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Three Weird Myths About Marissa Alexander That People Think Are True

Three Weird Myths About Marissa Alexander That People Think Are True

The truth about the “warning shot,” garage doors, and the couple’s history of domestic abuse

Marissa Alexander was back in the news, as her lawyers try to preclude state prosecutors from getting truthful but damaging evidence against her before the jury (details on this below). With her trial now only about 6 weeks away, the misinformation machinery will be spinning up to top speed. As a reality-based counterweight I thought it might be useful (and fun) to refresh our recollection on the truth behind Marissa Alexander and her (self-acquired) legal travails.

Without further ado, here are three big lies about the Marissa Alexander case that you–or, if not you, too many others–believe to be true.

1. Marissa Alexander Merely Fired a Warning Shot Into the Air

I’ll start with the best one first: the notion that Alexander merely fired “into the air” as a warning shot.

Literally speaking, of course, any time one fires a gun one is firing it “into the air”—unless, I suppose, one is firing the gun under water.

Substantively, however, this statement is an outright and deliberate lie, and proven to be a lie by both the further misleading characterization of the shot as being “fired into the ceiling” and the forensics evidence shared by the prosecutor’s office with the media and public.

The term “warning shot” is, of course, intended to convey the firing of a shot in a “harmless” direction, or at least not deliberately near any particular person. The purpose is to forcefully communicate the will to fire more accurately and with greater effect if necessary to stop the other person’s offensive conduct.

A reasonable person might imagine such a warning shot to be fired off in a harmless direction, or perhaps vertically upward—and Alexander’s supporters leverage this supposition by using misleading language such as “shot up in the air” and “shot into the ceiling” to create the perception that Alexander had fired in a safe direction with effectively no probability of harming anyone.

In fact, after retrieving her gun form the garage, returning to the kitchen and informing her husband “I’ve got something for your ass,” Alexander deliberated chambered a round in the pistol, pointed it horizontally and towards her husband Rico Gray and his two minor children (then 13 and 10) and fired the gun.

The bullet did eventually hit a ceiling—the ceiling of the next room.  On the way it flew past Gray and his children, within inches of his head, leaving an easily visible bullet hole at head-height in the wall behind him. It traversed that wall, entered the next room, and there buried itself in the living room.

Marissa Alexander bullet hole

On December 28, 2010, presumably in a spirit of Holiday generosity, Gray would give a deposition clearly contrary to the evidence—particularly the forensic evidence of the bullet hole in the wall behind his head. In the deposition Gray would state: “The gun was never actually pointed at me. When she raised the gun down and raised it up, you know, the gun was never pointed at me.”

Rico Gray deposition recanted 12-28-10

At trial, however, both Rico Gray and his son Pernell testified in a manner consistent with the forensic evidence: that Alexander had indeed pointed the gun at them when Alexander fired it. Indeed, Gray’s very first statement that Alexander had fired directly at he and his sons, and not merely “in the air” was in the immediate aftermath of the shooting, while talking to the 911 operator after being forced to flee his own home with his two children, telling 911 “she aimed the gun at us and she shot.”

Perhaps an expert marksman could fire a bullet within inches of someone’s head and credibly argue that their shooting skill is at such a high level that they nevertheless had total confidence the person they were shooting at would not be struck.

There is no evidence of any such shooting skill possessed by Marissa Alexander. What we have here is no warning shot, it’s a miss. It is only by pure fortune that Rico Gray’s children didn’t see their father’s brains sprayed all over that wall.

2. Marissa Alexander Could Not Leave Because the Garage Doors Did Not Work

Alexander claimed under oath that she was in fear for her life and trying to get away from Rico Gray, but was unable to do so because she could not get the garage doors open so as to drive away in her car. It was this, she claims, that compelled her to retrieve her gun, return to the kitchen, and shoot at her husband and his children.

This claim by Alexander is perhaps among the most damaging because it is so patently a falsehood.

Apparently, these garage doors have the magical ability to fail only for Marissa Alexander.

