Author Topic: I was wrong, cassandrasdaddy was right, I lost the bet. (OKC Pharm robbery)  (Read 9456 times)

kgbsquirrel

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the problem I've had with this case from the first time I saw the tape was those final shots.  If Ersland was able to chase one bad guy outside, walk back in, find a second weapon, stand over the downed bad guy, and then fire shots, I hvae trouble believing he was reasonably in fear for his life when he fired those shots.

You have trouble believing that because of how you would react to a threat to your life. That, however, makes the assumption that his sense of self-preservation would guide him in a similar manner without deviation. A good number of people react differently, either through their own inherent nature or far more commonly through training meant to alter their instinctual responses. A prime example is the military. While we may be quite conscious that our lives in danger, we will still take actions that we know or believe to be the correct course despite the danger posed.

There are two examples from my own experience that I am willing to share, the first was an incident from when I was living in Norfolk. A neighbor's car had caught fire in the engine compartment. The instinctive response, as shown by numerous others standing around outside, was to back away from the burning vehicle and stay out of the danger. In contrast I grabbed a fire extinguisher and without really thinking about it ran up to the flaming car dousing it in PKP. The second experience was while I was working in the TOC at FOB Salerno in Afghanistan. This building was plywood walled with no fragmentary protection to speak of save a hesco barrier a substantial distance away that served as the TOC compound's outer wall. On a particular night we were taken under attack with 107mm artillery rockets being fired from the nearby mountains. The first round that night landed approximately 10-15 yards from where I was sitting and only by virtue of the impact angle did the majority of the fragments get expelled away from our building instead of in to it. At this point all the redundant and non-essential personnel were evacuated to the concrete bunkers while one other soldier and myself remained inside the S2 shop continuing on with out duties. In fear for my life? Damn straight. And yet I did something that would be considered wholly foreign to most people; I remained sitting in an unarmored building and carried on with my job despite the danger.

In the case of Jerome Ersland I find the military comparisons most poignant because the man was in fact militarily trained, a Lieutenant Colonel in the Air Force to be exact. So while you may choose to stay far away from a potential source of danger, namely a person you had just shot in the course of their attempted robbery, you should not make the mistake of assuming that such action is ubiquitous to all persons of good character, and only those of evil intent would deviate from your particular choice of action.

De Selby

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Ersland walked over with the intent to kill the person on the floor though - I'm not sure how he could've imagined he was protecting anyone from an unconscious, unmoving man he'd just shot in the head.  Yes, I know Ersland said he thought the kid was moving, but Ersland lied about lots of things (including making up a wound and a third robber with a shotgun, and lying about when he executed the victim.)  His claims about that are simply not credible.

There's a big difference between risking your life to protect people, and walking up on someone who is incapacitated to shoot them because they just did something very bad.  That's an execution.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

roo_ster

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Mr dead thug reaped the whirlwind.

That he did.  It is one reason he deserves no sympathy.



THEY CAME TO HIM AND SHOT AT HIM!!!

they never fired a shot at him.  his fables about a gunfight and faking his wound notwithstanding

Did they make a credible threat of bodily harm?

You have trouble believing that because of how you would react to a threat to your life. That, however, makes the assumption that his sense of self-preservation would guide him in a similar manner without deviation. A good number of people react differently, either through their own inherent nature or far more commonly through training meant to alter their instinctual responses. A prime example is the military. While we may be quite conscious that our lives in danger, we will still take actions that we know or believe to be the correct course despite the danger posed...

...In the case of Jerome Ersland I find the military comparisons most poignant because the man was in fact militarily trained, a Lieutenant Colonel in the Air Force to be exact. So while you may choose to stay far away from a potential source of danger, namely a person you had just shot in the course of their attempted robbery, you should not make the mistake of assuming that such action is ubiquitous to all persons of good character, and only those of evil intent would deviate from your particular choice of action.

Quite so.  This sort of behavior is not limited to the military.  Many dangerous jobs are rife with folks taking risks for their fellows or simply calculating risks with greater tolerance than many people working in cube farms.

Assuming the risks you or I would take as the definition of "reasonable," leaves out great swaths of good & reasonable folks who differ and put that difference into practice every day.
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roo_ster

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kgbsquirrel

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I've excerpted a few particular segments of your statement, De Selby.

