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.
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.)
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.)
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.
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 Amazon.com (paperback. He also produces free weekly video and podcasts.
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