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Marissa Alexander’s Bail Hearing in “Warning Shot” Case Delayed To Next Week

Marissa Alexander’s Bail Hearing in “Warning Shot” Case Delayed To Next Week

The bail hearing scheduled today for Marissa Alexander has been rescheduled for next Wednesday. No reason was given.

Marissa Alexander gained infamy for firing a “warning shot” past the head of her estranged husband during an argument, while his two small children stood at his side. The bullet passed closely by his head, pierced the wall immediately behind him, and embedded itself in the ceiling of the next room. He was not armed, nor was there any evidence that he had threatened her with deadly force.

Alexander was offered a plea deal for 3 years imprisonment, but she chose to take her case to the jury.  They deemed her conduct was not lawful self-defense, and therefore not justified.  They convicted her of aggravated assault.  Because she had fired a gun in the course of committing her crime, Florida’s “10-20-Life” statute (775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence) mandated a minimum sentence of 20-years imprisonment.

On appeal her original conviction was overturned because of a meaningful error in the jury instructions on self-defense, but it seems likely the outcome will be the same if brought to a second jury trial, even with corrected instructions.  If another plea agreement is offered, it would seem prudent of her to accept.

Legal Insurrection has covered the Marissa Alexander case in numerous other posts, including:

The Myth of Marissa Alexander’s “Warning Shot”

Marissa Alexander Wins a “Do-Over” in Florida “Self-Defense” Case

The Marissa Alexander Case Wasn’t About “Stand-Your-Ground” Either

–Andrew, @LawSelfDefense, Law of Self Defense Facebook

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

This case is now more of a political case than a legal case. HB 89 (defensive display of a firearm and use of warning shot) seems tailor made for Alexander.

The Appellate Court reversal contradicts Falwell v Florida 5D10-2011. In Fallwell the Court affirmed a conviction with an erroneous jury instruction that read

To prove the crime of Aggravated Battery, the
Defendant must prove the following two elements beyond

That Court held the instruction was not a fundamental right. So the objection had to be lodged a trial to be preserved. The Alexander Court found just the opposite.

    You’re (or your source is) misreading Falwell. Here’s why the court didn’t reverse in that case:

    “Generally, it is fundamental error for the trial court to instruct the jury that the defendant has the burden to prove the basis for self-defense beyond a reasonable doubt, because it raises the possibility that the jury may apply the wrong burden of proof in convicting the defendant. However, fundamental error can be waived when defense counsel requests an erroneous instruction, or affirmatively agrees to an improper instruction.

    Here, Falwell affirmatively agreed to the flawed jury instruction. When the instructions were read to the jury, Falwell’s counsel agreed with the State that the defense bore the burden of proof on this issue, affirmatively correcting the trial court’s original charge, which told the jury that the State bore the burden of proof on this issue[.]”

    http://caselaw.findlaw.com/fl-district-court-of-appeal/1600150.html

      sequester in reply to m87. | November 9, 2013 at 9:09 am

      With respect, I disagree. I find the Falwell Courts reasoning unconvincing. Sound and lawful jury instructions are the most basic of fundamental rights of a defendant. An instruction that shifts the burden of proof hits at the very core of justice.

      Jury instructions in Florida are boilerplate and standardized. My impression on review of the Falwell opinion was that defense counsel thought he was agreeing to a standardized jury instruction. It turns out there was a serious typographical error in the instruction. That error was likely to confuse a jury. But the instructions are so routine that the error could easily be missed by prosecution, defense counsel and the Court. Nowhere in the Falwell opinion do I find the words “knowing” associated with the putative “waiver”.

      Both sides generally “agree” to jury instructions. The Court must also review the instructions. Presumably Alexander’s counsel “agreed” unknowingly to the flawed instruction that formed the basis of overturning her conviction. In the Alexander opinion the words “objected”, “objection”, or “waived” do not appear. If Falwell controls, Alexander stays convicted.

      Falwell is just expediency at the sake of justice. The opinion stands only because Falwell probably lacked the resources to pursue further appeals. The Alexander Court got it right.

      No judge should knowingly read to a jury instructions which violate the fundamental rights of a defendant.

Because she had fired a gun in the course of committing her crime, Florida’s “10-20-Life” statute (775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence) mandated a minimum sentence of 20-years imprisonment.
***********************************************

sort of off topic but I have been wondering lately if addendum (or whatever legal term is) like this have hurt second amendment supporters.

I’ve always been a pretty straight forward no bs/mouth filter person and it always seemed to me aggravated assault is aggravated assault is aggravated assault.

but the addition of a gun (or if I read it correctly ANYTHING that can be a weapon) allows more charges to be added on.

And it then makes it seem like the weapon itself is a distinct entity that made the decision to commit the assault. This may (opinion only) have made it easier for anti-gun people to demonize the inanimate object and apply ability to create intent to it, falsely of course.