Ersland walked over with the intent to kill the person on the floor...

...an unconscious, unmoving man...

His claims ... are simply not credible.

The third is a personal opinion arrived at after, I shall presume, reviewing the known facts. The first two however are assertions of absolutes that you have no way of verifying or proving. You do not possess the capability to know a person's intent with consummate surety, a grace generally reserved solely to one's deity of choice. Neither do you have any definitive proof that robber was unconscious nor unmoving, merely the false assumption that a traumatic brain injury renders no other possibility, and the, at best, educated guesses of a medical examiner reviewing the notes of second medical examiner who performed an autopsy on a body that was stated to have expired from blood loss resulting from wounds not related to the penetrative TBI.

De Selby

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KGB, I think it's too much of a stretch to doubt the medical evidence when the video shows him leaning over to shoot, and you combine that with the lies.  Why so many blatant lies, all exaggerating the threat, if he actually was just in fear for his life from the kid on the floor?

Chris is right - he couldn't take the stand because he'd lied so many times that his story would've, well, left him looking like a liar to the jury.

It's bad policy to make excuses for criminals because we like them more than their victims.  I suspect that's the primary driver behind what, on the video evidence alone, would otherwise be an open and shut murder case.

If I had a client walk in and show me that video, unless I were willing to gamble on nullification, it'd be malpractice to advise him to do anything other than beg for a good plea deal.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

kgbsquirrel

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KGB, I think it's too much of a stretch to doubt the medical evidence when the video shows him leaning over to shoot, ...

Ahh yes, the medical evidence, the cause of death which is under dispute by several different medical examiners and pathologists, as is the determination that robber would or would not be capable of moving and/or being aware, and of course the video which shows absolutely nothing of the disposition of the robber. You mean that evidence? The short of it is that the only person who knows with absolute certainty what the robber was, or was not doing, off camera, is Jerome Ersland, and no one else, which by-the-by, includes you De Selby.


Quote from: De Selby
It's bad policy to make excuses for criminals because we like them more than their victims.  I suspect that's the primary driver behind what, on the video evidence alone, would otherwise be an open and shut murder case.

Is that supposed to be directed at me?

De Selby

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Is that supposed to be directed at me?

Yes, but not you alone.  I think there are lots of us who have a natural tendency to do this.  In your latest post, you've seized on what you think is a doubt in the medical evidence.  The reality is that the video tape ( assuming you've seen it) basically made any defense impossible - it is that clear cut.  The lying he did after the shoot (again, I'm only assuming you know that - it might change your opinion if you haven't seen it) only helped the case against him.

This is really not even a close one - yet we have people who for personal reasons don't want to make out the crime. 
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

kgbsquirrel

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Quote from: De Selby
It's bad policy to make excuses for criminals because we like them more than their victims.  I suspect that's the primary driver behind what, on the video evidence alone, would otherwise be an open and shut murder case.

Yes, but not you alone.  I think there are lots of us who have a natural tendency to do this.  In your latest post, you've seized on what you think is a doubt in the medical evidence.  The reality is that the video tape ( assuming you've seen it) basically made any defense impossible - it is that clear cut.  The lying he did after the shoot (again, I'm only assuming you know that - it might change your opinion if you haven't seen it) only helped the case against him.

This is really not even a close one - yet we have people who for personal reasons don't want to make out the crime. 

So, Ad hominem much then? I point out that your assertions of absolutes have no factual basis that can be independently verified and your retort is that I like a "criminal" more than a "victim," from which you then continue to assert your own deductions, arrived at from your own opinion of the video, as the irrefutable truth.  Serious discourse with you is as fruitless as it is futile.

T.O.M.

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kgbsquirrel,

My statement about judging his actions comes as both a retired lifeguard, an Army vet, a former criminal prosecutor with some pretty heavy firearms training, experience at being involved in SWAT raids/search warrants, and now 5 year on the bench. Just wanted to say that, like you, my own reactions do not always make sense to people.

