Murder vs. Self-defense 

Some say cops get off easy

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When Steve Strate walked up the stairs from the basement of his mother-in-law’s Orem rambler on Oct. 25, 2009, he put his .380 handgun on the porch and called 911. In a cool tone, he informed the operator he had just killed his brother-in-law, Marvin Sidwell. “He came at me with a damned chair.”

The Utah County Attorney’s Office charged Orem-based contractor Strate with murder. At his preliminary hearing on March 24, 2010, Strate’s attorney, Ron Yengich, pointed out that not only had the enraged 51-year-old Sidwell threatened his neighbor and his sister—Strate’s wife, Linda—he also had methamphetamine in his system, potentially amplifying the aggressiveness of a man his own mother, 79-year-old Lavern Sidwell, in court described as “paranoid.” Lavern Sidwell noted, “Stephen was very good to Marvin, and Marvin was always bragging about Steve.”

Police found Sidwell on his back, with multiple gunshot wounds, and a 6.8 pound steel stool just above his outstretched hands, consistent with Strate’s story, Yengich argued, that he had legally defended himself. Judge James Taylor, however, felt that a jury should decide whether it was self-defense and ordered Strate to stand trial.

That 56-year-old Strate should be prosecuted for what his close friend, attorney and gun-rights activist Brian Greene believes was clearly self-defense, while police officers who have used deadly force in similar circumstances have not faced prosecution, Greene says, is “a colossal double standard.” Attorney Yengich, citing Strate’s pending trial on Aug. 29, declined to comment.

The Utah legal code enshrines the right to self-defense for both peace officers and private citizens as essentially the same, namely, when a person “reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury.” But, Greene says, while police officers need only say they feared for their or another’s safety, prosecutors faced with members of the public defending themselves “substitute their own theory of what happened over the testimony of the person who used that force,” filing a homicide charge “even without eyewitness testimony to support [the prosecutor’s] theory or contradict” the individual who employed deadly force to save his own life.

Utah County deputy district attorney David Sturgill did not return a call requesting comment, but his colleague, deputy district attorney Craig Johnson, reportedly told journalists after a 4th District Court hearing in Provo that “a stool is not up to the level that Utah law requires for shooting and killing [someone] in their bedroom.” Yengich, however, told Judge Taylor that “a chair is a deadly weapon under our statute.”

Veteran defense attorney Gilbert Athay agrees with Greene that a double standard is at work. When it comes to self-defense, he says, “If you’re a civilian, you’re in trouble. If you’re a cop, you’re OK.” While 9 out of 10 of officer-involved shootings do not result in prosecutions, he says when it comes to the average citizen, “that 9 out of 10 goes the opposite way. The law should apply equally to both.”

Under former Salt Lake County District Attorney Lohra Miller, all of the 48 officer-involved shootings that occurred during her tenure were found by her office to be justified. That led to criticism of rubber-stamping by her office, which typically investigates a shooting alongside investigators from the police department whose officer pulled the trigger, as well as, sometimes, officers from a neighboring jurisdiction. That was the case in the 2009 Wade Pennington shooting by South Jordan Officer Jared Nichols, where South Jordan Police Department, West Jordan Police Department and the Salt Lake County District Attorney’s Office all investigated and deemed justified Nichols’ shooting of an unarmed Pennington while seated in his own patrol car, through his rolled-up window.

A police shooting in September 2010 that both Athay and Greene contrast with Strate’s case followed an Ogden SWAT team in search of drugs serving a no-knock warrant on a Roy house. When six officers led by Sgt. Troy Burnett broke down the door and burst into the house at 9:30 p.m., resident and suspected drug dealer Todd Blair emerged from a hallway some eight feet away, brandishing a golf club. Burnett shot Blair dead, and the shooting was ruled as justified. While Greene says he isn’t “condemning all police shootings,” there is clearly a “minimal standard for cops, while the standard is extremely high for [private citizens].”

Athay argues the close working relationship between prosecutors and police officers can lead to “back scratching,” as prosecutors, fearful of antagonizing law enforcement or earning a reputation for being untrustworthy, are overly sensitive as to “how it would look [to be] charging police officers.” Since Sim Gill’s election as Salt Lake County district attorney in November 2010, his office has ruled seven officer-involved shootings as justified, two as unjustified, although, as yet, no charges have been filed against the two officers.

Strate and Greene may take some solace from Steven Lovendahl’s case. Attorney Steven Shapiro defended Lovendahl against an August 2007 negligent homicide misdemeanor charge. Lovendahl pleaded guilty to the misdemeanor rather than face a murder trial after he killed a man who was beating Lovendahl’s girlfriend. Despite the guilty plea, at Lovendahl’s sentencing, West Jordan 3rd District Court Judge Robert Adkins said he could not “in conscience” send him to prison. Adkins noted that Lovendahl was between a rock and a hard place, with the choice of either accepting the misdemeanor deal offered by the Salt Lake County District Attorney’s Office or running the risk of a murder trial and possibly spending the rest of his life in prison. “Under the law, not all deaths are homicides,” Adkins said. “There has to be certain conditions met and in certain instances a person is justified in using deadly force.” Adkins sentenced Lovendahl to 36 months probation.

Utah Statewide Association of Public Attorneys’ executive director Paul Boyden represents prosecutors. He argues that while the standard for police and citizens to use deadly force in order to prevent deadly force is essentially the same, it is also different. That’s because police officers “are imposed on an already out-of-control situation, with a duty to bring things under control.” They can have a “split second” to identify who’s good and who’s the bad guy. “It sounds like a technical issue, but it’s a very real issue.” He points out that in the second and a half it can take an officer to draw a weapon, someone from 21 feet away can deliver a mortal blow with a knife or a club. “It does give you an idea of how dangerous it is when somebody with a club or a knife is determined to kill you.”

This arguably underscores Greene’s belief that “the benefit of the doubt ought to go to private citizens who don’t have the training or the back-up,” when confronted by a situation such as Strate was. Why, Greene ultimately wants to know, “should a professional who is entrusted with power be held to a lower standard?” 

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