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Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again

Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again

Whether to allow immunity hearing now delayed until August. Trial moved from July to December.

Marissa Alexander was back in court today for a pre-trial hearing on whether she will be granted yet another shot at self-defense immunity under Florida statute FL 776.032: Immunity from criminal prosecution and civil action for justifiable use of force.  

In what has become an all too familiar pattern in this case, however, Duval County Circuit Court Judge James Daniel decided to punt the decision further down the calendar.  Whether to allow a self-defense immunity hearing is now delayed until August 1.

The Issues Prompting Judge Daniel’s Delay on Self-Defense Immunity Decision

As reported at First Coast News and other news media, Judge Daniel appears to be struggling with two issues in particular.

The first is whether a defendant should ever be permitted to have multiple self-defense immunity hearings.  The concern here is that defendants will simply seek successive self-defense immunity hearings every time an earlier one goes against them, resulting in long delays in trial.

On this point the defense, in the person of high-profile litigator Faith Gay, is arguing that they have new evidence–notably, the changed testimony of one of the minor children at which Alexander fired her bullet, who they say is now prepared to testify that their father charged Alexander and thus justified her use of deadly force in self-defense.  Of course, this new evidence, even if true, does nothing to change the fact that Alexander had achieved a position of safety, armed herself with a firearm, and returned to the conflict, behavior utterly inconsistent with any reasonable claim of self-defense.

The second is how Florida’s pending “warning shot” bill might impact the case.  Although for reasons unknown the bill  remains on the Governor’s desk unsigned, it is expected that it will become law, having passed both the Florida House and Senate by overwhelming margins.  This seems an odd preoccupation on Judge Daniel’s part, for two reasons.

First, as noted by prosecutor Richard Mantei, the language of the bill indicates no legislative intent that it be applied retroactively, except that it provides an avenue for persons convicted prior to its passage to seek clemency on an individual basis.

Second, despite it’s being commonly referred to as a “warning shot law,” the bill does not address warning shots per se, at all–indeed, the words “warning shot” appear nowhere in the bill. Rather, the bill serves to allow the mere threatened use of force in self-defense in circumstances where an actual use of force would have been justified.  It also explicitly requires that any such threatened use of force must “not pose a threat to public safety.”

It would seem most any round fired in “warning” could not help but post such a threat–the bullet will continue to travel until it hits something–and certainly a bullet fired past the head of an unarmed man and his two minor children into the wall behind them poses precisely this kind of danger.  (A detailed analysis of this bill can be found here:  Florida “Warning Shot” Bill Passes Senate, Heads to Governor’s Desk.)

Defense Intends to Argue Introduce “Battered Woman’s Syndrome”

Alexander’s defense attorneys also intend to introduce evidence supportive of “battered woman’s s syndrome.”  Such evidence can generally be considered by a jury in its efforts to determine whether a defendant’s use of force might have been unreasonable for a reasonable and prudent person, but reasonable for a woman who has been subject to a history of abuse.

In Florida “battered woman’s syndrome” was established by case law in Weiand v. State, 732 So.2d 1044 (FL Supreme Court 1999.  (A dated but still excellent overview of Wieand can be found here:  Weiand v. State and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar.)

“Stand-Your-Ground Hearing” a Misnomer, Actually a “Self-Defense Immunity” Hearing

Although self-defense immunity hearings are commonly referred to as “Stand-Your-Ground” hearings, in fact they have nothing whatever to do with Florida’s “Stand-Your-Ground” laws, which are covered in entirely different statutes.  A detailed explanation for how “Stand-Your-Ground” and self-defense immunity can be found at the videocast “Stand-Your-Ground”: What it is, what is isn’t, and why it’s important.)

The relevant portion of 776.032 provides that:

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force [ . . . ]. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

The Florida courts determine whether a defendant ought to be granted self-defense immunity under 776.032 by holding, if the defendant so requests, a pre-trial self-defense immunity hearing.  If at that hearing the defendant convinces the judge by a preponderance of the evidence that their use of force against another falls within the scope of one of the three listed self-defense statutes, they are granted immunity from both criminal prosecution and civil suit.