The problem is that the law generally uses an objective(i.e. "reasonable person") standard, and nort a subjective standard.  A jury sitting on this case won't have anything but the witness testimony, the forensics, and the tape that shows a man standing over a downed subject and firing multiple shots.  As I said earlier, the jury will never hear what Mr. Ersland thoughts were as he went through this, as he made the bad choice at the beginning to lie to investigators, so he could never testify credibly.  So the jury would never hear him say that he was acting on his military training, or anything along those lines.  The jury would see a man walk away from the threat, search out a second handgun, go back to the danger, and fire shots into it.  The only witness to what happened is tha man who fired those shots, and he couldn't testify. 

So, all you had was the camera.  Did that downed man reach for a weapon, or make some kind of threatening move?  Don't know.  We'll probably never know for sure.  But that tape, the only evidence as to what happened, with no outside description of other circumstances, looks like an execution.  So found the jury.

The more this debate rages on, the only thing it reinforces in me is that your best bet is to do what has been said a thousand times over around here.  If all else fails, shut up and lawyer up.  We may disagree about making any statement to police (I believe you should), but I'm sure we can all agree that YOU SHOULD NEVER LIE TO THE INVESTIGATORS ABOUT THE SHOOTIN!
No, I'm not mtnbkr.  ;)

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RevDisk

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My statement about judging his actions comes as both a retired lifeguard, an Army vet, a former criminal prosecutor with some pretty heavy firearms training, experience at being involved in SWAT raids/search warrants, and now 5 year on the bench. Just wanted to say that, like you, my own reactions do not always make sense to people.

[snip]

The more this debate rages on, the only thing it reinforces in me is that your best bet is to do what has been said a thousand times over around here.  If all else fails, shut up and lawyer up.  We may disagree about making any statement to police (I believe you should), but I'm sure we can all agree that YOU SHOULD NEVER LIE TO THE INVESTIGATORS ABOUT THE SHOOTIN!

You know, if a judge weighs in on a legal scenario, I'm going to go out on a limb and proclaim him the thread winner. 

But Chris is merely reinforcing the wisdom of LawDog.

http://thelawdogfiles.blogspot.com/2006/08/you-have-right-to-shut-up.html

 =D
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T.O.M.

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Thanks Rev,
I don't claim to have come up with the idea.  LawDog usually says it in a way more entertaining than I ever could.  But it is darned good advice, and Mr. Ersland would probably be in a completely different position had he done what others have said a hundred times over...

be safe, kids.
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Boomhauer

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Thanks Rev,
I don't claim to have come up with the idea.  LawDog usually says it in a way more entertaining than I ever could.  But it is darned good advice, and Mr. Ersland would probably be in a completely different position had he done what others have said a hundred times over...

be safe, kids.

This. "I want my lawyer" are the only words you should speak when talking to the cops on "official" business. No trying to explain "He shot first", no trying to say "It was self defense" like they say to do on THR. Simply STFU and wait for your opportunity to call a lawyer.

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Holy hell. It's like giving a loaded gun to a chimpanzee...

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the last thing you need is rabies. You're already angry enough as it is.

OTOH, there wouldn't be a tweeker left in Georgia...

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T.O.M.

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Where the debate really becomes interesting (to me as a trial attorney/magistrate judge) is whether you ever make a statement to the investigators.  most people I know advise that you lawyer up and never say anything.  Personally, the plan I have is to lawyer up, but make a statement later.  Why?  Just to keep this short and not too far of topic, there are only two ways to get your version in front of the jury...the statement to investigators and testimony at trial.  My hope is that a prosecutor revieiwing the case, sees the statement, and declines charges, so I never have to worry about telling the story of what happened maybe a year afterwards.

But, again, without any doubt, DON'T LIE TO INVESTIGATORS!!!!
No, I'm not mtnbkr.  ;)

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Tallpine

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Did I fire five or six shots...?

To tell the truth, I don't really remember.
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De Selby

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http://s3.amazonaws.com/content.newsok.com/documents/y31pharmletter0001.pdf

That's a link to the convict's application to keep his CCW!.  Interesting reading, to say the least - he tells his version of the entire story, including how he would have shot the other robber too, but the range was too far for his Taurus Judge.

He also explains how he threw his watch away (that watch being the proof he was shot at) as soon as the DA's office told him he'd get a "citizen of the year" award. 

