percentage of firearm carriers.

 

Usually, departments are issued one type of manufacture at one given time. That is until another is found to be cheaper, then they change to that one. I don't believe that anyone would be allowed to carry what they want.

 

Sent from an undisclosed location via Tapatalk.

[WhiskeyTangoFoxtrot 358]

What the FBI uses:

 

https://www.washingtonpost.com/world/national-security/fbi-moves-back-to-the-9mm-round-which-it-once-shunned-as-ineffective/2015/10/31/d7d0b994-7e80-11e5-afce-2afd1d3eb896_story.html

http://www.policemag.com/channel/weapons/news/2015/11/02/fbi-going-back-to-9mm-ammunition.aspx

[GRIZ 3,369]

I didn't ask the question to join the argument. I would just like to know if the NJSP operates as a single entity, and if it's specified what round (or caliber for that matter) all NJSP troopers must use. Or are there options?

 

For example, are they required to carry Speer Gold Dot 9mm +P 124 gr. JHP? Something different? A multiple-choice list? Or do they all just do what they want?

I've seen a lot of firearms policies. Agencies will usually state you have to carry "issued service ammunition". This saves the trobule of amending the policy if they change brands.

 

Federal agencies buy ammo at contract prices from several manufacturers. This results in several types of service ammunition being issued at times depending on what is in stock. Any of it would be authorized service ammunition.

[mipafox 438]

 

Let's face reality here. It is an unfortunate reality, but true nonetheless. If your skin color is white, think twice before shooting an adversary whose skin color happens to be black!

When was the last time you saw a news story of riots due to a white on white, black on white or black on black shooting(the most common)? I am Not racist, only factual!

 

Zimmerman made mistakes by not taking the advice of the police dispatcher. He could have avoided the situation and he should have! Did Trayvon Martin deserve to be shot?

I say yes, based on Florida law. Had the same incident occurred in New Jersey George Zimmerman would not have had a gun and would most likely be dead today and it would have

been on page 16 of the local newspaper.

 

When the dispatcher told Zimmerman he did not have to follow the perp, he left the area. He was attacked on his way out.

[JohnnyB 4,326]

Mipa, this only make the shooting more justified. Hillary Clinton spoke at the Trayvon Martin Foundation Conference

about how Trump's stance on guns would make America less safe.

 

Why create a foundation to honor a thug? Why would HC choose to speak there? She is so far left it's scary!

[Lambo2936 297]

I carry one round of 22LR lead round nose for self-defense in a cheap handgun for the reasons stated above.

 

Sent from an undisclosed location via Tapatalk.

Might be a dumb question, but what if there are 2+ bad doods. Or you are hit out of nowhere and miss the shot for some reason?

[Schrödinger's cat 87]

He was being VERY sarcastic and saying that he would rather carry a more effective round even if it may be harder for his legal defense. Hollow points are legal.