 
A Lawyer's Guide to Hiring a Lawyer

### (Choosing an Advocate You Can Trust)

MIKE ARNOLD & EMILIA GARDNER

ISBN:  978-0-9978484-5-8

# Table of Contents

FREE Book Excerpt: Finishing Machine (Part 1 for FREE...keep reading....) 2

Prologue: Predator or Prey? 2

Chapter 1: A Potential Case? 4

 Chapter 2: A Meeting, a Handshake, a Client 14

Chapter 3: Getting to Work 25

Chapter 4: The Weight of Responsibility 36

Chapter 5: Managing the Media 44

Chapter 6: Studying the Scene 48

About the Authors 50

**Disclaimer:** This text of this book is for informational purposes only. The authors of this book are licensed to practice only in Oregon. Nothing in this book makes the reader a client of the authors or of the authors' law firm. If the reader has questions of a legal nature or needs legal advice, the reader should contact and consult with a licensed attorney in the appropriate jurisdiction.

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##  **FREE Book Excerpt:** _Finishing Machine_ **(Part 1 for** FREE...keep reading.... **)**

##  Prologue: Predator or Prey?

The evening was cool and a haze hung low over a dark, rural road where only a truck's headlights provided illumination. It was January in Springfield, Oregon, so a low fog was not unexpected. But as the evening deepened, the clouds suddenly gave way to a brief, un-forecasted downpour.

One man, trained as a Marine sniper, found himself standing alone. Moments before, he and another man – a stranger – had been in a confrontation. Then came the rain. And now there was only a lingering mist, backlit by the headlights.

He had been trained by the military for exactly this: a coolly evaluated threat, followed by a split-second decision to take action. But he wasn't on the gun range, not tonight. He hadn't calculated his move through the lens of a scope, and he hadn't picked off his target from a safe and detached distance. There were no instructions from afar. This was different. It was up close and personal. The cloudburst had not been rain, and the mist was not made up of water. It was bits of blood, brain, skin and skull.

The shooter lowered his gun, and raised his cell phone to his ear. He needed an ambulance. A man lay shattered on the pavement, his life ebbing away as cars continued to flow past the scene. All around, an audience of dark homes, fences and trees stood as silent witnesses to what had occurred. A woman, having left the safety of her vehicle to investigate the sounds she had heard, screamed at the sight of the long black gun and the violence it had wrought.

Was there any doubt who was the predator, and who was the prey?

(Photo: Dramatization of the final moments.)

##  Chapter 1: A Potential Case?

I was at home on my small farm outside Creswell, Oregon, on the night of the shooting. Having put my four-year-old daughter to sleep by reading Dr. Seuss' "The Pale Green Pants" a couple of times front to back, I had returned to the living room to relax. The house was quiet, the lights dimmed. The wood stove was stoked with Douglas fir rounds that I had bucked from a fallen tree from the wooded part of our property the previous year. While enjoying the warmth of the fire, I alternated between reading a case file and online news stories. I noticed a story of gun violence pop up online. Curious, I began reviewing the sparse but gripping details on the small screen of my iPhone.

My name is Mike Arnold and I am a criminal defense attorney who specializes in complex cases. I am the managing partner of an eight-attorney firm located in Eugene, Oregon, almost two hours south of Portland ... and just across the Willamette River from Springfield, where the shooting I was reading about had occurred.

The criminal defense section of my firm was built on the bread and butter of low-level crime, cases involving domestic violence, driving under the influence, sexual assault, etc. I had consulted on several murder cases, but never defended one on my own. This largely owed to the fact that violent crime isn't that common in this part of the Willamette Valley. Any gun crime that occurs catches people's attention in a big way, and that is especially true for members of the local bar. Defense attorneys like me know that we'll receive an inquiry call on at least half of the cases that our community considers "high profile." That's why I pay close attention to crimes when they are reported. It helps me be ready when someone in trouble (or the family member) makes that initial phone call.

On their websites, the local newspaper and all three television stations provided breaking details of the Springfield shooting: there had been a motor-vehicle collision, the parties had argued, an assault rifle had been brandished, and an unnamed man was shot dead. Road rage, police speculated.

Road rage by whom?

While most people confronted with these preliminary details would assume that the shooter was the hothead, it was instinctive for me to consider the opposite possibility, that the decedent himself was the bad actor. That's just how defense attorneys are; we tend to take a 360-degree view of every set of facts we encounter. We know from experience that things are not always as they seem.

After refreshing the screen a few times and checking some other news outlets for the additional details I was hungry for, I found myself going into criminal defense mode. In my head I worked through the various scenarios by which a roadside shooting could be considered legally justifiable, mentally plotting out how I would handle each one in a pleading or a courtroom argument. Thinking three steps ahead – or 30 – is an occupational hazard in my business. But I knew that most of my speculation would be fruitless until more was known about the incident. For the man with the gun, the facts, when established, would make the difference between a self-defense-based exoneration on all charges, or life in prison on a murder conviction.

Toggling between the online briefs, I found myself wondering how badly the vehicles had been damaged, because it would tell me something about the speed of the vehicles at impact. But the photos and videos that had been posted were too dark to tell me anything, and it frustrated me. Don't news photographers and TV cameramen carry spotlights?

More questions popped to mind. How far was the decedent from the crash when he was shot? Did the shooter fire from inside his vehicle, or from the road? I noticed that one TV reporter had captured footage showing a small canopy erected over what was presumably the dead man's body.

C'mon, somebody give me an estimate of distance! Report on something other than what the police tell you!

My curiosity, you should know, was not entirely professional. As a concealed firearm carrier, I am always interested in the circumstances of shooting deaths. I try to put myself in the shoes of both sides like a jury does, trying to figure out what happened and how it could have ended differently. I want to understand the details so I can learn from them, and not just as an attorney. I don't want to be the victim of a shooting, and I don't want to shoot anything other than blacktail deer and other four-legged prey. The two-legged type? Only in the pixelated video games of my youth.

Courtesy of a subsequent news update, I learned that the shooter was claiming self-defense and had been released after questioning. Police said that charges, if any, would be lodged after an investigation was complete.

This didn't surprise me. That's how these cases usually go at the beginning. But now the story had me completely hooked.

This was a case I could personally relate to and feel morally confident in defending. My work as an attorney had made me an ardent believer in, and strong advocate of, the Second Amendment to the Constitution. As an American citizen, I have the right to bear arms, and a right to use them to defend myself and my family. As the holder of a concealed carry permit, I often have a handgun tucked under my shirt or suit jacket. I don't enjoy carrying a firearm; in fact, I'm more comfortable leaving it at home. But I see my gun as a necessary tool for the job of living. I'd rather have it and not need it, than need it and not have it.

To me, a gun is not much different than an ax or a pen knife or anything else I use to complete my work around the farm. But there is an important distinction. If I forget to carry a knife to break open the hay bales to feed the livestock, I might have to walk back to the shop to retrieve it (or I might use the ax, if it's nearby, to break the bailing twine). But delay and improvisation are all but impossible when you're in a situation that requires a firearm. What are you going to do, say "Just a minute, I'll be right back," and turn your back on the threat to go get a gun? Of course not. To me, carrying a firearm is like carrying insurance. Maybe you'll never use it, but it's there just in case. As the saying goes, "I carry a gun because a cop is too heavy."

One of the reasons I carry a weapon owes to the particulars of our law practice. My wife and law partner, Jacy, is an excellent divorce lawyer who specializes in complex, high-asset (read: high-stress) cases. Violent behavior and threats go with the territory. I keep a shotgun in the office "just in case." I also carry on my person, and my attorneys and staff are authorized to do the same. Each of us has taken time to plan how to respond and escape in the event of an active-shooter scenario.

Thankfully, I have only had to "use" my firearm twice, and the situations were remarkably similar. On both occasions, domestic-violence victims who were getting restraining orders with the help of our law firm were tailed by their abusers to their appointments with us. Both times the guys aggressively entered the office and angrily demanded to see their wives, terrifying my receptionist. Both times these abusers failed to take no for an answer and threatened to search the office for "their" women. When I appeared and politely asked these men to leave, both times I saw their eyes stray to the Glock 21 visible on my right hip. I don't know if their true intent was violent or if they just wanted to scare our clients (who were well within earshot of both confrontations and were indeed frightened). But I do know that the men quickly apologized for any inconvenience and left. Maybe it was the sight of me, a 220-pound, 6-foot-plus guy...or maybe it was the silent presence of a device made by Gaston Glock.

It shouldn't be surprising then, that I believe the right to bear firearms goes hand in hand with a person's natural right to self-defense. If the shooting I was now learning about online was going to hinge on whether the shooter felt his life was threatened, then I fairly salivated to be part of his defense. The right to use lethal force in response to a threat is a very complicated legal concept, one that offers lawyers plenty of room to plan, argue and maneuver.

The right to self-defense isn't found in the U.S. Constitution. It's an innate right that is a creature of statute, so it varies from state to state. In Oregon, people have the right to use the degree of force they reasonably believe is necessary to stop or prevent the imminent unlawful force of another. When talking to jurors or clients about the right to use force in self-defense, I'm often asked how someone can know when a shot or punch is justified. My answer: If you have time to consider what the police or jury would think if you pulled the trigger or threw the punch, then the threat probably isn't imminent and there's time to remove yourself from the situation. But if you are too preoccupied with surviving the next few seconds to consider the consequences of your actions, that's a different story. You may be found to be legally authorized to defend yourself. That is, unless you're the unfortunate "unreasonable" person who "overreacted" in the eyes of a jury. But it's better to be judged by 12 than carried by six, they say, and that's another phrase I appreciate.

Eventually one of the media sources I was following identified the shooter as 34-year-old Gerald Strebendt, the owner of Northwest Training Center, a mixed martial arts gym in Springfield.

Wait a second. Isn't that where Adam trains?

Adam Shelton, a young associate attorney with our firm, had begun training at Northwest Training Center after relocating from Portland. Not only had he told me about it, I saw the evidence to prove it. Adam sometimes came into the office looking like he had crashed his motorcycle: bruised everywhere and sometimes missing some skin on his legs, arms, elbows or face. Damaging workouts aside, Adam had never failed to speak highly of his training, his gym mates, and yes, his coach. Now I stood looking out an east window at a shadowy stand of oak trees, wondering if Adam had heard yet that his martial arts coach was the shooter. It also made me wonder if Adam's association with the shooter could increase the odds that we would receive a call requesting legal advice. While lots of cases cross our desks, as I've said, the majority of my clients have always come through personal connections with past or present clients, friends, or colleagues.

This put a new and interesting slant on my nighttime news reading. Might this crime and Adam's association with the shooter give me my first real murder case to defend? The experience would greatly enhance my own skills. But the benefits of defending a case such as this would extend beyond me to the associates working for me, up-and-coming young lawyers who were doing criminal defense, family law, and other civil cases. This case could benefit the firm and everyone in it. And, undoubtedly, it would give me the chance to participate in a community discussion about an issue I cared a lot about: the constitutional right to bear arms. Hell, even if the case got nowhere near me or my firm, it was going to be fascinating. For legal voyeurs like me and my associates, just being in the same county with the case was going to be a learning experience.

