It is unfortunate, or perhaps fortunate, that the media has lost interest in reporting this case, but Phillylacrosse.com is still on it. We now have testimony from Ung’s friends, who were with him that day:
“My attention was on Eddie,†Afsarmanesctehrar testified. “It was going fast and out of control. I had a feeling he was coming at us. Just my personal feeling
“I was really scared. At the last moment there was no way we could stop these kids from coming.â€
I have to hand it to both attorneys if they correctly pronounced that name every time :) More important I think is the testimony of the girlfriend that was with Ung.
Another defense witness, Joy Keh, who was with Ung and Afsarmanesctehrar, called DiDonato and his friends “a bloodthirsty gang.â€
She said she was extremely fearful because “the white hat guy (Kelly) was about to sucker-punch Gerald’s blind side. I blocked him. They were screaming and being aggressive; they wouldn’t stop.
I heard (Kelly) scream, I’ll kill you; you’re dead.†Then she testified she screamed back, “Stop, you’re a good person!†She claimed he rushed them again.
I seem to recall that one of DiDonato’s friend testified that she was flirting with them. Id like to know what kind of flirting makes a girl fearful. As far as I’m concerned Gerald Ung should walk, just based on this. You have five drunk, beefy athletic young men against two smaller guys and a girl, and the group of five have said “I’ll kill you; you’re dead?” What are the elements of a strong case for self-defense?
- Ability? This means that the attackers have the means to inflict grave bodily injury or harm. Five guys that big can kill with their fists and feet, and more importantly can prevent flight.
- Opportunity? Opportunity means they are in a position to inflict such force. They were in the process of rushing Ung. Ung was armed. He stupidly had told them so. Once the gun came out, he was charged by one of the parties. The party did not break the attack once the gun was displayed.
- Jeopardy? This means that the attackers were acting in a manner where a reasonable person might assume they have intent to inflict grave bodily injury or harm. You have that right here: “I’ll kill you; you’re dead.” I’m not going to demand Ung find out whether they are kidding or not, especially when they do not break off the attack when the party being attacked is known to be armed.
I don’t think Ung had a choice if he didn’t want to end up in the hospital at the least. Maybe he did make a crack that provoked the five young men. That was his mistake. But that’s not an invitation to beat someone. The only thing left is whether he violated a duty to retreat. Ung was in the process of retreating when it escalated to physical violence. By the time he was being physically attacked, the girl was engaged with the guy in the white hat, and Ung was engaged with three other men. The law requires that all members of the party be capable of retreating to complete safety.
If Ung is found guilty, I’ll read the transcripts before I render final judgement. Some key bit of information might be missing from this testimony, and we only have bits and pieces. But from what I see here if he is found guilty it’ll be one travesty of justice. The others will be that DiDonato and his friends haven’t been charged with simple assault yet.
If I was in a room with someone who made threatening gestures toward me, and made it clear he intended to cause me harm, and there was a gun sitting on the table between us, and he headed toward that table – I think I could reasonably assume he’s about to take the gun and use it against me.
I would think the same thing if the gun was in my hands and that person was coming towards me.
That’s a big deal to me too. A reasonable person, confronted with someone holding a gun at them, would be to retreat, probably rather quickly. If Ung was in the wrong drawing the firearm, the next thing a reasonable person would do is contact the police.
But Eddie DiDonato didn’t act like a reasonable person. He charged the dude with the gun who was backing up, and clearly wanted out of the situation.
I’ll also note that Ung saying “Why did you make me do that!?!?” is something I could see myself saying in the same situation.
This also shows a big reason you don’t draw a gun unless you’re justified in using it (not saying Ung wasn’t). If Ung wasn’t justified in drawing the gun, he wouldn’t have been justified in using it. But if you get charged by someone, what choice to you have?
I can see why Ung was upset he was put into a situation he had to shoot the guy. You can imagine he had to have known that meant arrest and interrogation at the least, and quite likely, being a law student, he knew it stood a strong likelihood of going to trial.
What’s PA’s treatment of SD like as a defense? Is it affirmative (likely) and if so, does the state have to prove beyond a reasonable doubt it ISN’T SD (less likely) and if not, does the burden shift to the defendant to prove beyond preponderance or some other standard?
If my assumptions above are correct, this is an area ripe for civil rights litigation. See US v. Herrington (2010) in the DC court of appeals with regard burden shifting. PA is also a good circuit court of appeals to be dealing with this situation in.
