Imperfect Defense

Judge Ochoa Rules Againse Malinda Jones’s ‘Defense of Others’
Argument

by Martha Sadler

Firmly closing the door on “preemptive strike” as a defense in
murder trials, Santa Barbara Superior Court Judge Frank Ochoa ruled
that Malinda Jones may not claim she killed Jarrod Davidson to
prevent him from molesting her granddaughter. Jones is accused of
first-degree murder for killing Davidson, her ex son-in-law. Her
husband Philip Jones and their daughter Kelee Davidson already
accepted plea bargains and are in prison, but Malinda Jones reneged
on her plea bargain at the last minute, opting for a jury trial
instead. Although molestation allegations arose in custody battles
regarding the child, Judge Ochoa gaveled down Philip Jones’s
attempt to speak of them in court after his sentencing. During
pretrial hearings last week, defense attorney Robert Landheer
argued strenuously for his client to be “allowed to present her
reasons” for killing Davidson. If it were proven she killed him to
defend her granddaughter from harm, she could be convicted of
justifiable homicide or voluntary manslaughter, but not murder.
Unless the jury is allowed to hear her side of the story, Landheer
argued, they will be left with the prosecution’s characterization
of the family as a pack of “wild beasts” who killed merely because
they were losing the custody battle. “That is absurd,” he said.

Prosecutor Darryl Perlin said he does not believe the father
molested his 3-year-old daughter, a charge investigated and
dismissed while Davidson was alive. Even if the killers believed
this to be true — which Perlin argued they don’t — Perlin and
fellow prosecutor Gerald Franklin told the judge that “defense of
others” only applies if the killing is committed on the “spur of
the moment” to head off an imminent threat. According to Franklin,
the killing was planned at least one day in advance. Ochoa
repeatedly asked Landheer how the threat could be characterized as
imminent when the victim was shot in his Santa Barbara home, while
the child was with her mother in San Luis Obispo. In response,
Landheer called upon a previous case in which a shooting was
considered justified at the moment that the murdered man’s would-be
victim was rendered helpless; he argued that the child was “always
helpless” by virtue of her age. The judge didn’t bite.

As a final plea, Landheer cited national defense policy, saying,
“Terrorists needn’t be on the plane” to be considered an imminent
threat. The judge disappeared into his chambers and reemerged
several minutes later to deliver his decision that Malinda Jones’s
“defense of others” argument was ruled out. The judge said that if
the prosecution raises the subject of motive, then he may allow the
defense to counter with its own motive theory, “to a limited
degree,” using less inflammatory and specific terms. Landheer plans
to appeal the judge’s ruling; failing that, he said he will craft a
new defense strategy.

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