Note that this demonstration of self-defense by a preponderance of the evidence is a vastly higher standard of proof than the defendant must meet at trial.  At trial the defendant must merely ensure that there exists some reasonable doubt that their use of force was lawful self-defense. Unless the prosecution at trial can disprove self-defense beyond a reasonable doubt the jury will be instructed that they must acquit.

Clearly if the prosecution cannot produce even 51% of evidence countering a claim of self-defense at a pre-trial hearing they essentially have no chance to disprove self-defense beyond a reasonable doubt at trial.  Thus Florida’s self-defense immunity law simply prevents prosecutors from bringing to trial self-defense cases in which they essentially have no prospects for achieving a conviction.

In such a scenario the only rational basis for bringing a prosecution would be in an effort to make the process of trial itself–incredibly costly and destructive to the defendant–as punishment without any reasonable prospect of actually being able to prove the defendant guilty of a crime.  While rational, this is also clearly a miscarriage of justice.  Alas, in the aftermath of the Zimmerman case it is impossible to discount the possible of certain Florida prosecutors acting for political, rather than legitimate criminal justice, purposes.

In the Marissa Alexander case, she received a self-defense immunity hearing before her first trial. (She was convicted at that trial, but later had her conviction later appropriately overturned because of improper jury instructions, and is now awaiting re-trial).  At that hearing her request for self-defense immunity hearing was denied by the judge because of the fact that Alexander had achieved a position of safety from her alleged attacker, her husband Rico Gray, by entering her garage.

At that point, Alexander obtained a pistol from her car, stepped back from the garage to the place of conflict in the kitchen, and fired a bullet past the heads of Gray and his two minor children.  Such conduct, the judge ruled, was inconsistent with someone who was reasonably acting out of lawful self-defense.

Alexander’s Trial Date Also Delayed, Now Set for December

In other news form Tuesday’s hearing, both the state prosecutors and Alexander’s defense team agreed to re-schedule her trial from July 28 until December 1.

–-Andrew, @LawSelfDefense

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 and (paperback. He also produces free weekly video and podcasts.


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Andrew, can you review the credible claims Ms. Alexander can make to the Court for a grant of immunity in a new hearing? I don’t think battered woman syndrome applies.

“Credible” claims? No.

In a nutshell, she’d have to convince, by a preponderance of the evidence, the judge hearing the motion for self-defense immunity that her use of force falls within the bounds of one of Florida’s self-defense statutes, in this case 776.013(3):

“(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

The trouble for Alexander is that when she returned into the home from the garage after arming herself with a pistol, she was the aggressor. There was no credible evidence prior to that point that Gray ever presented a threat of death or grave bodily harm that would warrant her escalating the fight to a deadly force level. Being the aggressor in a physical, especially deadly-force, confrontation is an “unlawful activity,” so she fails the very first condition of 776.013(3).

That’s the REAL bottom line in this case–it was never self-defense, at all, and CERTAINLY not by a preponderance of the evidence necessary to win self-defense immunity. All the rest is smoke and mirrors. But let’s continue, regardless.

There are also the other innumerable problems with her case that even where they don’t suggest consciousness of guilt substantively undermine her credibility.

She fled the scene and did not call the police–the police had to go find HER (ala Michael Dunn), despite the fact that she had neighbors immediately accessible from which to make such a call (even if she didn’t have a cell phone with her).

She claimed she couldn’t exit the garage without going through the house because the garage door was inoperable–but no one else, including investigative officers after the incident, found the door to be inoperable.

On her way to the garage to retrieve her pistol she passed several other unobstructed doors leading to safety.

This whole nonsense about a “warning shot into the ceiling” is palpably crap, as the crime scene photos clearly show the bullet hole in the wall (the bullet DID eventually hit the ceiling OF THE NEXT ROOM).

Now her battered woman’s syndrome claim is attempting to make her look like the helpless victim of Gray’s abuse, but it was Alexander herself who was arrested for domestic abuse of Gray.