So, this kid’s attorney is good. Look at this from when he was a DA.
http://www.youtube.com/watch?v=f40CZR2Fx2w
Also, digging around, he has gotten some real scumbags off murder charges and/or had juries only convict on lesser charges a lot. The prosecutor has their work cut out for them.
It’s affirmative. I think self-defense is preponderance of evidence, but I’m not certain.
Given disparity of force, drawing his weapon could be arguably justified when the aggressors choose to close within Tueller Drill range.
When its five large men against two men and a female, they have the very real likelyhood of making it IMPOSSIBLE to draw and fire if they are close enough to bum rush before the weapon is leveled. One good body check can knock you flat down and bounce your head off the pavement — even if THAT doesn’t cause major injury or death by itself, there is certainly time for one or more of the aggressors to stomp on your head with a single, lethal, blow.
Remember, the Tueller Drill is NOT an example of a safety bubble 21 feet in radius. . . it is an underscoring of the fact that 21 feet is ALREADY “immediate danger” with a contact weapon, aseven a middle aged businessman in a suit and dress shoes can charge 21 feet from a standing position BEFORE your average person can identify the threat, properly evaluate the threat, decide to react, react by readying his weapon from a holster, and engage the target.
For gangs of large, fit, young atheletes in casual clothes and almost certainly sneakers, that 42 foot (diameter) bubble is ludicrously small. It just takes one decent or lucky hit to disorient you long enough to kill you before you even draw the gun.
My thought:
“Duty to retreat” is complete and utter BS. Laws like that get me all twisted and angry inside.
Retreat from danger? No thanks.
Bad people (or people making bad choices) should have to be in retreat from ME in order to stay alive. Too bad that PA laws favor the criminal in that regard.
Indiana is much more sensible.
I suspect that “Duty to Retreat” has its roots in laws against duelling.
I am not aware of PA’s framing of the duty to retreat, but NJ’s is (both by the law and by a jury instruction I once received) the duty to retreat is contingent on being able to do so “in perfect safety”. By that standard and by the above testimony, Ung no longer had a duty to retreat.
It doesn’t have its roots in laws against dueling. Anti-dueling laws didn’t come until the 19th century. The roots go back to English Common Law, where if you were a willing participant in an affray you had a duty to retreat from it before you employed deadly force.
In other words, if you willingly entered into a fight with someone, you couldn’t resort to deadly force until you were no longer a willing participant, and were in fear of grave bodily injury or harm.
I was impressed by the video. Ung was back-peddling when he was charged. That doesn’t seem to comport at all with the prosecutions theory of the shooting.
OK, let us not forget that DiDonato is very politically connected and this happened in Philly. That is the devil in the details that keeps being forgotten, and needs to be mentioned in every posting about this tragedy.
I sure would also like to know more about the make up of the jury.
All the evidence I see and hear screams self defense, including adding in Ung called 911 immediately after.
@Terraformer:
I was on a jury last year, and the defendant claimed self-defense. The judge instructed us that the burden falls with the prosecution to prove otherwise. There were no firearms involved, but I’d imagine the same principle would apply if there were.
Here’s another story about Friday’s testimony http://www.philly.com/philly/news/20110211_Different_version_of_Old_City_shooting_emerges_at_trial.html
That’s an interesting picture pair. Ung in his suit, and DiDonato in his undershirt…
Goes with the article, though, which is sympathetic to Ung.
Ian, you have that backwards. It is Didonato in the suit. I find the article middle of the road. What it does not say is there is a damning video of DiDonato.
That’s OK – they replaced the pic with a “scales of justice” stock image. Wonder why…
Or, you know, I could be looking at the wrong story.
Ignore my commentary on this thread; I clearly left my brain in my other head.
Reminds me of some typical despicable college behavior I’ve seen, with the sadly not so uncommon targeting of harassment on those who are different (usually nerds, race, size, etc).
Looks to me like the victim and his group (which claim sobriety, but I would love to see that autopsy report), were harassing a smaller group of people. Being typical assholes. And in this case violent ones….and a gun protected some innocents.
http://www.philly.com/philly/news/20110211_Different_version_of_Old_City_shooting_emerges_at_trial.html
I mean really….this sounds like it could so easily be summed up.
“NERD shoots jock bullying him.”