Aug 122013

Owen Courreges

Sometimes so much can turn on so little.  It was June 26, 2013, around 2 a.m.  Marshall Coulter, a 14-year-old boy with a history of criminal behavior, jumped the locked driveway gate of a home in Mid-City.  It was the home of a family: Merritt Landry, his pregnant wife and his young child.

Within the home, a dog barked.  Landry was awakened and went to see if there was an intruder.  He took a pistol with him.  Once outside, he reported seeing Coulter and asking him to freeze.  Coulter turned around to face him and appeared to be reaching for something on his hip.  Landry fired once, hitting Coulter in the head.  Coulter survived, but remains in critical condition.

“Merrit told his family that he had said, ‘Freeze,’ and it looked like the guy turned at him — like he had his hand on his hip.  But who knows?” neighbor Charles Hazouri described to reporters shortly after the incident.

Landry was arrested and charged with attempted second-degree murder.  He remains out on bond.

Much of the ensuing legal debate over Landry’s actions seem to relate to whether Landry had cause to believe he was in “imminent danger.”  Certainly, if one takes Landry’s story at face value with no conflicting evidence, he has a good case for self-defense.   The idea that he found Coulter within a secured area immediately adjacent to his home, ordered him to freeze, and then Coulter turned around while appearing to reach for something on his person, would seem to exonerate Landry.

What has not been discussed, however, is how that the fact that Coulter survived – however narrowly – may make it difficult for Landry to claim self-defense.

Everyone has heard of the idea that the state bears the burden of proving a criminal defendant’s guilt “beyond a reasonable doubt.”  A defendant is innocent until proven guilty, and if there is any serious doubt as to the defendant’s guilt, he should go free.  The great British legal theorist, William Blackstone,   explained the reason for this when he famously argued that “[i]t is better that ten guilty persons escape than that one innocent suffer.”

However, how does this work when the accused claims self-defense, as Landry does?  In State v. Freeman, 427 So.2d 1161 (La. 1983), the Louisiana Supreme Court held that when self-defense is claimed, the burden of proof, as well as the quantum of proof, remains the same: the prosecution must disprove the accused’s claim of self-defense beyond a reasonable doubt.  However, it left the issue open for non-homicide cases.

In State v. Fluker, 618 So.2d 459 (La. App. 4 Cir. 1993), a panel of the Louisiana Fourth Circuit Court of Appeal, the circuit that includes Orleans and Plaquemines Parishes, held that the same rule would apply to non-homicide cases as homicide cases – proof by the state beyond a reasonable doubt.   However, in State v. Wischer, 2004-0325 (La. App. 4 Cir. 9/22/04), 885 So.2d 602, another panel of the Fourth Circuit found the opposite, holding that the burden of proof was on the defendant to prove self-defense by a preponderance of the evidence.

The Wischer standard means that any criminal defendant claiming self-defense is effectively guilty until proven innocent, and that the determining issue is decided according to the narrowest of standards – the jury can only feel that the defendant’s guilt has been proven to 51% certainty, and it is still supposed to render a guilty verdict.  That is literally the same as the flip of a coin; research has revealed that a very slight advantage, of about 1-2%, inheres to one side or the other depending on the manner in which the coin is flipped.  This is fine in civil trials where a person is damaged and somebody will ultimately bear the loss, but it has no place in criminal trials where society is imposing punishment.

Accordingly it should come as little surprise that virtually no other jurisdiction uses this standard.  Only one other state in the entire country places the burden of proof on the defendant claiming self-defense, and that state is Ohio.  Forty-eight states have decided that “guilty until proven innocent” for people claiming self-defense is ridiculous.

Here in the Fourth Circuit, however, we remain in limbo.  Because two different panels have ruled in the exact opposite manner, there is an unresolved split and neither standard wins.  Thus, judges have an incentive to simply tell juries nothing about the burden or quantum of proof to avoid being reversed.  On appeal, the Fourth Circuit can avoid the issue entirely by simply saying that the jury could have been correct using either standard, indulging the bizarre-but-legally-recognized fiction that having the correct standard from the get-go could not have possibly altered the jury’s decision.

