The Tulsa Forum by TulsaNow

Not.

Jerome Erslund, the pharmacist in Oklahoma City who killed a violent criminal attempting to rob his store, was convicted of murder 1 yesterday.

Appalling.

Mixed emotions on that one.  Adrenaline is a weird chemical.

First off, there's no video to prove or disprove the kid was still moving or not moving or reaching for a weapon when he was shot again.

Second, they relied on the testimony of the Oklahoma M.E.'s office, which is undisputedly one of the worst in the nation, to determine which shot in the sequence of shots would have killed the little thug.

If the thug was clearly incapacitated, but not dead, Erslund should not have picked up a second gun and resumed shooting.  He was in no danger at that point and it becomes murder.  If the first shot had blown the thug's head off and he pumped five more rounds into him, then I don't think the DA had a leg to stand on.  He would not have made him "deader" by firing the additional rounds.

If his attorney is sharp, I think they should call into question the M.E.'s opinion on appeal.

TTAC calling Erslund a racist or saying it was racially motivated in 3, 2, 1....

.45

Total B.S I see appeals for years on this one....totally not the right decision for his family and community.

It didnt help that the decision came a week after a deputy opened his door to pump multiple rounds into some drunk who jiggled the wrong doorknob in a row of apartments.

I'm amazed that he only shot him once in the first place.

Typically when an untrained civilian is put in a situation where they have to shoot someone, the combination of fear and adrenalin causes them to literally empty the magazine. 

Some people have a different adrenal response.  For instance, if someone pulls out in front of me, my response is immediate.  When it happens to my wife, she reacts more methodically, but 30 or 40 seconds later she gets enraged, and develops a migraine (good idea to stay away at that point).

I can see how he may have had an automated response based on sequences he had played out in his mind in the event that this could happen (he had a gun, so chances are he had envisioned his use of it).  What he did not anticipate is how he would react after the adrenalin was surging through his body.  Because he did not anticipate the little thug getting up or reaching for a weapon on the ground, he had the standard "empty the magazine" response.

I feel sorry for him and his family.  I also feel sorry for the family of the criminal.  I do not however feel anything for the criminal himself.

If you recall, Erslund had quite a cache of weapons which the court requested to be handed over until the case was adjudicated.  He's not an LEO, but not a rank amateur around a gun.

It would be hard for me to stand in judgement of him not knowing that I would have reacted any different.  I would like to think that if I looked down and saw even slight movement out of the perp I would try to render aid, not pump more bullets into him if he clearly was no longer a threat. 

I believe the reason he was prosecuted had more to do with two facts: he was a gun owner and apparently an avid collector who knew his way around a gun.  The second being, the victim was black and the DA likely felt pressure to prosecute so no one could say the case wasn't prosecuted because the robber was black.  That's strictly my opinion.

FMC's dad is very active with ORA (Oklahoma's NRA chapter) and works on a lot of their legislative issues.  We've talked about this and he's said Erslund was wrong.  I'll be anxious to get him to expand on it more when I see him this weekend.  I'm also curious to know if the extension of the self defense law to the work place was a direct response to this incident.  I can only guess it was.  I'll be sure to ask.

I hope like Hell I never have to use any of the rights I have under the SDA, but I'm glad I can legally protect myself.

That would be a difficult choice.  There is a good chance that if the perp had lived,  he would have sued and won lifetime financial support.  JMO.  I doubt there was time to think about that at the scene though.

Hard to say what happened out of sight in that video.  

One bit of testimony from ME office said that he could not have been moving due to the first shot - he was already "dead".  If so, then where is the murder?  It is just like shooting a tin can at that point.  In very bad taste, but not murder.

Then if he was moving, it could easily have been construed as threatening, and there is the reasonable doubt.  Again, not murder.

With the stress of such an event, the thoughts in his mind about trying to protect himself and the two other people swirling around - my opinion; can't see anything BUT a reasonable doubt on murder.  Manslaughter is a second discussion, and that was  only brought up at the end of the trial.  I do know that I would look at the facts in two ways comparing/contrasting murder to manslaughter if I were on that jury.

Bigger problem is the fact that the ME office is SOOOOO corrupt and incompetent, absolutely nothing they say can be believed, so that "testimony" is immediately suspect.

A couple more shots before he went out the door and we wouldn't even be having a discussion about a trial...

No good info, but have heard some stories about how this same group had something to do with a robbery there previously.  No facts available.  Anyone heard??

Good points.  I felt this was a second degree murder or first degree manslaughter from the get go if they decided to press charges.  Where's the premeditation and Erslund was not in commission of a felony when he killed the robber.  Those would have been the only mitigating circumstances for first degree murder.  I'd love to see the jury make up, that may explain a lot if they are not the sort to conceal carry and begrudge others for exercising their right to do so.  I really wish I could see a trial transcript to understand better.  They returned the verdict in four hours which means they pretty well reviewed the evidence and may have taken a few votes, if that.