The appellate court decision ordering her new trial (appropriately so, because of defective jury instructions on self-defense) notes “the garage door worked previously and there was no evidence presented to support her claim [that the doors could not open for her].”

In addition, police investigators function checked the doors after the shooting —they worked perfectly.

The appellate court also noted that “despite the Defendant’s claim she was in fear for her life at that point and trying to get away from Rico Gray she did not leave the house through the back or front doors which were unobstructed.”

Note that this is not a stand-your-ground issue. Had Alexander already had her pistol on her person while arguing with Gray, and had he threatened her with deadly force or a forcible felony, Florida law would indeed have entitled her to stand-her-ground and meet force with force.

What stand-your-ground does not do, however, is allow you to retreat from a fight, retrieve a weapon, and then return to that fight and shoot at the other party.

As noted by the judge who in 2011 denied Alexander’s request for self-defense immunity, “[Alexander] intentionally passed by the Victims and entered the garage where she immediately armed herself and proceeded back into the home. This inconsistent with a person who is in genuine fear for his or her life. After weighing the credibility of all witnesses and other evidence, this Court finds that the Defendant has not proved by a preponderance of the evidence that she was justified in using deadly force in defense of self.”

Also not helpful to Alexander’s claims of self-defense is that it was Gray who fled the home in fear with his children, and who called 911. Alexander—the woman who claimed she was so in fear of death or grave bodily harm that she was justified in shooting at her husband—never called 911. (Indeed, it took the Jacksonville Sheriff’s Office SWAT team to get her out of the house in the aftermath of the shooting.)

Once Alexander had reached the safety of the garage, and indeed even armed herself there, any threat that Gray had presented to her was neutralized. He was not even in the same room as Alexander.

Had Gray pursed Alexander into the garage she might have had a rational argument of self-defense.

Gray, however, did not aggressively close with and violently engage Alexander.  Alexander aggressively closed with and violently engaged Gray.

That, folks, is not self-defense.

3. Marissa Alexander is an Innocent Victim of Rico Gray’s Domestic Abuse

This lie, too, has proven extraordinarily damaging to Alexander because of uncontroverted evidence that Alexander herself has a more recent history of domestic abuse than does Gray.

Gray is indeed not a very nice person, at all, and he does indeed have two convictions for domestic battery. Neither of these was serious enough to warrant jail time. The most recent was in 2006, four years prior to the August 1, 2010 date on which Alexander shot at him. Gray pleaded no contest and received probation.

The second was in 1994, fully 16 years prior to the date of the shooting, making Gray 20 years old at the time. The victim in that case was Gray’s own brother. Gray pleaded no contest in that case, as well.

In 2009 Gray had an arrest for domestic battery, but the charges were entirely dropped.

Let us contrast this with Alexander’s own documented history of domestic abuse.

On December 30, 2010, while under a judicial order to have no contact with her husband, Alexander physically attacked Gray.

Rather than respond in kind to her act of violence the more rational Rico Gray phoned 911 to report the crime.

Law enforcement documented his injuries, including through the use of photographic evidence, and Alexander was ordered arrested. As a result of this conduct Alexander’s bond was revoked.

Alexander was arrested, and would ultimate plead guilty to Domestic Battery.

When was Gray’s last conviction of domestic battery? In 2006, four years before Alexander shot at him.

When was Alexander’s last conviction for domestic battery? In 2010, five months after she shot at her husband and his children. While she was awaiting trial for those aggravated assaults. And while she was under a judge’s no contact order.

So damaging are these facts and Alexander’s contemporaneous history of domestic violence against Gray that her attorneys have launched numerous attacks on the State’s ability to reference her domestic battery conviction at trial. This week they again argued a motion to suppress this evidence prior to her up-coming re-trial, which is what led to the last few days renewed Marissa Alexander stories (and this blog post):

 

As you might expect, we’ll be following developments in the Marissa Alexander case closely, and the trial itself super closely.

–-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 (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

Maybe it would be prejudicial to the jury on the matter of the gunshot fired, but the violation of the no-contact order and battery remains one of the more profoundly stupid things I have heard of a defendant in a high profile case doing while out on bond. Even if the jury doesn’t get to hear it, she shouldn’t expect the judge to forget it for a single moment.

