On 06-22-14, I spoke with Peter O’Neill, Matthew Pinkerton’s defense attorney. I should point out that long experience has taught me to be wary of lawyers in general and defense lawyers in particular. They have a duty to provide the best defense for their clients their abilities will allow. This is necessary and honorable, part of the basis of liberty. However, some defense lawyers–a thankfully small percentage–are not lawyers who happen to practice defense law, but defense lawyers. In other words, they will do everything and anything to win. They tend to be willing to bend, even shatter, ethical and legal boundaries. Some will actually lie, tolerate if not suborn lying in their witnesses and clients, and delight in seeing the guilty go free.

It is my considered opinion that Peter O’Neill is an honorable lawyer that practices defense law. I know many. We have often laughed about outlandish defense theories and tactics, and I’ve kidded them about some of the novel legal theories they’ve been forced to concoct to try to defend the indefensible, and we’ve laughed at their sheepish replies. I can tell who is a true believer, and who is an honest lawyer upholding the Constitution.

I hoped to speak with O’Neill because the news accounts, even of the resolution of the trial, were sketchy at best. What was most striking is what was missing, particularly virtually any information about Kendall Green. I have yet to be able to find a single photograph of him in any media source, and there is no information whatever about his background, which turned out to be a very significant factor in the judge’s decision to dismiss the case. There was also considerable confusion about whether the case was dismissed or Matthew Pinkerton was acquitted.

In addition, the third article in this series provoked a number of comments such as those by “Tasha O’Brien”:

and “Brittany”:

The first and second articles are available here and here.

I don’t know what, if any, personal relationship O’Brien or Brittany had with Green. The tenor of their brief comments suggests some relationship. What I do know is that anyone relying on media accounts, particularly if they knew little or nothing about self-defense law, would know little about the case, which is common in these situations.

O’Brien and Brittany are incorrect in another significant way: justice was served, and the full story was told. That was the prosecution’s job, a job they willingly took on. The prosecution had the full financial and logistical resources of the state at its disposal. It had more than a year and every opportunity to build its case against Matthew Pinkerton, and it had a full, fair and unobstructed opportunity to present that case. It failed because there was no case under the law.

Perhaps O’Brien, Brittany and others would have preferred the opportunity to testify, to offer opinions about what they believe happened, what the outcome should have been, or what a wonderful person Kendall Green was, but that’s not evidence, that’s not fair and just, that would be inherently prejudicial to Matthew Pinkerton–to everyone charged with a crime–and to justice, and that’s why our system of law doesn’t allow such things. Fact and evidence matter, and when the prosecution had its opportunity–as much time as it needed and chose to take–to present what it believed to be fact and evidence, it came up woefully short. That’s very, very different from not having the opportunity to tell “the full story.”

Having talked at length with Mr. O’Neill and considered the actual evidence the media didn’t bother to mention, I’m even more amazed that the case was filed. There truly was no case. Even in a state that O’Neill characterized as “a very liberal, anti-gun state,” there is no doubt that Pinkerton was absolutely justified under Maryland law in the use of deadly force in self-defense. It wasn’t even close. The judge agreed, and O’Neill has no doubt that if the case went to a jury, they would have acquitted Pinkerton “in record time.” I agree.

The Dismissal:

The case was dismissed. As I explained as a possibility, after the prosecution presented its case, after every witness and bit of evidence the prosecution possessed had been heard, O’Neill did what every competent defense lawyer does: he moved for a dismissal, he asked the judge to dismiss the case, because considering all of that evidence in the light most favorable to the prosecution, they failed to produce proof beyond a reasonable doubt. They did not meet their minimum, necessary burden of proof. Continuing with the trial would have been a miscarriage of justice.

As O’Neill explained (and as I also explained), judges almost never grant such routine and expected motions. This is so because prosecutors virtually never bring cases they can’t hope to prove, and defense lawyers just want to get the motion on the record in case of appeal; they don’t think for a minute the judge will dismiss the case. In this case, the judge immediately granted the motion and cited Maryland law relating to such dismissals. He said that the prosecution proved that Matthew Pinkerton had every right to employ self-defense under the law, and since he did, he could not be convicted of the charges. The case was dismissed, and with prejudice. It cannot and will not be filed again. There will be no double jeopardy.

