Bad Lawyering in Florida

So… over the last couple of days, I have received numerous requests to comment on an article regarding the conviction of Michael Drejka in Florida.

Many of you may remember this case.

Mr. Drejka, a CCW holder, became upset that someone was parked in a handicapped parking spot at a local convenience store.  Evidence was shown that he tended to “police” parking lots looking for these scofflaws.  Little is conclusively known why he had this obsessive-compulsive desire to interact with violators of handicapped parking spots but, apparently, he did.

In the case at bar, the videotape from the convenience store shows that the “victim,” Markeis McGlockton, exited the driver’s door of a vehicle wrongly parked in a handicapped spot; McGlockton’s girlfriend remained behind in the passenger seat.

Drejka approached the car and began berating the girlfriend for the violation.  McGlockton exits the store and sees the verbal altercation occurring at his car.  He approaches Drejka and pushes him to the ground.

While Drejka is still on the ground recovering from his fall, he reaches into his clothes and produces a handgun.  McGlockton appears to turn as Drejka simultaneously shoots, fatally hitting McGlockton.

The District Attorney prosecutes Drejka and, in the prosecution, calls Dr. Roy Bedard to preemptively impeach a defense theory based on the famous Tueller Drill.

Okay… so we have to explain a bit here:

The Tueller Drill was devised as a means of showing the distance an adversary can travel towards a victim before the victim has the ability to draw a weapon and fire.

There has been a number of variants to the Tueller Drill, but it is generally noted that an individual who is within 21 feet of another individual who has a general amount of training, and access to a weapon that is holstered in a generally-accepted factor, will close the distance and injure the victim before the victim is able to use his handgun to stop the assailant. 

Lots of generals there.

That is kinda the point of the Tueller Drill, and why it is not called the Tueller Law.  Each of us is different, with different training, and different circumstances.  The reason it is called a drill is that in training we use it as a diagnostic means of improving our performance, as well as a dramatic way of showing just how fast a motivated attacker can move.

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Now here is where things get ugly… and expose, frankly, a major failure in my belief of the American justice system.

The prosecution was clearly concerned that Drejka would raise proximity as a defense.  Rather than wait for him to do so, they hired Dr. Bedard to testify under direct.  In his testimony, he stated that the Tueller Drill was conceived as a means of making a determination as to whether a defendant could reasonably argue proximity has been satisfied when an attacker is coming at him with an edged weapon.

This is a patently false articulation of the Tueller Drill and, in fact, is completely nonsensical.  Again… the Tueller Drill is a test, not an outcome.  Furthermore, the insertion of an edged weapon into the equation is also completely inappropriate.  (The weapon could be a club, a stick, a rock, or the fist of the attacker.)

Not to worry.

In our system, when someone is on the stand and says something stupid, the opposing counsel can cross examine him and show the jury what a complete boob the witness is.

But Drejka’s attorney failed to do a robust cross.

Okay, okay… that is fine.  I’ve flopped at cross x once or twice too.  Not to worry… defense counsel is sure to bring its expert to the stand to refute the testimony of Dr. Bedard.  Then the jurors will be left to decide which of the two “experts” they believe.  In the end, not a terrible outcome, right?

But Drejka’s attorneys failed to bring their own expert witness to the stand during their case in chief.

Why?

I suspect that the attorney had never heard of the Tueller Drill.  Unless you are immersed in the culture of combative training, why would you?  How many “tests” are you aware of for determining the causation of streptococcus?

The sad part is that many defense lawyers are not gun people.  Those who have some experience with firearms often are not gun people who train. (Read: Recreational Shooters)

The articles I have read over the last week point to this glaring example of ineffective assistance of counsel as being “the reason” that Mr. Drejka was convicted.

I am not entirely sure about that either.

I suspect that Mr. Drejka was the reason that Mr. Drejka was convicted.

Regardless… I do believe that Mr. Drejka was a victim of ineffective assistance of counsel.  Enough to raise an issue of appeal?  Of that I am not entirely certain.