I don’t know, maybe its just my disgust with legal shenanigans or governments lately but thought it was worth thinking about.

First off – LOVE Legal Insurrection. I get more concrete analysis and “explain it to Joe-in-the-street” easy to understand legal analysis than anywhere else.

Second – On a related note to this case – it disturbs me how political our legal system can get. Some of this is conjecture on my part, and my opinion, but IMO :

Lefty politics constantly wants the latest fad to interject politics into our legal system, and the precedent and future swath of damage be damned.

I remember hearing (in the 90’s) while I was visiting Wellesley College (it was 1 town over from me, a friend went there, and I dated a girl from there) “The Personal is Political” – meaning in every interaction that I have a want I should go and get gov’t to intervene for me.

Big gov’t types don’t get it : once you set that precedent, it WILL be used over and over again. Feminists love daddy gov’t.

In this case, it’s race. Had this been a white male, the press would never have touched it. To me, being a simple man, that means they don’t care about nor believe in the merits nor facts of the case, but care solely on the outcome, and only because of the race & / or the gender of the person charged.

This woman had an argument with her ex. She went and got a gun. She then fired it past his head TO MAKE A POINT. Frankly, IMO and based on no evidence, I don’t doubt she meant to hit him with the bullet. Or, barring that, had she hit him she would have claimed the abuse defense.

Which is a by-product of our politicized legal system: we don’t punish false accusers.

Accuse someone of abuse, rape, DV, or [whatever] and the worst you’ll receive is a warning or some misdemeanor crime. The cost-benefit analysis of that is that it PAYS to lie. You [the false accuser or perjurer] have an INCENTIVE to lie. You can get off scott free from a major beef, or you can hurt someone with whom you’re angry.

It’s called violenc by proxy of the state.

She fired a firearm at her ex – in HIS house. She had the ability to leave, and did so, then re-entered and fired a round at him. She did this regardless of the peril it put him in, regardless of the peril it put her children in, and despite her actions being based on anger, it seems to me she honestly felt she’d simply claim her female privledge and get to walk away.

Come the day when someone else can, and does do this to one of the protected class people, and they are shocked and shaken that this can happen they’ll wonder how this can be.

A generation of children is being taught “what can gov’t do for me / how can gov’t solve this” – and that their feelings, based on a perpetual grievance industry, justify any action, to include deadly force simpy because they are angry.

Someone needs to explain to her that ‘warning shot’ and ‘bad shot’ are not quite the same things.

Even at the ‘most innocent’ explanation that I’ve heard, that the garage door wouldn’t open for her to leave, at a minimum she could have stayed there in the garage, stayed in the car with the gun in hand, doors locked, and waited it out in complete safety. He did not try to prevfent her from going to the garage, trying to open the door, getting in her car, etc. He did not follow HER to the garage, she returned FROM it. And fired her weapon at him.

She CHOSE to go back inside, now armed, and shoot at an unarmed person who was in fact trying to leave with his children. She missed. I don’t believe for a minute it was a ‘warning shot’, I think she meant to shoot him.

‘Warning shots’ (as stupid as they are to begin with) do not miss someone’s head by inches, except maybe in Buffalo Bill Wild West shows, and the movies. Missed kill shots do.

She should be charged with reckless endangerment of the children in the room, and the other bystander adult also. I have no problem with that conviction(s) running concurrent with the 20 years.

Just a random question, pre-coffee:

If the current law gets an “addendum” that brandishing and warning shots are OK effective, oh, June 1, 20XX, would she be released/get a new trial?

Kind of like a pot smoker who was convicted for 20 years and then pot gets legalized….do they get their sentences commuted or whatever?

———–
Secondly, she violated the law and was convicted of that violation. Sentencing rules forced the judge to impose the sentence under law.

I don’t think she actually came back to fire a warning shot, but to shoot him. Lucky for him she missed. And for her…otherwise it would be a life sentence, not 20 years.

But, as we’ve sadly seen, the public version of justice isn’t color blind.


I’m OK with the expansion of SYG to include the non-lethal avenues. I’m concerned if it somehow would require citizens to go through their own modified “force continuum” of brandish, warning, deal death. ( Well, only if you were of a certain race, probably…sadly.)

And of course, it would be much better if we could get back to any good citizen being able to carry openly* or concealed without the State’s “licensing.”

===
* in Florida, you can carry openly on your way to or back from fishing/hunting/camping. But otherwise you’d better be a security guard/LEO/etc. see: http://www.armedcitizensleague.com/open-carry-florida/item/open-carry-florida

    If HB-89 were to become law it would have to be made EXPLICITLY retroactive to apply to the Alexander case. By default new legislation is presumed to not act retroactively (just imagine the havoc).

    –Andrew, @LawSelfDefense

Thanks, Andrew. I was imagining the havoc, esp. with regards to so many other recent changes, such as the pot laws.
So I’m guessing that it will be, just to get this alleged attempted murderer back on the streets.

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