    JackRussellTerrierist in reply to JBourque. | October 11, 2014 at 5:27 pm

    Alexander’s violation of the probation order with regard to contact against Gray demonstrates how utterly incapable she is of controlling her anger.

    She is dangerous.

darkknight3565 | October 11, 2014 at 11:57 am

That Ms. Alexander only fired once at Mr. Gray seems to argue pretty compellingly to me against the notion that she was not firing in self-defense.

If she wanted to kill Mr. Gray and had simply missed with the so-called warning shot, she likely would have fired again until she succeeded in hitting him.

Furthermore, what motivation would Ms. Alexander have to kill Mr. Gray beyond self-defense?

Strange how someone who happy to see Mr. Zimmerman free would want to see Ms. Alexander behind bars.

    Lina Inverse in reply to darkknight3565. | October 11, 2014 at 12:24 pm

    I’ll agree that there’s insufficient evidence that Alexander intended to kill Gray. Which might have something to do with the fact that she’s being charged with Aggravated Assault with a Deadly Weapon, instead of attempted murder or the like.

    To more directly address your point, we don’t know what what was going on in her head, but surely we could entertain the idea that she changed her mind after firing that shot, so her not continuing to fire is at best suggestive, and as our host outlines, any suggestion of self-defense is strongly countered by her other actions and inactions.

    funny how evidence and witness statements work huh?

Prof. Barondes | October 12, 2014 at 2:55 am

Post:
“I’ll start with the best one first: the notion that Alexander merely fired ‘into the air’ as a warning shot.

“Literally speaking, of course, any time one fires a gun one is firing it ‘into the air’—unless, I suppose, one is firing the gun under water.”

NEWSFLASH: Lawyer discovers idioms are not to be taken literally.

    I’ll explain it slowly for you.

    My objection to Alexander’s supporters use of the phrase “fired into the air” is that the phrase can be truthful under the facts of this case ONLY if THEY are using it literally, and NOT if they are using it idiomatically.

    Got it? 🙂

    –Andrew, @LawSelfDefense

Prof. Barondes | October 12, 2014 at 5:41 pm

That’s interesting.

You started with a post performing the useful administrative task of collecting assorted documents, albeit sullied by

(i) the unhelpful observations concerning literal interpretation of an idiom, and

(ii) the initial assertion of an unambiguous conclusion, “this statement is an outright and deliberate lie, and proven to be a lie”, tempered by the subsequent admission the conclusion’s accuracy depends on your being fully-informed.

Yet now, in your reply, in lieu concurring with the manifest improvidence of the literal parsing of an idiom, as included in the main post, you have made your post and comment, collectively, inconsistent.

In sum, there are a couple of possible circumstances (albeit one of which you simply reject by virtue of your not being informed, and another of which you ignore) where Ms. Alexander may have intended merely to warn, and not to hit someone.

YOUR MAIN POST

You main post seems to indicate that were Ms. Alexander an “expert marksman”, the firing of a shot where her bullet struck could be consistent with a warning shot:

“Perhaps an expert marksman could fire a bullet within inches of someone’s head and credibly argue that their shooting skill is at such a high level that they nevertheless had total confidence the person they were shooting at would not be struck.

“There is no evidence of any such shooting skill possessed by Marissa Alexander. What we have here is no warning shot, it’s a miss. It is only by pure fortune that Rico Gray’s children didn’t see their father’s brains sprayed all over that wall.”

So, for some set of persons, the observed relationship between the individuals and the path of the bullet, it appears you are saying, could be consistent with a “warning” shot, even though the shot would have been intended to strike a wall.

(More persuasive speculation might have provided for your readers had you shared informed observations concerning:

a. the frequency with which a marksman, with the abilities you suppose Ms. Alexander to have, fires only one shot in self-defense, and misses the target by the distance by which you are indicating she missed;

b. any non-uniformity in the directions (whether 3 o’clock, 6 o’clock, 9 o’clock or whatever) in which missed shots are missed by persons with the characteristics you are imputing to her; and

c. the variation between what you suppose to be the intended point of aim and the point of impact–the reference in the main post to pointing the firearm “horizontally” not being adequately informative, in light of your reference to the bullet striking a wall materially below the ceiling and then striking a ceiling.)

