Matthew Pinkerton and Family credit: guns.com

Matthew Pinkerton and Family
credit: guns.com

UPDATE: 062414, 1230 CST:  The Fourth article in this series is now up.

The charges against Matthew Pinkerton have been dropped. From the Maryland Gazette:

 A Glen Burnie man was acquitted Friday in the September shooting death of a man he suspected of having an affair with his wife.

Matthew Pinkerton, 35, was on trial for second-degree murder and other charges in the death of Kendall Green, 25, of Glen Burnie.

Circuit Court Judge William C. Mulford II said there was not enough evidence to convict Pinkerton, and dismissed the charges.

To clarify matters, what appears to have happened–the article does not make this clear–is that the charges against Pinkerton were dismissed. Pinkerton was apparently not acquitted, in other words, found not guilty of the charges. There is a significant difference in the process of the similar outcomes. To be acquitted, one much normally endure a complete trial and a jury must render a “not guilty” verdict. In this case it seems that the judge determined that there wasn’t enough evidence to sustain any of the multiple charges against Pinkerton. If this trial followed the normal course of such things, after the prosecution presented its case, the defense asked that the judge dismiss the charges because the prosecution failed to sustain its burden of proof, and that request was obviously granted, likely with prejudice, meaning the charges cannot be refiled in the future. If so, the case is over.

There is, however, one additional possibility: the judge might have dismissed prior to the conclusion of the prosecution’s case, so obvious was the prosecution’s lack of evidence, so poorly did the prosecutor observe Maryland state law. If that happened, it is unusual indeed. Prosecutors normally do not bring murder charges absent a very strong case, and judges are normally reluctant to dismiss a murder case before all potential evidence has been heard. 

As one might imagine, the Pinkertons are relieved, though doubtless, much, much poorer for many years to come:

Matthew Pinkerton is delighted with the court’s decision,’ defense attorney Peter O’Neill said.

‘We believe the court’s decision was well-reasoned and a correct reflection of what should have happened in this case as it pertains to the witness statements presented in this matter.

I’ll reiterate some of my prior observations about this case shortly, but as early as September of 2013, reasonable observers could have seen this outcome on the horizon. The Capital Gazette reported:

A Glen Burnie man acted in self-defense when he shot and killed another man he suspected of having an affair with his wife, his attorney said Monday [09-17-13].

At a bail hearing for Matthew Pinkerton, 34, attorney Peter O’Neill said the victim, Kendall Green, broke into Pinkerton’s home on Arbor Drive just before 2 a.m. Sunday after being told repeatedly to leave.

Green, also of Glen Burnie, acted aggressively and motioned toward his waistband as if he had a weapon, O’Neill said.

Pinkerton shot Green once in the chest from 10 to 15 feet away, but Green continued to advance toward him, his wife Jessica and two friends who were at the house, O’Neill said. That’s when Pinkerton shot him again. He died at the scene.

‘This is clearly self-defense,’ O’Neill said.

Not only did the trial judge come to the inescapable conclusion that Pinkerton acted in lawful self-defense under Maryland law, a separate judge expressed quite remarkable reservations about the case at an early stage. 

Pinkerton was charged with second-degree murder, manslaughter and use of a firearm in a felony or violent crime.

The state argued that Pinkerton could have called 911.

District Court Judge Jonas Legum reduced Pinkerton’s bond from $1.5 million to $250,000.

It is not unusual for a judge to reduce a high bond upon being given evidence that a defendant is not a flight risk and has long-standing ties to the community. What is unusual is for a judge to reduce a bond that much. Such a dramatic reduction suggests the judge understood that the initial bond was inherently unreasonable. He likely also understood that the prosecution was engaging in blatant “charge stacking.” Charge stacking occurs when a prosecutor charges a defendant with every possible charge a judge will allow them to get away with in the hope that a jury will throw them a bone and convict on something–anything.

Such was the case in the George Zimmerman trial, when that remarkably corrupt prosecution team, just before jury deliberations, tried to get the judge to allow Zimmerman to be charged with child abuse!  Even the ethically challenged and inept judge in that case–Debra Nelson–wouldn’t go for such an absurd charge-stacking attempt.

This, however, foreshadowed the eventual dismissal of all charges:

Legum said he finds it ‘amazing’ that the statement of probable cause against Pinkerton is only two pages long, and included only one sentence about whether or not Green had a weapon.

What the judge was saying–and keep in mind judges seldom, if ever, makes such statements for public consumption; to do so might prejudice the outcome of a case–was the case should never have been filed. It’s not unusual for a judge, in chambers with both parties, to tell a prosecutor his case is damned weak and he’d better have more and better evidence before trial, but for a judge to say, from the bench, on the record, that he’s amazed the PC statement is so short essentially damned the case before it was heard, and rightfully so.

