By Mark Knapp
Gail Gerlach is a Spokane area resident who has been acquitted of first-degree manslaughter charges. He shot 25 year old Brendon Kaluza-Graham on March 25, 2013. The shot killed Kaluza-Graham who was driving away in Gerlach’s vehicle. The defense argued that the Defendant saw the fleeing man make threatening gestures that looked like he was pointing a gun at Gerlach when the vehicle was about ten or twelve feet away but certainly not 66 feet as the prosecution reportedly argued.
The deceased man’s family was disgusted with the way the media portrayed Kaluza-Graham, saying their relative was made into a “one-dimensional thief.” According to the Spokesman Review, one family member lamented, “He was made into a poster boy for the angst of the community, a sacrificial lamb. That’s not right.”
“He had hopes and dreams,” said Ann Kaluza. “He was made into a poster boy for the angst of the community, a sacrificial lamb. That’s not right.”
Gerlach, who reportedly faced up to a decade in prison if found guilty, turned down a plea offer in which prosecutors offered him one year of confinement. Gerlach testified that he thought he saw Kaluza-Graham pointing a pistol at him through the back window of Gerlach’s SUV. His perception was that it was a gun and that “this was it”, that he was going to be killed.
Gerlach told prosecuting attorney, Deric Martin, that he wasn’t aware children were gathering at a bus stop near where the shooting took place. Would he have acted in the same way even had he known they were there? One police officer brought up the presence of children that he saw after he had arrived on scene. There were children present at some point but the shooting was before the normal school bus stop time according to the Defendant, Gail Gerlach.
“Even if you had been aware, as you testified in direct examination, any kids at that bus stop would have been collateral damage,” Martin stated to the Defendant.
“… if you’d missed Mr. Kaluza-Graham or missed your vehicle, and hit one of them, that’s just a risk you were willing to take?” Martin asked.
“I didn’t miss,” Gerlach said.
Under the pressure of cross-examination from Martin, it sounded cocky. Bob Smith related much of this to me and assures that the Defendant is not arrogant or cocky. All acknowledge that the shot, while aimed at the threat, was a fluke. It hit glass, a child’s car seat and headrest before striking Kaluza-Graham. Gerlach testified that he shot because he believed if he didn’t, he would have been killed.
Robert Smith, of Coeur d’Alene, Idaho, was an expert witness whose testimony was critcal in Gerlach’s trial. Smith spent over four hours testifying and was instrumental in helping the jury reach a verdict of not guilty. I asked him to share his observations regarding the case and he told me that he spent the last seven to eight months on Gerlach’s defense team with an associate, a retired state crime lab expert in firearms forensics. Smith’s expertise is in use of force, particularly lethal force.
Smith has no time for “gun shop commandos” or gun prohibitionists. He has been a law enforcement firearms instructor who also teaches armed citizens. After over three decades of such instruction he found some lessons in the case from which we can all learn.
The term “furtive movement” describes exactly what happened in Gerlach’s case. Smith uses the example of the Spokane County deputies who shot a man that presented keys in a manner that the deputies took as threatening. What the officers knew at the time that they had to make such a critical decision is how they must be judged by a police review board or a jury.
According to Smith, the media did not show bias against the deceased man but may have “massaged” the facts in such a way as to make Gerlach out to be an irresponsible gun owner.
“This case has never been about defending against a property theft by using lethal force. It has always been about self-defense against a perceived threat of deadly force against Mr. Gerlach, and that is what the jury understood, after weighing the facts of the case. Yet some of the media has reported before, during, and after the verdict that this is what the case was about.”
The news media published a high school graduation picture of the Brendon Kaluza-Graham and another picture surfaced after the trial that appearedto be Kaluza-Graham at about 12-14 years old. This is what many found so reprehensible in the George Zimmerman trial; i.e., photos that were several years younger than what the so-called victim looked like at the time of his crime. No sympathy for the armed citizen, no reports regarding all the other vehicles that Kaluza-Graham stole or even very much about 25 grams of methamphetamine in his possession. “He was just turning his life around.”
While the possession and the possibility that Kaluza-Graham was under the influence of drugs was inadmissible, it was known to the defense during the trial and explained the behavior Gerlach described. Remember the Zimmerman case? The City of Sanford fired their police chief because he refused to refer charges against Zimmerman. Eventually pressure was brought to bear via the media and protesters many of whom were threatening violence in the streets of Sanford, Florida. Even the U.S. Department of Justice brought pressure to bear and there is evidence Holder’s DOJ was committing resources to coordinate the protesters calling for Zimmerman to be prosecuted.
Eventually, prosecutors stepped forward at the state level and put a whole new spin on Zimmerman’s case. Unless you keep an extra two-three hundred thousand dollars lying around just for your criminal defense, it may be wise to not saying anything “that can and will be used against you in a court of law.” As law enforcement officers are told, “You may not go to jail because you did something wrong. You may go to jail because you could not articulate that what you did was right.”
Armed citizens are taught the same thing in most Use of Force classes. There is a reason police get 48-72 hours before they are required to make statements, Smith says. “We are all subject to the same psychological effects related to that critical incident. Learn the 2-5 minimal things to say, then don’t say anything more until you have had time to rest, reflect and seek counsel, both legal and psychological.”
The suggestion that Kaluza-Graham had a new job interview the next day makes for a good human interest story but isn’t Gerlach as sympathetic a victim as the deceased? Gerlach thought he was about to be killed and has been through hell and back- about $300,000.00 worth of hell! Isn’t that worth some sympathy?
Incidentally, the jury will now decide whether to award Gerlach reasonable attorney’s fees under Washington State’s special verdict statute for self-defense cases. The cost of his legal defense may be close to $300,000.00.
The jury deliberated a relatively short amount of time and determined that the case was one of self-defense. That means the state owes the defense some fees. A hearing on fees is expected within the month. Smith should have no problem getting outside expert fees. Defense attorneys, David Stevens and Richard Lee, showed the jury what it means to see things as a reasonable man or woman.
The case also show the Prosecutor’s Office not to file charges against honest citizens that are trying to do the right thing. The Spokane Prosecutor’s Office actually took a vote- three were for and three against filing; Steven Tucker broke the tie. Bob Smith comments, “Really, we charge now by vote, not evidence?”
The case was also forwarded to Steven Tucker’s office by the Spokane Police Department with no recommendation- which in a way is a recommendation. Tucker also publicly stated that he “wanted to send a message to the citizens of Spokane.” Well, perhaps the citizens sent a message back via the jury. Reasonable men and women can look at things from the point of view of what Gail Gerlach knew when he thought he saw a gun pointed at him.