Convict in fatal shooting fights to clear name

Flood Law Attorney Todd Flood Comments on a Jury’s Acquittal of Assault Charges

Micki Steele / The Detroit News

September 27, 2010

Detroit –Harvey Malone’s house was burglarized and his SUV was firebombed. He lived in fear and worried the man who had terrorized him for years would return.
The Korean War veteran spent sleepless nights staring out his front window on Detroit’s west side and bought a gun off the street for $75 to protect himself.
One night in January 2008, the man he feared did return to slash the tires of Malone’s new vehicle with a knife.
The elderly man stepped out on his porch, followed the younger man, then lifted the gun and fired as the two men faced each other. “I didn’t have a choice,” Malone said. “He would have killed me.”
Last month, two weeks after his 80th birthday, Malone was sentenced to two years in prison in a case that had lawyers debating the line between vigilante justice and self-defense.
Jurors in the 2008 trial acquitted him of attempting to murder Edward Coleman, 42, but convicted him of two weapons charges. The case is similar to one involving Detroiter Tigh Croff, who was accused of fatally shooting an intruder in December. That August trial ended in a hung jury.
“If you have people taking the law into their own hands, they may overreact,” said Wayne State University criminology professor Eric Lambert. “It speaks to the public’s frustration with the inability of government to provide the services and protections that are wanted by people.”
Terri Thompson, who has lived across the street from Malone for 14 years, said she called police three times before the Malone shooting incident when her husband and two sons were attacked by Coleman.
“The police came once,” Thompson said.
Assistant Prosecutor Tanya Abdelnour said Malone, who had no prior criminal record, acted as “judge, jury and executioner.” The jury disagreed.
“Jurors often return conflicting verdicts, and in this case, like many others, it is hard to get into the minds of jurors to figure out how, and more importantly why, they acquitted Mr. Malone of assault with intent to commit murder, but convicted him of felony firearm,” said former Wayne County Prosecutor Todd Flood.
Malone’s attorney, Mark Procida, said the jury misunderstood the instructions and wrongly believed a guilty verdict for carrying a concealed weapon required the same for felony firearm.
“We don’t want people out on the streets taking the law into their own hands, creating a much more dangerous situation for the public,” Abdelnour said.
Malone is free on bond pending his appeal. The twice-married retiree spends his days designing and building upholstered benches and headboards. Procida filed a request last week for court-appointed appellate counsel.
Malone said he believes Coleman, who had spent time in prison on home invasion and drug charges, broke into his home, where he has lived for more than 50 years, and burned his Ford Explorer.
Three weeks after his truck was set ablaze, Malone spotted Coleman making slashing motions near the front tires of his replacement vehicle. He grabbed the gun and went outside. The hacked tires were losing air.
Coleman was riding a bicycle when Malone followed him down the block.
Malone said Coleman had reached into his pants pocket and said, “Harvey, you’re dead.” Malone shot him in front of a corner store, which Coleman entered and held the door. Malone, still outside, fired again and shouted to the store clerk to call the police.
Rendered a quadriplegic, Coleman died from his injuries six months after Malone’s trial concluded.
Since Malone was acquitted of assault, he could not be charged with murder.
Jailing Malone would not serve the public good or solve the underlying problem, which is every citizen’s need to be safe, said Lambert, since it’s unlikely he’ll become a repeat offender.
Malone, who suffers from glaucoma, congestive heart failure, diabetes and an enlarged prostate, wrote in a letter to the court, “Why should I go to jail for saving my life?”