(Photo: Adam Shelton with Brazilian Ju-Jitsu blue belt in hand and Coach Gerald beside him. 08/09/2013)

Since 2001, when I became a lawyer, the complexity of the criminal defense cases I took on increased pretty slowly – until the last few years. In 2011, I helped get a false rape charge against an Oregon State University student dismissed just days before trial. In the summer of 2013, I successfully defended a first-degree manslaughter charge lodged against my client, who was acquitted in the motorcycle wreck death of his girlfriend. In recent months, I had been very busy with some cases that were significant for a firm our size – a trade secrets case involving the outdoor clothier Columbia Sportswear, a breach-of-contract lawsuit against FedEx, and various criminal cases from around the state.

Could 2014 be the year I would get to apply my practice philosophy to a murder case? Given my age (37), experience, and the short tenure of our firm, it would be a coup to land such a case, given the number of high-quality and experienced criminal defense lawyers in Oregon who would also make anyone's short list.

It wasn't long before the social media comments started rolling in online. Many commenters claimed to have personal knowledge of the Springfield shooting. One asserted that one car rammed the other. Another said that one of the men had been chased from his vehicle by a gun-wielding maniac before he was killed. Others swore that the dead man had been pulled from his vehicle and shot in the back of his head while kneeling in the street. They proclaimed, practically in unison, that the killing was not justified. Some said that Gerald should be executed, just as he had executed his victim. The whole story struck me as sad – horrible, really – and legally messy.

The next wave of incoming information pushed my already strong interest in the case up several more notches, as people began buzzing about the background of the killer. Gerald Strebendt, it turned out, was a minor martial arts celebrity on the national/international scene. He fought at a major Ultimate Fighting Championship (UFC) event more than a decade earlier. He volunteered to coach the University of Oregon's Jiu-Jitsu team, which traveled all over the Northwest to compete. He trained several successful amateur and professional fighters. His mixed martial arts gym seemed to have been built on his two minutes and 45 seconds of UFC fame, his years of competitive professional fighting and training of fighters, and some connections to MMA celebrity Eddie Bravo.

Interestingly, when I googled Gerald Strebendt's name, I found some evidence of local civic involvement to balance the man's profile. He had been a part of the Community Development Advocacy Committee for the City of Springfield. The committee included six at-large community representatives – including Gerald – and had advised the council on housing and community development matters. Still, it took only a look back at the comments below the online articles to see that if I got this case, I'd have my work cut out for me. Posts had begun appearing from people who claimed that Gerald was hot-tempered and had a history of driving aggressively. I continued scouring the internet, knowing that if Adam's connection to the shooter resulted in a consultation, I was going to have to know more about this incident than even Gerald did.

It took an "Are you coming to bed soon?" from my wife to bring me back to some semblance of practicality. My practice was thriving, but I had been struggling for some time with how to balance my work with family life. I had recently set a personal goal to slow down a bit, help more at home, get more done around the farm, and take a more consistent approach to management of the office. I could already tell that those resolutions were in some jeopardy, just judging by how quickly and completely this case caught my attention.

I forced myself back to task – preparing for an existing client's hearing on a 50-plus count indictment. Whenever my thoughts strayed back to this new potential case, I told myself that even if this shooter decided to call Arnold Law, neither I nor the firm were really in a good position to take it on. I was really, really busy and didn't need a new case.

What's more, my right-hand senior associate attorney, Emilia Gardner, had just delivered her second baby. That left the firm seriously short-handed, because if I'm the firm's field marshal, its ideas guy, Emilia is our logistics general, the one who pulls together the troops and gathers the supplies to make things happen. She often gives me a sour look when I crash into her office with some new and overly ambitious plan of action, but if it's in the realm of possibility, Emilia is the one who will make it happen. I knew that if this case did come through the door, it would be nearly impossible to take it on without her as my second chair.

I couldn't resist. I set down my case file and sent a quick text to Emilia, including a link to one of the news stories on the shooting. She'd probably be up with the baby, I figured. Then I emphasized the first text by sending a follow-up: "New case?" Then, not getting an immediate response, I began trying to wrap up my work to get to bed.

Emilia responded within the hour. "Looks bad for shooter," she said. "Brother says he knows him. Sounds guilty. Near my mom's place."

Emilia's mother, Lupe, lived south of Springfield on a country road. "How far away does your mom live?" I wrote.

"About half a mile. It's on the new road that punched the highway through. Used to be a field."

"Could your mom have seen or heard anything?"

"Nah, she's on the other side of the hill."

Then I posed the important question. "Could we handle it?"

"Who is we?" she responded quickly and brusquely. "This baby is my current job. You are on your own."

I had to laugh. If we landed the case, I knew I could talk her into working on it, maybe luring her back to the excitement of a big case with some flexible working hours. But I responded: "We'll talk more tomorrow, when you are more sleep-deprived and malleable."

I knew that Emilia was possible to convince because I had done it before. That big trade-secrets case, the one involving Columbia Sportswear, landed in my lap not long after her first child was born. I was working every minute of the day and sleeping on the floor in my office some nights, really struggling to get up to speed on the hundreds of thousands of pages of documents. Emilia took pity on me, bringing her newborn son to the office to help out until the new case was under control. By that time, however, little Jacob had grown very comfortable with nursing and sleeping in his mama's arms while she reviewed discovery or drafted pleadings. Emilia ended up staying on the case, and Jacob came to work with her until he learned to walk.

(Photo: A very pregnant Emilia with Jacob in hand a few months earlier.)

I hope he calls, I thought. Then I went to bed.

Day dawned surprisingly quickly. I cut short my usual farm chores to get in my truck and drive into town earlier than usual. I wanted to touch base with Adam, my associate. Did he know yet that the guy he trains with was involved in a road-rage shooting?

Adam had indeed heard the news. Fellow martial arts students had spread the word, asserting that Gerald Strebendt was innocent of any crime, and that the incident had left him distraught.

"Reach out to him, be a friend," I suggested to Adam. "Make sure he doesn't talk to the police except to say, 'I want a lawyer.' And tell him not to tell his version of what happened to anybody, not even his friends or family."

By then I knew that Gerald Strebendt was in a load of trouble. The morning's newspaper had identified the shooting victim as an unarmed man in his fifties, significantly older than Gerald, and that Gerald had shot him at close range. Whether it was going to be our firm or somebody else's, this guy needed legal representation in a hurry. I was especially concerned that he not submit to police questioning or interrogation without the presence of counsel because, generally, law enforcement investigators are looking for evidence of guilt, not innocence. They are case-provers, not truth-seekers. I didn't know if Gerald was guilty or innocent, but I have seen clients make their cases much, much worse by talking to law enforcement.

Nor did I want a man in Gerald's position to tell his story to anyone else outside of law enforcement. The inevitable stress-induced glitches in his memory would only hinder his case if the stories he told were inconsistent. Should a friend be subpoenaed to testify, the discrepancies alone could be enough to convict him.

To me, though, it wasn't just a matter of protecting the man's rights and preparing for a potential trial. I also knew from my extensive research into police shootings that when someone takes a life, there's a need for quick psychological and emotional intervention to prevent the development of post-traumatic stress disorder. A good lawyer would assist Gerald in finding that help.

After listening to me ramble on about some of this, Adam raised an ethical concern, and it was an appropriate one. He had only been practicing law for a couple of years, and he worried that contacting his Jiu-Jitsu teacher would represent a violation of Oregon's Rules of Professional Conduct prohibiting the solicitation of clients.

I felt confident, based on my ethics consultations over the years, that Adam could call Gerald to offer some basic and free legal advice. The state actually encouraged it as a matter of public policy. Still, I suggested that Adam review the Oregon RPC for himself. Then he could decide whether his relationship with Gerald – whom he considered a friend – would qualify as an exception to the rule.

It was after noon when Adam flagged me down in the hall. "I tried calling Gerald, but it went straight to voicemail."

"Damn. Oh well. His phone was probably seized as evidence. That's not a good sign for him."

Adam continued. "I sent him a message on Facebook with my cell and work numbers, though. I'll let you know if he calls."

At the end of the day, as I was headed out the door to meet my family for supper, Adam caught me again. "I talked to Gerald," he said.

I stopped and put down my briefcase to give Adam my full attention. "What did he say?"

"He was glad I reached out to him. He doesn't have a phone. As you suspected, SPD took his cell last night."

The phone was probably tucked away in an evidence locker, I knew, either dead by now or buzzing continually.

"How's he doing? Is he okay?"

"Not really. He's pretty freaked out, and he has a lot of questions."

"Did you help him out?"

"I talked to him a little about his rights."

"Just tell me you told him to shut up and not talk to anyone."

"Yeah, of course, and he agreed. He says he's been getting a lot of crazies sending him messages on Facebook about how he's going to jail for the rest of his life. Death threats, too. He had to shut down his account. He asked if you'd meet with him."

"Did you tell him I would?"

"Absolutely. He was relieved to hear it."

"So when's he coming in?"

"Tomorrow, mid-morning. His fiancée, Kristin, is going to bring him."

I got out my phone to check my morning.

Adam waved away my phone. "Don't worry, I already talked to Meagan. She says your calendar's clear."

Together Adam and I walked out the doors of our fourth-floor office onto the open-air landing overlooking the parking lot. I could see the tops of the maple and magnolia trees in the U-shaped courtyard below, flanked by the 1960s brick facade of the Hult Plaza building that Arnold Law calls home. We stopped to talk more, leaning on the aluminum railing of the balcony, which is several inches too low by modern building standards. Adam joined me in surveying the surroundings. With both of us standing at nearly 6'2", the railing touched our thighs just below the tipping point of our centers of gravity. I turned away to look at the gloomy winter skyline to the west and asked, "Do you think Gerald had it in him to kill a guy for no good reason?"

Adam pondered a moment. "Gerald's a good man. But he's complicated. He's been through a lot in his life." Then he chuckled drily. "You should hear some of the stories he tells."

"Well, if he's charged, we will likely be reading those stories, either in police reports or the newspaper. I look forward to meeting him tomorrow." With that, the two of us went downstairs and in opposite directions to our cars.

(Photo: Author Mike Arnold doing morning farm chores with Honey and Tin-Tin.)

##  Chapter 2: A Meeting, a Handshake, a Client

The Gerald Strebendt I met the next morning in my law office wasn't my idea of what a mixed-martial-arts fighter would look like, much less a road-rage shooter. He was slighter in stature than I would have guessed, and not as bulked-up as I would have thought, either.

As I walked out into our reception area to greet him, Gerald stood up and stuck out his hand. His grip was firm and strong. It was a good handshake. He smiled in a way that was both welcoming and nervous.

"Thanks for meeting with me on such short notice," he said. Although obviously uncomfortable with the situation, he was notably polite and respectful to me, my staff, and his fiancée Kristin Swenson, who had come with him for moral support.

