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.
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.
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.”
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.
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.
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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