A guy facing a first degree murder rap files an application to keep his CCW?  I bet that's the first and only time it's ever happened in that state.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

MillCreek

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Mr. Ersland was sentenced this morning to life with the possibility of parole.  Apparently an effort is underway to ask the Oklahoma Governor for a pardon.
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Quote from: Angel Eyes on August 09, 2018, 01:56:15 AM
You are one lousy risk manager.

Hawkmoon

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While I do agree that the five coup de grace shots were not legally justified, I do NOT agree with a verdict of first degree murder. First degree involves pre-meditation, and I do not buy into the theory I saw espoused by another prosecutor on a different case that "premeditation can occur in an instant." That's just plain BS. Premeditation means setting out in advance to perform some action. I very much doubt that Jerome Ersland got out of bed that morning and formulated the intention that he was going to pump five bullets into the torso of some dude lying on the floor of his pharmacy.

Ersland got carried away as a result of adrenalin dump. Were the follow-up shots lawful? Heck no. Should he have been tried and convicted for them? Ummm ... maybe. Should the charge have been FIRST degree murder? H___ no.
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De Selby

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First degree murder has never had a time component - the calculation that you should murder is what makes the crime.  Malice aforethought, not malice "way before the crime".
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

GigaBuist

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First degree involves pre-meditation, and I do not buy into the theory I saw espoused by another prosecutor on a different case that "premeditation can occur in an instant." That's just plain BS.

Perhaps, but that's the way the law works, and if you're carrying a gun it's best to keep that in mind.

During my 2nd CCW glass the legal portion (delivered by a lawyer) gave an example:

Drunk guy at a park gets in a fight, goes to get a 10/22 from his camp site, comes back and start shooting at somebody totally different. The guy had no knowledge of the previous fight at all.  Thankfully he's drunk as heck and can't hit anything.  The target grabs a .44 Magnum of some type, nails the guy at 20-30 yards in the chest right through the heart.  Dude falls back, certainly going to die.

Target walks up to him and puts one more into him for good measure.

Murder 1.

Hawkmoon

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That's why they don't want me on juries. I speak English.
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zxcvbob

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Quote
Target walks up to him and puts one more into him for good measure.

Murder 1.
Attempted murder (He was already dead, but our hero didn't know that.)  You could even argue that Mr .44 knew he was dead, therefore it was a far lesser crime -- I'm not sure exactly what, illegal discharge of a firearm maybe?

The outcome depends a whole lot on how much he says to the police.
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RoadKingLarry

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Ahh yes, the medical evidence, the cause of death which is under dispute by several different medical examiners and pathologists, as is the determination that robber would or would not be capable of moving and/or being aware, and of course the video which shows absolutely nothing of the disposition of the robber. You mean that evidence? The short of it is that the only person who knows with absolute certainty what the robber was, or was not doing, off camera, is Jerome Ersland, and no one else, which by-the-by, includes you De Selby.


Is that supposed to be directed at me?

It is beyond my comprehension to understand how anything coming out of the Oklahoma ME office could be considered reliable.
The OKlahoma ME's office isn't even accredited anymore (as of 7/09).
http://www.news9.com/story/14736879/former-employees-speak-out-on-problems-at-oklahomas-mes-office?redirected=true

As for Ersland, Pretty much a violation of the law but I also disagree with the 1st degree murder and the life sentence, remind me to stay out of Oklahoma County, and Tulsa County for that matter. I have doubts as to whether he would have even been charged in some of the more rural counties here.
In my opinion when criminals come bringing threats of violence and death, then they deserve what ever they get in retaliation.
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Samuel Adams

wmenorr67

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Being a resident of Tulsa, I have seen the video and the story several times over.  When it first happened I pretty much determined the story being told didn't match the video.  While I agree defending himself and others in the store was correct, the second he came back and grabbed a second weapon he screwed himself.
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cassandra and sara's daddy

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he might still have pulled his chestnuts outa the fire if he hadn't lied.  woulda been better to say nothin at all
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


by someone older and wiser than I

kgbsquirrel

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woulda been better to say nothin at all


There's a universal truth if there ever was one.


Don't talk to the cops. Part 1