People who follow high-profile trials of armed citizens who shoot in self-defense can easily get the impression that the prosecutorial bar is against them and wants to put them in prison for defending themselves. No one is keeping track of how such cases are handled with a nationwide database. However, I’ve worked in the justice system for most of my life and have found that the system generally works. True self-defense shootings are generally recognized as such and treated accordingly. But it is important to understand when it’s time to talk with the prosecutor.

When Should You Talk with the Prosecutor?

Most prosecutors understand that they have a duty to be a minister of justice. They are just as responsible for exonerating the innocent as they are for prosecuting the guilty. Most of them are underfunded, overworked, and have more than enough real criminals to deal with. Thus, they have no interest in making guilty people out of innocent ones.

The cases we discuss here—where self-defense shootings end up in prosecution—are exceptions to the norm. Likewise, necessary armed defense, in itself, is an exception to the norm in daily life in our country.

Case One: Justice Is in the Halls

Let’s start with Case One,in which I was recently retained as an expert witness for the defense. A young police officer with a sterling record shot a man when, at the end of a foot pursuit in the dark, he pulled what looked like a pistol and pointed it at the cop. The object in his hand turned out to be a cell phone.

The state’s attorney, whose campaign had been heavily funded by anti-cop and anti-gun billionaire George Soros, criminally charged the officer. He spent two years on desk duty as the process unfolded. During that time, a new state’s attorney was appointed.

The cop’s excellent lawyer, David Bigney, sat down with the new prosecutor and reviewed the evidence, including depositions of both his expert and the state’s. The prosecutor finally announced that the charges would be dropped.

It was a classic example of a saying among trial lawyers: “In the halls of justice, most of the justice is in the halls.”

That phrase is generally applied to plea bargaining and out-of-court settlement of civil lawsuits. But it also applies to the topic at hand.

Killing the Unmeritorious Case Early

You need three elements to kill an unmeritorious criminal charge without taking it before a judge or jury. You need an honest prosecutor willing to listen to both sides and do the right thing. Likewise, they must understand that you don’t have to be right, you have to be reasonable.

You also need a defense attorney who the prosecutor’s office respects. And perhaps most importantly, you need facts and evidence strongly supporting your contention that the shooting in question was justifiable.

Here are some examples.

Case Two: Reckless Endangerment? Or Hero?

Case Two was presented initially—to a somewhat anti-gun prosecutor—as an 11-year-old boy who shot and killed a friend of the family with a .45 caliber pistol his widowed grandma had recklessly left loaded and accessible to him.

Anti-gunners howled for the boy to be put away and the grandmother to be charged with reckless endangerment. The prosecutor may not have been pro-gun, but he was pro-truth.

He was shown that the “friend of the family” was a thug sent by the kid’s jailed mother to steal guns. It was also shown that the child had killed him to save his grandmother’s life. So, the prosecutor did the right thing: he called the boy a hero in the press conference, where he announced there would be no charges.

He also zealously guarded the boy’s identity and basically told the crowd of anti-gunners howling for prosecution to pound sand.

Case Three: Cut Down by Your Own Political Axe

It is highly unusual for a prosecutor to hear a defense attorney say, “My client and I would like to sit down with you and your lead investigators so you can hear his side of the case. He will answer any questions you might have, and we’ll show you some evidence we don’t think you’ve seen yet.”

It piques their interest. Good prosecutors will take the defense lawyer up on it.

If and when the facts show that the shooting was, in fact, justified, a good prosecutor will generally drop the case. Even a sociopathic prosecutor with a political axe to grind doesn’t want to start a fight (i.e., a trial) that he or she can’t win. Losing a case in front of a jury is an embarrassment to any prosecutor’s office.

Remember what I’ll call here Case Three,the 2013 trial of George Zimmerman in Florida? Subsequent to the acquittal, the special prosecutor who had so aggressively brought the case was voted out of her job in the next election.

Cased Four: Prosecution Shoots Itself in the Back

In Case Fourin Miami, attorney Jeff Weiner brought me in when his client was charged with Manslaughter. He had chased an armed robber who had just terrorized his office staff. When the fleeing felon aimed a stolen, loaded snub-nose .38 at the good guy behind him, the latter killed him with a shotgun blast.

Janet Reno, whom Bill Clinton would later name Attorney General of the United States, was then the state’s attorney for that judicial district. She saw it as an unlawful pursuit of a man over stolen money—and shot in the back to boot. The fact that the shooting was cross-racial increased community concern.

Weiner had me create videos showing how quickly the man who was aiming the gun behind him could have killed the defendant. He then showed them to the assistant state’s attorney leading the prosecution. It became obvious the prosecution would not succeed.

The result was a withhold of adjudication and, a year later, charges erased.

Case Five: Be Honest. Is 2.5-Inches Enough?

The same tactic can work in civil lawsuits. In Case Five, a violent domestic abuse suspect tried to stick a knife into a policeman trying to restrain him. A brother officer put a 185-grain Silvertip from a Colt Combat Commander .45 into the suspect’s heart to stop him.

The criminal justice system, of course, found it justified, but that did not deter plaintiffs’ lawyers from bringing a lawsuit. They presented an expert witness who claimed under oath in a deposition that a 2.5-inch blade pocketknife like that of the deceased was not a deadly weapon. He testified that if the first officer had used the advanced PR-24 baton techniques he had taught the PR-24 International Instructors, the man could have been disarmed and that the slaying was a wrongful death.

I was a PR-24 International instructor myself at the time. So, I polled the others and determined that the man had never taught any of them anything. We also discovered that their expert had hosted seminars where it was shown that the tiniest knife could kill if it went a few millimeters into the body where there was an artery.

Seeing what was going to happen at trial, the plaintiffs dropped the case.

Final Arguments

How often do these cards-on-the-table discussions result in favorable outcomes that spare the defendant the ordeal of trial? We don’t know. There’s no empirical database keeping track.

Why do defense lawyers frequently refuse to sit down with the prosecutors for anything but a plea bargain? Often, it’s because most of their clients are guilty; anything they say to the prosecution would just bury them deeper. It also becomes a default strategy to “hide the ball.”

For a few, there is also the consideration that if the case is dropped early, they don’t get to charge the client a six-figure fee for trial.

The choice is yours, with the advice of your attorneys. I can tell you this: in a fairly busy schedule of expert witness work in this type of case (over 45 years), I’ve twice had two-year periods where I never had to set foot in court because all the unmeritorious cases were killed early in the manner discussed above.