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Despite video and many witnesses, the outcome of the trial over the 2017 light rail stabbings is not a slam-dunk.

PMG FILE PHOTO - Now facing trial for the Trimet killings of May 26, 2017, Jeremy Christian's lawyers say he expressed his passion for freedom of speech by using it to provoke reactions. Here, he gives a Nazi salute at a protest in April 2017.Imagine:

Your back is to the wall in a confined space. You face three men who are practically shoulder-to-shoulder. Two put their faces in yours. They yell angrily. They push you backward, causing you to stumble into a chair.

Your mind is fogged by cognitive issues. Your reflexes shaped by years in state prison. You're constantly wary of violent attacks.

You are outnumbered, expecting a fight.

Given your agitated mental state, isn't it a natural impulse to reach in self-defense for the only weapon you have to even the odds — a knife?

This, lawyers say, likely will be the provocative defense mounted by Jeremy Christian's lawyers when trial starts over the May 26, 2017, Tri-Met stabbings that left two men dead and another wounded.

With opening arguments scheduled to begin Jan. 28, the trial is likely to be the most closely watched in Oregon in a decade or more. But despite a deluge of media coverage over the last 32 months and the existence of video showing Christian stabbing three men, legal observers with both defense and prosecution leanings told the Portland Tribune it could get more interesting than many expect and could include a few surprises.  

Court documents, in-court proceedings and reporting that has come out so far have mapped out the basic outlines of what happened:

• Jeremy Christian, a man with a history of racist rhetoric, got on the MAX green line train headed east.

• Christian said hateful things that some bystanders thought were directed at two girls, one African-American and one Somali, who wore a hijab.

• Three men interceded, confronting Christian.

• Christian allegedly started stabbing, leading to the deaths of Taliesin Namkai-Meche and Ricky Best, and the wounding of Micah Fletcher.MULTNOMAH COUNTY DISTRICT ATTORNEY - At a 2017 bail hearing, prosecutors laid out a timeline of the TriMet stabbings by Jeremy Christian that led to two deaths and one near-death. The redacted document was obtained under Oregon Public Records Law.

With everything captured on video, the outcome of the trial might seem a slam-dunk.

But defense lawyers Gregory Scholl and Dean Smith have contended, both publicly and in court, that the popular portrayals of the case have misleadingly left out key details.

Neither the defense or the prosecution are granting interviews, but several observers told the Portland Tribune that, given the legal landscape and the arguments the defense seems to be preparing, the outcome is not a foregone conclusion.

"It's a complicated case. There's a lot going on there," said Anne Munsey, a senior state deputy public defender, while stressing she is not involved in the case and can only speak generally.

Josh Marquis, a former Clatsop County District Attorney, agreed. "It sounds like there's going to be some very interesting legal issues raised."

Defense options limited, but potent

One thing is clear: Christian won't receive a death sentence, thanks to a sentencing law approved by the Oregon Legislature last year.

Because of that, a last-minute plea deal is unlikely, several court observers said.

Also unlikely, they said, is that Christian will plead guilty but insane. He's said he is not guilty, and many have speculated he may be seeking to use the trial as a forum to speak his mind.

That likely leaves his lawyers just two arguments to make: First, that he was acting in self-defense, and second: that he has a diminished mental capacity to form the required level of intent to support a conviction for murder.

Both arguments are highly significant.

The prosecution already faces the hurdle of proving beyond a reasonable doubt that Christian intended to murder all three men.

But under case law, a claim of self-defense makes that hurdle even higher, according to a half-dozen lawyers interviewed by the Portland Tribune.

If Multnomah Circuit Judge Cheryl Albrecht rules that the defendant's lawyers are allowed to make a self-defense argument, the burden of proof shifts to prosecutors Jeff Howes and Don Rees, who must prove not only that it's unlikely the defendant was acting in self-defense, but that it's false beyond a reasonable doubt.

Munsey, the state public defender, puts it like this:

"The defendant doesn't have to prove that he acted in self-defense. … The state has to prove that he did not act in self-defense."

Lisa Ludwig, a prominent Portland defense lawyer, said the self-defense argument, if allowed, would add a potent new element.

"That is a big lift" for the prosecution, she said. "It's hard to prove a negative."

And the defense may have material to work with. After the killings, the Portland Police Bureau grapevine was buzzing with the rumor that, based on video of the incident that had been viewed by some officers, Christian might have fodder to assert a claim of self-defense.

While no video has yet been played in court, the elements of that defense have been laid out in hearings and motions leading up to the trial. And the sequence of events will be key.

In 2017, Christian's defense submitted a psychiatric evaluation that contended that as he sat on the train, Christian was just yelling to provoke a response, and did not actually pose a threat to the girls.

Events happened fast

In a bail hearing, Scholl portrayed the first violent act by Christian — swatting at a cell phone — as provoked. Scholl noted it occurred after Namkai-Meche had changed seats to sit close to Christian and record him on video — while, according to one witness, telling Christian, "You're going to be an internet sensation." Christian then knocked the phone out of Namkai-Meche's hand.

Scholl suggested that the manner of Fletcher's approach toward Christian from another part of the train car provoked fears of imminent violence, causing a bystander, Shawn Forde — who'd urged Christian to stop his yelling — to say to Fletcher, "Hey, don't you know, he's just talking. Ain't no need to fight him over that. He's just talking ... you don't need to fight over it, you know what I mean?"

