Originally Posted by
chesty for president
Handloads for self-defense: the Daniel Bias case
Massad Ayoob
Situation: Authorities try to determine if a death was suicide, blameless accident, manslaughter, or murder by replicating gunshot residue.
Lessons: Load easily replicable factory rounds in your defense guns ... and don't leave firearms where suicidal people can access them.
May, 1990. I hang up the telephone and lean back in the chair in my office and utter the words, "**** it!"
John Lanza, the attorney defending a young man against a charge of Murder, has just told me, "The state will contend that a different load with a different powder charge was used than what we determined from the defendant's reloading notes was likely to have been in the gun at the time the fatal shot was fired."
It's important. It's very important. The difference is whether it's Murder as charged, or a man trying to pull the gun out of the hand of a woman he loves as she tries to commit suicide ... and tragically, failing to stop her.
The bullet that tore through Lise Bias' brain and killed her almost instantly had been fired from a Smith & Wesson Model 686, a heavy-duty stainless steel target-grade service revolver which, in this case, had a 6" barrel. The rifling marks conclusively showed the death bullet had been fired from this particular firearm, serial number AFH3446. Both prosecution and defense would stipulate this was the death weapon.
The problem was that the prosecution thought it was a murder weapon.
The Handload
Dan and Lise Bias were a young couple trying to conceive their first baby. Childless after five years of marriage, Lise was taking fertility drugs. Daniel N. Bias, Jr., 26, was a gun enthusiast who reloaded his own ammunition, and a competitive-level archer. He desperately wanted his young wife to get more interested in his hobby, and he felt it imperative she have a defense gun of her own.
Lise, 27, was recoil sensitive, and more comfortable with a revolver than an autoloader. Danny chose the 686 for her and set about handcrafting a mild .38 Special load that wouldn't kick much. He found a mould for an unusually light .357" diameter bullet, a 115gr. semi-wadcutter, and cast a batch of them. He loaded up 50 rounds, in Federal .38 Special cases that happened to be marked "+P." Having looked up popular light target loads for the 148-grain full wadcutter projectile, he decided to try three recipes with Bullseye powder: 2.3, 2.6 and 2.9 grains. Each was primed with Winchester small pistol primers, and all were in the same box, externally identical to one another. Lise had never liked guns, and went shooting with Danny only to please him; he found she could handle these loads in the 686, the only handgun she had ever fired, and decided to load them into the revolver for home defense, and put the gun under their bed.
More than a year before, Lise had become depressed and threatened to shoot herself.
This fact was recorded at a local hospital. Danny, believing her to be "over it," had thought it was now safe to leave the loaded revolver readily accessible in their bedroom.
The Incident
At approximately 9 p.m. on the night of February 26, 1989, the Model 686 was discharged once at the Bias' home in Phillipsburg, New Jersey. The handloaded 115-grain lead bullet punched into the left side of Lise's skull 2 1/2" behind and 1 1/4" above the ear canal. It drilled through the cerebellum and through the temporal and parietal lobes, coming to a stop deep inside her brain. Death was instantaneous. She was pronounced DOS, dead on scene.
She and Danny were alone in the master bedroom when it happened. Danny said they had watched America's Most Wanted and Married With Children on TV, then folded laundry together. Lise had told Danny she wanted to buy a ring, he had replied she had enough jewelry and an argument erupted. An investigator who took Danny's statement characterized it as follows, verbatim.
"He proceeded downstairs and laid on the couch and watched TV. She came down with the .357 magnum in both hands. She stated that she had just got done watching a movie on TV and that 'it was so easy to shoot you any time I wanted.' He told her to 'stop ****in' around,' and to put the gun away. She went upstairs to apparently put the gun upstairs, and approximately two minutes later he followed to ascertain if she did. When he walked in the master bedroom, he observed her standing in front of the mirror with the gun in her left hand pointing it at her head. He thought she was joking because of the fact she is right-handed and had the gun in her left hand. When she didn't acknowledge that he was standing there, he made a 'rash decision to grab it before she hurt herself.' He grabbed her left hand with his left hand and pulled the gun back. At that instant the gun fired and she slid off the dresser falling on a portable heater."
Handload Confusion
The revolver was found with two of its six chambers empty, one containing the spent casing from the fatal shot, and three more containing Danny's live handloads. He explained to authorities he customarily loaded the gun with only four cartridges. An empty chamber was kept under the hammer, and the cylinder was set so that the first pull of the trigger would cause the hammer to fall harmlessly on the next empty chamber. He was afraid that Lise might get panicky, and wanted the gun set so it would take two deliberate pulls of the trigger to fire it in self-defense. This would turn out to become a significant issue in the case, but not until much later.