Why is length important? In a charging affidavit, a prosecutor must not only lay out all of the facts, he must identify each and every element of the crimes being charged, and explain clearly and convincingly how the defendant’s actions fulfilled each and every element of every crime. A competent affidavit could easily be two-three pages long for each of the three separate major felonies thrown at Pinkerton. In effect, District Judge Judge Legum–in September of 2013–was saying that the evidence just wasn’t there. In June of 2014, Trial Judge Mulford agreed.

I began covering this case on December 26, 2013 with The Pinkerton Case: Be Glad You Don’t Live In Maryland.  As I noted then, this was not a “stand your ground” case, and provided the primary Maryland statutes involved.

The prosecutor, from the beginning, brought charges under the utterly lunatic theory that Pinkerton–and by extension, everyone living in Maryland–has no right to keep and bear arms as they choose in their own home, and that when a violent intruder breaks in their door at 2 AM and charges them, every citizen has a duty to try to call 911 as they are being attacked. In addition, the mere act of arming oneself to answer an unexpected 2AM knock on the door is somehow inherently unreasonable and indicative of murderous intent. I wrote:

Charging Pinkerton under this statute would seem to suggest that the prosecutor does not respect the Constitution as interpreted in Heller, which clearly allows one to carry or otherwise handle firearms on their own property, and surely within their own home.  The prosecutor’s theory–such as it is–is clearly in violation of the Second Amendment.

In The Pinkerton Case II: Another Backward Case (12-30-13), I wrote:

It appears that the defense will argue that this was not a jealous husband shooting a man who had an affair with his wife.  Rather, this was the case of a man taking advantage of Jessica’s kindness and hospitality, imagining a relationship that didn’t exist and attempting to impose his fantasies on her.  It appears that Green had no property interest or right in Pinkerton’s home, and had, before the night of the shooting, been forced to leave once and for all.

It also appears that until the moment Green broke into the home after being told to leave, Matthew Pinkerton, despite being armed, demonstrated no intent to use his handgun, and handled the situation entirely appropriately.  We still don’t know the exact time frame of the incident, but it appears that Matthew simply had no time to call the police, and even if he had, there would have been insufficient time for them to arrive to deal with Green.

O’Neill also provides an important factor in asserting that Green appeared to be trying to manipulate something at his waist, which–along with Green’s anger, his breaking into the home and charging Pinkerton, presumably caused Pinkerton to fear for his safety and fire.

We can expect the prosecution to try to portray Pinkerton as a jealous, cuckolded husband, in a rage and determined to murder Green.  It appears, however, that the testimony of everyone involved–and Matthew’s actions–will not support these contentions.  How could he have known that it was Green at the door?  Despite twice having words with Green, Pinkerton did not touch him, did not shoot him, reasonably told him to leave, and closed and locked the door.  It was Green, by choosing to break in the door and advance on Pinkerton, that sealed his fate.

As it turns out, the defense argued that Pinkerton, while in Korea on active duty with the Air Force, did suspect that his wife was having an affair with Green. No doubt they brought this up as a means of diminishing any possible effectiveness such an argument might have for the prosecution, and as it turned out, it was apparently not a meaningful issue in the case.

What was meaningful was that in dismissing the case, the trial judge obviously found that the prosecution did not, in fact, meet its burden of fulfilling every element of the three major felonies charged. I suspect he also understood the fundamental underlying issues, issues that properly considered would have prevented any ethical prosecutor from bringing charges:

(1) Citizens have an unalienable right to keep and bear arms as they choose on their own property, and surely within the walls of their own home.

(2) It is inherently reasonable to arm oneself before answering an unexpected 2 AM knock on the door.

(3) Refusing entry to a hostile, raging unwanted suitor of one’s wife, it is reasonable to believe that when he kicks in the locked door and charges you, he intends to cause serious bodily harm to you or your wife.

(4) Seeing that attacker reaching for his waistband as he attacks, it is reasonable to believe–particularly given the circumstances–he is reaching for a weapon, even if, in the mere seconds available for observation, no actual weapon is seen.

(5) It is entirely reasonable to believe that, as a crazed attacker is charging you within your own home at 2 AM after kicking in your front door, that it is impossible–indeed, dangerous–not only to call 911, it is impossible for the 911 operator to answer, it is impossible for the 911 operator to send police officers to save you, and it is impossible for them to arrive in time to prevent the attacker from harming you or your wife.

For those interested in a more in-depth analysis of these issues, take the link to the second Pinkerton article. Essentially, the prosecution, in bringing charges against Pinkerton, was arguing that no citizen of Maryland is secure in their home against violent intruders, and that should they dare to try to defend themselves or their families within the walls of their own home, they would be prosecuted for murder should they be unfortunate enough to be the last person standing.

Fortunately, the judge was willing to fairly apply the Constitution, Maryland law, and the general principles of the law of self-defense. It could easily have gone the other way and Matthew Pinkerton–any citizen of Maryland–could be a convicted felon, looking at decades behind bars. There is, in fact, nothing from keeping these prosecutors, or any Maryland prosecutor, from filing such outrageous charges in the future.

