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Killer’s Appeal Asks Whether Felons Retain Right to Self-Defense

The South Dakota Supreme Court yesterday heard arguments yesterday in South Dakota v. Ramon Deron Smith. Smith was sentenced to life in prison last year for killing Larry Carr, Jr., and shooting two other people with a stolen gun. Smith claims self-defense, and yesterday he told the Supreme Court that telling the jury he was a felon who couldn’t legally possess a gun unfairly weakened his self-defense claim before the jury:

“With respect to this testimony from the law enforcement officer who testified real briefly that the defendant was a convicted felon and couldn’t possess a gun, judge allowed that testimony to come in,” Chief Justice Steven Jensen said. “Tell me why you think that ruling was erroneous.”

“We thought that that was certainly irrelevant, overly prejudicial, and it didn’t go to anything as far as whether this killing was lawful or not,” said Manuel de Castro Jr., who represented Smith.

Justice Patricia DeVaney looked for clarity on this question, too.

“There are standards set out for what constitutes self-defense and a reasonable perception of an imminent threat,” DeVaney said. “So how does whether or not you possess the gun lawfully or unlawfully relate to your perception of the immediate threat that would allow you to use self-defense. I’m not getting the logical connection there.”

Assistant Attorney General Stephan Gemar argued on behalf of the state. He says the information about illegally having the gun was a piece of the overall puzzle.

“It was the defendant’s knowledge that he was unable to possess a firearm and under the justifiable homicide jury instruction, the jury needed to consider what a reasonable person in defendant’s position would have done, and that includes what the defendant knew,” Gemar said [Dan Santella, “SD Supreme Court Examines Ability to Possess Gun as Evidence in Murder Case,” KELO-TV, 2023.03.23].

I’m bothered by the argument that we can’t tell jurors plain facts in court. I would like to think we can trust jurors to focus on facts relevant to a case and that we could count on judges to guide jurors on what’s relevant and what isn’t.

But I can certainly see the point that how Smith got his gun and whether he could legally possess a gun is irrelevant to whether he has a right to self-defense. Suppose Smith had been jumped by a man carrying a gun. Suppose Smith fought back, the gun fell from the attacker’s hand, and Smith grabbed the gun and fired. Sure, Smith’s possession of that gun is illegal, but in the moment, Smith is still acting in self-defense. A felony conviction does not negate a person’s right to self-defense, which the U.S. Supreme Court tells us that the Second Amendment is at the core of the Second Amendment. The U.S. Supreme Court is wrong, but that’s the law of the land for now. Do we really want to say that Smith and other felons may not use whatever force is available, including lethal gunpowder force, to defend their lives?


  1. John 2023-03-24 08:23

    Trust jurors? To focus on facts? The same manipulable folks who elected noem? voted en-mass twice for trump.
    You underestimate how badly broken is our electorate system at the fundamental element of having an informed electorate.
    Grab the popcorn to watch how the unregulated software devils using Chat-gpt, Brad, and avatars destroy remaining trust in the 2024 election. Cambridge Analytica was child’s play.

  2. e platypus onion 2023-03-24 09:04

    Justice Patricia DeVaney looked for clarity on this question, too.

    “There are standards set out for what constitutes self-defense and a reasonable perception of an imminent threat,” DeVaney said. “So how does whether or not you possess the gun lawfully or unlawfully relate to your perception of the immediate threat that would allow you to use self-defense. I’m not getting the logical connection there.”

    No mention of legally possessed weapons in stand your ground law. (see below)

    South Dakota Law
    South Dakota has a stand your ground law which removes the traditional duty to retreat before using or threatening to use deadly force in defense of oneself or another in a place where a person has a right to be.Sep 24, 2021

  3. Mark Anderson 2023-03-24 10:22

    A flip of the coin. It would help if the prosecution went for facts and not victory in every case. I don’t know the facts in this case so I have to ask, where’s Perry?

  4. O 2023-03-24 11:19

    Never trust the outcome of a trial to 12 people not smart enough to get out of jury duty?

