In most instances, though, I don't see a court setting aside a verdict on that point. Occasionally, we had a case in Charlotte where, because of discovery issues, or problems in comparing the case, or how things were handled, the court as a matter of law can say, "Well, I'm not going to accept capital murder as a verdict. I'm kicking that particular aspect of that case out because of some procedural error over things." Now that's rare. That's exceptionally rare, but I've seen it happen and it does happen.
Robert Ingalls: Okay. What are the general defenses if you're facing a murder charge. I know there's four different levels, five or six maybe with other included. What are your general defenses?
Bill Powers: Well, I analyze murder cases or homicides in a very linear fashion, linear being, the root word being line. If you think of it as a train where you've got a locomotive, a coal car, box car, box car, box car, caboose. Frankly, now that I think about it, I do that for almost any type of case, it's just my for of analysis, and it goes form a temporal or timing perspective, and then I break the cases up.
There are defenses at times regarding statements, confessions, the nature and the circumstances of a confession, or the encounter of law enforcement, or how that person was arrested. Those are a legal type of defenses. There are times where there's a lot of science, where we see blood splatter. We see, depending on type of weapon, if it's a gun you may see stippling, or powder residues. You may see ballistics. You may see DNA type of evidence on certain type of cases.
You may see carpet or fiber evidence. You may see hair evidence. There's a lot of forensics. I mean, there's a reason there are these TV shows are on. I mean, how many of them are there now? But there's a scientific aspect of defense is, or aspect of certain defenses. I wasn't standing there, or based on the bullet angle this is where I was. And there are a lot of different defenses. Then there are the nature and the circumstances of what got you there in the first place, which would be other legal defenses like self defense, or defense of others, or heat of passion, or what lawyers may refer to as affirmative, meaning that I have to set forth. I'm claiming this as a defense.
Affirmative defense is, I wasn't in my right mind. You don't see, you know the insanity defense, you don't see that much anymore, but you do see heat of passion. You do see affirmative defenses of defense of self and defense of others in court.
Robert Ingalls: Now, I know that some of the people that are going to be coming to this podcast may find themselves in a position where perhaps they're being investigated for homicide of some sort.
Bill Powers: Right.
Robert Ingalls: Maybe they haven't even spoken to the police, but they're heard that maybe they're being investigated. What is their best step at that point?
Modified Transcript of “Homicide - What to Do When You or a Loved One Is Facing Murder or Manslaughter Charges - Part 2” for the Hearing ImpairedBill Powers: Right. Well, first I hope that that never happens to anybody listening. Sometimes people listen to a podcast 'cause they're just interested, you know, they're lawyers, or law students, or paralegals, They're just interested in the law. But I cannot think of any circumstance where it makes sense just to go down there and start talking. Even if you've done nothing wrong, the fact that you are being questioned ... There's questions. They want to know. Maybe they think you've done something.
Even if you haven't, I think it's very, very, very smart to immediately make contact with a lawyer. Even if you are going to give a statement, you have a right to have counsel present. You have a right to counsel with a lawyer. And there are times where you may not have committed the murder itself, but you may be an accessory to, and we used to call these things accessory before the fact, or rendering aid after the fact, and in large measure we've gotten rid of that because in many instances you're considered a co-equal, see, because, let's use a bank robbery example.
Now, if we bring a bank in it probably brings it under federal law, but I'm using it as an example where you and I decide to rob a bank. I'm going to drive the car. You're going to bring the gun. Someone gets killed. Because we have a common plan or scheme, we are treated in large measure under law the same.
Robert Ingalls: Right, so don't be like, "No, I just drove the car."
Bill Powers: Right, you could be admitting to something as serious or quite serious in and of itself that may clear you of the murder, but may cause other charges to come down the road. I think speaking to a lawyer makes sense. Now, when people call, we don't get a lot of these, there just aren't a lot of ... I know Charlotte set a record in 2017 for the number of homicides, but you don't see a lot of them, in the layer cake as I described before, but when we get them, which we do, we're prepared for them.
I treat them a little bit differently. I, generally speaking, will not speak to somebody on a phone about it. I want it in my office. I want to make sure that we have established a level of confidentiality, that we will recognize that there is a privilege, meaning attorney client privilege. We set forth the parameters of what the purpose of the representation is, and why we're meeting. That's meant to protect the client, not the lawyer.
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