I gathered more impressions of Gerald as I exchanged pleasantries with him and Kristin. First, I was surprised that the man I was sizing up was, at 34, three years younger than me. He seemed older, maybe in the way that sadness or weariness can age a person. Second, when he spoke, I was surprised to hear the tone of his voice. It wasn't gruff or deep. Instead, it was soft, and the pitch was a little higher than mine, maybe on the verge of being considered effeminate.

I remember thinking that MMA and UFC websites must be generous with their stats on fighters, because Gerald didn't look to be 5'9" tall, as his bios claimed. Though supposedly just five inches taller, I felt like a giant towering over him. He also looked to be carrying 40-50 pounds more than the 155-pound fighting weight I'd seen attributed to him online – meaning that I still probably outweighed him by 20-30 pounds. Of course, that didn't mean much. He can still probably kill me with his bare hands, I thought.

I then turned my attention to Kristin, Gerald's tall, thirty-ish fiancée. She was very pretty in a strong, athletic-looking way. My hunch – later proven true – was that she had met Gerald while working out in his gym. "I'm going to steal your fella here for a bit," I told her. "I hope you don't mind waiting."

Kristin laughed and dropped into a leather lobby chair, saying, "We figured that. I'm just the chauffeur."

It's standard policy in my office to exclude loved ones or friends when I meet with a client or potential client. There are all kinds of reasons for that, but the big one is protecting the attorney-client privilege. A judge can invalidate the privilege if a third party sits in on a conversation.

I shifted my perspective as Gerald and I walked the short distance to my office. To me, this is a critical moment: I only get one chance to take a juror's point of view of a would-be defendant, and never do I want to squander the opportunity. Does Gerald look reputable and reliable? Clean and careful with his appearance? In his dark-blue jeans and button-down shirt, I would say yes to both questions. His hair was short with the sides clipped close to his head, and there were no obvious tattoos or attention-getting piercings. He looked like any average guy who was beginning to soften with age. You'd hardly notice him if you passed him on the street.

Is this really a professional fighter? A road-rage killer?

I didn't pick up any bad vibes from Gerald at all, and that's saying a lot. All of us at the Arnold Law Firm are good at tuning in on the frequencies of our clients, witnesses, and adverse parties. While most people who come to us are normal people who have just screwed up somehow, we have represented or in some way worked with our fair share of folks with borderline, narcissistic or antisocial personality disorders. Consequently, our "crazy gauge" is always on and usually accurate.

(Photo: Gerald Strebendt appeared to be a "nice guy.")

Gerald didn't seem the "angry man," the "controlling manipulator," or the "likeable charmer" that we often see in violent perpetrators. He just seemed like...a nice guy. He came off like a typical small business owner, someone not much different from me – with one big exception, of course. He had recently shot and killed a man.

I motioned for Gerald to sit down in a client chair. "Make yourself comfortable," I said. "I'm going to run down the hall to get some paperwork."

This too, is strategic. I like to "go get paperwork" before beginning a meeting so that people have a chance to sit alone in my office and get comfortable being there. For most, it's their first appointment with an attorney and for many blue collar folks, also their first time in "some suit's office."

Sitting alone, guests can look out a large wall-to-wall window beside my desk to distant trees and hills. Or, they can survey some of the items I've strategically placed in the room to spark small talk. There's a photo of me going over 30-foot Big Brother waterfall on the White Salmon River in Washington, which often prompts the question, "Is that you?!" Or maybe they talk about their kids after seeing a photo of my daughter or one of her drawings. My rugby days are over, but years ago you would have found several scrum photos on display. Now only one remains to spark conversation.

I want my visitors to see me as somebody a lot like them, someone who is more than "a suit," because I am. Law degree notwithstanding, I'm just a guy who helps good people find their way past a really bad day in their lives. While the job has its moments of drama, overall it's just a lot of talking to people and staring at a computer screen. Very few of my days look anything like an episode of "Law and Order."

(Photo: Gerald's view from the client chair whilst he waited.)

Outside the door of my office, while supposedly "getting papers," I ran through in my head the goals for this conversation. My first priority was to provide Gerald with information that would allow him to protect himself legally as the police investigation went forward. The second priority was to give him some general information about the law as it pertains to self-defense, which I hoped would let him rest a little easier about what lay ahead. Before walking back into the office, I stopped at the printer to pick up the jury instructions for deadly force, so Gerald could take them home and review them.

What is never a goal when first meeting with a client is getting hired. It either happens or it doesn't; we aren't there to sell ourselves. We exist to educate a client in a straightforward, honest manner about his or her rights as an American citizen. Still, experience has shown that this happens to be a pretty effective sales technique. When we answer questions with real knowledge and experience, we almost always prove ourselves to be well-equipped to handle the case.

"Okay then," I said, closing the office door behind me and sitting down in my chair behind the desk. I folded my hands in front of me, hoping that Gerald would open the conversation on his own terms, maybe with some banter, or some comment or question about things he'd seen in my office. But Gerald didn't initiate, so I took the lead with some getting-to-know-you questions. He sat in the green upholstered client chair and answered each question quietly, keeping his head, shoulders, upper body, arms, and hands still. He's very carefully under control, I thought.

We started by talking about how he knew my associate, Adam, who like me was a transplant from the Midwest. Then we quickly got to more relevant information. I asked, "How are you doing? Are you getting any sleep?"

"No, sir," he replied. "I haven't eaten or slept much since this happened."

I left it there. I didn't want us to stray into talking about what happened the night of the shooting. I never talk about that on a "first date."

Instead, I went back to rapport-building. I started by asking Gerald where he was from, although I already knew the answer. (It was a first for me to have a client or potential client with his own Wikipedia page.) Gerald confirmed that he was from a rural area outside Coos Bay, Oregon. This led to talking about what it was like to grow up near a coastal cattle ranch owned by his grandfather and two uncles. Plainly, he loved it.

(Photo: Gerald during better days, fishing near Coos Bay, Oregon.)

Gerald was surprised to learn that I'm a bit of a rancher, too. This opened the door for me to tell stories of the various ways I've shocked, stabbed, cut, or otherwise broken myself while farming. I have no shortage of these stories, unfortunately. I have grabbed an electric fence while standing in a puddle of water in flip-flops. I have fallen over a fence trying to escape a rushing Angus bull that didn't appreciate my carrying away an abandoned newborn calf and seemed to enjoy the hell out of seeing me end up with splatters of fresh greenish manure on my face. I can tell the story of cleaving off a knuckle while using a handsaw to trim a rafter on a tin roof. I once got stung by dozens of our honey bees, which sent me into anaphylactic shock and required my wife to drag my near-lifeless body into the truck to drive 110 miles per hour to the nearest ER.

Any trial lawyer absolutely must be an above-average story-teller. It's a skill that most of us work to cultivate. After I ran through a couple embarrassing stories starring myself, Gerald began to respond with stories of his own, revealing more and more information about himself. And, I had to admit, the guy was a damn good storyteller in his own right.

I learned that Gerald liked building stuff and making engines sing loud. He loved being out in the woods, cutting down trees and occasionally making some side money selling firewood from the bed of his truck. I learned that he had rolled his first GMC Denali pickup about a year earlier, and that he had bought his second Denali just before the shooting. As much as he loved the new truck, he was a little heartbroken about the demise of that first one, he said, because he had purchased it right after returning from Afghanistan. He bought it with the money he made as a military contractor for Blackwater.

He's been a merc, too? This guy's credentials include not just martial arts and the military, but also Blackwater? What is a jury going to think about that?

As my head spun with potential jury questions, Gerald went on reminiscing. He told me that he loved going to the coast, where he could take his sea kayak out on the water to catch cod and snapper. He spoke of diving for abalone near Brookings, a town on the Pacific at the Oregon-California border. Apparently this prized mollusk lives in waters as shallow as eight feet, but most of the trophy eleven-inchers can only be found at 25-feet deep or more. It takes a long, frigid free dive to harvest them, Gerald told me, in waters that are always dark and full of tidal currents. Sometimes sea lions sneaked up on him mid-dive, he said, scaring the hell out of him as they brushed by.

We talked like this for a long time, maybe 30 or 45 minutes. The two of us had a lot in common. Somewhere along the way I realized that I liked the guy, and I thought a jury would too, if it came to that. There was nothing in his manner or in the stories he told to back up the internet trolls' allegations of violent tendencies. But at this point, Gerald hadn't been charged with anything and I didn't know if he would be. It all depended on what the police thought happened on that roadway that night.

I went into the meeting without any intentions of asking Gerald to talk about the shooting. I consider it a big misstep, especially at a first meeting, to ask a client or would-be client who's accused of a crime to tell me their version of events. I like to let a little time pass for building trust and rapport before asking for the truth of what happened. But I will, indeed, ask a new client what they "think" they told the police and what evidence they "believe" the police have. That's important. Hearing the actual chain of events, however, should wait at least until after my client has had time to refresh his or her recollection by reviewing the police reports.

My experience is that clients will often tell me what they think should have happened, what they wish would have happened, or what they think I want to hear. They do this even though the truth is usually their best defense. Then, they get stuck in their story and don't want to admit that they lied to me – which creates big problems later on, when the evidence starts to conflict with their story.

I've seen this play out plenty of times. In one instance, a long-time client of mine confessed that his initial account of a crime was made up and that, actually, something else happened. I was elated when I learned that he had lied to me! His initial story would have made him the unluckiest guy in the world, putting him in the wrong place at the wrong time with the wrong stuff in his truck. When the truth came out it was clear that he did something that was morally wrong, no doubt, but not illegal.

Ideas about morality and protecting one's personal reputation ... these can put good people in prison. The lies begin when somebody does something embarrassing but not criminal. Then their unwillingness to tell the truth lands them in court, facing criminal charges. I feared that any story Gerald might tell me could make him a victim of just that sort of scenario. Though I was afraid he might want to try, there really wasn't any way to stay looking good in society's eyes when it came to explaining how a motor vehicle collision escalated into a fatal shooting.

But clients trying to save face by telling lies is not all I worry about. Studies prove that human memory is faulty, especially during traumatic events in which our most basic fight-or-flight instinct takes control. From an evolutionary standpoint, remembering every detail about what happened in a life-or-death situation doesn't matter. Research shows that what we recall most clearly is the outcome of a situation. That's because it's the part that is most important for natural selection: you solved the problem and you lived on to procreate. Recalling the color of the stone tool you were carving when the lion started chasing you? That was not important to our ancestors, and it's still relatively unimportant today.

As soon as I finished providing Gerald with the legal information that I thought he needed to know, I found myself itching to break my initial-consult rule. I wanted him to tell me what happened. This wasn't an impulsive urge, I assured myself; it was based on the particular nature of this case and this potential client.

Time was of the essence. The case had not yet gone to grand jury. Whoever Gerald retained would have to act quickly to try to get this incident "no-filed" (not prosecuted). Police reports and evidence in the possession of law enforcement would be hard to come by unless a charge was lodged against him, meaning that whoever represented Gerald would have to work fast to create a narrative of the shooting that challenged the government's own. Knowing Gerald's side of the story would help me – if I got the job – figure out which experts to hire and which steps to take to flesh out his case.

