Castle Doctrine

Prosecutor dislikes change in deadly force law

By David Bowser
Correspondent

The man who killed Calvin Farmer may never see the inside of a courtroom thanks to the Texas Legislature.

"They fixed something that wasn't broken," said Randall County Criminal District Attorney James Farren.

Farmer, 47, stopped by to see his 13-year-old son on a Saturday afternoon last October. After an extended conversation, Farmer tried to call his ex-wife on her cell phone. When that failed, he went to the house where her boyfriend lived.

The ex-wife and Farmer talked out in the front yard. The boyfriend came out on the porch and, according to neighbors, Farmer and his ex-wife's boyfriend argued.

One neighbor said she saw them scuffling and went inside to call police. That's when she heard the gunshot.

Another neighbor said he came out when he heard the shot and saw Farmer lying on the sidewalk in front of the porch.

At some point in the scuffle, Farmer was apparently knocked down. The bullet reportedly entered the lower abdomen and traveled up into the chest cavity.

Although witnesses said they saw the boyfriend speaking on his cell phone after the shooting, it was a neighbor who called police.

The boyfriend, a firearms expert at Pantex, will likely never be charged with shooting the unarmed Farmer because of changes in the state's self-defense law that went into effect last fall.

Your lawmakers at work

"It's like a lot of other things legislators do for us," Farren said. "There's some good and there's some bad, but a lot of times when you start fixing things that are not broken, you're creating more problems than you already had."

The Texas Legislature changed the state's self-defense laws, known as the "Castle Doctrine," in two important ways last year.

Farren said the term "Stand Your Ground" is probably a better title for it than the "Castle Doctrine" because the right to defend one's castle or home has always been a part of the law in Texas.

Beyond the home, a person being confronted in Texas was required to retreat and avoid the confrontation if possible. If a person was in his own home, he didn't have a duty to retreat.

"That didn't change," Farren said, "But in many states, that wasn't in the law."

The changes have not been just in Texas, but part of a larger national movement.

"The duty not to retreat in Texas has been expanded now to where if you acted reasonably," Farren said, "then you don't have to retreat before resorting to deadly force.

"That's no longer true under the Castle Doctrine and that's an important change."

Of course, that doesn't matter in the Farmer case since the Legislature removed the retreat requirement involving the use of deadly force in a person's home more than a decade ago, but it is an important issue in the use of deadly force away from the home.

"The biggest change to me is that there is a presumption now that you acted reasonably," Farren said.

The burden of proof

The burden of proof never shifts to the defendant in a criminal case to prove his innocence, but Farren said there are times and situations where a defendant does have a burden to produce some evidence.

If a person claims to have an alibi, Farren said, he has to produce that alibi.

"He can't just say 'I have an alibi,' " Farren said.

But now, the presumption of reasonableness under the new self-defense rule removes the burden to produce such evidence.

"It didn't even make things neutral," Farren said.

It shifted the burden of proof to

the prosecution, which now has

to prove the defendant didn't act reasonably. The defendant is now presumed to have acted reasonably.

"And that's tough," Farren said, "because that means that I have to get in their head and somehow prove this wasn't a reasonable conclusion on their part."

The defense will argue to a jury that they cannot know what the person felt or thought unless they were in the defendant's shoes. They will claim that their client believed that he was in danger.

"That's tough to overcome," Farren said.

He said he thinks that was a much more important change in the law than removing the duty to retreat.

Law ripe for abuse

When the law was being debated, Farren said, some of those supporting its passage thought it would help in domestic violence situations. Farren warned them to be careful what they asked for.

"In reality, I think it made things worse," he said.

If spouse A is abusive to spouse B, and B kills A in the home, the state has to prove that spouse B didn't act reasonably.

Farren admitted that the law is ripe for abuse.

"It creates a lot of opportunity for abuse," Farren said, "because the presumption that someone acted reasonable is an event that is taking place in their head."

The jury, Farren said, will be instructed by the judge that they are to presume that the defendant acted reasonably unless the state proves beyond a reasonable doubt that he did not.

The defendant doesn't have to take the stand for that to happen. The jury will be told that.

Farren said he expects it to become an issue in road-rage cases, but only time will tell. There were fears when the Legislature approved a law so citizens could carry concealed handguns, but those fears have proved to be unfounded, he said.

With regard to Farmer's death, there is no dispute that the boyfriend shot and killed the disgruntled ex-husband, Farren said, but the boyfriend was at his home.

Still, Farren plans to take it to a grand jury.

If the grand jury indicts, and Farren takes the case to trial, he said the jury would be told that they were to presume that the boyfriend acted reasonably.

Since the law went into effect only in September, there is little precedent to fall back on, but Farren said he thinks that as such cases wind through the legal system, ways will be found to deal with the presumption of reasonableness.

Farren said that now any time there is a homicide with overtones of self-defense, the defense in the case will raise the issue.

The district attorney noted that law is more than words on paper. It also includes how those laws are interpreted by the courts.

Despite what are seen as imperfections to the self-defense statutory law passed by the state Legislature, Farren said he doesn't expect to see any legislative measures to improve the statutes. Instead, he said he expects to see appellate courts hammer out the final rules and how they are to be interpreted.

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Posted: January 17, 2008