The primary prosecutors in this case were special prosecutor Ronald Naditch and Assistant State’s Attorney Brian Marsh.

While this is a fortunate outcome for Pinkerton and his family–and for justice–it is a costly, Pyrrhic victory. Pinkerton’s Air Force career has been on hold for more than a year. It is entirely possible his future promotion possibilities are doomed. The charges should have never been brought, yes, but in the military, one must advance, and on schedule, or a career is usually out of the question. Missed opportunities may often never be regained. In addition, he has more than a year of legal bills to somehow pay on the salary of a NCO. As a result, he and his family may never own a home, may never enjoy a new car, and may spend much of the most productive years of their lives struggling for mere survival while paying legal bills.

And more, he and his family have had to endure the damaging psychological and social stresses of the charges. For the innocent, the process is the punishment, and few are ever whole again. Though he was clearly acting within the law, there are people that will always believe Pinkerton guilty, and might even be tempted to mete out what they believe to be justice. Pinkerton would be wise to move as far away from Maryland as possible, as soon as possible, preferably to a state more inclined to honor the Constitution.

For Naditch and March, there is, usually, little or no downside to bringing such unreasonable, abusive charges. They cannot be sued, and they cannot be prosecuted. They could theoretically face ethics charges under the rules of the Maryland bar, but that’s as likely as Lois Lerner’s IRS e-mails suddenly appearing.

Unless citizens never let them forget it, unless citizens from this day forth treat Naditch and March as the legal and social pariahs they deserve to be, what reason do they have to avoid persecuting the innocent in the future? Otherwise, for irretrievably damaging the lives of the Pinkertons, for holding the liberties of citizens of Maryland and the principle of self-defense in jeopardy for more than a year, they will face no punishment except that their own conscience’s impose. That will likely be slight punishment indeed.

Final Issue: Kendall Green was black. I did not know that as I wrote the first two articles in this series, and even if I had, I knew no reason why his race, or Pinkerton’s had anything to do with the substantial constitutional issues in this case. I learned it only recently due to a commenter’s suggestion.

A May 29 Capital Gazzette article suggested that the prosecution wanted to make race an issue, apparently to argue that Pinkerton used “a racial slur” in telling Green that he wasn’t welcome and to leave, and that somehow, this gave Green legal, even moral, grounds to forcibly enter Pinkerton’s home and attack him, while simultaneously restraining Pinkerton from defending himself or his family.

I don’t know if this was allowed at trial. If so, it apparently had no effect, or the judge dismissed the abusive charges before it could be heard. While race can potentially have some bearing on such cases, I’ve yet to find anything to suggest that it did in this case. Put Green in his home and Pinkerton on Green’s doorstep at 2 AM, and it should have made no difference to the law, which worked in this case, but at great cost to the Pinkertons and to liberty.

While the unnecessary death of any man is tragic and to be lamented, Kendall Green, sadly, made bad choices that were the direct cause of his death. Had the prosecution been humane, competent, and sufficiently ethical to understand that, all would have been better served.

UPDATE, 062114, 1135 CST: Welcome to Bearing Arms readers. 

UPDATE, 062114 1155 CST: The Baltimore Sun has provided a bit of additional detail: 

Anne Arundel County Circuit Court Judge William C. Mulford II ruled that prosecutors had not proved beyond a reasonable doubt that Matthew Pinkerton was guilty of either second-degree murder or manslaughter in the September shooting death of Kendall Green.

Mulford’s ruling came at the conclusion of the prosecution, before Pinkerton’s attorneys launched their defense. [skip]

Defense attorney Peter O’Neill argued Pinkerton was defending his home, his friends and wife who were inside. At the end of the prosecution’s case Friday, O’Neill filed a motion asking the judge to declare the prosecution failed to meet its burden of proof. Mulford agreed.

In cases like this, Judges generally know from the beginning that the prosecution doesn’t have a case, but allow the prosecution to present their case. This is wise and necessary. It allows the system to work as intended, and gives the prosecutors the opportunity to present all of their evidence. It’s always possible they have more and better evidence than their charging documentation and pre-trial motions reveal, or that they might be able to present the evidence they have more effectively.

However, for a judge to dismiss as Judge Mulford did, it must have been painfully obvious that the prosecution’s case did not meet minimal standards of probable cause. In other words, even a rookie police officer should have known not to bring charges in the Pinkerton case. The use of a weapon in a violent felony charge would have been rendered moot by the dismissal of the violent felonies charged.

Defense attorneys routinely ask judges to dismiss charges before beginning their defense. To do otherwise would be malpractice. What is relatively rare is for judges to grant that motion. This is so because prosecutors are normally careful not to charge weak cases. In this case, it would appear there was no case under Maryland law, which suggests a clear political/personal motivation for the charges

As I earlier noted, Pinkerton will now have to see if a continued career in the Air Force is possible:

Pinkerton, who had been out on bail, will now seek to revive his career as an Air Force sergeant, O’Neill said. Once Pinkerton was charged, his security clearance was suspended, O’Neill said.

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