Photos of the incident and a timeline were shown in court by prosecutors during a Nov. 2017 bail hearing. The presentation showed that after Christian swatted Namkai-Meche's phone out of his hand, the two men were chest-to-chest, soon to be joined by Fletcher. In the photos, angry facial expressions and open mouths suggested yelling. Christian pushed the men backward, using one arm. A Portland police detective testified that Christian challenged both men to do something. At some point, Best got up out of his seat and stood just behind the men, and a photo appears to show Christian looking in his direction.

Fletcher then used both arms to pull Christian in a manner that caused him to stumble into the seats, and then pushed him four seconds later, according to the presentation.

Scholl cited a preliminary evaluation by Mark D. Cunningham, a psychologist retained by the defense. Cunningham wrote: "(Christian) recalled that Mr. Fletcher was telling him to get off the MAX. He recalled that Mr. Fletcher grabbed him and then pushed him down onto a seat multiple times. This sequence of interactions as recalled by Mr. Christian is consistent with video of the incident."

The psychologist wrote that, at this point in his narrative, Christian "described misperceptions of imminent attack by three or more assailants.

"Mr. Christian recalled thinking he needed to 'take care of business' as rapidly as possible to keep from being beaten by a group," Cunningham wrote.

Then, according to the prosecution's timeline, Christian stabbed 11 times in 11 seconds, causing the deaths of Best and Namkai-Meche, and nearly killing Fletcher, who survived and is expected to be a key witness.

In the November bail hearing, Deputy District Attorney Ryan Lufkin contended that Christian knew exactly what he was doing and was not acting in self-defense. Even as he was saying "hit me again, hit me again" during the confrontation, he was pulling out a folding knife with his right hand and extending its four-inch blade, held behind him so the other men could not see it.MULTNOMAH COUNTY CIRCUIT COURT - Psychologist Mark D. Cunningham's preliminary report in 2017 suggested Christian felt he faced an imminent threat of three men beating him before going on 'auto-pilot.'

Mental state could be key

Legally speaking, a claim of self-defense requires that a person's belief that he or she is acting in self-defense must be reasonable, and also that the level of force used must be reasonable.

That reasonableness standard, however, allows the defense to call on jurors to consider the perspective of the defendant.

And that's where argument about Christian's mental state could come in.

A number of observers told the Portland Tribune they expect the defense to assert that he suffers from post-traumatic stress disorder due his lengthy time in prison and solitary confinement. Not only that, but that he has "socialization" issues similar to what can sometimes be found on the autism spectrum. Some observers have linked autism to social isolation, difficulties in coping with stress or changes in routine, and hoarding. Some research suggests such a diagnosis can be helpful in court.

The psychologist's memo filed in court appears to foreshadow such a defense. It notes that Christian lacked a romantic history, had hoarded 15,000 comic books, and was under stress at the time of the killings because his mother had told him he had to move the comics out of her house, causing him to fear for their safety.

Asked to read the report, psychologist Karen McKibbin, executive director of the Portland Autism Center, immediately said, "Oh yeah, they're going to be going for the autism (diagnosis). I'd be really surprised if they didn't."

But, McKibbin added, "Autism doesn't explain why he did what he did. There is a big difference between an autistic meltdown and attacking someone else on the MAX."

Cunningham's memo said Christian has "sharply limited coping capabilities and brittle control over his emotions and behavior when frustrated or under threat. "Consistent with such brittle control. Mr. Christian reported that after being pushed down the third time, he simply reacted on autopilot."

The psychologist went on, "His deficits in social fluency, theory of mind, and interpersonal interactions are on a socialization disorder spectrum."

The survivor in the stabbings case, Fletcher, has said he is autistic and was institutionalized in his youth for "erratic anger," according to a 2015 profile.

Trials are unpredictable, several lawyers noted. While a hybrid argument of self-defense and mental state may not result in acquittal, it could lead to conviction on a lesser charge, such as manslaughter.

Munsey said that, as far as a self-defense claim, "Based on what you've told me, it would be open. A jury could go either way on that."

Timeline of May 26, 2017, TriMet stabbings

3:59 p.m.: Ricky Best boards Green Line headed east at PSU South stop.

4:01 p.m.: Micah Fletcher boards at PSU Urban Center stop.

4:08 p.m.: Taliesin Namkai-Meche boards at Sixth and Pine stop.

4:12 p.m.: Shawn Forde boards at Union Station stop. Walia Mohammed and Destinee Mangum also board at Union Station. One is wearing a hijab.

4:20 p.m.: Jeremy Christian boards at Rose Quarter stop, sits down in an aisle seat.

Over the next several minutes witnesses report they hear him say a variety of things, including profanities, mentioning "Jews" and "Arab" and "Go back to Iran," while also mentioning "freedom of speech."

4:27 p.m.: Mohammed and Mangum move seats to avoid Christian.

4:31 p.m.: Namkai-Meche moves up a row from where he had been sitting, and sits across the aisle from Christian. His right hand holds up his cell phone and points it toward Jeremy Christian.

4:31:42 p.m.: Witnesses say they see Christian grab Namkai-Meche's cell phone and slam it to the ground. Namkai-Meche and Fletcher stand chest-to-chest with Christian.

4:31:48 p.m. to 4:31:54 p.m.: Christian pushes Fletcher and Namkai-Meche backward. Fletcher grabs Christian and pulls at him, causing Christian to stumble back into a seat. Christian gets back up while shouting, "Hit me again!" Fletcher shoves Christian a second time, causing Christian to stumble backward to seats.

4:32:01 p.m.: Christian produces a knife. Fletcher pushes Christian backward again.

4:32:04 p.m.: Christian stabs out with the knife 11 times in 11 seconds, leaving Namkai-Meche and Best dead, and Fletcher in critical condition.

Source: Prosecution timeline PowerPoint, obtained by Oregon records law.


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