Johnson acquitted

If the woman you loved was thrown to the ground in the midst of an argument, would you step in to end the threat by whatever means necessary? If you cannot definitively say you would have made different decisions to the ones Jessie Johnson made on the night Doug Haar died, then you cannot find him guilty of murder.

This was the argument presented in the closing statements of defense attorney Don Fuller, three days after the jury convened to hear the case. In the end, despite what many believed was a clear-cut case for the prosecution, it was the argument with which the jury agreed.

“This is a case about a young man who had to face his tormenter,” Fuller said. “This is about a man’s right to defend himself and his loved ones.” Johnson was acquitted on all charges.

The incident

In the early hours of August 1, 2018, three people left the Dime Horseshoe Bar and drove to Sundance Travel Center to purchase snacks. A love triangle existed between those three people, causing an argument to break out when Marty Smith appeared to choose Johnson over Haar.

As the jury saw for themselves in video footage taken from the scene, the argument turned physical between Smith and Haar; Smith can be seen hitting and slapping Haar, who repeatedly pushes her away and once or twice approaches Johnson. Eventually, Smith falls to the ground and Johnson intervenes.

In the video, Johnson takes Haar to the ground in a headlock and then switches to a chokehold. For six minutes after Haar appears to pass out, he continues to hold this position.

Dr. Thomas Bennett, forensic pathologist, testified that the cause of death was traumatic asphyxia. “He basically couldn’t breathe,” he said, due to the chokehold and the weight of Johnson on top of him.

Bennett noted that the toxicology report for Haar revealed a blood alcohol level of 0.209, which was a significant contributory factor to his death.

“When you are this intoxicated, you’re not able to protect yourself as much,” he told the jury.

Sharing blame

From his opening statement onwards, Fuller implied that Johnson was far from the only person culpable for Haar’s death. In Fuller’s words, Haar himself, the “mean drunk” with a “head full of jealousy and belly full of booze,” bears some responsibility for what happened.

According to Fuller, Johnson and Smith had been dating for just two weeks and Johnson found Haar threatening. Johnson’s roommate testified that Johnson had been concerned about his personal safety, though he was unable to provide specific examples of threats.

Fuller claimed that Smith did not stumble and fall to the ground just before Johnson took action, but that Haar threw her down. He told the jury Haar was “a bully” who attacked Johnson first with a chest bump and then by throwing a punch that missed, but would have had a “powerful” impact if it had not.

But Johnson did not respond to these acts of aggression, Fuller said. He acted only when Smith took damage from what Fuller described as being thrown “violently” into a soda machine.

Fuller painted a familial picture of Johnson’s life, describing his involvement in sports and other school activities, his Baptist upbringing and hobbies that include reading philosophy and theology.

Conversely, Fuller disparaged Smith, calling her “a piece of work” and “what a peach”. He told the jury she was a significant part of the problem, knowingly flirting with Johnson in front of Haar.

Testimony from DCI Agent Jason Ruby appeared to corroborate Fuller’s argument. Smith, he said, was the primary aggressor in the fight.

A witness from the Dime Horseshoe Bar supported the idea of Johnson’s infatuation with Smith, stating that he had been in a good mood, didn’t appear drunk and had told her Smith was “the one”. Smith, meanwhile, was drunk enough to stumble and flirting with both Johnson and Haar, she said.

Calling for help

Fuller pointed out repeatedly that Johnson tried to call for help as the incident unfolded. Johnson asked the store clerk to help him restrain Haar and call 911; he also dialed 911 into his own phone earlier in the argument, but was prevented from completing the call by a chest bump from Haar, Fuller said.

The store clerk testified that he called dispatch after Johnson placed Haar in a chokehold. When Johnson asked him to call 911, the clerk informed him he had already done so.

The clerk also confirmed that Johnson asked for his help to hold Haar down, but that he refused, partly for liability issues and partly because, “I didn’t want to get hit”.

Johnson told DCI in his interview that, while he had Haar in a chokehold, he commented to the clerk that law enforcement needed to arrive soon because his arm was getting tired.

