Prosecuting The Victim

by
Larry Pratt

Bill and Kathy Hosack had no premonition on a February morning in 2004 that their entire world would come crashing down upon them.

Hosack had been coroner of Coos County, Oregon, until his retirement in 2004, and a pathologist in a local hospital. He had put four children through college and graduate school on his salary.

Out of the blue, a day in the country turned into a nightmare of violence. Hosack's rural property was invaded by four angry young men. Hosack's sister (Candace Upchurch), his nephew (Sam Upchurch), and his friend (Don Wyatt) had inadvertently splashed the four as they drove up the mountain dirt road.

The four assailants went looking for a fight and tracked down Upchurch and Wyatt on the edge of Hosack's property. Josh Andrade, 19, attacked Wyatt, 54, and began beating him -- breaking several bones. Not surprisingly, Andrade has a record of prior assaults.

Hosack, 63 at the time, came upon the scene in response to the ruckus, but he was unable to disengage Andrade orally. Andrade was pummeling Wyatt and trying to drown him. At this point, Hosack took out his .45 pistol and fired two warning shots. Andrade was probably on drugs because, rather than backing off, he charged Hosack.

Rather than shoot the assailant, Hosack struck him with the butt of the gun (actually, Andrade may have struck Hosack's gun as he charged), causing a round to discharge which hit Justus Cloud, 22, who was standing nearby. Cloud has a record of several prior convictions and was wanted at the time of the attack for failure to appear in court on a drug charge.

Wyatt commented that had it not been for Hosack's intervention, he would have been dead. Cloud tested positive for several drugs, but Andrade, strangely, was never tested -- even though Andrade was in violation of probation on drug charges at the time of his assault. Andrade was found to be drunk when his blood was tested. In addition to the beating from Andrade, Wyatt saw another of the assailants coming at him with a knife.

Wyatt called in a 911 report, fearing that the four assailants would make good on their threat to return -- not what one would expect of a group where one of their number had been shot. Anger sustained by drugs may well have been responsible for the threats.

While this initial threat was over, Wyatt, unfortunately, did not report that one of the assailants had been shot.

After over an hour, Hosack, his nerves quite rattled, drove his wife and mother home to Coos Bay. They passed a police car on the way down the mountain, but had no way to know that the cops were interviewing the assailants and forming an initial impression that the assailants were the victims -- an opinion the authorities never changed.

Hosack, reacting as do many victims of assault, drank some alcohol after returning home. He was still rattled when a state trooper came to his door and interviewed him. It was then that Hosack said that he had been drinking -- without qualifying that he had not been drinking before the attack. (Is it OK to drink as long as one knows that there will be no attack?)

Hosack's behavior is quite typical of victims suffering post-traumatic stress. Amazingly, the police wanted to test Dr. Hosack's blood alcohol, but never tested two of the four assailants. Since the authorities already "knew" that the senior citizens were the assailants, they only looked for evidence to convict the victims.

Anti-self defense Judge Richard Mickelson heard the case and found Hosack guilty of recklessly shooting Cloud. Mickelson said that Hosack had had time to "safe" the .45 during the attack. He based that opinion on the assailant's testimony and on the judge's own assumptions as to where the spent casings were located.

Hosack had fired two rounds in the air, then had accidentally discharged a third round after hitting his attacker on the head. Naturally, the casings were in two different areas. The judge assumed that some period of time had passed during which Hosack had moved and would have had time to put the .45 on safety.

One has to wonder at the degree of expertise Judge Mickelson has with guns since he referred to the .45 as a semi-automatic revolver. Revolvers, of course, do not discharge spent casings. Semi-auto pistols eject casings all over the place, even when the gun is fired at the same target at a range. This is especially true if two rounds are fired in the air followed right away by an accidental discharge which has the gun in another position.

Mickelson then concluded that Hosack had taken a gun to a fist fight -- a fist fight conducted by a group of young men who may all have been on drugs, but only Cloud had been tested. Evidently older men should disregard the danger to themselves and their womenfolk and be sporting enough to duke it out with assailants a third of their age. For the offense of inappropriate force -- used irresponsibly (according to the judge's expert opinion about firearms) -- Hosack was sentenced to 30 days in jail, three years probation, loss of his right to own a gun, assessed $20,000 in restitution to Cloud and fined $5,000.

At sentencing the judge opined that Wyatt, an ex-longshoreman, should be ashamed of himself to have allowed a smaller man (Andrade) beat him up. Would the judge have had the same opinion about a taller woman raped by a shorter man?

Happily, Hosack is retired, because he is likely to lose his medical license which would have cost him his job. The legal expenses have wiped out his meager savings (remember, he bore four sets of costly college tuitions). Hosack faces retirement broke, unable to practice his profession -- and a lawsuit from Cloud who has subsequently been arrested since the assault.

Judge Mickelson's decision was wildly unjust, and the personal harm to Dr. Hosack has been devastating. All of this because the Judge had a prejudice against self defense with a gun, and a willingness to believe assailants who invaded another's property and who attacked older people with no provocation. Incredibly, these assailants were untested for drugs even though there was plenty of reason to do so.

Coos County District Attorney, Paul Burgett, is just as politically correct. In other cases, he chose not to prosecute two police officers for shooting a man with one arm in a sling and another man for brandishing a marking pen. The D.A. believed the cops' lethal action was justifiable, but Hosack's non-lethal action was felonious. Double standard anyone?

For those wishing to communicate with Judge Richard Mickelson and District Attorney Paul Burgett can do so as follows:

Judge Richard K. Mickelson
Curry County Courthouse
PO Box H
Gold Beach, OR 97444

District Attorney Paul Burgett
250 North Baxter Street
Coquille, OR 97423
541-396-3121

For those wishing to defray the costs of Dr. Hosack's appeal, tax-deductible donations may be sent to Gun Owners Foundation at 8001 Forbes Place, Springfield, VA 22151.

Please be sure to write "Dr. Hosack" in the memo line if sending a check.

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