There is opposition to the continued refusal of the Fourth Circuit to articulate a standard.  In State v. Black, 2009-1664 (La. App. 4 Cir. 06/17/10); 41 So. 3d 1243, Judge Terri F. Love endorsed the Fluker standard and argued that “this court should resolve the conflict en banc and articulate the burden of proof, which would provide clarity and direction.”  Sadly, the Fourth Circuit has failed to take her advice within the past three years.

What all this means for Merritt Landry is that the jury will probably not have the benefit of the proper standard for a criminal case involving self-defense, so they will be working from the seat of their pants.  Landry may well have been better off if Coulter had died at the scene, and there’s something rather sickening about that thought.

Regardless of how one feels about Landry’s decisions that night, every criminal defendant is entitled to the benefit of the presumption of innocence and the reasonable doubt standard.  Blackstone’s ratio still holds true; we have to accept that some people we consider to be “guilty” will go free if we provide sufficient protections for the truly innocent.  Sometimes this will be difficult to accept because nobody wants the guilty to go unpunished, but it’s a crucial component of a fair and balanced criminal justice system.

Of course, there’s an obvious solution for all of this.  Instead of debating more frivolous matters, legislators should pass an amendment to the Louisiana Civil Code that spells out the standard and quantum of proof along the lines of Fluker.  Until we do that, we’ll be an outlier state that convicts people of major felonies based on a mere flip of a coin.

(cartoon by Owen Courreges for

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for on Mondays. He has previously written for the Reason Public Policy Foundation.

  51 Responses to “Owen Courreges: In New Orleans, guilty until proven innocent in self-defense shootings”

  1. How is it not self defensive, Your being invaded by a criminal, at 2:00 am. You suppose to wait and see if he pulls a gun first. Just because he is found without a weapon, does not mean he is not the weapon.

    • mmg,

      That’s my feeling about this. It wasn’t a matter of somebody stepping into an unsecured yard, so the presence of any stranger would immediately seem to indicate a threat. Combine that with a sudden move by an intruder ordered to freeze, and I think you have a good self-defense claim. However, if the burden of proof is on Landry, he faces a tougher battle. The jury could convict simply if they do not find him credible on the stand, even in the absence of other evidence. It’s a weak basis for convicting somebody, but it would be perfectly valid if that’s where the burden of proof lies.

      • mmg,

        I would add, of course, that we don’t necessarily have all the evidence yet and the situation could be much different — I’m only writing based on the media reports.

        • So, how should have this played out, the kid dies? What is a homeowner suppose to do. This is true, we don’t have all the facts, but why was he accused of attempted Murder. Were the cop’s bias?

          • mmg,

            The fact that Coulter was not actively attempting to break into Landry’s home, together with the fact that he was unarmed, may caused the police to make the arrest. There might have also been some bias involved, possibly related to the Zimmerman trial, but we don’t know that so it would just be speculation.

            For now, we’ll just have to see how the charges proceed. They might even be dropped.

          • Good Writing, thanks

  2. Another overly long, poorly written piece of self-advertising for a lawyer posing as political commentary. Decidedly inferior to Jean Paul’s article.

    • Yet another,

      For Pete’s sake, this isn’t even ad hominem — you don’t even claim to disagree with me. It’s just a drive-by insult. It’s also inaccurate; I wrote political commentary long before I became a lawyer. Once again, you confirm your status as a troll.

      • So because you have been playing at punditry before you became a lawyer, these things are therefore unrelated? That is some super sweet logic there buddy.

    • Yeah, “yet another”. Poor form on your part.