If Gerald's story convinced me that it was indeed a case of self-defense, I'd continue to stand foursquare against having him talk to the police. Supreme Court Justice Robert H. Jackson famously wrote that "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." But I might take the unusual step of recommending that Gerald voluntarily testify at grand jury. In the hundreds of cases I had defended, I had never recommended that a client do this, but that's mostly because we're usually retained after someone is charged. In this case, it could save the guy years of his life and tens or hundreds of thousands of dollars in legal fees. Would I do it in Gerald's case? I couldn't know, not without hearing his version of events.

As I moved toward revealing some of my thinking to Gerald, I continued to internally question my motives. Was this just me seeking to satisfy my curiosity about how a professional fighter ended up shooting a man on a darkened roadway? Was I about to open a can of worms, legally speaking, that I'd live to regret? I'm not sure I was able to reason away either question satisfactorily, but I did have a strong and positive gut feeling about the man sitting across from me. If ever a client could handle the blunt question I wanted to ask, Gerald could. He was a Marine. He had been to Afghanistan. He lived a life of rigorous martial-arts discipline and had fought professionally before starting his own business. Beyond the obvious experience and wisdom gained from his career path, the man seemed honest. The self-deprecating stories he had told me showed that he was able to judge himself at arm's length, admit weaknesses and learn from his mistakes.

So, guided mainly by my sense that time was slipping away on any chance of getting the case no-filed, I did what I never do. I explained my rationale to him, and then took a deep breath and said, "Why don't you tell me what happened?"

He told me, and it was chilling.

"I'm on the way home with groceries so Kristin and I can make a nice dinner. There's a car in front of me. It slams on its brakes. I swerve around him to the right to avoid the collision. Before I can do anything he revs up and hits my truck. I'm in shock. He just hit my brand new truck. I can hear him yelling. He is threatening me. I can't start my truck. So I grab my gun and get out. I call 911. While I'm talking to the operator he keeps coming toward me. He sees my weapon. He says he's got a gun, too. I back up, telling him to stay away. But he keeps coming. He doesn't stop. I'm fearing for my life. So I pull the trigger. And he goes down. It was self-defense, Mike. Self-defense."

As Gerald spoke I watched his eyes, his mouth, his shoulders, and his hands. I realized that he was not just telling a story of what happened. He was re-living each moment, experiencing it all again. His face displayed anger, then fear, desperation, frustration ... and at last, resolve. I could see that he was sweating, and I found myself identifying with him. I could imagine myself in precisely his place.

I believe him.

Not even my skeptical attorney's mind could convince me that this was anything but a justified, self-defense shoot. If ever there was a time when someone should have been entitled to kill a person, this scenario, out on the road, in the dark, facing a man who is threatening to kill you and says he is armed ... well, this was it.

After a moment I said, quietly, "Gerald, that's unbelievable ... but I believe it. That sounds justified."

Then I told him a little bit about how we try cases. I explained that "we prepare every case for settlement as if we were going to trial." We win by hard work and being prepared. I told him the bare-knuckled truth: this sort of aggressive defense would be expensive and time consuming. I suggested that he meet with some other lawyers both locally and in Portland, but Gerald was shaking his head before I could finish.

"I don't want to do that," Gerald said quietly but firmly. "I want to go with you."

"Look, Gerald, don't marry the first girl that says yes to a date. You've been married and divorced, right?"

"Yeah. Not too long ago."

"Choosing a lawyer is a more difficult and important decision than choosing a spouse. You choose your spouse poorly, and the consequences are a divorce that is messy and expensive. You choose a lawyer poorly, though, and you die in prison. Get it?"

He smiled wanly. "Yes, sir. I do."

"You need to completely and totally trust whoever you choose to represent you," I continued. "If you're indicted, you could be waiting for trial in the Lane County jail for a year or two. Your relationship with your attorney definitely will be challenged."

"I want to go with you," Gerald repeated. "I know what it's like to give someone all your trust. I trained to do that as a sniper. You and your spotter give each other 110 percent. If either one messes up, you die."

"True," I said, "but the difference between that relationship and ours is that if I mess up, you go to prison, and I go home to my family and a steak dinner, complaining about what a bad day I had at work."

"Mike, you ever hear of a Muay Thai fighter named Alex Gong?"

I hadn't. Gerald went on to tell how back in the summer of 2003 somebody did a hit-and-run on Alex's parked car. Alex saw it and gave chase on foot. When he caught up with the car and confronted the driver, the next thing he saw was a gun pointed in his face. "Alex died right there, on the street," Gerald told me. "Within minutes he went from doing his own thing on the street to being dead. Boom, gone. Dead in the street."

"What happened to the shooter?"  I asked.

"Some dude they thought was the guy was confronted later by the cops and he killed himself."

"That's awful."

"I know. And I think maybe I was thinking of Alex the other night, in the back of my mind. Alex got killed because it didn't occur to him that he could get shot if he ran up on that car. I wasn't going to make that mistake. I wasn't going to let some random asshole kill me out there because I wasn't prepared."

What could I say to that? Nothing, so I sat there, and waited for him to continue.

"I've talked to Adam about you, and I've asked around," Gerald said, returning the conversation to the representation issue. "I'm sitting here in your office, looking you in the eyes. You believe me, don't you?"

"Yes."

"That's important to me. I need to retain an attorney who believes me, who believes in me."

"Sure, I do," I said. "But your defense needs more than that."

"Look, from where I'm sitting, you've got what I want in an attorney. I can tell just sitting here that you are the kind of guy who would fight, if he had to. You and me, we are the same like that; we're not too different actually. Since you played rugby, I know you can take a punch, probably a lot of them. Dish 'em out, too."

I chuckled. "I'm way better at taking punches, actually. That's more my skill set."

"But you're a fighter. I can tell. I don't think I'm going to find many men sitting on the other side of a desk that know what it's like to take a hit and bleed. You know what that's like."

(Photo: Mike getting tackled in pursuit of loose ball; the last remaining rugby photograph in Mike's office.)

I nodded.

Gerald continued, "I'm scared, Mike. I need someone who will fight as hard as I would. When I fight, I come out of my corner like my hair's on fire. I think you do, too. You have a plan and you sound eager to jump into this. I really like that. You've told me what you can do, and would do for me. Everything I've heard, I've liked. Plus, you haven't promised me anything, which tells me that you're realistic." For the first time in the meeting, he moved his body. He lifted his forearms and shoulders ever so slightly to indicate a shrug. "My mind is made up."

I stuck my hand out, and he grabbed it. We shook hands over my desk, and then I stood up and gave him one more out.

"You know, there isn't a big rush to make the decision. You can take a few days to interview other firms. I want you to be 100 percent sure that we're the right fit for you. I don't want you to regret your choice."

"Mike, I don't regret much. I can tell you right now, I won't regret this decision."

"Well, the real test will be whether or not you regret your decision a year from now. Or five years from now."

Gerald paused. Then he fixed his gaze on me and said, "Mike, I killed a man. He deserved to be shot but apparently he didn't need to be. That's the mistake I'll regret."

(Photo: Safeway surveillance video screenshot of Gerald minutes before the shooting)

(Photo: Springfield Police Department video screenshot of Gerald minutes after the shooting.)

##  Chapter 3: Getting to Work

Gerald signed the fee agreement that first day he walked into my office, January 31, 2014. That was a day that changed the course of my life, as surely as the night of January 29th had changed the course of Gerald's.

I had worked on many significant cases in my career, but none that had any real notoriety attached to it. My defendants were, at best, C-level characters in my D-level town. But this case was all over the news and my client was a local businessman with a network of customers and acquaintances. I knew that people would be asking questions of me, my attorneys and our staff, so I made sure to send out an office-wide email reminding all that the Strebendt case was just like any other case, and that we had duties of confidentiality to our client.

In the email I provided instructions about how to respond to people, but I didn't discourage anyone from discussing the case. On the contrary, I wanted to invite that discussion. I could tell already that this case needed to be thoroughly focus-grouped before going to trial. We needed as much insight as possible into our potential jurors, and I knew from experience that a lot of information could be gained even in casual conversations with friends and family – just so long as the conversations stuck to the facts that were known to the public.

I began work on the case the second Gerald walked out of my office. My initial goal, of course, was to prevent his case from ever going to a grand jury. If the district attorney did choose to take it to a grand jury, then the goal became avoiding an indictment. If he was indicted, my goal then was to turn over every stone of evidence and work toward dismissal or a plea agreement. And if all that failed, I would need to be ready for trial.

It was unusual to be starting work on a case this soon after an alleged crime. Normally, I wouldn't be retained until after the charge(s) had been filed, and I would come into the case knowing exactly what my client was alleged to have done. In this case, I could only speculate among all the possibilities: Murder, Manslaughter in the first degree ("Man I"), Man II, and Criminally Negligent Homicide. Murder was my biggest concern, of course. While Man I and Man II are very serious crimes, the length of the sentences pales when compared to what you face with Murder. There's a mandatory minimum sentence of ten years for Man I, 6 ¼ years for Man 2, and 25 to life for Murder. There was a lot at stake.

(Photo: Excerpt of Gerald's attorney fee agreement)

The first thing I would need to do in this case was figure out who I was going to have on my team. I would need support from an associate attorney, because I was already in deep water and struggling to swim with my current case load. I called Emilia within minutes of Gerald leaving the office.

She had to have seen that it was the office calling, because when she answered the phone, the first thing she said was, "No."

I laughed. "Aren't you at least interested in what I have to tell you?"

She didn't even hesitate. "Nope, not at all. Unless you intend to magic yourself to my house to clean up the entire box of Cheerios that Jacob just spilled on the floor, I'm not interested."

"The Springfield shooter came in today."

Now she was interested. "Really? Hey, did he tell you how to pronounce his last name? I've heard it about ten different ways in the last two days."

"Stree, rhymes with tree, and bent, like a piece of bent wire."

"stree-BENT." She sounded it out.

"No. STREE-bent. And he retained."

Now I'd gotten her full attention. "Wow, that's awesome, congrats! A murder case. How are you going to juggle it with your bazillion-count animal abuse case and your corporate case?"

"I thought you could bring in your littlest one, you know, to get some time off from managing two little guys at home. It could be a really good break for you, I think."

She didn't bite, but I'm not a quitter. Instead of pulling rank or coercing her, which I know from experience brings out her stubbornness and usually results in her doing the opposite of what I ask, I just started talking about the case. There were going to be a lot of moving parts to this defense, I told her – investigators, expert witnesses, psychologists, the list could get pretty long. Then, before she could interrupt me, I told her about my meeting with Gerald – how he looked and sounded when he told me what had happened on the Bob Straub Parkway that night. And I told her that I believed him.

When I finished, there was silence for a moment. Then Emilia ended the call by rather half-heartedly telling me that she'd "think about participating" in Gerald's defense. But, not long after we hung up, she texted me: "Did you find out if Karlin is available to work this case? He needs to get down here now." Got her, I thought.

