A View From The Handbasket

Friday, August 04, 2006
Castles and kings
Posted by neros_fiddle at 2:46 PM


Although the concept of justified self-defense has a long-standing place in American law, the NRA still has a budget to meet. So the organization created a burning issue where none had been before: the "castle doctrine." Apparently, the idea is to grant automatic immunity to anyone who uses deadly force to defend themselves against an attacker in their home.

As with most knee-jerk reactions against manufactured problems, this one didn't turn out exactly as planned, as we see from one case settled yesterday in Lexington, Kentucky:

James Adam Clem pleaded guilty yesterday to second-degree manslaughter for fatally beating a Lexington man, a day after confusion over Kentucky's new "home intruder" law during his murder trial led prosecutors to extend a last-minute plea offer.

Prosecutors recommended a 10-year sentence for manslaughter and 12 months for attempted tampering with evidence, and they said they will oppose probation. Clem, 27, could be eligible for parole in a few months. He has spent most of the last two years in the Fayette County Detention Center.

A sentencing hearing is scheduled for Sept. 1.

Clem claims that he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him upon entering Clem's Belleau Wood apartment on Aug. 9, 2004. Clem admitted to police that he let Newberg in so Clem could repay a drug debt, but his attorneys argued the new law applied once Newberg allegedly attacked Clem.

Prosecutors say Clem was probably the one who started the fight.

Newberg's relatives called the plea deal an injustice and a gift to Clem. They were also not pleased that prosecutors did not consult them before making the offer.

Father Kenneth Newberg was so angry he did not even go to Fayette Circuit Court to watch Clem plead guilty.

"Why let them slap me in the face, adding insult to injury?" Kenneth Newberg said.

He said he's lost faith in the criminal justice system, which he thinks treats criminals better than victims. It took two years for Clem to go to trial. Clem's case was delayed after his previous lawyer was disbarred.

Kenneth Newberg said prosecutors got cold feet. He thought there was little chance a jury would find Clem not guilty, even with the new law.

"I think they give the jury little credit," Kenneth Newberg said. "The people of Kentucky are not idiots; they are not backwoods idiots. It does not take a rocket scientist or a brain surgeon to understand that law. I did my own research on it. It was very plain and clear to me after I absorbed it."

Commonwealth's Attorney Ray Larson disagreed. He said the facts of the case -- there were no eye witnesses -- and the new law gave Clem a real chance of being acquitted. It was not a risk he was willing to take.

"Nobody is happy with this," Larson said. "We're not happy with this. The family is not happy with this. We're sorry we had to do it."

Defense attorney Russell Baldani said the plea deal is in everyone's best interest. The case would have dragged through the appeals courts for years because of the vagaries of the new law, he said.

"There's not any gifts," Baldani said. "There is not any winners in this. He accepted responsibility for what he did."

The home-intruder law, also known as the castle doctrine, grants immunity to people who use deadly force to defend themselves against a robber or attacker in their home. Immunity prevents police from even arresting such a person.

The law also applies to anybody in a place where they "have a right to be."

It overwhelmingly passed the General Assembly this spring after lobbying by the National Rifle Association. It took effect last month.

Sister Kara Newberg, 21, said she doubts Clem was defending himself -- her brother's injuries were too severe. Newberg was bashed in the head five times with a lamp.

She said the legislature should "have thought things through."

"It basically says if anyone comes into your home, and if you have a grudge against them or anything, you can do this and get away with it," Kara Newberg said.

On Tuesday, prosecutors, defense attorneys and a circuit judge struggled to craft instructions to explain the law to jurors.

"One of our concerns was, if we couldn't understand it ourselves, how are we going to get a jury to understand it?" Assistant Commonwealth's Attorney Kimberly Henderson Baird said in an interview yesterday.

One problem, Circuit Judge Sheila Isaac said, is the law provides no guidance for what happens once a case reaches the courts.

It is so poorly written and confusing that it leaves unanswered questions about how the burden of proof shifts and what standard of proof applies, the judge, some prosecutors and defense attorneys have said.

Larson said the law needs revision.

"It has created some problems," Larson said. "This case is a prime example."


So we have the NRA defending the right of people to bash someone in the head with a lamp during a drug deal gone bad as long as you do it in your home, or anywhere you "have a right to be." All you have to do is claim the other guy started it, and you get automatic immunity (or, if the facts are in doubt, get a reduced sentence and a quick parole).

(And if you don't have a lamp handy, there are always other alternatives.)

I'm fairly ambivalent on the issue of gun rights. The gun ownership and crime rates in America don't suggest that a well-armed society is a safer one. At the same time, well-regulated gun sales are preferable to limiting gun sales to the underground. And government bans of things with broad-based demand rarely work out well.

But all that aside, it does appear that the NRA is morphing from a pro-gun organization into a pro-violence organization. Which makes sense, I suppose. For many years, they've argued that guns were not inherently more dangerous than anything else wielded with murderous intent. With innovative legislation like the castle doctrine, those who wish to bludgeon people with any household object can now enjoy the same rights the NRA has long been protecting for gun owners.

Exciting times, indeed.

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