    • I had the completely opposite reaction, a legal professional had taken the time to thoroughly background the unusual situation that applies only here and Ohio. Did you know about this before you read Owen’s report? I didn’t. I appreciated all the detail. That the remedy is legislative and thus the response would be political doesn’t detract from the informative article. But the self-advertising part does work, if I were looking for legal advice I certainly would consider the services of Owen Courrèges

  3. I hate ( not really ) to bring this up, however there is an old saying…A dead man can’t testify against you.

    • Mike,

      I neglected to mention in the column, but given the nature of Coulter’s injuries as they have been described, it seems unlikely he could be of significant benefit as a witness. You are correct, though — normally in non-homicide cases, the victim is still available to testify. That’s all the more reason why it’s wrong to have a different burden and quantum of proof for non-homicide cases.

  4. This is ridiculous.
    I would have done the same thing. An intruder, is at the end of the day, an intruder.
    He was 14 – plenty old enough to understand that he wasn’t supposed to be there and when someone tells you to “Freeze” after being caught on their property – you’d better listen.
    I’m pretty sure this would have played out the exact same way – if the arresting cops would have found this young man in the same scenario. Young man trespassing – cops see him, order him to “Freeze”, he reaches for something – goodnight Charlie.
    I don’t even understand why Landry would even be arrested, as it was his property. Just, wow.

    • Remind me again how we “know” that shooter yelled “freeze!” and kid “reached for his hip?” Because the shooter says so?

  5. Thanks for writing this explanation of the burden of proof, Owen. I agree, and also feel like either the Louisiana legislature should amend the Penal Code RS 14:19B1 and 20B1, or the Supreme Court should set a precedent of how they’re interpreted, so that certain fenced-in areas immediately adjacent to dwellings like Mr. Landry’s are considered to be part of the dwelling itself. And as such, are areas in which force against trespassers would be allowed by default (i.e., treated the same as the inside of a dwelling). It seems like such a fenced-off area is the owner’s way of telling the world that he views that area as just as sacrosanct to his exclusive enjoyment of his property as the area inside of his dwelling, and that the fence/wall is merely an extension of his dwelling’s walls. Such an amendment or interpretation would remove the legal gray area of questioning whether someone in a yard like Mr. Landry’s was attempting to enter the dwelling or steal a car, which seems to be a question in this case. Even an amendment/interpretation to the effect of “fenced areas behind the front-most wall of the dwelling, and within 30 feet of the dwelling” (to allow good-intentioned people to approach front doors through front gates without fear of being shot, and to not let people in the countryside just attach their entire border fence to their house so that they have carte blanche to shoot at any pour soul who’s just cutting across their pasture, far away from their house). I don’t know how such an amendment should be worded, and know there would still be gray areas about fence type/height, etc. but I hope everyone gets my point that I’d like the law to recognize that property owners who erect a fence attached to their house are telling the world that they consider such an immediate area abutting the dwelling and surrounded by fence like the inside of their house. As such we shouldn’t expect them to be mind-readers as to the trespasser’s intentions or leave it up to a jury to determine whether it was reasonable to assume the homeowner thought the trespasser is there to steal a car or enter the house. Thanks again, sorry for the length of this post, and keep up the good work.

    • ILikeMokum,

      I agree — the castle doctrine should be expanded to include enclosed, locked areas within a home’s curtilage. There is a difference between somebody who walks through a yard, or even cuts through a gated but unlocked property, and a person who hops a locked driveway gate. The former is still wrong but doesn’t connote a serious threat, while the latter does. In some ways the law already encompasses this (such circumstances factor into whether a reasonable person would have perceived an imminent threat), but I do think it needs to be spelled out more clearly.

      One aside — my general feeling about self-defense, gun ownership, etc., is largely informed by the fact that the police have no legally enforceable obligation to respond to calls or assist anyone, and prosecutors and judges have absolute immunity. There are other checks, sure, but nothing that will compensate you if the government drops the ball. Thus, it isn’t fair to tell a citizen that they should have hidden or just “called the police” when they perceive a possible intruder. If the government wants to hold itself immune from suit for failing to protect us, it sure as hell have better give us wide latitude when we defend ourselves and our property. People tend to think that’s radical talk, but it comports with how the law has actually developed.

  6. good article. informative and highlights, appropriately, the incompetency of the LA legislature and, also appropriately, how the judicial system is rigged against the average citizen. We’re trapped like rats. America, we can only mourn for you. All is lost.