The gun had been loaded with its four rounds at random from the box that contained 2.3 grain, 2.6 grain, and 2.9 grain Bullseye reloads. There was no way to determine which of the three powder charges was behind the bullet that entered Lise Bias' head.
Other ammunition was confiscated from the Bias home as evidence after Lise's death. The warrant search reported turning up eight semi-wad-cutter .38 Special cartridges from a desk in the attic; another from elsewhere; "two jacketed .38 cal"; and "one spent casing (headstamped) W Super W 38 SPL +P."
Danny was careful to tell the investigators the revolver had been charged with handloads. During the grand jury inquest, the following exchange came with a senior investigator on the stand:
Prosecutor: "In fact, the uh, the rounds that were uh, taken that night and the rounds that were tested were rounds that Mr. Bias himself had reloaded, is that correct?"
Sergeant: "Yes, that's correct."
However, the test ammunition taken from the Bias home and submitted to the crime lab for examination included cartridges with R-P, Remington-Peters, headstamps. The loads in the gun, and in the box it was loaded from, were all in Federal +P cases.
Apparently, the handloads taken for testing were full power loads. They deposited visible gunshot residue until a distance of 50" was reached. Factory Federal 158-grain lead semi-wadcutter +P would leave visible GSR at that distance or greater.
No particulate matter, sooting, tattooing, or other evidence of GSR of any kind had been found on Lise Bias' hair, head or clothing. The medical examiner took pains to measure the dead woman's arm's reach, and determined approximately 30" for that measurement. The investigators and experts were unanimous at the trial: she could not have shot herself without leaving gunshot residue.
The grand jury indicted Danny Bias for Murder in the First Degree.
The Trials
I obtained the necessary mould, and working with gunsmith and expert witness Nolan Santy, put together exemplars of all three of Danny's handloads that were in the mixed box. The three remaining cartridges from the death weapon could not be disassembled or test-fired. They were the property of the court, evidence in what was developing as a murder case, and the necessary tests would literally "destroy the evidence." It was not permitted.
Exemplar evidence is evidence that is not the actual thing at the crime scene, but is identical to it. With the duplicate loads in an exemplar six-inch Smith, Santy and I determined the 2.3 grain Bullseye load with the little 115-grain bullet would deposit GSR to perhaps three feet. At that distance, it left only about a dozen loose particles. At 24" there was still only loose particles, and even at 20" the powder would still be in very loose particles, with virtually nothing embedded. The 2.6-grain and 2.9-grain loads deposited slightly more GSR particles, but still very loose with virtually nothing embedding. Particulate matter from these light loads was so sparse and had hit the white cotton cloth (the same background that had been used by the crack NJSP crime lab in Trenton for the prosecution's testing) so feebly it fell away from the cloth from the force of gravity.
Thus, the indications were that with the loads we believed to have been actually in the gun, the GSR would be so sparse and lightly deposited it was entirely possible none remained by the time the body was forensically examined the day after the shooting. There was considerable bleeding from the entry wound. Blood is liquid, and liquid washes things away. Blood is viscous, and sticky substances can obscure tiny particles. Given the light loads in the gun, in short, it was entirely possible Danny Bias was telling the truth and the gun had been in Lise's hand when it discharged, and there were well-established reasons why no GSR might have been found on the body when the totality of the circumstances were considered.
Danny's first trial ended with a hung jury. The costs of his defense had exceeded $100,000, bankrupting him. John Lanza had done an admirable job with the evidence he had to work with, but had swallowed $90,000 in unpaid legal lees and couldn't go to trial again for free. The Public Defender's office appointed another skilled lawyer, Elizabeth Smith, to represent him in the second trial.
Seeing the devastating effects of the GSR evidence against Bias the first time around, Smith attacked the evidence gathering. She explained to me much later, "I think in the second trial, I was able to effectively cross examine Dr. Mihalakis (the ME who did the autopsy) about how the evidence was collected (and) was able to really raise doubts about the GSR issue. I don't think the second jury was convinced one way or the other about the GSR evidence." Thus, while the state was unable to show that the GSR should convict Danny, the defense was likewise unable to show GSR evidence that would have exonerated him. The second trial also ended with a hung jury.
