On a Saturday afternoon in June, at the end of the work day, all the landscape workers were emptying the trucks and putting their tools away. All of a sudden a fight breaks out – a bigger guy is beating up a smaller guy. The smaller guy gets pushed to the ground and punched. Retreating to his car as the bigger man pursues him, the smaller guy opens the driver’s side door, retrieves a small pocket-knife, turns around and stabs the bigger guy in the side of the torso. The bigger man is enraged; he picks up large rocks and hurls them at the smaller guy. Unable to hit him, the bigger guy smashes out the windows of the smaller guy’s car. During a short lull in the action the smaller guy hops into the car, locates the keys, puts them in the ignition, starts the car, pulls out and drives away.
The smaller guy, a 30-year-old man named ES, is arrested at his house. ES tells the police that he was merely defending himself. He tells the police that if he wanted to kill the other guy he would have gotten it done. As it happened, the bigger man suffered a punctured lung. The police believe that ES was in the wrong, and that he had a duty to retreat; therefore, he is charged with a major felony – Armed Assault with Intent to Murder. ES is held without bail following a 58A Dangerousness Hearing.
Over the course of the next three weeks the investigation reveals several eye witnesses who all say that ES was defending himself and that the bigger man was the aggressor. With this in mind, the prosecutors decline to indict the case. The major felony charge is dismissed and replaced with the less serious “Assault and Battery with a Dangerous Weapon, Causing Serious Bodily Injury.” With that the case stays in the District Court.
Henry and his client prepare for trial – interviewing the several witnesses, taking photographs at the landscaping yard, and digging into the background of the relationship between ES and the other man. On the date of trial the bigger man declines to testify, invoking his 5th Amendment right not to incriminate himself.