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As Edgecomb trial begins, the legal hurdles when it comes to arguing self defense

Posted at 4:17 PM, Jan 19, 2022
and last updated 2022-01-19 19:34:42-05

MILWAUKEE — Self defense is at the center of the defense in the Theodore Edgecomb case. The man is accused of killing Jason Cleereman on the Holton Street bridge in September of 2020.

Theodore Edgecomb, left, and Jason Cleereman, right

Cleereman was a Milwaukee immigration attorney. There was some sort of argument on the bridge between the two. The prosecution says Edgecomb was the aggressor but the defense plans to argue self defense, saying Edgecomb feared for his life.

Self defense is a legal term we hear often in high-profile court cases, but it's not as simple as saying the word. Self defense involves a complex set of thresholds for both the prosecution and defense to navigate.

Legal expert and defense attorney Patrick Cafferty says the self defense argument is oftentimes decided in a case before it ever heads to a jury, usually before the district attorney charges a case.

"Oftentimes the DA themselves will decline prosecution, on the case and say right, yes, this person used violence, but we believe that they were right in doing so,” said Cafferty.

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Average justified homicides in the U.S. according to FBI data.

When it comes to homicides in this country, not many are considered justified. According to the FBI's most recent data, for every one justified homicide in the U.S., 49 were considered criminal homicides.

Most of those killings, about 60 percent, are between people who don't know each other. But over the last 10 years, there has also been a 45 percent increase in justified homicides.

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Data from the Violence Policy Center

However, to even argue self defense in court, experts say you have to first prove there is a legitimate claim.

"People can't just willy nilly walk in and say self defense. Self defense, in essence, they have to get the permission of the judge to be able to argue that to the jury. The judge has the discretion as to whether to give the jury the self defense instruction, and there has to be at least some facts that would support a self defense claim before a judge would give that instruction,” said Cafferty.

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Data from the FBI

University of Wisconsin law professor Ion Meyn says to claim self defense under Wisconsin law, a defendant doesn't have to prove he or she would have died, but rather they believed at the time they would have died.

"When it comes to using deadly force as a defense against someone attacking you, it has to be an imminent threat and it has to be a reasonable belief that you are subject to deadly force in order to use it,” said Meyn.

That reasonable belief is what Cafferty says can make a self defense trial more difficult for a prosecutor.

"Here they have to prove all the things they ordinarily would in an intentional homicide case, but now they also have to prove what was in this gentleman's mind at the time that he pulled the trigger,” said Cafferty.

Meyn says a big factor juries consider is whether the defendant provoked the circumstances that ultimately led to deadly force.

“One of the major kind of aspects of self defense law is provocation. You can't claim self defense if you caused the problem,” said Meyn.

It's one of the questions that ultimately the jury will have to answer in Edgecomb's trial.

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