On the matter of “battered woman syndrome,” would play a role in a self-defense immunity hearing just as it would in arguing self-defense at trial–it modifies the legal standard of the “reasonable” element in 776.013(3) to something less than would be required of someone not the purported victim of domestic abuse.

–Andrew, @LawSelfDefense

    sequester in reply to Andrew Branca. | June 11, 2014 at 9:23 am

    A very compelling answer. Out of curiosity, what kind of sentence would someone like Alexander be looking at in MA, assuming the firearm was legally possessed?

    Great summary. Any clue then why the appeals court overturned the decision in the first place?

      For a really thorough review of the state’s case, see my earlier post re: Angela Corey’s recent release to the press, a few weeks back. Don’t have time to dig up the link myself.

      Alexander is unquestionably entitled to a re-trial as the first trial’s jury instructions on self-defense were improper, and could have been read to impose the burden of proof on Alexander. Nowhere in the United States does the defendant bear the burden of persuasion on self-defense–except, of course, in Ohio.

      That said, even with proper jury instructions it is very difficult to imagine how these facts support an acquittal on self-defense, and I fully expect her to be found guilty again as she was in the first trial.

      Having said THAT, juries are utterly unpredictable. So, who knows.

      Setting aside cognitive defects and political agendas, however, I don’t see how the facts and law in this case arrive at anything other than a re-conviction.

      –Andrew, @LawSelfDefense

seems to me her husband holding a kid trying to protect it while bullets flew past the kids head rule out any defense claims and put this into an assault w/ deadly weapon/attempted homicide area.

Juba Doobai! | June 11, 2014 at 11:27 am

I trust that this dangerous woman will remain jailed until her hearing?

By the way, any of you that want a great overview of self defense law, get his book. This is a real endorsement, I don’t even know the guy. It’s about 200 pages or so, so it’s just deep enough on the law, but never boring. I read it before I got my conceal carry in Missouri.

Andrew, you wrote “At trial the defendant must merely ensure that there exists some reasonable doubt that their use of force was lawful self-defense.” Did you mean to say “At trial the defendant must merely ensure that there exists some reasonable doubt that their use of force was _NOT_ lawful self-defense.”?
Also, I love your book!

    The wording gets confusing because we’re splashing around in double-negatives territory: The defense claims self-defense. The state says NOT self defense. The defense says it’s NOT not self-defense.

    Oofah. Let me try again from a different angle:

    Once the defense has met its burden of production and gotten self-defense into court in the first place, the burden of persuasion is on the prosecution to disprove self-defense beyond a reasonable doubt (except, of course, in Ohio, where the burden of persuasion remains ont he defense, by a preponderance of the evidence).

    The defense therefore needs to ensure that the prosecution is NOT able to disprove self-defense beyond a reasonable doubt.

    –Andrew, @LawSelfDefense

Sorry, being a light-skinned black woman trumps law and logic.

Eric Friday | June 12, 2014 at 3:44 pm

Andrew, According to the language in HB 89 an argument can be made that the legislature was not changing substantive law, but rather clarifying the legislative intent that the court’s had misinterpreted by applying 10-20-life to cases where it was never intended to apply. If the Court accept that enough to review the legislative history and committee notes, it is clear that 10-20-life was to stop criminals who chose to arm themselves with a gun to commit a crime. not a person in a moment of panic.

Also the narrative that Ms. Alexander achieved a place of safety and went back does not wash under Florida law. She was in her house, she never left the house. The garage is merely part of the house. If Alexander is convicted on that basis, it would arguably mean you cannot arm yourself in your bedroom, then move to another room, but must wait there regardless of the tactical soundness. That is at odds with the concept of the home as the castle.

I have to laugh every time Angela Corey says MA left her house, considering how often her office prosecutes open carport cases, as a person who entered a home. I do not disagree with her but I do find it ironic.

    Hey Eric, nice to see you here! For folks who don’t know, Eric does just awesome work in Florida on a wide array of gun rights, including self-defense law. I think the organization he’s with is “Florida Carry,” I presume he’ll correct me if I’m wrong about that. I’ve covered some of his testimony before in front of various Florida legislative hearings, if you dig though my posts you’ll find them, it’s worth watching.

