No Self Defense for You

A couple days back I posted about the right of defendants in Washington to get their defense fees from the State if they were found not guilty by reason of self defense. This prompted an email from another practitioner about the practical effects of this law.

I just saw the post on the Washington statute that requires the state to pay when it loses a criminal case on self-defense grounds. Interesting story on that. When I first started working [as a lawyer], I took a call from a Washington attorney whose client had been acquitted of some kind of homicide (I forget the details). This attorney related that the judge in her case refused to instruct on self-defense, but the jury acquitted anyway. She claimed that since R.C.W. 9A.16.110 went into effect, Washington judges had gotten very stingy on self-defense instructions out of concern for the state fisc. It actually makes a kind of bizarre sense, if you're not too hung up on, you know, basic fairness: If the jury returns a not guilty verdict without a self-defense instruction (either because they think it was self-defense even without an instruction, or for some other reason), the defendant is in good shape (albeit perhaps deeply in debt to his counsel). And if the jury returns a guilty verdict, the lack of a self-defense instruction is reversible error on appeal (assuming a self-defense instruction was really warranted). So the defendant can appeal and get a new trial. No harm, no foul . . . well, er, kinda . . .

A perfect example of the law of unwanted consequences. The Legislature out there needs to include a section stating that self defense instructions shall be given.

Thanks MR.