Knowing that Emilia would be in the office soon enough, I started to lay out the building blocks of the case. I was in what I call the "golden hour," the first hour after a client retains me. It's a time when there are no documents to review yet, and no reports or statements crowding my mind and entrenching my beliefs about the case. Like walking into my office with the accused for the first time and viewing him as a juror would, it's another really important time when I can play the role of a fact-finder who is hearing the details of the case for the first time. If I'm going to have creative ideas about my defense strategy, they'll probably come to the fore in these first 60 minutes.

As much as I'd believed Gerald's story, I knew I wouldn't be doing him any favors by simply accepting it as he told it. I needed to establish the truth of his account, and yes, Emilia was right; I'd have to start by getting a forensic accident reconstructionist out to the scene. My first choice was David Karlin of the Portland based Talbott and Associates. I needed this MIT-trained engineer to drop everything, take a look at the scene, and then try to reconstruct the accident that triggered the shooting.

First and foremost, I wanted to know if the evidence supported what Gerald said happened and when. If Karlin's results showed me I could trust Gerald's account, I could build the entire framework for his defense on that trust. Second, I wanted Karlin's report to tell me what the government likely already knew. I wouldn't be able to access any police reports until the charges got filed, which to me was too late. If we wanted to avoid charges, it was imperative that we get up to speed on the government's view of the case and fast.

Karlin agreed to drive down and meet with me. After I apologized for asking him to drop everything, he replied, "Come on, Mike, this is what we do. Besides, in case you didn't know, it rains in Oregon and that's no good for evidence. I will see you tomorrow at the latest."

That was an understatement. We have two seasons in Eugene: summer and the rainy season. Being it was January, it had rained off and on since Gerald had shot the man now identified as David Crofut. Skid marks, slide marks, bits of fabric, even the paint chips found after a collision provide clues about speed, force, and directionality in a car vs. car collision, but precipitation degrades them pretty quickly. Still, I knew that if there was evidence to find, Karlin would find it.

I met Karlin in 2009 during another death case. That one was a civil products liability suit filed against a motorcycle helmet manufacturer/distributor. My client's wife was killed after her helmet came off of her head during a car vs. motorcycle collision. Karlin established himself as the meticulous, articulate, and egghead-ish expert that I like to have explaining physics to jurors. With his glasses and accountant's manner, he looks and acts like somebody you ought to pay attention to, yet behind the scenes, his offbeat personality makes him fun to work with. I like to say that if anyone needs to attend sensitivity training, it's Karlin. He's continually cracking jokes that are so incredibly inappropriate, always delivered with such a straight face – well, you can't help but bust up laughing even in the most tragic and gruesome circumstances. I can't count the number of times he left my entire team in stitches, just from hearing some quietly outrageous comment across the walkie-talkies.

But I also respect Karlin as a military veteran who enlisted at the age of 18 – with the Israeli Defense Forces, that is. He's seen a lot, he tells it straight, and when it comes to an investigation, his opinion is not for sale. He's told me that my theory of a case was wrong far more often than he's told me I'm right.

(Photo: David Karlin (right) examines an accident scene for evidence while Mike watches for traffic)

The next call I made was to Verne Hoyer, an investigator I'd used many times before. Verne was forced to retire from a patrol job with the Eugene Police Department when a freak wood-splitting accident blinded him in one eye. Verne's son was doing the splitting when a shard of metal broke off a cheap, Chinese-made molded steel maul and flew 20 feet to strike his dad in the eye.

Verne is a story-teller, and it's almost impossible to get him out of the office when he's on a roll. He has two claims to fame in law enforcement: he was a first responder to the University of Oregon's football stadium murder/suicide shooting in 1984 and he was involved in the apprehension of the I-5 Killer, a notorious serial murder case.

I met Verne a few years earlier when we worked together on a self-defense case in Depoe Bay, Oregon, a picturesque coastal town that claims to have the smallest natural navigable sea harbor in the world. My client, Mark Dade, was vacationing at the coast with relatives when he was accused of punching the very elderly Vietnamese owner of a local Shell gas station. Mark is a big man, and the little, wrinkled gas station owner was anything but.

The case was a great lesson in "looks may be deceiving," exemplifying how confirmation bias can totally destroy the legitimacy of an investigation. Confirmation bias is when law enforcement (or anybody) has their mind made up about an individual or a situation before hearing all the facts. It's about filtering everything you see or hear through a lens colored by your own beliefs. Psychological research shows that the only way to avoid confirmation bias is to acknowledge that you may have been influenced to a conclusion without having the facts to back it up. Then you have to actively function as your own devil's advocate, seeking out opposing evidence and viewpoints.

The local police couldn't do that in the gas station case, but Verne could. He was able to confirm what Mark and his family had told me from the beginning: that Mark had only punched the gas station owner after the little Vietnamese man had physically attacked his elderly grandfather – Mark's father, really, who had raised Mark since babyhood, when his birth parents were the victims of a double homicide. Police may have assumed that the tragic loss of his birth parents predisposed Mark to violent acts. Witnesses to the gas station incident may have assumed Mark's guilt because they saw only the part where a big white guy threw a punch at a wizened old immigrant defending his property. But, via his investigation, Verne established that this "little old man" was well-known for freaking out if a tourist used the station restroom without buying gas. Verne was able to track down witnesses to prior instances of the owner's anger, and to impeach several of the prosecution's witnesses when they changed their stories at trial. Presumably their stories changed to try to help the perceived victim, underscoring the importance of truth-seeking – without bias – in any investigation.

(Photo by Verne Hoyer of the Shell station incident scene)

Now I needed Verne Hoyer's investigative skills to start locating witnesses to anything and everything that happened the night of January 29, 2014. Only two days had gone by, yet I knew that memories were fading and shifting even as I sat at my desk making phone calls. We needed to have had people located and interviewed yesterday. The longer it took us to find them, the less detail they would recall, and the less trustworthy their recollection would be. Things change. People relocate, change their job or their name, join the military, and even die before you can get a case to verdict. Just as I needed Karlin ASAP, I had to get Verne on the job immediately.

It wasn't more than three hours later that I received by phone the first bit of evidence from Verne.

"Mike, I have some news," he said. "I got a tip where Crofut was coming from before the collision – the Driftwood Pub. I talked to several witnesses there, including two bartenders who served both him and his wife, Brenda." Verne said he had also talked to the bar's owner. "He looked at the receipts and did the math, and confirmed that David Crofut may have consumed between six and eight Pyramid Hefeweizen beers immediately before the accident."

I began googling the alcohol content of a Pyramid Hef. "Were they 12, 16 or 22-ounce beers?" I asked. My previous experience in both prosecuting and defending hundreds of driving under the influence of intoxicant (DUII) cases was about to come in handy, I thought.

"16-ounce pints," Verne replied.

"Damn!" I exclaimed. "Somebody was drunk and had a motive to hit and run – to avoid a drunk-driving charge. That doesn't get us to self-defense but it might start explaining this guy's behavior. What do you want to bet he's a regular there?"

"He was starting to be a regular," Verne explained. "He and Brenda had recently moved down from the Tacoma area after he sold his tavern up there."

"What do you bet he wakes up in the morning at a .02 fairly regularly?" I asked, not really expecting an answer. I know this guy's type and his patterns from the DUIIs.

"One patron said that he had offered the Crofuts a ride home that night, worried that they'd had too much to drink," he told me. "They declined."

"Worst decision of their lives," I said.

"I'll call you back when I have more," Verne assured me. "I have a feeling there's more to the story at the bar."

(Photo: Investigator Verne Hoyer)

With that information in my pocket, I called Springfield Detective Rick Lewis, who had been commenting to the press pretty consistently and appeared to be the lead detective on the case. The day after the shooting, Lewis was quoted as saying, "[The case] remains open and uncharged at this point because there's been a claim of self-defense."

I needed to get Karlin in to see the vehicles and I hoped that by contacting Lewis I could make that happen. I was also curious about what Lewis would be willing to tell me about the case once I told him that Gerald had hired our office to represent him.

Just by being a consumer of local TV news, I had noticed that Lewis got in front of the camera a lot more than I was accustomed to seeing from a police detective. He was a guy in his fifties with close-cropped hair, somebody who had obviously spent a lot of time in the gym getting big. He came off confident, well-spoken and fairly friendly, as most successful and well-liked officers do.

After introducing myself to Lewis, I asked, "Do you know who's in charge of the case for the District Attorney's Office?"

"Bob Lane's handling it," he told me.

"Is it being grand juried?" I asked, hoping to milk some information out of him regarding the likelihood of Gerald getting charged with something. Knowledge is power at this stage of the game and the police had a lot more of both than I did.

"You'll have to talk to Bob about that," he replied. "Do you think there's any way we could sit down and talk with Mr. Strebendt about his self-defense claim?"

"I doubt it but I can check," I told him.

After concluding the conversation with Lewis, I called the D.A.'s office. I talked to Bob Lane, the lead prosecutor on Lane County's Major Crimes Team – and found, to no surprise, that he was playing his cards closer than Lewis was. I could tell I wouldn't be seeing him on the TV news anytime soon.

Lane had never been fond of giving interviews to the press. In fact, he sometimes refused to speak about cases to anybody. In a county where there are only 28 district attorneys and hardly more than 23 practicing trial lawyers in the entire office, everybody knows everybody by record and personality type. On the job, Lane is known as a just-the-facts-ma'am kind of prosecutor, not much concerned with winning the affections of jurors. Off the job, he's the kind of guy who has earned his stripes as an introvert, choosing to work in his garden or fish with older colleagues in his spare time. Outside of his circle of friends, he's a man of few words. In fact, there's a story told of an eager young D.A. who walked into the break room once to find Lane reading a newspaper. The youngster tried to strike up a conversation, but Lane wasn't having any. Lane slowly moved the newspaper down from his face to size up the whippersnapper in front of him ... and then, without uttering a sound, slowly moved the paper back up and continued reading.

With a legal pad rapidly filling with notes from these phone calls, I now had the beginnings of a trial outline. It's in part a to-do list and in part a script for trial. I'm a big believer in thinking about my opening statement, jury selection and even my closing argument, right from Day One. I encourage my associates to do the same. In my characteristic scrawl I saw a shopping list of experts to hire:

  * Firearms and ballistics

  * Physical evidence (gun powder residue, blood/blood spatter, hair, clothes)

  * GMC Denali (someone who knows the particulars of Gerald's truck)

  * Psychologist (PTSD testing)

Pondering the situation further, I added three more to-do's, all three of them very important to accomplish ASAP:

  * Establish website (to let people find us if they have information)

  * Develop Media Plan (for getting out Gerald's side of the story)

  * Call Peter Jarvis (our firm's ethics counsel in Portland)

(Photo: Example of "wall notes" that eventually covered Mike's office walls)

Gerald was getting slain in local and national media, even at this early stage of the case. That very morning Oregon's largest newspaper, The Oregonian, reported the titillating details in their headline "Minor Car Accident in Springfield Involving Former Sniper Leads to Fatal Shooting." The first paragraph identified Gerald Strebendt as a professional mixed martial artist who allegedly "gunned down" David Crofut. This article created the impression that the collision was no big deal and that this man who had the ability to defend himself with his hands used a gun to execute someone outside of the safety of a vehicle. Here was Oregon's leading media source, claiming that my client "gunned down" an unarmed man. This I would not tolerate.