Of course, another possible circumstance is that there was an attempt to fire a warning shot passing a greater distance from Gray, and also at a wall (or something else inanimate), and her manipulation of the firearm resulted it still missing Gray, albeit in closer proximity than she intended.

I suppose there is at least one other possible interpretation of what you wrote, which I will elide as it is too tedious to explain and not the natural reading of what you wrote. So, let us take that you intended what one supposes the more natural reading of a pertinent portion of your main post:

Someone with skill could have intended a warning shot and produced the actual result (bullet proximity to persons), but you speculate Ms. Alexander did not have that skill because you have not ascertained she had that skill.

YOUR REPLY

Now your reply:

“the phrase can be truthful under the facts of this case ONLY if THEY are using it literally, and NOT if they are using it idiomatically”

There are a number of cases in which she could have fired a warning shot, in the sense evidently used in the main post:

a. She sought to have the bullet impact where it did, and you have inaccurately concluded that is not the case—basing your conclusion on an expectation that you have adequately informed yourself.

b. She intended to have the bullet pass farther from Gray, still intending merely to warn, and her manipulation of the firearm caused the bullet not to travel on the intended path, but it still did not hit him.

FIRING “INTO THE AIR” CANNOT BE CONSTRUED LITERALLY

The phrase fired into the air is merely an idiom indicating a line of fire that is:

a. within the set of those thought to be safe; and

b. within a subset that excludes some involving trajectories that begin in a downward orientation.

I’m not inclined to seek to detail the set of trajectories excluded by b.

Of course, it is very difficult to ascribe a literal meaning to this idiom. To state the obvious–the kind of thing one only need to articulate in response to pedantic observations such as your main post and your reply:

A cartridge does not release enough energy to put the bullet into orbit (and, of course, we are not discussing the discharge of a bullet from one already in orbit). Hence, bullets are not fired so that they only contact air. So, for these obvious reasons, it not meaningful to say one is construing literally the phrase “shot ‘into the air'”.

So, understanding you are taking a pedant’s approach to interpretation, perhaps you are intending to say something like:

the phrase can be truthful under the facts of this case ONLY if THEY are using it QUASI-literally

You have not adequately explained what quasi-literal interpretation of the phrase is the one you intend to identify as literal (such as shot through an opening in a wall or ceiling along a path that appears to reveal no object in its path until such time as the energy will have adequately dissipated). But, whatever you intend to describe as a literal interpretation is not the sole interpretation that would be consistent with a shot fired merely to warn, of course, as illustrated above. So we need not attempt to figure out what quasi-literal interpretation you have in mind.

YOUR MAIN POST INDICATES THE POSSIBILITY OF A WARNING SHOT CONSISTENT WITH A NON-[QUASI-]LITERAL INTERPRETATION OF “INTO THE AIR”

It appears that your initial post contemplates that, for some set of circumstances, Ms. Alexander could have fired a shot intending merely to warn, and not to hit a person, consistent with the idiomatic meaning of the term “into the air”. One you have concluded, from your being uninformed, not to be the circumstances at-hand; a second you appear to have ignored. I’m not inclined to speculate, as you seem to desire to do, as to whether those other circumstances were present.

***

Experience highlights a few paths to be followed by a blogger not inclined to address the inaccuracy of an initial post, as highlighted by a comment (although not a complete list):

a. Responses directed to the language of the observations illustrating the inaccuracy of the blogger’s post, seeking to elide the substance by misdirection;

b. Responses consciously misconstruing the comments; and

c. Responses not addressing the substance, for example, recharacterizing the issue not as you did in your post—whether she fired a warning shot (into a direction, construing the idiom, among those thought to be safe)—but rather whether her acts were culpable even if she did.