  5. DaveFN 2023-03-24 13:08

    “I would like to think we can trust jurors to focus on facts relevant to a case,”

    If we could they wouldn’t need be told by the judge to do so, would they? And merely being so instructed by a judge seems to make little difference.

    I’m reminded of the recent Murdaugh juror who evidently thought he could discern guilt or innocence without considering the facts but instead stated that his decision to convict was because Murdaugh “never showed any remorse” and that “all he [Murdaugh] did was to blow snot.” Well, so much for the content and facts of the case when it comes down to a juror’s decision.

    John’s comments on the electorate bring to mind Mencken’s quip: “Democracy is a pathetic belief in the collective wisdom of individual ignorance.”

  6. grudznick 2023-03-24 16:05

    Mr. Dave FN typed:

    Democracy is a pathetic belief in the collective wisdom of individual ignorance.

    Righter than right was Mr. FN.

  7. sx123 2023-03-24 20:20

    Yes they have the right to self defense, even with a very fortunately stumbled upon loaded gun at the point of attack, imo.

    Do I believe this person was lottery winning statistics lucky and just happened upon a loaded gun while being attacked? Um, no. I do not.

  8. Tim 2023-03-25 07:06

    It’s obvious some of the people commenting here have never sat on a jury. I had the privilege of sitting in a jury on a rape trial a few years ago and I will tell you all the people I sat with were completely committed to doing what we were selected to do. That was the most emotional roller-coaster ride I have ever been on. All though I have no desire to do that again, I’m glad I was selected and got a chance to participate in our justice system. We acquitted the person charged and I cried in the jury room after the trial because I wasn’t convinced I made the right decision as I was the lone holdout for a couple hours. The judge came in and talked to us after word and he told us he thought we made the right decision. Just because most people in this state don’t vote the way we think they should, most are different people in the jury room.

  9. Marie 2023-03-25 08:05

    Where the NRA and Gov. Noem lead, SD’s legislators follow.
    They pass “F” rated unsafe gun laws—including stand your ground laws with no duty to retreat.
    More guns—more gun violence and deaths in South Dakota—from citizens and from law enforcement.

    The litter of guns left for the next generation of South Dakotans has nothing to do with the Midwestern-safe hunting tradition
    I grew up with. Children in my neighborhood have never known school without active shooter drills.
    More troubling news reports of gun shootings in once Midwestern-safe SD cities with unsafe gun laws are likely to grow.

  10. DaveFN 2023-03-25 16:56


    “It’s obvious some of the people commenting here have never sat on a jury.”

    I don’t know what is so obvious about it.

    My personal, anecdotal observations having sat on jury duty over several decades (18 months on grand jury and several petit juries) have included witnessing jurors bringing into deliberations their own preconceived ideas apart from any presented arguments or evidence, prosecutors intimidating jurors who were merely asking critical questions about evidence and the evidentiary process, as well as grandstanding and inflated rhetoric by prosecutors), and I in no way wish to disparage your own anecdotal experience which may be to the contrary.

    But anecdotal self-reports have their flaws and limitations. That being the case, I try to look beyond my own personal experience since, like anyone else, I otherwise never really understand anything other than what I already have in my own head.

    For example, in making the case that there is a real need for better research on fundamental aspects of the jury process, Ross has recently (23 Jan 2023) listed the following epistemic objections to trial by jury:

    “1. Jury decisions are influenced by interpersonal biases, most predominantly

    • Racial bias against out-groups/in favour of in-groups.
    • Gendered biases, e.g., associating gender with criminality; misogynistic myths about sexual consent.
    • Socioeconomic biases, e.g., associating ‘class’ with criminality.
    • Intra-jury bias, where interpersonal biases affect the quality of deliberation (e.g., jurors sidelining or being dominated by certain participants).

    2. Jurors fail to understand their legal role or the legal parameters constraining their decision. For example, they might not understand judicial directions, the standard of proof, whether they can permissibly rely on suppositions not adduced in court, or the distinction between the actus reus and mens rea.