KEZI-TV (Eugene's ABC affiliate) was a little more accurate, calling the collision a "crash" rather than a "minor accident." Words and descriptions matter. They have long-lasting effects on the minds of potential jurors that reporters fail to consider when they write stories. During the same TV report, Springfield Detective Lewis hinted at a motive, saying that the shooting had something to do with driving behavior before the collision, but that they were interested in learning more through their investigation. It was disappointing to see a seasoned detective portraying a purported theory of motive as fact.

These were just a few examples of the ways my jury pool had already been salted with negative, even false, publicity about what happened on that road that night. I knew from reading the psychological research that negative publicity on a client or a case causes confirmation bias and source confusion to set in very rapidly. It's crucial to get accurate, unbiased information out there as quickly as possible to level the playing field.

With this in mind, I wanted to discuss with our firm's ethics lawyer, Peter Jarvis, what I could do for Gerald in the media within the confines of the Oregon Rules of Professional Responsibility. Most lawyers with ethics questions call the free Oregon State Bar number to get advice. There you can get information on a variety of issues, including pre-trial publicity ethics, but in my experience, you get what you pay for. I prefer to call an expert and be done with it, and Jarvis is the best ethics lawyer in the Northwest. I'd rather pay him and know I'm getting a fast, accurate reading of what I can and can't do than to rely on government-paid bar advisors who may try hard but have no personal malpractice risk of their own to better incentivize them to get it right.

I wasn't a newbie here; Gerald's situation wasn't our first media case. In fact, I had one case that really galvanized my belief that the defense owes its clients every effort that is ethical to get its side of the story before the public.

Several years earlier, we defended a hit-and-run charge where our client may have acted in self-defense. Driving his Dodge pickup truck, he ran down and nearly killed a Mongol outlaw motorcycle gang member. Immediately after the incident he fled in fear for his life. He was terrified to turn himself in because he knew that the victim was a confidential police informant who perhaps worked with the same detectives that were investigating the attempted murder charge stemming from the hit-and-run. My client was also afraid to be tried or incarcerated locally, because he thought the victim had gang connections in jail.

Since my client was thought to have left the state, there was a fugitive warrant out for him. On my client's behalf I bypassed local authorities and instead contacted the U.S. Marshals, agreeing to turn in my client at the federal courthouse in downtown Eugene. When interviewed by local reporter Jack Moran about it, I said that the victim had threatened my client with violence and claimed an affiliation with the Mongols motorcycle club. The reporter then confirmed through the Mongols that the victim was indeed a former member of the biker club. The victim later showed me a large Mongols tattoo on his neck, proof of his background, and confirmed his role as an informant.

I can write about this case because it's now a matter of public record – I made it part of the public record by talking to the press with my client's permission. It was part of my larger Media Plan for that case. However, it instantly angered the district attorney on the case, who apparently believes that press contact is exclusively the domain of the police. There was talk of an ethics complaint against me, but it never materialized – probably an idea that was dropped after the office conducted a group reading of the ethics rule on pretrial publicity and learned how off-base they were in criticizing me. But it didn't stop the assigned D.A. from allegedly telling a colleague that my office was "walking the line, ethically speaking."

I would like to clarify that there is no "walking the line." There is no cloudy middle ground that gradually pulls you to the dark side of the bar when you approach it. It is no different than walking down a sidewalk. Technically, you are always walking the line, and you could stray into traffic and be killed instantly. But it's silly to worry about that. Just keep moving forward.

So, I say to hell with the holier-than-thou misconception among prosecutors and even some defense attorneys that a lawyer should never talk to the press. Are we to believe that the media can only be used by the government for "perp walks" or leaks of negative information from police public information officers? No, absolutely not. Aware of the psychological research on confirmation bias and source confusion, I long ago came to the conclusion that it is essentially malpractice to avoid the press when you have an innocent client. There are enough obstacles in the way of defending a client against the weight of the government. Self-imposed limitations on the use of the press should not add to the burden.

Going further, I'd say that our legal process only works fairly so long as both sides are playing the same game and having an equal opportunity to speak publicly. If only the government is playing the press game of checkers and the defense refuses to participate, the government is always going to win. Consequently, you will never, ever find me saying "no comment" when a reporter calls. It's my duty to make a move and at least use the opportunity to educate the public about the jury system and the presumption of innocence.

Later on that afternoon, I decided to add yet one more item to my growing list:

  * Polygraph?

So-called lie-detector tests are not admissible in court in Oregon. But we weren't headed to court, not yet anyway. Would I ask Gerald to sit for a polygraph test in the hope that a finding of truthfulness would help ensure that he wouldn't face charges in the shooting? It was something I'd have to think about before even raising the possibility with Gerald.

(Photo: Mike enthusiastically speaking to the press in another case, apparently during family time.)

##  Chapter 4: The Weight of Responsibility

I was on autopilot that night as I drove home, deep in thought.

This wasn't just a potential murder case. This shooting was actually about seven different cases rolled into one – a motor-vehicle accident, a personal injury case, an assault case, a gun case, a drunk-driving case, and a self-defense case. The good news was that our firm was a perfect fit for it. Collectively, we'd done it all and plenty of times before. The bad news was that it would take all of us, "all hands on deck," as it were, to get Gerald the representation he needed and deserved. This defense was going to put Arnold Law to the test.

This kind of balls-to-the-walls defense was going to be costly, very costly indeed – six figures easily. Gerald had already signed paperwork that put everything he owned on the line to maintain his freedom. And when all those equities were borrowed against and still the case wasn't over ... well, I wasn't quite sure what was going to happen. All I knew was that I wasn't inclined to leave the guy hanging. I felt I owed him more than that.

While I have a lot of confidence in myself and tremendous faith in my associates and legal assistants, that moment when someone puts his or her trust in me and says, effectively, "Whatever it takes, whatever it costs, let's just do it" ... well, I feel it. It's a weight in my chest and sometimes even a lump in my throat.

Driving through the countryside at dusk, I was experiencing the weight of the responsibility I'd taken on. I wanted to be worthy of Gerald's trust. I wanted my firm to do such a fantastic job for him that, when it was all over, he'd shake my hand and say, "Mike, thanks. What you did for me was worth every penny."

But I knew that this was rarely the case. You don't always get what you pay for when you retain a lawyer. True, you will likely get more experience and wisdom when you hire a higher-cost attorney – somebody who's been in the business longer and handled the more-complicated cases. But I'd seen for myself that sometimes there's no relationship between what the attorney brings to the table and what sort of outcome is achieved. Sometimes a defendant is entitled to feel pretty unhappy when considering the cost-benefit analysis.

(Photo: The Arnold Law team, 2014 – Mike Arnold, Jan Holcomb, Jacy Arnold, Adam Shelton, Rogelio Cassol, Jessica May, Emilia Gardner, Lissa Casey)

I thought back to a particular case, my first major felony case in 2009 – a high-profile engagement by local standards. It was a string of three signature crimes, each of them carjack-styled armed robberies where local women were kidnapped and taken to an ATM to withdraw money. (My wife, like lots of women in the area, was nervous about going anywhere while that offender was on the loose.) Anyway, the case was covered heavily in Eugene-Springfield and, to a lesser extent, in Portland.

My client was by no means nondescript. The victims described, and the ATM videos showed, a man who wore a New York Yankees ball cap. His face featured a prominent keloid scar or birthmark in the shape of Africa. My client had such a birthmark on his face. He was quickly arrested and pleaded guilty, along with a co-defendant. According to the plea agreement brokered by the judge, she retained the discretion to impose any of the three possible sentences consecutively or concurrently with one another, meaning that each man could get anywhere between 70 months and 210 months in prison.

What followed was a contested sentencing hearing in which we called witnesses, including an expert on future dangerousness. We spent days preparing for it and my client's mother invested heavily in our attempt to limit her son's period of incarceration. The argument was passionate, attracting media interest. It was my first time arguing a case in front of a video camera.

After presenting a half-day of carefully crafted evidence and argument, we rested our case. The judge then turned to the experienced public defender who represented the other defendant in the case. He talked for four or five minutes about his client's age, history, and other basic information. It was similar to the hundreds of DUII cases I'd been party to over the years, cases where what was on the line was two days behind bars, not 17.5 years. Does a retained attorney help you more than a court-appointed lawyer? Well, here we had a test group and a control group. All the facts and circumstances were the same – only the lawyers were different. I provided a carefully prepared, workmanlike argument for leniency. It was thorough, no stone left unturned. The public defender did demonstrably less. While I like to believe that you get what you pay for, here my weeks of preparation and hours of passionate argument did nothing for my client that his co-defendant didn't get for free. The judge ended up agreeing with the prosecutor, Bob Lane, and sentenced both defendants to the same sentence, the maximum allowed by the plea agreement.

I sincerely hoped that Gerald wouldn't share the same fate, to end up imprisoned and bankrupt, with my best efforts having done little or nothing for him. If it were inevitable for him to go to prison, a free attorney would allow him to save all of his money for commissary, I thought ruefully. At least he'd have the money to eat junk food like a king while behind bars.

Of course, I didn't allow myself to wallow for long in this sort of second-guessing. A defense attorney's success hinges partly on confidence – confidence in himself or herself as a litigator, and confidence in the strength of the case to be put forth.

I wondered, do I want to believe his story because an innocent defendant makes it easier to come to work?

Don't get me wrong, I don't have any problem defending people who are guilty. In such cases, I have an important job to do in our system of jurisprudence. People always ask, "How do you sleep at night?" Well, I don't lose sleep when I represent someone accused of something terrible. Everyone deserves competent representation, and the fact that I make a good living providing it certainly helps. I also know that defending the guilty helps me hone the skills I will need to defend those who truly deserve my help: the overcharged, the innocent, and the victims of political prosecutions.

But on that first day as Gerald's attorney, I knew I had gotten spoiled by having represented lots of falsely accused clients in recent years. It had been fun and exciting to work cases in which I thought there was about a 90 percent chance of a client's innocence. No moral dilemmas to face!

Then again, I could never be completely sure of a client's innocence because I, of course, wasn't there at the scene of the crime. Thinking of that, I had to laugh. Even if I had been there when it went down, I would still only raise it to about a 99 percent chance of innocence, and here's why: My well-trained skepticism of eyewitnesses would require me to include my own potentially lyin' eyes.

I had to admit: I was already invested in Gerald being innocent. And while I thought it was the right call to ask Gerald to tell me his version of events, I was dreading receiving the police reports. Belief in innocence is dangerous to those of us with OCD tendencies and an over-developed sense of justice. Despite my legal experience, I still maintained what could be construed as a naïve, juvenile concept of "justice" in our legal system. I knew at that time that if the reports came in, and Gerald was by all accounts innocent, that I would be losing a lot of sleep in the coming months. I also knew that if the reports came in and they contradicted Gerald's compelling recitation of his "facts," that a little part of my justice-loving heart would die. If a man could lie to me so well, and convince me so thoroughly, what did that say about me? I really wanted to believe in my fellow man, but it gets pretty hard at times. Being an optimist is tough and, too often, disappointing work.