Had the help Johnson requested not been so slow, Fuller said, the outcome may have been different.

“The 911 response time was 20 minutes. Bigger places would perform an internal investigation, it was so slow,” Fuller said.

In her closing statements, Deputy County Attorney Linda Black, for the prosecution, said there may have been a different reason that Johnson did not complete his first call to 911. Black suggested Johnson would have known his girlfriend was going to jail “for starting this whole dang mess”, so the argument “did not bode well for the plans he had for that night,” she said.

Threatening behavior

Johnson feared what Haar might do to himself and the woman he loved, Fuller argued. The older man was bigger and heavier and acting in a “menacing” manner.

During Agent Ruby’s testimony, Fuller presented still photos from the video. In the images, Haar can be seen “lurking”, making rude gestures at Johnson and Smith and moving towards Johnson repeatedly, while Johnson is taking no action at all and can be seen sipping a milkshake while standing apart.

The store clerk testified that Haar was “kinda upset” with Smith when the trio arrived. He told them to leave, he said, but only Haar obeyed and then came back into the store.

“It looked like they were trying to punch each other, but they missed,” he said of Johnson and Haar, though he testified that he did not see the argument become physical, did not hear Haar threaten Johnson and did not see how Smith ended up on the floor.

Fuller used the still images to argue that Smith was thrown to the ground by Haar, rather than fell over, which prompted Johnson to act.

Left alive

Fuller aimed to establish that Johnson did not realize his actions had killed Haar and, in fact, believed he was still alive. When Johnson and Smith left, Fuller said, they were fleeing before Haar could get back up and the pair made a call to 911 to ask for a welfare check on Smith’s children because they feared what Haar might do.

In his interview with DCI, Johnson was asked if he believed Haar was still alive as he left the gas station. “I thought he was,” he said.

Johnson and Smith were not the only ones who thought Haar was still alive, Fuller said: the clerk, too, went about his chores assuming Haar was simply passed out on the floor. The clerk confirmed this, testifying that he did not approach Haar because he was concerned he might “come up swinging”.

Fuller claimed that even Officer Chris Tomford approached the scene as though Haar was alive, passing his body many times and not checking his breathing until several minutes after arriving. Tomford, however, explained he had concentrated on securing the scene before approaching Haar and then returned to his patrol vehicle for protective gloves before touching the body.

He stated that he had been immediately concerned for Haar’s welfare due to the purple color of his skin, which is “usually indicative of sudden cardiac arrest.”

“I saw the skin color immediately,” he said.

Fuller asked Agent Chris McDonald, lead investigator, whether any evidence exists to show that Johnson knew Haar was deceased when he left the store. McDonald responded that there is none.

Should Johnson have known that the chokehold he used was potentially deadly? During his testimony, Agent Ruby described his job experience as a custody and control trainer; in this capacity, he does not teach moves that impede a person’s airway.

The state also called Johnson’s wrestling coach to the stand, who testified that he had never taught the chokehold as it is dangerous and illegal in the sport. Fuller responded: if nobody had taught Johnson the dangers of the chokehold, how he could have known it might be deadly?

Fuller asked Ruby if Johnson could possibly have seen whether Haar was still breathing from his position on top of him. No, Ruby replied, but he would have been able to feel it.

Black argued that Johnson did know Haar was at least unconscious as there was “no movement whatsoever” and the video shows he stopped bracing his feet against the cooler when he found he no longer needed to exert as much pressure.

Self defense

Black dismissed the concept of self defense as being relevant during her closing statements, telling the jury that Johnson might have told law enforcement he was being threatened, “But what do the defendant’s actions show?” The only example Johnson gave of Haar being aggressive was something yelled across the bar about Johnson not being a “working man”, she said.

Was Johnson scared? Not too scared to go drinking with Haar, she said.

“More importantly, the defendant left with Doug Haar and Marty Smith,” she added. “He was so scared of Doug, he left in a car with him?”

Johnson arrived at the Turf to see the “love of his life” drinking with her ex, he saw Smith bring her ex to the Dime and then he saw Smith was planning to leave with her ex, Black said.