Usually when they add in the possibility of lesser charges at the end of the trial, that's the prosecution realizing their case may have come off weaker than anticipated.

All of the discussion about adrenaline, etc., is pretty much beside the point. From the get-go this case was far too bound up in the wild west emotion that persists in this state.  Self-defense rules are not difficult to figure out.  What no one has specifically discussed is that there was a legitimate and compelling middle ground that fit the facts of this crime.  Manslaughter 1 under 21 O.S. 711(3) fits the facts like a glove. The defense team's insistance on arguing pure self-defense was objectively wrong, even if it was driven by the insistence of the defendant himself. It will be interesting to watch what happens on appeal.

My prediction is that the best chance of getting a new trial in this case is to allege ineffective assistance of counsel. If defense counsel made no record of an effort to plea bargain the case to Manslaughter 1, an ineffective assistance claim might win a new trial.  If they made the effort and were stymied by the prosecutor, they were only entitled to ask the jury for a Manslaughter 1 conviction in the event they found the defendant's claim of self-defense to be unreasonable or not genuine. I don't know if they did so and the jury didn't buy it. If the defendant's stubbornness alone prevented a plea to a reduced charge of Manslaughter 1, he's SOL.

If he got Manslaughter 1, he's sentenced to a term of somewhere between 4 years and life.  He's much more likely to get all or a portion of the sentence suspended and much more likely to be paroled as soon as he's eligible.

Cynical, I'll also see if NRA attempted to provide any counsel.  Word was on the Kenneth Gumm case (shot the tweaker in the 21st St. park at Riverside) he had help from NRA attornies, but did not heed their advice.

It's quite possible Erslund could have brought this on himself.  If he would have pled to a manslaughter conviction, seems like he could have wound up with a suspended sentence or at the worst the lower end of the sentencing spectrum: four years.

Thanks for bringing your trained eye to the discussion.  I'm seriously concerned about the implications to other gun owners.  I realize there are some people with CCL's who are simply waiting for an opportunity to use it while the vast majority have a CCL hoping they never have to use it.

I have always instructed my wife to completely unload the gun on anyone breaking into our house if I am gone. Don't care how many times you hit him or not. If you don't hit him the 9 shots going off back to back is enough to gather DNA off him sheeting himself while running away. If say she did hit him and the first one killed him as this M.E. concluded in this case and she fired 8 more rounds into him how does this now effect her and our family?

The difference is in the time delay.  If she unloads the clip sequentially, and the first round kills the suspect, not a jury on earth is going to convict her.  What happened here is that the guy shot this guy in the head, went to chase the other guys, came back in and decide to unload 4 or 5 more in him while he was incapacitated.  HUGE difference.

Guys, as much as some in this state would like it to be, this isn't the Wild West.

In my situation, I fired one shot. I hesitated, giving them that split second to duck back behind the wall before running like hell (The hole was dead center of where the lead guys head was when I took aim though).  After that I went out the door after them, but at this time knew not to shoot at them because A) they were fleeing me B) they were no longer in my home and where unarmed.  When I see this video I can understand the adrenaline (sort of) taking control as he chased after the second guy.  However, I just don't see how it can in any way be considered self defense when he comes back in, calmly walks past the guy in the floor, gets a second gun, calmly walks back and starts shooting.  Maybe not Murder 1, but it was a criminal act.  But then, I might just be really strange since I didn't even get an adrenaline rush with my situation.

Had the shooter been a LEO and saw the guy still moving (and still a potential threat), wouldnt he have done the same thing?  The application of the law here seems inconsistent.

and the LEO should be held accountable as well, if not more so

No, LEOs are not trained to to shoot anything that moves. For a host of reasons mostly related to potential liability under 42 USC Sec. 1983, law enforcement officers are extensively and carefully trained about the rules governing the use of deadly force. Some overstep the limits, but most don't. The law applicable to the use of deadly force is completely consistent. The police don't have a license to kill at will. The outcome of individual cases isn't, but that is mainly because juries get involved and let rogue cops off.

Patric seems to have a general distrust of cops.

Or, maybe just higher expectations of accountability.

I agree with Conan's take on this one Patric (not that there is anything wrong with wanting accountability). I have the same feeling about teachers and government leaders. 

cynical,
Murder 1 was the motivation for my original post.  The manslaughter is a much more reasonable charge for the circumstances, I think maybe.  Still don't know how much "movement" was going on.  I suspect from Erslund's original mouthings back when this started, that he kind of brought some of this on himself.  Not sure stupid mouth warrants murder 1 as "payment".


Still, I gotta wonder how if the guy was already dead from the first shot (obviously very much self defense), how could the follow on shots be anything under the law??  He was already dead.  If the ME WAS actually correct for once, then Erslund was shooting an already inanimate object.  No difference from shooting into the bottles on the shampoo aisle.

