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SALT LAKE CITY — A man found guilty of murdering his roommate, a man accused of firing "warning shots" that left a teenager paralyzed, and a man accused of using pepper spray and a taser on unarmed protestors all share something in common.
Each of them tried – unsuccessfully – to use a new Utah self-defense law to get their charges dismissed without going to trial.
In 2021, HB 227 sailed through the Utah Legislature. The new law went into effect on May 5, 2021, and now gives people who are charged with crimes and claim self-defense an opportunity to ask for a justification hearing.
During the pretrial hearing, prosecutors must then prove the person charged did not act in self-defense or the defense of others in order to take the case to trial. If they cannot prove so by clear and convincing evidence – a high legal bar – the charges are dismissed and cannot be refiled.
Even if prosecutors are successful, they cannot rely on that ruling moving forward. Defendants can still claim self-defense again at trial, just as they've been able to for decades.
"They want to have a free bite at the apple upfront and then have a second bite at the apple later, and they want to call it as justice," said Salt Lake County District Attorney Sim Gill.
Gill has been a vocal critic of the new law. He said it forces judges to make a decision meant for a jury and creates an extra hurdle for both prosecutors and victims.
"Unnecessary burdens, which revictimize victims and cost taxpayers money over again, for a problem that did not exist," Gill said.
They want to have a free bite at the apple upfront and then have a second bite at the apple later, and they want to call it as justice.
–Sim Gill, Salt Lake County District Attorney
The KSL Investigators first reported on unintended consequences of the new law in November. Since then, we've tracked every case identified by the Utah Court System as being impacted by HB 227.
That includes a felony firearms case filed against Jon Michael Clara in 2019. He fired seven shots toward a truck that rammed multiple times into the SUV he was driving. One of the bullets traveled through an uninvolved truck nearby, narrowly missing a child.
Clara claimed self-defense and urged lawmakers to pass HB 227. Almost immediately after the new law went into effect, he used it to have his scheduled jury trial cancelled and a justification hearing held months later instead.
Third District Judge Todd Shaughnessy said he found the situation troubling, but felt under the new law, he was forced to rule in Clara's favor.
"I believe my hands are tied," he said, "and I have no choice, given the statute, but to dismiss the case."
A jury never saw the video captured by Clara's dashcam that night, despite the judge's belief that one should.
"This case is, in the courts view, a classic case that should be decided by a jury," Shaughnessy said.
If a person is sitting in jail on a homicide charge where there is a valid and legitimate claim of self-defense, that person ought to have the ability to have that issue resolved early in the case.
–Mark Moffat, Utah criminal defense attorney
Utah criminal defense attorney Mark Moffat supports the new law. He told KSL people who've acted in self-defense should not have to invest time and money in a jury trial. And if prosecutors have a case they can win at trial, he believes they shouldn't have an issue disproving a self-defense claim early on.
"If a person is sitting in jail on a homicide charge where there is a valid and legitimate claim of self-defense, that person ought to have the ability to have that issue resolved early in the case," he said.
Moffat said the new law marks a return to a time in Utah's past, when cases were more thoroughly vetted during hearings early on in the court process.
"And it's in this very limited, narrow slice of cases that involve the use of self-defense," he said.
But is a law intended to prevent unnecessary prosecutions causing unnecessary delays?
The KSL Investigators analyzed dozens of Utah court records from the first 365 days that HB 227 was in effect. We found 52 defendants requested a self-defense justification hearing under the new law in 53 cases. One defendant used the new process in two cases.
- Seven requests for a justification hearing were denied because the cases involved domestic violence, meaning the new law does not apply.
- 11 cases either moved forward without a hearing or were resolved in other ways, such as a plea deal.
- 10 cases are still pending.
- In 22 cases, judges sided with the state, either ruling the defense didn't qualify for the special hearing or that prosecutors presented enough evidence to disprove a self-defense claim.
- In just three cases, defendants successfully used the new law to get their cases permanently dismissed, without going to trial.
And judges in two of the three cases in which defendants were successful voiced concerns, including the judge in Clara's case. They even urged prosecutors to appeal their decisions.
"It's almost rare, unheard of where a judge would say that," said Gill. His office has followed the judge's guidance and is appealing the ruling in Clara's case.
In response to concerns coming from the bench, Moffat said, "If the courts are concerned about ambiguities in the law, they have legislative liaisons that can reach out to the Legislature."
While the KSL Investigators found Gill's office has prevailed in the majority of the self-defense justification hearings held in his district, our research also shows those cases are often delayed by months.
Gill is calling on the Legislature to revisit Utah's self-defense law.
"Are they're going to pay attention and take seriously the collateral consequences of their decisions? Do they care about victims? Do they care about justice, or is it just lip service? I guess we'll see," said Gill.
Republican Rep. Karianne Lisonbee sponsored HB 227. She did not respond to a request for comment for this report.