  7. Would have done the same thing. I feel terrible for Mr. Landry.
    I think this has everything to do with the Zimmerman trial.

    • Fat Harry,

      You’re probably right. The Zimmerman case was a difficult one because it occurred out in public and Martin wasn’t otherwise engaging in criminal activity. We really only had Zimmerman’s word on exactly how it played out, so the case because a Rorschach test. If you didn’t believe Zimmerman’s story, you thought a guilty man got off scot-free.

      Here, on the other hand, I think Landry garners more sympathy because Coulter broke into his property (that much is not disputed). However, there are still those anti-gun, anti-self-defense types who want to see Landry convicted of something irrespective of how the evidence plays out. There’s also the racial angle, but in neither case is there the slightest evidence of any racial motive, so I tend to think of that as more of a distraction. However, I’m sure police and prosecutors are mindful of it.

      • “However, there are still those anti-gun, anti-self-defense types who want to see Landry convicted of something irrespective of how the evidence plays out. ”

        Really? I’ve never heard of an anti-self-defense type. Could you quote (and identify) a couple of those shadowy figures, perhaps?

        • Craig,

          There are those who usually condemn a person who claims self-defense, speculating on how they could have handled the situation differently in hindsight. As for policy positions, I’d classify people who support the idea of a duty to retreat, or who condemn the castle doctrine and stand-your-ground laws, as being anti-self-defense. NY Mayor Bloomberg is one who I would place in that category.

          • You know, Owen, I thought your column above was informative and offered a rational, balanced take on the situation. Then you had to go and make the previous comment. Referring to people who oppose “Stand Your Ground” as “anti-self-defense” smacks of hyperbole and bias. It’d be like me calling gun rights advocates “anti-life.” It’s inaccurate and misleading.

            I also take issue with trying to equate Stand Your Ground with self-defense. It’s simply not. You’d be very hard pressed to find anyone who is against Stand Your Ground to claim that a person doesn’t have the right to defend themselves against someone seeking them harm.

            The cherry on top is this idea of yours that a host of people are crowing for Mr. Landry’s head. When in fact, aside from Coulter’s family, I haven’t heard anyone make such a demand. I did hear protest/outrage over the questionable way the bond was processed but that should be reasonable to demand that certain individuals should not be given special treatment within the justice system.

          • Craig,

            No offense intended here, but do you understand what “Stand Your Ground” laws actually do? First of all, they are intimately related to self-defense. Stand Your Ground laws apply when a person has been attacked, eliminating any duty on the part of the victim to retreat (Castle Doctrine laws, on the other hand, deal with situations where a homeowner is trying to thwart a break-in into their home).

            Secondly, “stand your ground” has, to my knowledge, always been the law in Louisiana. Common law jurisdictions (i.e., the remaining 49 states) inherited the duty to retreat from Britain, but Louisiana of course did not. This is clear from a 1912 decision by the Louisiana Supreme Court in which is was held “if a man who is not at fault is suddenly assaulted by another, who intends to kill him or to inflict on him great bodily harm, he is not bound to retreat at all, but he may stand his ground and kill his assailant if there is reasonable, apparent necessity for so doing to save his life or to protect his person.” State v. Simon, 131 La. 520, 532 (La. 1912). Note the key language there — “stand his ground.” This has been the law in Louisiana for at least 100 years. Now, subsequent decisions tried to shoehorn an obligation to retreat into the “reasonableness” requirement, but to my knowledge that has been dismissed with.

            Thus, the idea that a person being attacked may “stand his ground” is part and parcel of self-defense in this state. If you don’t support it, you believe in far more limited avenues for self-defense. That’s fine, but I don’t think it’s hyperbolic to call such people “anti-self-defense.”

          • You’re claiming that advocates of a more measured approach to self-defense are actually against self-defense. It’s like calling proponents of responsible gun ownership “anti-gun” (which I assume is who you were referring to as well in the prior comment). It’s a tactic that Fox News has perfected. Someone of your intelligence should recognize that that’s not honest. Perhaps your ideology is blinding you.