Hieronymous, the ME actually testified that the medical examiner who conducted the autopsy, who had been fired by the Board of Medicolegal Investigations in the interim, ruled that the gunshot to the head didn't kill him, that the later shots to the abdomen were the cause of death. Under that set of facts, By that time he was incapacitated and Ersland's need to use deadly force had expired. The witness also testified that her review of the chart led her to believe that the head wound was "potentially but not immediately" the cause of death. She ruled the cause of death to be "multiple gunshot wounds."  Even with her much more favorable testimony, the head wound, being a single shot, was not even arguably the cause of death though it probably contributed to it. He clearly wasn't dead when Ersland emptied the remaining rounds into him. The jury had both opinions and were free to reject one or both. They obviously accepted the first opinion or a carefully considered view of the second opinion along the lines of what I wrote above.

That leads to the questions we discuss at work about this thing; did the head wound leave him dying, but incapacitated to be no longer a threat?  Sounds like it must have been that way to the jury.  If so, then he definitely went way too far.  Usually a head wound is about the only thing that will completely stop movement quickly - it would seem to be reasonable to think the guy was no further threat at that point.  (The only question that I haven't really heard much about is whether the guy was moving at all.)

And then we are back to the incompetence of the ME office.  The lies they have delivered for years doesn't give a warm fuzzy about that testimony.

Potentially but not immediately... wonder what that means?  Are we talking Giffords type wound or John Kennedy type?  I do know that if I were on the jury, I would have been very skeptical.  Don't think I could have gone with murder 1 based on what is in the news.

Most of you are forgetting that armed robbers have rights above and beyond their intended victims.
 >:(

Personal opinion moment; there never would have been a conviction for murder 1 with me on the jury.  Manslaughter?  Don't know enough.

I didnt see anyone make that claim, but I do understand LEOs are trained to kill what they shoot.
It just seems that when a civilian does the same thing in defense of their home or self it's treated differently.

Here's the video.  It's been nearly two years since I had seen it.  Erslund certainly didn't seem terribly concerned for his life when he came back into the store.  I think I'd also heard at one point Parker was still moving, but was essentially unconscious and he died after being transported to the hospital, in other words, the headshot apparently wasn't fatal...at that point.  As well, Parker was apparently not armed at any point in the robbery, so it's not like there was a weapon he was apparently reaching for even if he was still moving.

I know as a conceal carry permit holder that once the threat of bodily injury to me is removed, I am not justified in firing my weapon.  As far as what I would do with all that adrenaline running through my veins, I can't say for certain.

I asked FMC's dad about the case over dinner Saturday night.  He's a former LEO and very involved in the Oklahoma Rifle Association, our state affiliate with the NRA.  He thought, as most all of us do, the conviction was justified, but it was the wrong charge.  There simply was no mitigating circumstance (premeditation or in commission of a felony when he caused the death of someone else) for a first degree murder conviction.  He also said Irven Box is the last guy he'd want representing him.  I know nothing of Mr. Box's other cases, so I can't comment on his competency as an attorney.  

He also said Erslund made the mistake of talking to officers after the shooting without an attorney present.  Of course, right after the robbery, he never would have dreamed in a million years he was now a murder suspect rather than a victim of armed robbery and attempted murder.  I have no idea if Erslund voluntarily turned over the video to LEO's or it was subpoenaed.  I think I would have said the system was down that day, had it been me.  He may have simply volunteered too much information thinking it would justify his actions when instead it landed him in serious trouble.

[youtube]http://www.youtube.com/watch?v=YHshsgpsxFg&feature=related[/youtube]

1st Degree Murder? I don't think so. Voluntary Manslaughter or 2nd Degree yes. As I understand, in the case of traumatic head injury, the body shuts down. Also he walked casually past the victim to get his other gun, and casually  walked back up to shoot again and did not appear to act in a defensive manor.

And the rumors have it that this was the same gang the had robbed him before.  I am pretty sure that I would react more strongly the second time something like this had happened to me, especially if I recognized one or more of the participants.

So much info unavailable.

That's the other part we discussed over dinner.  Perhaps the DA took into account the previous robberies and that could have formed a basis for pre-meditation: more or less Erslund was simply lying in wait for the next time it happened.  It's entirely possible he was simply fed up and decided he was going to take matters into his own hands next time it happened.  It happened, and he got his opportunity to finally kill a robber in his place of business.

I would like to know what the jury instructions were and I'd like to know how Prater framed the mitigating circumstances to get a jury to return a first degree murder conviction.  FMC's dad says if Erslund is smart, he will claim ineffective counsel and irregularities on the part of the DA in the charges filed.

Curious what charges he might have faced had he simply killed the kid with one shot, but the kid was un-armed.  Technically, the kid he shot posed no imminent bodily danger to Erslund or anyone else in the pharmacy.  The other one was the gunman.  I'd also like to know if the gunman was ever identified and charged with murder since he was in commission of a felony when his partner was murdered er manslaughtered.  There's been charges filed under similar circumstances in other cases.

I wondered that too.

There were two others involved, both tried and convicted of murder 1.  Or maybe one convicted and one pending...can't remember the details since have only paid attention to the main show.  I don't think sentencing has occurred yet.