O’Neill explained that the dismissal was “better than an acquittal,” which is merely the standard that there was not sufficient evidence to convict. This case was dismissed because, again, all of the evidence, presented in the light most favorable to the prosecution not only proved that Pinkerton acted in lawful self-defense–not in the opinions of people who don’t know the law and whose legal knowledge may consist primarily of plot devices gleaned from watching TV cop dramas, but under Maryland law–but there was not sufficient evidence to even sustain the charges beyond a reasonable doubt, to continue with the trial. No defense was necessary; the prosecution already provided it. The judge dismissed the case then because there was probably no practical, legally polite, way to do it earlier.

There is, unfortunately, no legal bar in Maryland to a civil suit against Pinkerton. However, considering the manner in which the case was dismissed, considering the complete lack of evidence, considering the affirmed self-defense, and considering the evidence I’ll shortly explain, O’Neill believes a civil suit against Pinkerton, who has no assets, no deep pockets, unlikely. One can only hope so.

What The Media Didn’t Tell Us:

O’Neill couldn’t praise Matthew Pinkerton enough. Pinkerton, winner of the Defense Meritorious Service medal and the Air Force Commendation Medal, has honorably served our nation and is a model NCO with nothing but outstanding performance evaluations. O’Neill’s father is a retired USAF general officer and is proud to have represented Pinkerton, who has no criminal record. He noted that the prosecution labored mightily to dig up any kind of dirt on Pinkerton and came up empty. This is not the case, however, with Kendall Green.

Green does have a substantial police record, including involvement in several assaults, one “eerily similar” to the incident at the Pinkerton’s home. In that incident, Green was involved in an assault at 2 AM, while drunk, and was struck on the head by a crowbar.

The incident where Green smashed some 15 holes in the walls of Pinkerton’s master bedroom occurred before Matthew returned from Korea. Jessica, realizing that Green was taking advantage of her kindly nature by allowing him to live in her basement, told him to move out. He became enraged and threw her against a dresser, shattering the mirror. He punched holes in the wall, fracturing a finger in the process. O’Neill was ready to present the medical records of this injury and other supporting evidence in his defense case, but it was unnecessary.

l In fact, Green assaulted Jessica Pinkerton more than once, and the defense was ready to present evidence of that as well. He was a violent man and a violent drunk.

The conflict between Green and Matthew Pinkerton began in earnest when Pinkerton returned home from Korea one night and found Green still there. Green had ignored Jessica’s earlier order to move out and intimidated her, remaining in the home against her will. Pinkerton ordered Green to leave and words were exchanged. In a preview of the night he died, Green stood, at one point, on the porch and banged on the door, demanding to be let in. Pinkerton made it clear, on that occasion and many others, that Green was not welcome and was never to return. That night, Green threatened to kill Pinkerton.

There are few clearer elements in establishing an obvious and valid self-defense case.

About a month before the night he attacked, Green actually assaulted Matthew. Matthew was in a pet store looking at fish for his children when Green “sucker pushed” him–as O’Neill characterized it, into a fish tank. Pinkerton kept his cool and managed to avoid a fight, but it was clear Green was trying to provoke a confrontation and would not leave the Pinkertons alone. This too clearly contributed to the judge’s decision.

Before Green drove to Pinkerton’s home he had most likely been there watching, for the Pinkertons had been out and didn’t return home until about ten minutes before 2 AM. Green had been told, many times, by phone and text, by Matthew and Jessica Pinkerton, to leave them alone and never to come to their home. Jessica was eventually forced to stop answering the phone and Green texted her and threatened that if she did not speak to him by phone, he “was going to do more than knocking.” This was yet another, specific threat, another reason for the Pinkertons to fear for their safety.

It was with this background–which the prosecution actually proved in their case–that Kendall green came to the Pinkerton’s home at 2 AM. He was a man unwelcome there, told never to return by Matthew and Jessica, a violent drunk, who had previously assaulted Jessica and Matthew and threatened to kill him.

Green was drunk–his blood alcohol content was .17, or more than twice as high as the Maryland presumption for DUI of .08. He committed DUI by driving there, and trespassing by simply being there. He was aggressive, enraged and yelling, banging on the door and demanding to be let in, and in so doing, committed a breach of the peace.