          • Craig,

            I don’t think it’s really dishonest; it’s more about using shorthand. You can’t expect a great deal of nuance with a blanket term; they’ll always be under or over inclusive, but people generally understand what is being conveyed.

            Moreover, I don’t think pushing a “duty to retreat” is measured at all. The idea that a person who is attacked by another somehow has an obligation to try to flee instead of fighting back doesn’t strike me as “measured.” It places a massive roadblock to claiming self-defense, forcing people to think twice about defending themselves because their split-second decisions will be second-guessed by total strangers who have the benefit of hindsight. It’s not measured; it guts a person’s right to self-defense. I do consider it anti-self-defense.

        • Really? Have you been living under a rock?

          The anti-gun, anti-self defense types have been out in front of Landrys home, whining to have him convicted of “something”.
          All charges.should be dropped now and.the.La Code rewritten to include the state having to bear the burden of proving guilt.

          • Oh really now? As much as I’d like to just trust the word of someone who has “Confederate” in his handle, I think you should provide some links to prove this claim of yours. I’ll be waiting.

            FYI, I roll past Landry’s house at least twice a day due to my route, and I haven’t seen anyone outside even once.

          • Aside from the fact that your comment is completely irrelevant to the topic, that is pretty perceptive of you “Mr. Big boy pants”.

          • Speaking of perception, my original comment was posted 25 days ago. The protest you are referring to took place on August 23. Before you start throwing insults (living under a rock), perhaps you should learn how to use a calendar.

  8. “Marshall Coulter, a 14-year-old boy with a history of criminal behavior, jumped the locked driveway gate of a home in Mid-City.”
    When exactly does Mandeville St. run through Mid-City?

    • Jason,

      Yes, that was my error; it was in the Marigny (I think I was confused while I was looking over my sources because a recent community meeting regarding the shooting was held in Mid-City).

      • Can you tell me is there confusion in the other State Circuit courts on what to do in non homicide defense cases or is this just the Fourth Circuit

        • opinionated,

          I don’t know the entire circuit split. I do know that the 5th Circuit (Jeff Parish) and 3rd Circuit (Lafayette) previously adopted the same rule as Wischer, so this is not limited to New Orleans.

  9. will_k2,

    Yes, although we’re getting even that second-hand. However, if all we wind up with is Landry’s word on that issue with no conflicting evidence, then there’s no reasonable basis for rejecting his claim of self-defense, as least under the proper standard (which is up in the air right now).

    • I’m not sure that’s correct, because there’s no physical evidence of immanent danger – Landy is uninjured and the kid was unarmed. Because the castle doctrine is not in play here, what Landry did is effectively the same thing as shooting an unarmed child dead in the street. “He looked like he was reaching for something” would not be an effective defense in that case, and I don’t think it will be in this case either.

      • will_k2,

        No, that’s an appeal to ignorance. The lack of evidence neither proves nor refutes Landry’s statements.

        Moreover, shooting a person who has broken onto your property is not, as a legal matter, “the same thing as shooting an unarmed child dead in the street.” The fact that Coulter broke into his property is what made him appear to be a potential threat. We can debate how reasonable that belief was based on all the surrounding circumstances, but certainly a person who jumps a locked gate adjacent to an occupied residence at 2 a.m. is not the same as a random person on the street.

        Moreover, Landry may also be able to credibly claim that he reasonably believed that Coulter planned to enter his home due to Coulter’s close proximity in a secured area so late at night. I mean, I have a secured courtyard at the rear of my home. If somebody broke into it, I don’t think it would be unreasonable to believe they intended to break into my home.

        • I guess we’ll see. I think this case is far from a defensive slam dunk. Your argument here is essentially saying that someone breaking into your yard is by itself, with no additional threat sufficient justification for deadly force. That argument tantamount to extending the castle doctrine to a fenced yard, and although you’re obviously in favor of doing just that it’s not at all clear that is going to happen.