At this point, the judge threw out the Murder charges. Smith remained with Bias for his next two trials. The third time, in the mid-1990s, Danny was acquitted of Aggravated Manslaughter, but found Guilty of Reckless Manslaughter. The Public Defender's Appellate team swung into action, and the conviction was overturned.
New Jersey v. Daniel N. Bias ended with a fourth trial in the late 1990s. Explains attorney Smith, "By the fourth trial, the state had gone to a new theory: that he had pointed the gun at his wife and pulled the trigger, believing the hammer would fall on an empty chamber. He was convicted of Reckless Manslaughter. He was given a six-year sentence, of which he served three years and was then released on parole."
The ordeal had lasted well over a decade. It had not only bankrupted Danny Bias, but had devastated him and his family. Today, though still an ardent bowhunter and archer, he is a convicted felon forbidden to own firearms.
The Lessons
First, if there is someone in your home who has a history of suicide attempts or other mental health issues, do not leave firearms accessible to them. If you have this situation and feel a need to be armed, keep the handgun on your person dawn to dusk, thus secure from others' hands but always accessible to yours, and when you prepare to sleep, put it in a quick-release lock box to which only you know the combination. There are those who would argue leaving the loaded gun where a person in that state of mind could reach it might in itself be so reckless as to warrant a Manslaughter charge.
Second, always remember that after a high-stress incident you'll be in no state of mind for a lucid discussion with an investigator who may suspect you of murder, as will typically be the case when a husband is alone with a wife who dies violently. Looking back today, Attorney Elizabeth Smith says, "I don't think it would have gone to trial if he hadn't given a statement. I don't think without that, they could have brought the case. They kept going back to the statement, 'It couldn't have happened the way he said it did.'"
Third, there is a strong case to be made for reserving reloaded ammo for practice, training, competition, and hunting and loading defensive firearms only with modern, factory-made ammunition.
Trouble With Handloads
I decided to focus on this case this month after an interminable discussion that ran over five computer threads on four elcctronic Internet forums on the subject of liability that can be incurred by using handloads in defensive firearms. I took the position I take here--don't use handloads in defensive firearms--and challenged those who preferred them to give a tactically sound reason why.
With thousands of views logged, the only reasons for carrying reloads were: "I get an inch at 25 yards with my loads, and only 2" groups with HydraShok." This, I submit, is not a decisive advantage, and if you think it is, there are many affordable factory handguns that will put five shots in an inch at 25 yards with the right factory ammo. See American Handgunner 2006 Tactical Annual, page 82.
"I save as much as 50 cents a cartridge with my carry reloads." Balance that against Danny Bias' six-figure legal bill in just his first trial, not at all uncommon in murder cases, and factory amino can be extraordinarily cheap insurance. Once you know your gun feeds with your preferred factory round, you can pretty much duplicate it for practice and get your cost savings there.
"My amino is more reliable than factory." One poster noted his pistol had locked up on him when he fired a factory cartridge that didn't have a flash-hole, a one-in-million occurrence. While you may well be one of those very few who can actually handcraft better amino, is it enough to warrant the liability it brings? And when you're accused of handloading "to make deadlier ammo" (as happened in another case, N.H. v. James Kennedy), can you convince a jury of 12 lay people you make better cartridges by yourself, after work, with a few thousand dollars worth of hobbyist equipment, than is produced at a vast ammunition factory with quality control and trained engineers?
The "regular bullets weren't deadly enough for you" argument is not the big reason I recommend against handloads for defense. The forensic replicability factor is the main reason. Listen to John Lanza, who had to fight for Danny Bias' future in court.
"When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff" or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target. Stippling or powder residue, and its amount, would relate to the distance between the barrel of the firearm and the victim or target. Lack of powder residue would reflect a distant shot as opposed to the presence of powder residue which would reflect or prove a close shot," explains Attorney Lanza, who adds, "With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load."
When I asked Elizabeth Smith about the handload crippling Danny's defense, she replied, "You're certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, 'It couldn't have happened the way he said it did.'"
For several years, certain "Net Ninjas" have been spreading the false belief that no one has ever gotten in trouble in court from using handloads. Now you know better. The records of the N.J. v. Daniel N. Bias trials are archived at the Superior Court of New Jersey, Warren County, 313 Second Street, P.O. Box 900, Belvedere, NJ 97823. Those wishing to follow his appellate process can begin with the Atlantic Reporter at 142 NJ 572, 667 A.2d 190 (Table). The only reason handloads have not been a factor in more cases is that most people who go in harm's way are already smart enough not to use them for defense
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