Castle

PRESUMPTION OF FEAR: PART 4

WRAL Investigates

Castle

Posted November 29, 2018 6:00 a.m. EST
Updated January 11, 2019 2:24 p.m. EST

In North Carolina and other states, elected district attorneys have tremendous power.

They decide whether to bring charges against a suspect to a grand jury. They decide which witnesses will testify before the jurors, which evidence they'll review. And although district attorneys typically aren't present during a grand jury hearing, their choices have enormous influence over whether the group finds enough probable cause to indict.

If district attorneys aren't sure charges are warranted, they could opt to float them to the grand jury to see what sticks. But prosecutors don't have to go to the grand jury at all – especially if they don't think an indictment will lead to a successful criminal trial.

"There is a specific requirement of a prosecutor not simply to bring charges against people in every case where there might be some evidence that the person committed the offense, because charging somebody with a crime and subjecting them to a trial is very traumatic and damaging to an individual, even if that individual is ultimately acquitted," said Karl Knudsen, a former Wake County assistant district attorney.

It's a level of discretion that lies solely with the district attorney, said John Rubin, a professor of public law and government at the University of North Carolina at Chapel Hill.

"It's essentially unreviewable, that decision," Rubin said.

In Harnett County, District Attorney Vernon Stewart decided not to pursue charges against the Rev. Pat Chisenhall for the shooting of his son-in-law, Christian Griggs, in 2013.

Stewart declined multiple requests for interviews about the Griggs case. But Griggs' parents said Harnett County officials told them that Chisenhall's use of force was justified under North Carolina's Castle Doctrine – a measure designed to protect occupants of homes, vehicles and workplaces who injure or kill to protect their lives or property.

Former North Carolina prosecutors say the language in state law factors heavily in district attorneys' decisions.

"It has an effect to make a prosecutor much more careful and much more selective in deciding to prosecute somebody where the Castle Doctrine may be applicable," Knudsen said.

That means the details are important.

Even if the shooter and person he shot know each other, the history of their interactions can matter. When the occupants of a home exercise their right to self-defense, Knudsen said, it elevates their status in the eyes of the law.

"If the effect of the law is to give greater protection to that individual than would ordinarily exist, I think that's the intent of the law in first place," Knudsen said.

And Knudsen – more than most – is in a position to know.

Karl Knudsen

In November 1982, Karl Knudsen needed to sell some diamonds.

The young lawyer had left his job as a Wake County assistant district attorney for private practice earlier that year. With the holidays approaching, he needed to part with jewelry a client had used to pay him for his services, valued at more than $20,000 in today's dollars.

He later told a News and Observer reporter that two potential buyers inspected one of the rings he was selling the day his classified ad ran in the paper. But it was a surprise when they showed up at Knudsen's downtown Raleigh home the day before Thanksgiving.

Something felt off.

With Knudsen's wife and 10-week-old daughter in the next room, the two men handed the attorney an envelope they said contained a cashier's check.

It was a robbery note, and as Knudsen read, the men pulled out their guns.

In the scuffle that followed, he managed to draw a pistol hidden under a table before taking a shot in the gut. Despite his wound, he shot and killed Mark Italiano, 34, and Roy C. Coley, 37, both of Virginia Beach. Coley had managed to fire one shot at Knudsen's infant child, but missed. The man died at the scene after Knudsen shot him in the neck and jaw.

"I just started firing and didn't quit 'til my gun was empty," Knudsen told the The News and Observer in December 1982.

This is the sort of case the Castle Doctrine is designed for.

There was nothing explicit in 1982 North Carolina law that permitted Knudsen to use deadly force against the two home invaders. It was common law, drawn from centuries of practice and court cases stretching back to England.

A man's home is his castle, the doctrine goes, and he has a fundamental right to defend it.

The district attorney gave deference to that fundamental right 36 years ago when he declined to press charges against the former prosecutor.

"There was not a Castle Doctrine at the time, but this one was so clear in terms of what happened and so clear that my actions were justified, that the matter was not prosecuted and was not even sent to a grand jury," Knudsen, now 65 and still a practicing criminal defense attorney in Raleigh, said in an interview with WRAL News.

