NJ criminal defense attorney and frm. head NJ Morris County Prosecutor Robert (Bob) Bianchi appeared on Fox New’s Happening Now with host Heather Nauert and co-guest Yodit Tewolde.

We discussed the fascinating case of a burglar, David Baily, who was shot by a homeowner as he was fleeing the homeowner’s garage after having committed a burglary inside of that garage.

Burglary is essentially the unlawful breaking into a “structure” with the intent to commit a crime, even a minor offense. In this case, Baily broke into the homeowner’s garage at nighttime, setting off an alarm. Upon being alerted to the burglary, the homeowner pursued the burglar with his firearm. As the burglar was fleeing the premises, the homeowner shot at him 3 times, hitting the burglar in time in the back of the arm. Two of the shots were fired while the burglar was off the premises and down an alleyway where other homes were situated.

The police charged Baily with burglary but also charged the homeowner with assault for having recklessly caused injury to the burglar having illegally shot him as he was fleeing.

After a trial, the homeowner was convicted of “criminal reckless conduct that caused serious bodily injury.” The burglar later pled guilty to burglary.

Afterward, the burglar filed a civil lawsuit alleging that he was damaged by the “negligent actions” of the homeowner for having shot him while he was fleeing and no longer a danger to the homeowner.

In our discussion of this case, I stated my belief that this is not a good civil case for the plaintiff/burglar. I feel the jurors will feel tremendously sympathetic to the homeowner and will have little sympathy for a person who commits crimes. The concept of “jury nullification” is a real one. Any good trial attorney knows that at the end of the day a jury may very well feel that something wrong happened, but excuse the conduct nevertheless.

Also important in a civil case, is that the actions of the plaintiff (here the burglar) are also considered by the jury in terms of any negligence he committed that may have contributed to his injury. Here, had he not intended to commit a crime, he would not have been injured. I think this will win the day for the homeowner.

Criminally, we discussed how as a prosecutor there is tremendous discretion to prosecute, or not prosecute, a person for a crime. The idea behind prosecutorial discretion is to allow prosecutors to take into consideration mitigating factors that excuse an offense, even though not amounting to an actual legal defense.

While here it is true that shooting randomly in a way that could cause injury to innocent people is a crime, it is also understandable that the homeowner (who led a law-abiding life) was acting due to the stress of the situation and no one other than the defendant was injured. Given that only the burglary suspect was injured, I think many other prosecutors would not have pursued charges in a similar situation.

© 2016 Robert (Bob) Bianchi

NJ criminal defense attorney

Former head NJ Morris County Prosecutor

Founding Partner The Bianchi Law Group