October 28, 2007

Jury Acquits – Self Defense

Posted in Legal tagged at 2:15 pm by Rid

[Editors Note]: Read the portion of this story that I placed in bold. The prosecution used the “failure to retreat” rule to try and hang the defendant. Moral of the story, run or walk away when you can. Shoot when you are absolutely sure your life is in danger. Most of us have the right to carry concealed. Just remember, if you use it and there is a question about how the weapon was used, you will probably be, at the very least, financially devastated. But…… financially devastated beats dead every time.

Story:

Daniel Kelly, whose attorneys said he was in a fight for his life before he shot and killed another man on State Street in May, was found not guilty of first-degree reckless homicide Friday night.

Kelly ‘s family was jubilant as Dane County Circuit Judge Daniel Moeser read the verdict of the six men and six women on the jury, reached after 9 hours of deliberation. On the other side of the courtroom, the family of Austin Bodahl, 23, who came to Madison about two weeks before he was shot to death on May 22, appeared shocked and in tears.

Bodahl ‘s father, former Minnesota legislator Larry Bodahl, sat with his head down and in his hands and seemed dazed outside the courtroom after the verdict.

Kelly ‘s father, Steve Kelly, fought back tears as he said it was a difficult ordeal for both families involved in the case.

“The Bodahls are nice people, ” Steve Kelly said, “and both of our boys were painted in unflattering ways, and not necessarily accurate ways, either one of them. Both of them have had challenges in life, as do very many people. I would hope that society would treat young men who are a little different with a little more respect for them. ”

Kelly ‘s attorney, Dennis Burke, said he was “tremendously relieved ” by the verdict.

“It was a horrible ordeal for both families, of the victim and of the defendant ‘s, ” Burke said. “It ‘s so good that it ‘s over. Just good that it ‘s over. ”

Steve Kelly said his son ‘s immediate plans include a visit to his grandmother in North Carolina.

Burke and co-counsel Tracey Lencioni, both assistant state public defenders, never denied that the kilt-clad Kelly shot Bodahl. Instead, they argued that Kelly shot Bodahl in self defense after firing two warning shots from a very small .22-caliber handgun that did not stop Bodahl from fighting with Kelly.

During closing arguments Friday morning, Assistant District Attorney Lana Mades told jurors that Kelly, 31, a former National Guardsman who served in Kosovo, did not take reasonable steps to avoid the fight with Bodahl. It was not self-defense, she said, when he shot Bodahl with the gun he carried in a homemade holster under his kilt.

“The defendant wants you to put a stamp of approval on his decision that 23-year-old Austin Bodahl deserved a death sentence for simply being drunk and disorderly, ” Mades said.

Burke said that was not the case.

“I ‘m not asking you to put a stamp of approval on one person shooting another person. I ‘m not asking you to render a verdict that turns State Street in Madison, Wisconsin, into the OK Corral, ” Burke said. “That ‘s not what this case is about. This case is about an attack and the response to that attack, and whether that response was lawful. ”

The jury should decide from Kelly ‘s point of view whether the shooting was justified, he said.

But the jury could not know that, Mades said.

“What is going on in the defendant ‘s head? We don ‘t know, ” Mades said. “We have no idea. We have to totally speculate. ”

Mades could not mention that Kelly did not testify in his own defense during the trial because defendants have an absolute right not to testify that juries cannot hold against them.

She also said it ‘s hard to consider Kelly ‘s fears as being rational and reasonable.

Just because the defendant has unreasonable fears does not mean it ‘s legitimate self-defense, ” Mades said. “It ‘s not the defendant ‘s beliefs himself, but an ordinary, intelligent person ‘s beliefs. ”

Both lawyers urged jurors to look at injuries on both men. Mades pointed at them because of their superficiality and Burke because of what might have happened to Kelly had the fight continued.

“There ‘s no instruction that says you have to have your guts hanging out or your skull fractured before you have the right to self-defense, ” Burke said. “It ‘s what he thought might happen to him. I think it ‘s fair to say that he was scared to death. He would be, I would be. ”

Carl Provin, with whom Bodahl had been drinking, testified that he started picking on Kelly because another companion, Travis Verastegui, said he had problems with Kelly at an earlier time.

Provin, Verastegui and Bodahl were drunk and scary men to Kelly, Burke said. They were looking for trouble, he said.

“They are predators, and he was the prey, ” Burke said, pointing at Kelly. “He was their toy, and they were going to mess with him. ”

This story was written by:

Jury acquits Kelly in fatal shooting

By Ed Treleven
608-252-6134

etreleven@madison.com

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