Things have changed since 1982.

In late 2011, the newly minted Republican legislature successfully rolled out a suite of changes that expanded gun rights on a number of fronts. One measure, signed into law by Democratic Gov. Bev Perdue, strengthened the Castle Doctrine by inscribing it into law and extending it to workplaces and vehicles in addition to homes.

And it added something else: The presumption of fear.

The language amounts to a powerful defense against criminal prosecution, experts say. It requires very little from those who kill or injure someone in the places where the law says they have no duty to retreat from their attackers. The burden, instead, is on the other side to prove that fear was absent.

"That's a codification of the commonsense notion that if somebody is breaking into your home in the middle of the night, they're not there to have pleasant conversation or simply say, 'Howdy Doody,'" Knudsen said. "You can assume if somebody is doing that, that they mean you harm."

The law is extremely protective of people who claim they're defending themselves in places where they have a right to feel the most safe.

At least initially, the presumption of fear applies regardless of whether the person on the other end of a homeowner's gun is a stranger. Or whether the alleged intruder was shot several times. Or in the back.

In some respects, the person killed becomes the one on trial.

The law afforded the Rev. Pat Chisenhall the presumption of fear when he shot his 23-year-old son-in-law Christian Griggs on Oct. 12, 2013.

Griggs had gone to the Chisenhall homestead to pick up his 4-year-old daughter. Chisenhall told authorities the two argued and he shot Griggs as he was breaking into the house through a window. Griggs’ parents have filed a wrongful death civil lawsuit against Chisenhall, challenging his account of what happened.

Factors like the ones in the Griggs case, legal experts say, can make a Castle Doctrine defense much more complicated.

But the law is weighted on the pastor's side.

Raleigh homeowner sentenced for killing man in yard

The Castle Doctrine does have limits.

Earlier this year, a jury found Chad Cameron Copley guilty of the first-degree murder of a man outside his home in 2016. Copley, who is white, told a 911 operator that "hoodlums" were vandalizing property in his neighborhood before firing a shotgun from his garage window at the men.

The Raleigh homeowner's lawyers unsuccessfully argued that the Castle Doctrine permitted his use of force when he killed Kouren-Rodney Bernard Thomas, a 20-year-old black man who was leaving a nearby house party. Police found no evidence of weapons or vandalism at the scene, nor was there evidence Thomas was ever on Copley's property.

Copley was sentenced to life in prison without parole.

The case stands out not just because the Castle Doctrine defense failed, but also because it was more likely to succeed given its particular racial dynamics.

A WRAL News analysis of 26,000 homicides from 1980 to 2016 in North Carolina found that when a white person kills a black man, he or she is far less likely to face charges than when the shooting involves any other combination of races.

Justified homicides make up a small percentage of killings overall, just 1.5 percent. But the analysis found that white on black killings – particularly when the victim is male – are justified 4.5 times as often as other combinations of races.

WRAL's analysis used the same methodology as The Marshall Project, which in 2017 found a similar disparity in justified killings nationwide.

That analysis, however, is incomplete. It uses data collected through the FBI's Supplemental Homicide Reports, a voluntary program that law enforcement agencies across the state use with varying degrees of accuracy.

Among the cases left out of the FBI reports: the killing of Christian Griggs.

Harnett County courthouse

Karl Knudsen said there are aspects that seem concerning in the Griggs case – that he was shot four times in the back, for instance.

"It's hard to understand why it's necessary to shoot somebody in the back to keep them from harming you," Knudsen said.

But semiautomatic weapons, which are capable of firing quickly, could complicate that argument. Chisenhall killed Griggs with a .22-caliber semiautomatic rifle.

"It's entirely possible that the person, once they start shooting, continues to shoot and the person's body may have moved or changed position during the course of the shooting," Knudsen said. "That's been known to happen, too."

The law includes an important provision: The homeowner's presumption of fear no longer applies if the alleged intruder has stopped trying to get in, or has left.

