Self-defense argument expected in Chisholm trial

During an interview July 8 at the Grand Forks County jail, Rodney Chisholm told the Herald he

feared for his life when he was fighting with his brother, Donald.

Chisholm, 45, said his 59-year-old brother hit him in the head with a metal pipe sometime

around June 24. He said he responded by grabbing another metal pipe, knocking his brother

down with a blow to the head and then strangling him.

When Chisholm spoke with the Herald, he had already told investigators his version of what

happened. Despite his claim he was defending himself, he was charged with murder.

With Chisholm's trial set to start Tuesday, prosecutors are anticipating they'll be

confronted by a self-defense argument. They've asked state District Judge Lawrence Jahnke to

explain to jurors the legal limits of self-defense.

Prosecutor Jason McCarthy has submitted a suggested jury instruction that would tell jurors

that a person can lawfully kill someone to protect him or herself from death or serious

injury, but that killing an attacker is not legal if the person who's threatened can safely

get away.

In July, the judge ordered McCarthy, defense attorney Steven Light and others involved in the

case not to discuss the matter with the news media.

In light of the judge's order, the Herald asked a pair of local attorneys — who are not

connected to the case and not privy to all its evidence — to offer their thoughts on

Chisholm's side presenting a self-defense argument.

Steven Simonson, a former Nelson County (N.D.) state's attorney, noted that it's generally

difficult for a lawyer to make a self-defense argument in a strangulation case.

"You got a lot of time to change your mind when your hands are on somebody's neck,"he said.

"There has to be no way to escape in a self-defense argument.”

Alex Reichert, a Grand Forks defense attorney, said Chisholm will probably testify during the

trial if his lawyer is arguing self-defense.

"It is obviously difficult to raise self-defense when your client doesn't testify,"Reichert

said. "Most likely he'll have to get on the stand and say, ‘I was trying to protect myself.'

”

Simonson, who now works as a defense attorney, agreed: "How does he (Chisholm) assert that he

was defending himself unless he explains why he was defending himself?”

Aside from Chisholm and his brother, it seems no one else was around during their fight that

reportedly took place near Mekinock, N.D., on a plot of family-owned land the two had been

feuding over. Mekinock sits about five miles north of Grand Forks Air Force Base.

While the defense is not required to identify its witnesses before a trial, the prosecution

must do so. Among the witnesses prosecutors plan to call are investigators from the Grand

Forks County Sheriff's Department, agents with the North Dakota Bureau of Criminal

Investigation, state crime lab personnel, Donald Chisholm's neighbors and members of the

Chisholm family.

Dr. Roger Hasey, a specialist in forensic dentistry who identified the victim as Donald

Chisholm, and Dr. Mark Koponen, a forensic pathologist who conducted the autopsy, are

expected to testify as expert witnesses.

Unexplained evidence

The autopsy results, notably Donald Chisholm's cause of death, have not been made public. A

criminal complaint says Chisholm killed his brother by either hitting him in the head with a

metal pipe, strangling him or a combination of the two.

Authorities said Chisholm buried his brother on the land where they fought, and that he led

investigators to the body on July 7.

The Herald's review of certain case documents, which were filed after the initial charging

documents, revealed details about the discovery of Donald Chisholm's body that are difficult

to interpret without an explanation from authorities.

When investigators found his body, it "was partially bound using plastic ties,"and there was

"a hose clamp around its neck,"according to an investigator's affidavit.

Included in the 40 items on the prosecution's exhibit list are "two hose clamps combined

together,"a "black cable tie with (a) belt loop"and a "black cable tie.”

The affidavit says Chisholm told investigators that cable ties, hose clamps and a screwdriver

were used in his altercation with his brother, but the document does not elaborate. During

Chisholm's interview with the Herald, he did not mention these items.

Cable ties, also known as zip ties, are plastic fasteners with ratchets for tightening. They

are sometimes used to hold electronic cables together.

Hose clamps are commonly used to secure hoses in vehicle engines. They come in various styles

and sizes and are often made of metal. Some can be tightened with a screwdriver.

Chisholm, of rural Manvel, N.D., has rejected a plea deal offered by the prosecution. The

terms of the deal were not disclosed. If convicted of murder, he would face a maximum penalty

of life in prison without parole.

Chisholm, who remains in custody at the county jail, also faces felony theft charges stemming

from thousands of dollars worth of stolen farm equipment that authorities allegedly found in

his possession.

The judge has said the theft cases will be dealt with after the murder trial, which is

scheduled to end Friday.