    It’s also my recollection that Eric’s a lawyer in Florida–which I most certainly am not–so where Eric and I might disagree on fine points of Florida law it’s probably prudent to give him the benefit of the doubt over me.

    OK, to Eric’s points:

    “If the Court accept that enough to review the legislative history and committee notes, it is clear that 10-20-life was to stop criminals who chose to arm themselves with a gun to commit a crime. not a person in a moment of panic.”

    That could well be, I haven’t dug through the legislative history. It’s certainly an outcome I would be in favor of.

    “If Alexander is convicted on that basis, it would arguably mean you cannot arm yourself in your bedroom, then move to another room, but must wait there regardless of the tactical soundness.”

    I guess I disagree on this one. (Although I certainly agree the outcome you imagine would be undesirable.)

    You seem to be hypothesizing a lawful homeowner dealing with a break-in by an intruder–in other words, good guy homeowner dealing with an intruder bad guy–and analogizing that to the Alexander case. But in what respects was she the good guy? There’s no credible evidence that she was ever presented with a lethal threat by Gray that would justify her escalating to a gun. Furthermore, Gray was no intruder–it was his home, too.

    To me it’s simply a case of two co-dwellers having an argument, one of them left, got a gun, came back and shot at the other one. That’s self-defense? I guess I just don’t see it that way.

    Also I would argue that strictly speaking the Castle Doctrine does not mean that one has exceptional rights of use of force within one’s home–although there are some other legal doctrines that do that–the Castle Doctrine properly understood merely means you have no otherwise existing duty to retreat in your home. Retreat was not an issue in this case, as the deadly force aggressor was both in her home and in any case was advancing in the attack.

    Sadly, like “stand-your-ground,” the term “castle doctrine” is frequently used in applications where it should has no role, to represent other, distinct legal issues. I guess if it happens for a long enough period it becomes permanent, but it just strips away clarity from any legal analysis of the issues.

    Anyway, I guess that’s how I see it. 🙂 Please come back more often, Eric, I know the folks here would very much enjoy your uniquely well-informed, hands-on perspective, and you “actual member of the Florida bar” legal expertise with regard to these many Florida self-defense cases.

    –Andrew, @LawSelfDefense

Eric Friday | June 15, 2014 at 5:50 pm

Let me start by saying thanks for the kind words. On the Alexander case the propaganda and the disputed facts along with the specious arguments of supporters on both sides has led to a lot of bad info and even I am not sure of all the facts, and I live here and have access to the court docket. I have done some research on the case. Let me also say that while I have not taken a position on the legality of her actions, I am firmly convinced this is not a case where 10-20 life was ever meant to apply. The case law on 10-20-life developed much like the SYG law has. The prosecutors took the legislative language and did everything they could to ignore the plain language and intent of the law in favor of what they wanted it to say instead of following the law.

My understanding is there was still an in place DV order, that they had both been violating willingly. The Castle Doctrine provisions of 776.013, Fla. Stat. and all of its presumptions would come into play if a DV order still existed. As for the status of Gray in the house otherwise, he admitted that he had already attacked her once that morning. He had therefore placed himself as the initial aggressor. Absent a clear intent to withdraw, remaining in the house could be a factor.

    So glad you came back, Eric.

    I don’t, of course, disagree with you on any issue of real substance. I understand your concerns–for example, to pick one at random, that we shouldn’t put a homeowner at risk of “10-20-Life” because he feels it necessary to clear his home of violent invaders. I’m right there with you.

    I think we’d both agree that it would be nice if Florida statues had somewhat more clarity than is currently the case.

    Based on what I’ve seen of the recent “Warning Shot” bill, however, I don’t have high hopes for that happening any time soon, sadly. 🙂

    Anyway, Eric, please keep on posting as circumstances warrant. There’s no one else here who can bring the insight and perspective that you can to Florida gun and self-defense law.

    –Andrew, @LawSelfDefense