"If somebody is clearly defenseless and has given up the attack, it's hard to imagine the statute would allow continued use of deadly force," Rubin said. "The problem is, these can be close factual questions. It's close factual questions because things happen quickly."

Knudsen couldn't say whether the Griggs case should be prosecuted since he isn't privy to all the evidence – much of the investigative material gathered by the Harnett County Sheriff's Office and district attorney has been ordered sealed by a judge in advance of the trial in the Griggs family’s wrongful death lawsuit.

Frank Jackson, a criminal defense lawyer who worked as an assistant district attorney in Wake County for 24 years, is less equivocal.

He wouldn't have charged Chisenhall, and he said he doesn't see the controversy in the case.

"It's his property. He's at home. It's his castle," Jackson said. "I think somebody who advances in that situation does it at their peril and takes all the risk."

He's not swayed by some of the details: the number of shots, their locations, whether Griggs was immobilized. The language of the statute is vague and broad, he said, and it gives a lot of deference to what's in the mind of the shooter – and how much force he felt he needed to use.

"It's what he reasonably believes is necessary," Jackson said. "It doesn't say you need to shoot one time and ask."

As a prosecutor, he saw plenty of conflicts sparked by issues over child custody. It would be an aggravating factor in this case, he said, especially when coupled with the misdemeanor warrants Katie Griggs obtained against her husband the night before for breaking and entering, property damage and domestic criminal trespass.

Jackson said Griggs could have gone to court to force his estranged wife to allow him access to Jaden, the 4-year-old daughter he intended to pick up that day.

"There was other remedies other than going and forcing yourself in somebody's home," Jackson said. "There's no excuse for that."

Because the Castle Doctrine is so rarely applied as a defense in criminal homicide cases, Knudsen said it may be too early to tell whether any changes are needed to North Carolina’s law.

“Usually, it takes something on the edges, outside of the envelope, before people start redesigning the envelope,” he said.

But absent evidence that casts serious doubt on Chisenhall's version of the events, Jackson said, the law is on his side when he's at home.

"The key thing to me is, What did the shooter think and what did he say? And you have to take until it's proven wrong that he told the truth," Jackson said. "And if he told the truth, then it was self-defense under our statute."

Tony and Dolly Griggs don't think Pat Chisenhall is telling the truth.

They'll try to prove it in December in a wrongful death lawsuit against the Angier pastor. The case has the potential to set precedent in North Carolina civil courts on issues of self-defense, largely because there’s so little case law on the matter.

And the Castle Doctrine’s test in civil court is particularly significant.

For one, North Carolina’s Castle Doctrine law specifically provides immunity from criminal and civil liability – beat a criminal conviction, and according to the statute, you still have some protection from a related wrongful death lawsuit.

Karl Knudsen, the former Wake County assistant district attorney, said the provision makes this case different from other types of civil actions, which may come once a criminal trial is over.

“Whether the person is convicted or acquitted, sometimes civil charges follow,” Knudsen said. “A classic example is OJ [Simpson]: Acquitted in criminal court, wrongful death action filed and tried and he was found civilly liable for wrongful death in civil court.”

In the Griggs case, there have never been any criminal charges – and no successful defense on the basis of the Castle Doctrine.

Knudsen also notes that for civil trials, the burden of proof is much lower than for criminal trials, which require convincing a jury beyond a reasonable doubt.

"If you wanted to envision it: If you had a series of scales, in a civil case, all you have to do is just tip those scales ever so slightly in your favor and you've satisfied the requirement," Knudsen said.

Depending on how the civil case goes, he said, a prosecutor may look at it as a trial run. A loss in civil courts, with its lower burden of proof, might demonstrate it's just too difficult to get a verdict from a criminal jury.

"If, however, you get a unanimous verdict in favor of the plaintiff in the wrongful death action, it may give rise to the prosecutor giving the matter a further look," Knudsen said. "And again, there's no statute of limitations, so you're not under any time pressure."

But to do that, the Griggs family will have to rebut Chisenhall's presumption of fear.

Investigative reporter Daniel Lathrop, assistant professor at the University of Iowa's School of Journalism and Mass Communications, contributed reporting to this story.

Next: The questions that remain