So there was the question I had to face up to: Could Gerald have fooled me somehow? Did he sucker me into believing him?

I didn't think so. An attorney gets fairly practiced at spotting signs of dissembling, much less bald-faced falsehoods. Indeed, an attorney worth his or her salt is inevitably the first person to conclusively figure out that the client is lying, because you get to know the individual on a personal level and hear their story over and over again. The truth is, most folks are not very good liars. It takes a highly intelligent and manipulative sociopath or psychopath – the type of person who doesn't get caught by authorities – to maintain a lie over a long time period. Consequently, I've most likely never represented this type of individual.

A great way to expose someone's lies is to have them tell the story backwards to you. You ask them how the situation ended and then ask, "What happened before that?" then, "What happened before that?" and so on. You watch their body language. You see if they shift in their seat, avoid or maintain eye contact, and even what kind of words they choose to use.

Seldom do I go to these lengths. Most people make it pretty clear to me within the first interview that they are concealing a part of their story; as a lawyer I pick up on these signals pretty quickly. With Gerald it was different, however. I really believed what he had told me. This meant that he was either a psychopath or he was telling the truth, and I sincerely hoped that it was the latter. A psychopath with Gerald's military and martial arts training would be a very dangerous man indeed.

The days and weeks ahead would be paved with opportunities to put Gerald's story to the test. I realized as I drove out of Eugene and onto the country roads that would bring me home that I could already think of several things I would need to understand if I were to be fully convinced that David Crofut was shot in self-defense. But the one thing that I did not need to convince myself of was this: Defending yourself against a threat is a twilight zone unlike any other. In the heat of the moment, there is no calculation, no weighing of right and wrong, and certainly no consideration of what's allowable in the eyes of the law. All there is – and I knew this from experience – a determination to vanquish the threat, whatever it may take, and live.

If that assertion of mine seems especially fervent, it's because there's a story behind it.

A few years earlier, I was showing two college-aged women the amenities of our long-vacant South Hills condo, which I was hoping to rent to them. As we walked down some steps to the pool and hot tub, with the three of us deep in conversation, I suddenly stepped onto...nothing. I slipped and stumbled down the stairs, grabbing the railing to control a long fall down. It was not graceful, it was definitely painful, and I found it plenty embarrassing with the two pretty coeds looking on. It turns out that the carpet had been removed from the stairs and the wooden steps had been left exposed and covered with slippery carpet glue.

Without thinking, I angrily shouted, "Who's the fucking asshole who didn't put the warning sign at the top of the fucking stairs!?!"

Hearing no answer, I picked myself up, straightened the suit and tie I was wearing – I had come straight from the office – and turned to see two men striding toward us from the pool area. One was a scruffy, thin blond still holding a carpet tool in his hand. The other was a short, powerful-looking young man with a big mouth. "I'm the fucking asshole you were looking for!" he shouted. "Is there something you want to say to me?" With that he stepped forward aggressively, and I, my adrenaline still pumping from the fall, stepped toward him with similar aggression. A few choice words followed. The stockier carpet-layer then stood down, taking a half-step back and turning his body slightly away from me. Having thus disengaged from the potential fight, the two guys retreated into the rec center again.

"I'm sorry, it's not usually like this here," I said to the would-be tenants.

A few minutes later, as we finished the tour and began walking toward our cars, one of the young women asked me when the rec center renovation would be finished. "I don't know, but he probably does," I said, gesturing behind me to the stockier carpet-layer, who had started to walk in our direction. He heard me and responded with a smile that I should have noticed was a little too bright for the situation.

The next thing I knew, I felt something jab into the right side of my lower back and saw the flash of bright metal from the corner of my eye. A knife, I thought.

It was on. I was a grown man, a lawyer in a suit, engaged in a fight that threatened to become a street brawl. Was I fighting for my life? It certainly felt like it. I didn't know if this guy had another weapon and I certainly didn't take time to figure out whether I'd been injured.

I've thought many times about what I was feeling during the fight. Was I angry? Probably. Was I scared? Certainly. But the strange thing is that I couldn't remember feeling that way after it happened. What I remembered, mostly, was the absence of emotion. Instead there was just this...purposefulness. I wanted not only to stop this man but to hurt him.

After what seemed like a few minutes, the fight was over. The threat was no more. My opponent appeared injured. But I was safe...or was I? Only then did I reach behind me and touch my suit jacket where it covered my right kidney. There was something sticky there, but cool to the touch. On the ground where we had struggled, I saw a spackling knife covered in glue. That glue was on my suit and now on my hand, probably in retaliation for running my mouth at the carpet-layers back at the pool. With that realization, my lawyer brain clicked back on. I was never in any real danger. Apparently my attacker had wanted only to damage my clothing, not knife me in the back.

(Photo: The path leading to the condo rec center.)

I quickly switched from self-defense to damage control. I told the stunned young bystanders to call 911 while I did the same. Now I could see how I had scraped and bloodied my knuckles during the fight. And though I may have sounded controlled and deliberate when I told the man that I was going to escort him to the ground, I was now shaking and so out of breath that I had difficulty answering questions from the 911 dispatcher.

I knew I didn't want to talk to the police without a lawyer present, so I tried calling my wife. When I couldn't reach her, I called my office for the help of any available associate attorney. Emilia was in the office, and arrived at the scene before the police did. Sitting in the cab of my truck together, I told Emilia what happened and what I thought I said to the 911 operator.

Officer Teresa Barrong soon arrived. We recognized each other from my time as a prosecutor for the city of Eugene. She first talked to the two coeds and then to me.

I did what I always tell my clients not to do. I told her my version of events. I knew I'd rather deal with the situation right then and there than let it go to court. She laughed aloud when I told her that I had said, "Sir, if you don't calm down I'm going to escort you to the ground and it's going to hurt." But she turned serious again to let me know that the girls had said the guy who confronted me by the pool was carrying a carpet knife.

Office Barrong then asked me, very seriously, "What would you have done if you had been carrying your gun? You would have been justified to shoot him." No doubt dispatch told her that the caller was a concealed weapon permit-holder who had no weapons on his person or in his vehicle. I had left my Glock 21 .45 pistol in my desk drawer before showing the condo because I didn't want to scare the tenants if they were to see it.

I said, "Teresa, if I was carrying my gun I never would have gotten in this situation to begin with. I never would have yelled and cursed at that guy and I never would have given him a reason to attack me." She nodded as if she knew exactly what I meant. It's almost a universal truth with responsible gun owners: you feel a larger responsibility to yourself, your family and society to avoid conflict when you're carrying the ultimate conflict-ending device, a tool that kills instantly. You can't just go running your mouth and get in fistfights, lest you be disarmed and killed ... or left armed to kill. Your attitude changes when you're carrying. Your focus shifts.

If I'm honest, I have to say that I'm something of a trouble magnet. I took my first punch in sixth grade and, with that, got my inaugural bloody nose. There were physical skirmishes in high school and college, and in my rugby days, some "between the whistles" fights. I never threw the first punch, but I often started the fight by asking for it with my mouth. Then, when someone proved they richly deserved it, I made a point of finishing the fight or at least getting in the last communicative act. I never thought much about it. Just thought it was what men do.

Now, standing outside the condo, Officer Barrong asked me how I wanted this altercation to end. Did I wish to press charges? "I have him with a felony for unlawful use of a weapon, and a felony for criminal mischief – the damage to your clothes." As she said the last part she gestured toward the scrapes in my designer leather shoes and the drying yellow glue stains on my suit.

"How bad is he hurt?" I asked.

"They're going to take him to the hospital. He heard something pop in his knee."

"You know what?" I said. "If he comes over and apologizes to me in front of his buddies, we can call it good. A knee for some clothing – seems like a fair trade."

She was surprised by my offer, but delivered my message. Soon I was standing in front of a crew of four or five workmen, including my assailant. He put his weight on the uninjured leg to stand, and then stuck out his hand. I took it in a firm handshake.

"Man, I'm really sorry about all that," he said to me.

"Me too," I replied. "Sorry for running my mouth earlier. But I've got to say, I was a little surprised that you jumped me from behind."

That's when one of the guy's buddies piped up to say, "You got your ass kicked by a lawyer in a suit!"

"You didn't realize that he was a 220-pound rugby player!" Officer Barrong added.

Then we all laughed and parted ways. That was the end of it, or so I thought.

I'm a little embarrassed to say that this 30-second fight left me with weeks of PTSD. I had occasional flashbacks that were incapacitating, and random, inexplicable panic attacks. I also got lost in my own head, reliving every millisecond of the fight over and over again. A few days later, driving to the Portland airport with my wife and daughter, I was replaying the fight in my head when I almost drove my truck off the road at 60 miles per hour, the rumble strip jolting me out of my daytime nightmare and probably saving our lives.

Having listened to Gerald Strebendt tell his harrowing story of the shooting on Bob Straub Parkway, I now fully appreciated how different things could have been in my condo incident. Having been through it, I now understood, deep within my synapses, how subtle the difference can be between a "good story" and a deadly encounter. And because I had my own self-defense moment, and the PTSD that followed in a far lesser incident, I thought I understood at least a fraction of what Gerald Strebendt was going through ... for having felt that he needed to shoot that man.

Now it was up to me to go through the process of determining whether Gerald's actions would be considered a prima facie case of legal self-defense, or whether we'd be looking at more of an "imperfect self-defense" claim – or, as it's sometimes put in courthouse parlance, "the summa bitch deserved killing" defense. Right now the fine points didn't seem to matter. I felt he was justified both legally and morally, and yes, I was basing that entirely on the account he gave me of the shooting.

##  Chapter 5: Managing the Media

Once it became public knowledge that we had been retained to represent Gerald Strebendt, the proverbial floodgates opened and we started getting phone calls, emails, and messages about him. Our family, friends, and plenty of complete strangers felt compelled to share their impressions of him, no matter whether they knew him personally or not.

I don't have family in the area, being from Missouri originally, but Emilia was born and raised in the Eugene/Springfield area. Through her own previous martial arts experience and connections to the close knit wrestling community, she received more than a handful of calls and Facebook messages about Gerald. Nothing positive. Her own brother had called her to say that he had run into Gerald in the gym on several occasions. He'd heard, he said, that Gerald had executed Crofut on the street. "He's guilty, right? He did it, right?" She reported to me that she had listened and tried to ask good questions. It was important for us to understand the rampant misconceptions in the community about the case, so we could work to correct them.

I took these negative contacts as another sign that having a good Media Plan in place was of paramount importance in this case, just to try to correct – or offset – the misinformation swirling around in the pool of potential jurors. We needed to work on self-defense narratives, and also some that addressed Gerald's Second Amendment right to be legally armed, even just driving home from the grocery store, as he was that night.

