CASPER — Government lawyers on Monday outlined the arguments they will use in asking the Wyoming Supreme Court to reverse a Natrona County judge’s decision — made on the basis of a new self-defense law — to dismiss a first-degree murder case against a Casper man.
The filing is the latest in a case expected to clarify a broadly expanded self-defense law under which a judge dismissed the case against Jason John, the Casper man who last summer from inside his trailer shot and killed another man. The law, passed by state legislators in 2018, promised increase legal protections for people acting in self-defense with inclusions of provisions frequently referred to as a “stand your ground” law and the “castle doctrine.”
Those provisions specify that people protecting themselves generally do not have an obligation to retreat from attackers and that people in their homes are generally considered to be acting in self-defense when they shoot unlawful intruders. The specific applications of those sections of the law, however, have yet to be hashed out in Wyoming courts.
John remains free following Natrona County District Court Judge Catherine Wilking’s February dismissal of the criminal case against him. Multiple times during the course of the February hearing — including before she had heard evidence or announced a decision — Wilking asked lawyers arguing the case to appeal to the state’s highest court, noting that many of the issues argued had not yet been considered by Wyoming judges.
In her Monday filing, Wyoming Attorney General Bridget Hill — along with three lawyers from her office and Assistant District Attorney Kevin Taheri, the Natrona County prosecutor who handled the February hearing — argues that Wilking’s ruling expanded law as written and infringed on prosecutors’ power inappropriately. The state’s appellate team also argues Wilking should have handled the issue as an appeal and, even setting aside the procedural complaints, prosecutors gave enough evidence of probable cause to get the case to trial.
John’s appellate attorneys — who court records indicate will include Wyoming State Public Defender Diane Lozano and her office’s lead appeals lawyer, Kirk Morgan — have not yet filed a response to the state’s highest court. They will have until Aug. 29 to submit their written arguments to the court.
The case began when John, at about 4 a.m. Aug. 6 from inside his North Casper trailer, shot Wesley Willow Jr. nine times, killing him near the entrance to the home. John appeared three days later, a Monday, in Natrona County Circuit Court, where prosecutors charged him with a single count of first-degree murder. The case made it past a preliminary hearing, where a judge ruled the Natrona County District Attorney’s Office had enough probable cause to support the charge.
The case then migrated to district court, where felonies are heard. John’s court-appointed attorney, Tim Cotton, who handled the case as part of a contract with the public defender’s office, then asked Wilking to throw the case out. In February, she dismissed the case following an approximately 150-minute hearing, a large portion of which was held on her ruling only because the law does not specify a procedure for its implementation.
At the hearing, the judge determined that under the new law she was required to presume that because Willow illegally and forcefully entered the home, he intended to commit a forceful and violent crime and John had a reasonable and honest belief that he needed to use deadly force. She ruled after consulting case law from states with similar legislation that the court should require prosecutors show they had probable cause to believe that John was not justified in his use of force and to overcome the presumptions mandated by legislators.
At the close of the hearing, Wilking ruled that Taheri and District Attorney Dan Itzen did not make the necessary showing and John was therefore immune from prosecution. She did, however, offer a caveat to her ruling.
“I am the first to confess that this is my interpretation of the statute and the case law and it may well be that the Wyoming Supreme Court will interpret these issues and statutes differently,” Wilking said at the hearing. “The courts and the litigants throughout the state of Wyoming are in desperate need of guidance on how to proceed in these cases under this new statutory scheme.”
On March 1, Wilking filed her written ruling and within weeks, the attorney general asked the appellate court to review the case. In an April filing, Cotton, the Casper lawyer who represented John at the trial level on a contract from the public defender’s office, argued that the detective handling the case lied under oath and prosecutors acted unethically and in mid-April the Supreme Court agreed to hear the case.
The state lawyers have yet to directly address Cotton’s statements in their filings but in Monday’s filing do state that his testimony, although “largely similar,” did change somewhat and mostly strengthened the state’s case when it did.
Hill, the state attorney general, said by email Tuesday afternoon in response to a general inquiry regarding the case that she does not comment on ongoing litigation.
In the 61-page Monday filing outlining the government’s argument, lawyers argue that when Wilking decided to hold the hearing and consider dismissal on the law, she infringed on executive duties as spelled out by the state constitution’s separation of powers between branches of government. The new law only directs prosecutors, who are contained within the government’s executive branch, what conduct they can charge and any check on that power should come at a preliminary or grand jury proceeding, the filing states.
“The subsection does not contain any explicit procedure for the Judiciary to overcome the Executive’s exclusive authority to initiate a prosecution based on its discretion,” the attorney general argues. “Accordingly, the district court’s creation of a procedure violated the separation of powers. Its interpretation also impermissibly extended the language of the statute.”
The only appropriate place for judges to involve themselves in prosecutors’ charging decisions is at a preliminary hearing in circuit court, the government lawyers state. If a district court judge is to consider immunity under the new law, they should only do so as an appeal from a circuit court decision, the state lawyers argue. Wilking’s dismissal should also be voided and sent back to her court where the judge could consider it as a writ of review, according to the attorney general.
In their final argument, the government’s lawyers state prosecutors showed probable cause before Wilking that John was a mutual aggressor and broke the law by provoking a fight with Willow, which disqualifies a person from the exemption from a duty to retreat.
“Regardless (if) this Court assesses John’s motion in light of the circuit court record or the evidence produced at the evidentiary hearing,” the lawyers wrote, “both records support a finding of probable cause John did not act in self-defense under Wyoming law.”