Illustrative of evasive replies:

i. Observations not couched at the substance:

Observations critical of the detailed nature of a comment (where, of course, the response would have sought to exploit the brevity of the comment were it not more detailed in explaining the error of the blogger).

ii. Statements not addressing the substance, such as:

If she intended to fire a greater distance from anyone, and she produced a trajectory much closer to Gray than she intended, she has, although having fired a warning shot, engaged in culpable misconduct.

My prediction is that you will be inclined at least to follow a. or some combination of a. and a reference to a preference not to address the substance, but we shall see.

Cheers!

    Haha, you just spent 1,300 words responding to a 50 word comment. 🙂

    No wonder you’re an academic. No real job would put up with that kind of inefficiency.

    I sure hope you’re tenured. It’s a tough job market out there in Obama-world.

    By the way, WHERE are you a Professor?

    –Andrew, @LawSelfDefense

    Char Char Binks in reply to Prof. Barondes. | October 21, 2014 at 3:14 pm

    Good point about shooting “horizontally”! We could only know that she fired horizontally, or attempted to, if there was level on the gun, and some way of recording the exact position of the gun in relation to the horizon at the time of the shot. This is important because we know that when Andrew said “horizontally”, he mean EXACTLY, BUBBLE-BETWEEN-THE-LINES HORIZONTALLY. And since only a perfectly horizontal shot could possibly have been a danger to Gray or the child, Alexander is NOT GUILTY! BTW, sarc., in case you couldn’t tell.

Prof. Barondes | October 12, 2014 at 7:09 pm

Not quite what I expected.

Even when I worked on Wall Street there were occasions, such as this one, where I could pass a portion of my Sunday as I wished.

Can’t say I’ve previously been asked by a blogger for a cv item, but, to pretermit additional inquiry as to my background, here are the highlights, starting with current–feel free to pick at it to the extent you think your audience would find that of interest:

Academic Positions:
University of Missouri School of Law (current; in addition to classes related to business transactions, scheduled to teach firearms law from the Johnson et al. casebook in the spring)
University of Georgia, College of Business (prior)
Louisiana State University, College of Business (prior)

Primary Practice Experience:
Cravath, Swaine & Moore

Education:
University of Virginia, J.D.
Massachusetts Institute of Technology, S.B. & S.M.
St. Paul’s School, Concord, NH

***
I recall that, while in college, on a couple of occasions I was asked by some college students in Massachusetts whether M.I.T. was in Michigan. So, if you choose to pick at my cv, you would, I expect, need to provide some context.

Cheers!

    I sense a pattern.

    I asked you an 8 word question: “By the way, WHERE are you a Professor?”

    Your response? 200 words of what you call a CV.

    I think I’m done asking you simple, straightforward questions. I just haven’t the time for it. 🙂

    Enjoy the blog.

    –Andrew, @LawSelfDefense

ScottTheEngineer | October 13, 2014 at 8:25 am

In Rico Grays arrest record on 10/2/2006 it says DEFENDANT PLACED ON PROBATION – SALVATION ARMY- M00D00Y001
Whats the salvation Army got to do with anything? Is that where he worked?

How is it possible that you are completely against this woman and completely supportive of Zimmerman? How?

Did you write a blog about all of his previous arrests and how he was told not to follow?

    I apply the law, facts, and reason.

    How is it possible that you are completely against Zimmerman and completely supportive of Marissa Alexander? What’s YOUR methodology? Critical race theory?

    Unlike Marissa Alexander, the convicted domestic abuser (not only doesn’t she deny it, she pleaded guilty), Zimmerman has never been found guilty of ANY crime despite considerable effort by the State, the Federal government, and the usual assortment of racist rabble rousers to do just that.

    And, yes, I’ve written extensively about the lie that Zimmerman followed Martin after being told not to by the police. There’s zero prove to support the claim, and thus it’s an utter fabrication.

    Here, read it and weep:

    “Zimmerman Trial: Myth Busters: Did Zimmerman disobey police orders to stay in car?” (http://is.gd/OG1k58)

    –Andrew, @LawSelfDefense

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