So it was a great relief when Peter Jarvis, my ethics counsel, called to green-light my strategy regarding media. Immediately I began calling press contacts that I had developed over the years. Then I spent some time drafting a press release to accompany my conversations with reporters and also to post on our soon-to-be-established, case-related website. Jarvis assured me there was no risk to me or my law license by doing any of this. He agreed that it was in Gerald's best interest that I didn't play the coward, especially when the ethical rule constraining pretrial publicity didn't apply until right before the trial. Still, it made me nervous, sticking my neck out publicly for a client, knowing that others tended to naively think the rule was a blanket prohibition against speaking out – ever – on a client's behalf.

After we went public I immediately felt vindicated and relieved. The Media Plan bore fruit right away. The requests for interviews started coming in within hours. Television stations from the Eugene and Portland area contacted me. I also received a call from a producer of NBC's "Dateline." My newly created website began registering page views just as quickly, which was great news. I didn't know how many witnesses might be out there to find, but I knew how to help them find Gerald and me. When people googled "Gerald Strebendt" or anything about the case, I didn't want them going to some government-biased news source. I wanted them to find our portal, where the self-defense claim had been carefully and dispassionately framed. Gerald claimed he was telling the truth, so we went out to collect as many witnesses as possible and, well, I hoped that the truth would set him free.

(Photo: Mike speaks to a reporter on the condition that she does not wake the baby.)

Over at Springfield P.D., Detective Rick Lewis was still issuing all the statements related to the Strebendt case – for some reason their Public Information Officer (or "PIO"), who usually did the media contacts, was nowhere to be seen. In one interview, Lewis told local CBS affiliate KVAL-TV that "they found Crofut's body in the street, a short distance from the two vehicles involved in the crash."

A short distance away? What vision did that conjure up? A man lying dead next to his vehicle, which was far different from Gerald's tale, in which the shooting victim had moved aggressively toward him while Gerald essentially backpedaled. I knew that the location of Crofut's body would have been logged and would definitively be determined when I got the police reports. But words matter. Sloppy writing by a busy reporter can have lasting and negative effects. Already these initial impressions were going to be difficult to get out of the minds of potential jurors. Confirmation bias would set in.

As the days rolled on, law enforcement continued to release information selectively to help the government's case. For instance, in an early February interview with a local station, Lewis said, "No other weapons were found at the scene. Crofut was unarmed."

Technically, that was an accurate statement. But it wasn't a balanced statement. Lewis didn't reveal that Gerald had told 911 callers – and the passersby – that Crofut threatened to kill him. The detective didn't provide the public any details that would have been helpful to Gerald. This was a conscious choice, I believe. It was gamesmanship. Luckily, there had been no indictment yet.

I responded in kind, telling reporters that Gerald had "no choice" but to pull that trigger in self-defense. "He made the only decision that a reasonable person would make in that situation," I said, adding, "When someone threatens to kill you, you are entitled to take them at their word."

This isn't hyperbole; it's a correct statement of the law. You are justified to kill someone if you reasonably believe that they intend to kill you. In other words, if you threaten people's lives in the dark, you're doing so at your own risk.

Presumably the police already knew what we knew – that within hours of the incident, Gerald told a friend what had happened on Bob Straub Parkway. The friend was Justin Vaccaro, and at Gerald's suggestion, he was one of the first people our investigator talked to. His account supported everything we had heard from Gerald. Verne reported the following:

On January 29, 2014, Justin Vaccaro had been working and had turned his telephone on the silent setting. After retiring for the evening, Justin awoke around 3:00 a.m. on January 30, 2014. He noticed his cell phone was flashing as though he had missed a call. The missed call was from Gerald's fiancée, Kristin Swenson, so Justin called the number back.

It was Gerald who answered the phone, and he sounded upset and frightened. Justin asked what was going on, and Gerald [told him his account in detail]...

Gerald told Justin he had left a couple of handguns in the pickup, and Justin confirmed, when we spoke, that he and Gerald had been target practicing near Hill Creek Dam a few days before the shooting incident and this early-morning phone call... [This is a great fact, I thought. Recent target practice would help explain the presence of the AR-15 in Gerald's truck.]

When asked about how Gerald sounded on the phone that night, Justin described Gerald as "terrified and completely shaken-up." Gerald told Justin that Crofut had repeatedly told him "you're going to die tonight."

This is the story the public needs to hear, I thought to myself – not law enforcement's selective comments about the case. That only fed the trolls, who were having a field day on social media declaring Gerald's guilt, and polluting the jury pool with inaccurate speculation.

While continuing to make contacts with local and national media, I decided to put the wheels in motion to check the veracity of the account Gerald had given me. With Gerald's permission, I contacted a local polygrapher to see if we could get Gerald in to see him ASAP for an examination. As I've already said, I wouldn't have much hope of getting a "lie detector test" into court, but at the early stages of a case, they can be persuasive and even affect how the case proceeds. Law enforcement relies on them heavily and the Oregon State Police Department even employs full-time polygraphers. If Gerald could pass a polygraph, maybe we could persuade the prosecution to do the right thing and slow down or even stop the investigation.

I thought that a passed polygraph might also be useful in raising money, if it came to that. It wasn't only inevitable that Gerald would run out of money for attorney's fees and expert-witness costs, it was looking likely to happen soon, maybe even before the case went to a grand jury, if that's where it was headed. Defending a murder charge all the way through trial would cost exponentially more than all the money and assets Gerald owned. Friends and family would be more likely to support a loved one that they believe in. This I knew from experience. And people are more likely to believe in defendants who have passed a polygraph.

I also had my own reasons for wanting a polygraph test done. The results would validate my belief in my client if he passed, but it would definitely call into question my faith in Gerald if he failed. It's not that the quality of our work would change if he didn't pass. However, if he failed, the quantity of any work I ended up doing for free would change significantly. I prefer to reserve the sacrifice of my personal time for my innocent clients. When a client's innocent, I'll spend every waking moment pondering and processing the intricacies of the case. I'm less generous with my personal time, however, when there's no question that the defendant is guilty.

Now I just had to hope that Gerald could calm down enough to clear the test. Even innocent clients fail polygraphs when they're under too much stress.

##  Chapter 6: Studying the Scene

I met up with David Karlin, our forensic accident reconstructionist, soon after we were retained by Gerald. He drove us in his little Prius hybrid out to Bob Straub Parkway, on the outskirts of southeast Springfield. We arrived at midday to get the best possible look at the road, and also to look for any evidence that might be out there. I always send my experts to the scene, and I try to be there for their initial review of it. In the motorcycle crash manslaughter case for which I got a jury acquittal in 2013, we actually managed to locate and collect evidence from the scene that the government's investigators missed due to ineptitude or ignored due to confirmation bias. I still have the reassembled three-foot-long wooden post that the motorcycle struck from that case in the shop at my farm. It proved to be a vital exhibit exonerating my client.

Karlin pulled over and parked on the right shoulder just before the road split into a two-lane boulevard with a grass median in the middle. He grabbed his kit, turned to me and said, "Here, wear this." It was a reflective safety vest.

While donning the vest over my three-piece suit, I asked, "What first?"

"First we look," he replied.

While some of the details of the scene were obvious, such as the bright orange spray paint on the road, other details were not going to be so easy to spot. Karlin walked the scene like a bloodhound, bent over at the waist with eyes locked on the ground, looking carefully at the road. I followed, trying not to get hit by passing cars.

While he measured and considered, Karlin pointed out areas of interest. The area where Crofut's car and Gerald's pickup collided was after the "v" where the two southbound lanes merged into one. North of where the vehicles collided, several hundred feet away, was an intersection with stoplights, and beyond that, the city of Springfield.

In the direction where Gerald and Crofut were headed, it was open road, with just a few side streets leading into neighborhoods. If Bob Straub Parkway was a river channel, these streets were like tiny creeks feeding into it. There were a few streetlights near the corners, but staring southbound in the dark of night would have been like looking into a black hole. There were houses to either side of the road, but they were set back from the street 100 feet or more and faced away, like stout watchmen with their backs turned. Fences and shrubbery were the main features of the landscape. If it weren't for traffic, the two vehicles that crashed in the road there would have been totally on their own. Who would have noticed?

"David," I asked, "do you think the crash had something to do with the merge? Or the intersection behind us?"

"The evidence doesn't tell us anything yet, Mike," replied the engineer in his typical professor's voice. "Be patient. We go where the facts lead us."

Cars passed as Karlin and I continued exploring the ditch and the landscaped median. Each time I heard one approach I looked up for safety's sake while Karlin continued scouring the ground. He was completely comfortable working in this environment, but not me. I hoped that the paint marks and debris would allow Karlin to piece together a fairly detailed preliminary picture for me, and preferably soon, so we could get off this road.

(Photo: Bob Straub Parkway looking back towards the direction of Safeway and Springfield. Crofut and Gerald would have been driving towards the point of view of the camera.)

By late the next afternoon, I had a call from Karlin. That was a surprise. It seemed too soon.

"Mike," he said. "I've got some good news, and some bad news for you."

"Bad news first," I said.

"Alright," he said. "First, while I was able to take some measurements out there, I didn't get enough to come to any conclusions. I'm going to need the police reports and photographs before I can give you any sort of concrete, usable opinion."

I understood, of course. I wanted his fastest work, yes, but also his best. "The good news?"

"The good news is that I do have a little bit of data I can give you now, something you might be able to use."

"Good. Shoot."

"I saw the markings on the road from the collision and the SPD investigation, and from them I can give you the distance between the cars and the body. Remember how the police were saying in the news that the shooting happened close to Crofut's car? That's not accurate. It was......

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## About the Authors

Mike Arnold is a trial attorney in Eugene, Oregon. He grew up in Parkville, Missouri, and moved to Oregon to attend law school. He tells stories for a living, delivering a narrative through facts and evidence to juries around the state. Often, these courtroom stories end with a jury's two-word verdict. Mike also enjoys telling stories to his daughter. These tend to be more complicated tales that reveal, to Abigail's dismay, that someone in the family is actually an alien or a robot.

Mike gained notoriety as an attorney when he stood on the courthouse steps as Ammon Bundy's attorney and told the remaining occupiers of the Malheur Wildlife Refuge to "please stand down." In the aftermath of the standoff he was credited with assisting in the negotiation of a peaceful resolution for the four remaining holdouts of the Oregon occupation.

Another of Mike's murder cases was featured on a CBS "48 Hours" episode entitled "Trail of Tears."

Mike is also the host of a legal podcast called "Law Is War with Mike Arnold," which includes  episodes with analysis of the  Ammon Bundy (Oregon Standoff) verdict, murder of  Nancy Cooper, trial  objections,  jury selection,  jury nullification, etc.

Emilia Gardner is an Oregon attorney. Reading was her first love, and there were no bounds to what genre of book she could and would curl up with and enjoy. A love of writing soon followed, but it would never take the place of consuming the words on the page written by others. Emilia is a straightforward woman and attorney, and her communication style is evident in her writing: simple, to the point, and effective.

(Photo: The authors celebrating after winning bail for a client in murder case in Hood River, Oregon.)

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