Defense rests at the Eilers murder trial

Thursday, September 03, 2009

Tampa murder suspect’s defense rests on self-defense
Nampa murder suspect James Malec takes the stand to detail the night he killed his stepson.

James Malec said he had no choice but to shoot professional fighter Justin Eilers during a family gathering Christmas night.

“The only other recourse I had, sir, was to let Justin cap me,” Malec, 49, testified Tuesday, the second day of his second-degree murder trial.

“Everything I’ve ever been taught just started taking over,” he said. “I reacted to him the only way I could.”

Like witnesses who testified earlier, Malec said Eilers was enraged and belligerent that night, making challenging comments to Malec and deliberately breaking things. But unlike Malec’s wife and the houseguest who witnessed most of the dispute, Malec said Eilers directly threatened him.

“He said, ‘I’ll kill you; I’ll do it,'” Malec testified.

Eilers made that threat after Malec drew the .45 caliber semi-automatic handgun he had in his pocket and pointed it at Eilers in a two-handed combat stance, Malec said. He said he ordered the 30-year-old Eilers to get down on the ground, but he stood his ground, made the threat and then started to move toward Malec with his hands raised.

Gwen Moore, Malec’s wife and Eilers’ mother, testified Tuesday that her son was backing up immediately before he was shot, and she thought the altercation was over until a bullet whizzed past her ear.

Defense attorney Gordon Petrie focused on Eilers’ violent profession and Malec’s training in the police use of deadly force.

Malec is a former military policeman who worked for the Canyon County Sheriff’s Office from 1996 to 2000. Petrie questioned Canyon County sheriff’s Cpl. Paul Maund about the firearms training deputies receive.

“Would you agree that if someone has no weapon in hand or on his person but has demonstrated he has the ability to kill you, you have the right to use deadly force to stop him if you feel threatened?” Petrie asked.

Maund agreed.

Then Deputy Canyon County Prosecutor Scott James countered, “In firearms training, did it say anything about whether you should be drinking alcohol when you’re carrying a weapon?”

“You shouldn’t,” Maund replied. He also agreed with James that officers are trained to not shoot someone who is backing away from them.

By all accounts, both Malec and Eilers had been drinking that night.

Petrie wanted to show the jury a video of Eilers in Ultimate Fighting Championship action to demonstrate Eilers’ “ability to close quickly, to put a person down on the mat and pummel that person into submission.” But the judge declined, sustaining James’ objection.

The defense also called Malec’s 27-year-old daughter, Jasmine, who called 911 that night before the shooting because she thought things were getting out of control. She said she heard breaking glass and Eilers yelling, “I’ll do it, I’ll do it.” When she heard the gunshot, she thought Eilers had shot himself.

She said she was surprised when she learned her father had fired that shot, “because I’ve never known my dad to not be able to handle a situation.”

The trial continues Thursday morning with closing arguments. If convicted of second-degree murder, Malec faces at least 10 years in prison, with a maximum sentence of life in prison.

read full article…