Matthew repeatedly told Green to leave, but Green continued to scream and demand to get at Jessica. Finally, realizing he couldn’t reason with the drunken Green, Matthew shut and locked the door. He managed to walk only a few steps into his home when Green kicked in the door and charged him. Pinkerton retreated across the room, yelling at Green to get back, but he continued to advance until Pinkerton, keeping himself between Green and Jessica and his other guests, could retreat no more. Remember that the facts of the actual attack were acknowledged by the prosecution and presented in their case, though the prosecution tried to suggest that Green merely pushed, rather than kicked, the door open.

This is a dumbfounding and legally irrelevant position on the part of the prosecution. Green committed a burglary under Maryland law when he broke into the Pinkerton’s locked home. Whether he did it by kicking the door open, pushing it open, or using a crowbar would make no difference in terms of the crime he committed.

O’Neill was amazed that the prosecution’s attitude was essentially: “Yeah, he broke in. That’s a burglary; so what?” Burglary is a felony, and when a hot burglary–when residents are present; most burglars take pains to be sure their target homes are unoccupied–usually a violent felony. That any prosecutor would think a violent burglary inconsequential, or insufficient grounds for self-defense demonstrates how corrupted their thinking about this case–perhaps the law in general–truly was.

As I suggested in the second article, this, like the George Zimmerman case, was a backward case. It is normally defense attorneys that try to minimize the criminal behavior of their clients: “Yeah, he pushed the door open, but it wasn’t a very strong door and it wasn’t really locked anyway, and burglary is no big deal; he didn’t steal anything after all…” But in the Pinkerton case, we have multiple prosecutors pretending that a violent, forcible burglary under the law, which was absolutely clear, was no big deal and barely worthy of mention because they needed to downplay it in a vain attempt to lend legitimacy to their non-existent case. In reality, Green’s burglary was more than sufficient grounds for Pinkerton to employ self-defense, but there was even more.

Not long before the attack, Matthew Pinkerton suffered a rotator cuff injury. He was not physically able to take on Kendall Green hand to hand, and could have been easily overpowered, his handgun taken and used against him and his family. This is particularly so because not only was Green enraged, screaming and drunk, he was 6’6” tall, not at all a small man, and ten years younger than Pinkerton. Interesting that these facts were not mentioned in any media account I could find.

Matthew Pinkerton was on the losing side of the disparity of force equation that night, and while recovering from an injury that left him unable to defend himself unarmed, faced a larger, younger and much more physically capable attacker, an attacker with a history of drunken violence, an attacker who had threatened to kill Matthew Pinkerton, and who had previously assaulted Jessica and Matthew and damaged their home, an attacker that had threatened to “do more than knocking,” who was drunk, enraged, yelling and aggressively attacking.

Green was in the process of committing a violent felony, including an ongoing assault in the commission of that felony, when he forced Pinkerton to shoot him once. Rather than disengaging, rather than taking the opportunity Pinkerton gave him to withdraw and perhaps, live, he chose to continue his assault and was shot twice. Only then did he break off his attack. The prosecution presented virtually all of this in its case against Pinkerton! The rest was about to be presented by the defense, and the prosecution knew it.

Given the actual facts, Pinkerton had no choice. Neither did the judge, not if he was going to uphold the rule of law. Is it any wonder the judge took the rare step of dismissing the case outright?

O’Neill observed that after the prosecution presented its case, he felt they understood, for the first time perhaps, that they had no business being there, that they had no case. If they did not understand it then, the judge explained it to them within minutes.

Unfortunately, there is apparently no provision under Maryland law that would allow the Pinkertons to recoup the costs of Matthew’s defense. And while ethics charges could theoretically be filed against the prosecutors, O’Neill doesn’t believe there would be any realistic chance they would be found culpable. He observed that the prosecutors would simply blame the grand jury, but of course, it was the prosecutors that presented every bit of information the grand jury heard, and as the venerable saying goes, a prosecutor can, through clever and selective presentation of information, get a grand jury to indict a ham sandwich.

This is truly a shame. Knowing what I now know, rather than the sketchy media accounts, there can be only two reasons why the prosecutors brought this case: they are incompetent or they are arrogantly malicious, perhaps both. There were no grounds to bring charges in this case, not on the bare facts of the incident itself, and absolutely not when the prosecution learned of Green’s history and his assaults and threats. No rational police officer knowing those facts should have recommended charges, and no rational prosecutor should have authorized them.

In any case, residents of Maryland would be wise to see that such prosecutors are strongly encouraged to seek employment less dangerous to their liberty and lives.