          • will_2k,

            That’s not what I’m saying. If Landry just claimed that he saw Coulter and immediately shot him, his case would be far more difficult. He would then need to argue what I proposed in the final paragraph of my last post. However, Landry instead claims (apparently) that he told Coulter to freeze and Coulter proceeded to make a suspicious movement.

          • The distinction between “someone breaking into my yard with no additional threat” and “someone breaking into my yard and after the fact I say with zero corroborating witnesses or evidence they did something that seemed kind of threatening” is pretty much zero if failure to make the latter claim constitutes admission of a felony.

          • will_2k,

            Why do you need corroboration? Why should an accused person have to prove their innocence, as opposed to the state proving their guilt? Without any conflicting evidence, what basis do you have for rejecting the self-defense claim? Sworn testimony is evidence, after all.

            You seem to support the idea of a guilty-until-proven-innocent standard here, which I exactly what I’m arguing against.

          • Why should the hypothetical person who shot the unarmed 14 year old dead on the street need corroboration? What’s the difference?

          • will_2k,

            Landry would have no basis for drawing on this hypothetical 14-year-old on the street to begin with if said juvenile were simply walking down the street. He would have been the instigator of a violent encounter. By contrast, Landry was perfectly in his rights to draw his weapon on an intruder on his own property.

            Now, if I have a basis for drawing on somebody outside my property, like they attack me or try to rob me, then the situation changes. The difference here is that Coulter’s mere presence indicated the threat.

          • So we’re back to the kid being on the property being justification for the shooting. Either the kid being on his property is by itself justification for the shooting, or it isn’t. That’s what the jury will have facts on. Whatever Landry claims happened is irrelevant unless there is some corroborating evidence – obviously Landry is going to say whatever he can to avoid a felony conviction so no one is going to take his claims at face value.

            Clearly you’re of the opinion that the kid being on the property is justification for shooting him, but since that is tantamount to an extension of the castle doctrine to the yard and this is explicitly not the law in Lousiana, I think it remains to be seen how this case goes down. A huge amount of the outcome will be riding on efficacy of counsel, I think.

          • will_2k,

            Are you just ignoring what I’m saying? It’s the entire set of circumstances that may justify the shooting, not a single factor. It was *both* that Coulter was an intruder (because that justified Landry drawing his weapon and confronting Coulter) and that Coulter apparently ignored a warning to freeze and made a suspicious movement (which made him appear to be an imminent threat).

            And no, you don’t need any corroborating evidence if the burden of proof is on the state, which is the way it is in 48 other states and the way it usually is here, period. If the state has the burden, then they must provide some conflicting evidence. Otherwise, the only evidence would be Landry’s own uncontradicted testimony.

          • I’m not ignoring what you’re saying; I’m saying that the uncorroborated testimony of someone who has a clear incentive to provide exactly that testimony is so uncompelling as to be irrelevant.

          • will_k2,

            Well, you have to get beyond a reasonable doubt, so it’s not irrelevant. You have one man’s word and nothing that contradicts it. A conviction should not stand on that basis, period.

  10. In initial reports, police said they had an unidentified witness who contradicted the Mr. Landry’s statements. Not sure if it was Coulter’s friend in the street, but nonetheless police apparently had some doubt over Landry’s account.

  11. Come on Owen. You’re an attorney. The basic common law rule is that you use deadly force for defense of self or others – from a threat of immediate bodily harm – not for defense of property. A jury will determine whether it was reasonable for Landry to be in fear of self when he saw the guy reaching for something….it’s not simply his word versus no one’s word (if, say, the victim/perp can’t testify).

    • Overbrook,

      Louisiana is not a common law state, and in any event, my column was about where the burden of proof lies and what the quantum of proof is. If the burden of proof is on Landry, the jury might decide that his word alone isn’t good enough. If the burden is on the state beyond a reasonable doubt, they’ll view the evidence differently.

      Really not sure where you were coming from on this.

  12. Typo: It is not the Civil Code, but another that would be amended.

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