    3. Jurors engage in impropriety such as carrying out their own research or ‘nullifying’ trials by returning verdicts contrary to their assessment of the facts.

    4. Jurors are susceptible to misunderstand the evidence presented in court, especially when it is complex (as in a fraud trial) or contains statistical components (as with DNA evidence).

    5. Jurors are susceptible to ‘manipulation’, e.g., by lawyerly rhetoric, gruesome evidence and other aspects of trial strategy that do not reliably uncover the truth.

    6. Juror decisions vary with their idiosyncratic personal characteristics, making the results of criminal trials susceptible to a degree of arbitrariness.

    7. Jury deliberation degrades the reliability of individual assessment. For example, some evidence suggests that collective discussion can create worse results (e.g., by extremifying individual viewpoints) and some important theorems on the value of collective decision-making rely on the independence of those deliberating.”

    Ross concludes that

    “…the use of juries is currently a black box. Current indirect methods for studying juries—mock juries, attitude surveys and post-trial survey—have their place in a mature jury science. But exclusive reliance on such indirect methods is entirely unsatisfactory: they allow us to investigate only a limited number of issues, there is conflict between extant results, and there are many reasons to worry about the ecological validity of results generated from these methods,” calling for a reexamination of how research on juries might better be conducted to overcome our preconceived ideas about how well the process works.

    Anecdotal evidence from one’s personal experience is fine but limited and must therefore necessarily be complemented by that which exceeds personal experience, whether such personal experience be on a jury or otherwise.

  11. e platypus onion 2023-03-25 19:07

    I got out of jury duty the same way I avoided Viet Nam, poor hearing. Of course, I’d love to convict a magat for every conceivable crime whether I hear the evidence or not.

  12. grudznick 2023-03-25 19:19

    I thought it was for plumpness, Mr. onion. Regardless, whilst other hearing impaired people where out doing the same things every other person does, you were a slackard in your duties and made red-blooded Americans do your job for you.

  13. e platypus onion 2023-03-26 08:45

    Dear imaginary goatsherd, my duty was not to allow fellow soldiers die because I could not hear the enemy coming. Neither was it to convict innocent people because I couldn’t hear the evidence. Because you may have done so does not mean I had to do it, too.

    A real patriotic imaginary goatherd would have taken his imaginary flock to the jungles of SE Asia and allowed them to eat the foliage down to the ground so the military would not have had to poison our troops with Agent Orange and make them die of cancer, you cantankerous canker sore!

  14. Ben Cerwinske 2023-03-26 09:40

    While I’m glad Tim had an experience that reflects how our justice system should work, DaveFN brings up some great points.

    I’m currently on jury duty for the first time, but have yet to be called in. I tried to prepare myself for the experience, but found a shocking lack of information about how to be a good juror. There’s books about everything under the sun, but not much on jury duty.

  15. Ben Cerwinske 2023-03-26 17:20

    I came across this kind of stuff too. However, all these FAQs don’t tell someone how to actually do the job of a juror well. If these are actually the most frequently asked questions, then that explains that lady who got chosen to be the foreperson for the grand jury in Trump’s case.

  16. David Bergan 2023-03-26 18:04

    Hi Ben!

    I’ve served on jury duty twice, and both times felt the experience was rewarding. Maybe I was just lucky, but all the fellow Sioux Empire citizens I was randomly thrown together with have impressed me with their politeness and reasonableness. The jury duty process isn’t too complicated, but it is important. The best thing you can do is pay close attention to the details of what’s being presented. Be well rested. Take notes. Second, don’t talk to anyone about the case. (Not even fellow jurors until you’re in deliberations.)

    It should be pretty obvious what the jury is supposed to decide… e.g., was this driver intoxicated or did the defendant possess meth or did this businessman break his contract. And at the end of the closing statements the judge will provide jury instructions that make it crystal clear what exactly is to be deliberated on.

    Kind regards,

    P.S. The foreperson isn’t in any way superior to the other jurors. That’s just the person selected (sometimes randomly) to be the one who officially reports to the court what the jury decided.

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