“He was concerned Doug and Marty were going to hook up,” she said. “He wasn’t going to let that happen.”

Haar was upset, not aggressive, Black said. She reminded the jury that Haar kept his hands by his sides while chest bumping Johnson and had plenty of opportunities to throw punches, but did not; Haar did not take his first swing until Johnson shoved him almost to the point of falling over.

More importantly, Black argued, self defense is no longer a valid excuse once the other person ceases to be a threat. According to Bennett’s testimony, she said, it’s possible to see the moment in the video when Haar is unconscious and no longer moving.

“At that point, Doug Haar is no longer a threat…that’s when any claim of self defense ends,” she said. After that, she reminded the jury, Johnson continued the chokehold for six minutes.

Black also pointed out that all three had been asked to leave the gas station and a person only has the right to use reasonable force if they are legally present at a location. Not only did this arguably give Johnson a duty to retreat, she said, the law only allows the level of force a reasonable person would deem enough to avoid their own imminent death.

Black also pointed out that, while Smith and Haar may have blocked Johnson’s access to one of the gas station’s doors, there were three potential exits available to him. Flight was therefore a valid option.

“He had a number of ways to get out of that building, but chose not to,” she said.

Nor did Black agree that Johnson was scared for his life, arguing that it’s difficult to believe he was that worried if his next moves after leaving the travel center were to go get snacks and have sex with Smith.

The state does not have to prove that Johnson intended to kill Haar, Black told the jury; only that he intended to perform the action that resulted in Haar’s death.

“There’s no accident in putting Haar in a chokehold,” she said. “That’s second degree murder.”

Johnson’s perspective

According to Fuller, the law states that a person has the right to defend themselves if they reasonably and honestly believe they are in danger – whether that danger is real, apparent or later determined to be false. What matters is not what we judge of the situation in hindsight, while acting like “Monday morning quarterbacks”, he said, but what was going on in Johnson’s head at that moment.

Fuller reminded the jury that Johnson told DCI he believed the five-foot-ten Haar to be at least six feet and three inches in height – much bigger than himself. If he’d let Haar go, he thought it would be all over for himself.

“The law says we look through the eyes of Jessie. What was he seeing?” he asked.

It’s not about what Johnson should have done, Fuller said, but the options actually available to him. He had no obligation to run, and would a reasonable man really have done so and left his date behind?

To judge the case, one must remember that Johnson had to make a split second decision under tremendous stress, Fuller said.

“We were not in Jessie’s shoes,” he said. Johnson’s goal was to bring “a violent man under control”, and if that’s all he was trying to do, he is not guilty. “Jessie did what he thought was right at the time.”

Fuller asked if it could really be considered that Johnson acted unreasonably when he knew Haar’s aggression was really intended for him and when threats and violence were being administered to his loved one. “What would you do?” he asked the jury.

Even then, said Fuller, Johnson did not intervene for a long time. When he did, he held Haar down “for dear life” waiting for law enforcement to arrive, while knowing there would be little contest if the bigger guy got up; Fuller asked the jury, wouldn’t you have done the same?

If you don’t know what you would have done, he said, that’s reasonable doubt. The force Johnson used turned out to be deadly, but he didn’t know that – “Everybody thought Haar was alive”.

The store clerk refused to approach the “angry drunk” and Tomford kept his distance, Fuller said.

“They perceived danger,” he said. “Now it turns out they were not in danger, but that doesn’t matter.”

Would there be any criminal charges if Haar had popped back up and been fine after Smith and Johnson had left? “I don’t think so,” said Fuller.

Concluding his closing argument, Fuller told the jury, “A man has the right to defend himself against a bully. It’s the law and it’s instinct. Don’t take that away from Jessie.”

The verdict

After deliberating for several hours, the jury found Johnson not guilty on counts of murder in the second degree; voluntary manslaughter; involuntary manslaughter; and aggravated assault and battery.

Smith was tried in February and found guilty of being an accessory to involuntary manslaughter and an accessory to aggravated assault and battery. Her sentencing is currently scheduled for July 10.