Gerald Ung trial coming up on 2-7-11

[rjmst1]

We’ve all seen the video – it was self defense and Gerald Ung is innocent.
He’s being charged with Attempted Murder (1st Degree), Reckless endangerment, aggravated assault, possession of an instrument of crime & simple assault (you have to love how they stack on the charges). When you’re innocent, you don’t take a plea; to do otherwise would be a miscarriage of justice.
There’s no question that Ung was being pursued and attacked. So this entire case is going to hinge on the prosecution proving that Ung had the ability to escape to “perfect” safety – remember, the law requires you to retreat to “perfect safety” before resorting to deadly force.
This is a text book example of why Pennsylvania must pass the “Stand-your-Ground” statute. If that had been on the books, Philadelphia wouldn’t have been able to sustain a prosecution with such Prima facie evidence of self defense.
Then again, what else would you expect from Philadelphia.

Everything you've said is argument. And don't confuse "innocent," "not guilty," and "acquittal," esp. in light of the defense of self-defense. Justice is much more than seeing your side win. People plea all the time to lesser offenses and it does not mean they are "innocent" and it still could be the case that the American idea of justice was done.

[Big Chuck]

You all seem to be assuming the prosecution will offer a good plea deal. Isn't there a lot of pressure to put this kid away?

[rjmst1]

You all seem to be assuming the prosecution will offer a good plea deal. Isn't there a lot of pressure to put this kid away?

The plea deal doesn't have to be "good," it just has to be something less than the most serious charge in order for the DA to obtain a guaranteed conviction. The prosecution wants a conviction. Only a foolish defendant rejects a plea deal only because it isn't "good enough" (meaning they might agree to a better one--that's not to say that they don't reject them because they think they can win if it came to a trial). I already explained that this is all Ung's judgment to make, and that "good" is very subjective and relative to his alternatives. Think conviction. The prosecution is not thinking sentencing as their end goal. Sentencing is a different matter and is up to the discretion of the judge and has no bearing on how good a job a prosecutor did obtaining a conviction. No one (except for Ung) actually cares if he actually goes "away" at this point. But everyone cares if he is convicted. I'm not sure what pressure you've observed or from where or from whom it came.

[phillykev]

No one (except for Ung) actually cares if he actually goes "away" at this point. But everyone cares if he is convicted. I'm not sure what pressure you've observed or from where or whom it came.

I'm guessing the DiDonato family might care. And pressure could be coming from his father, a senior partner at Fox Rothschild, or his uncle, the head of the Philadelphia GOP.

[rjmst1]

I'm guessing the DiDonato family might care.

Okay, retributively, yes. But I meant it doesn't make a difference to anyone representing the gov't. "at this point."

And pressure could be coming from his father, a senior partner at Fox Rothschild, or his uncle, the head of the Philadelphia GOP.

Neither of whom have any pull with or hold any power over the Democrat who is the chief law enforcement officer of this city and first black to have that position, especially with all the discretion his position affords him. Sure, he could decide "no deals" on this case at his own discretion, but as you may have read in other posts, I was an ADA under Lynne (and in other counties in PA) and I never saw a "no deals" order for a case like this in Philadelphia (barring things I'm not aware of like if Ung has priors--I'm just going by the story on its face for the purpose of discussion here).

[IronSight]

We’ve all seen the video – it was self defense and Gerald Ung is innocent.
He’s being charged with Attempted Murder (1st Degree), Reckless endangerment, aggravated assault, possession of an instrument of crime & simple assault (you have to love how they stack on the charges). When you’re innocent, you don’t take a plea; to do otherwise would be a miscarriage of justice.
There’s no question that Ung was being pursued and attacked. So this entire case is going to hinge on the prosecution proving that Ung had the ability to escape to “perfect” safety – remember, the law requires you to retreat to “perfect safety” before resorting to deadly force.
This is a text book example of why Pennsylvania must pass the “Stand-your-Ground” statute. If that had been on the books, Philadelphia wouldn’t have been able to sustain a prosecution with such Prima facie evidence of self defense.
Then again, what else would you expect from Philadelphia.

I might be nitpicking a bit, but I think the difference in wording between what you're saying, and what the law states, is substantial enough to highlight.

18 Pa.C.S. § 505

(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

So not only do you need to be able to retreat with complete safety, but you would also need to have to know that at the time. It's not simply about having the ability to retreat in complete safety, it's about having that ability and also knowing that you have it.

In other words a DA can't (or isn't supposed to be able to) prove a shooting is unjustified just because he thinks you had an avenue of escape that you happened not to know about. While that difference should be enough to prevent a jury from hanging you just because there was an avenue of escape nearby that you didn't know about, but that the prosecutor says you should have known, with a jury I'm always skeptical they would read the law and apply it correctly.

[rjmst1]

In other words a DA can't (or isn't supposed to be able to) prove a shooting is unjustified just because he thinks you had an avenue of escape that you happened not to know about. While that difference should be enough to prevent a jury from hanging you just because there was an avenue of escape nearby that you didn't know about, but that the prosecutor says you should have known, with a jury I'm always skeptical they would read the law and apply it correctly.

Where does that statute limit the permissible actions of a prosecutor? And what the DA personally thinks about the options of your avenues of escape will not matter. He can try to prove anything relevant in order to gain a conviction. In fact, it is his specific job to. Whether or not you had an avenue of escape and whether or not it was known to you might be in issue and would be argued by both sides.

But the defendant will have the subjective reasonableness of his beliefs held to objective standards.

What the defendant actually was aware of/knew is always arguable if it's relevant and in issue.

[IronSight]

Where does that statute limit the permissible actions of a prosecutor? And what the DA personally thinks about the options of your avenues of escape will not matter. He can try to prove anything relevant in order to gain a conviction. In fact, it is his specific job to. Whether or not you had an avenue of escape and whether or not it was known to you might be in issue and would be argued by both sides.

But the defendant will have the subjective reasonableness of his beliefs held to objective standards.

What the defendant actually was aware of/knew is always arguable if it's relevant and in issue.

I was referring more to the intent, or purpose, of the phrasing, rather than it's actual legal effect on a prosecutor's actions.

[rjmst1]

I was referring more to the intent, or purpose, of the phrasing, rather than it's actual legal effect on a prosecutor's actions.

Still, it's a question for the jury whether or not there was an avenue of escape and whether or not it was known to the defendant, and each side better work hard to establish their positions or they are not doing their job.

[IronSight]

Still, it's a question for the jury whether or not there was an avenue of escape and whether or not it was known to the defendant, and each side better work hard to establish their positions or they are not doing their job.

Right, and the post I quoted originally left out that important part of the statute I highlighted. So what's your point?