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Marissa Alexander Tag

We noted here back in November that 34-year-old Marissa Alexander--facing up to 60 years in prison for firing a bullet past her husband's head and her two step-children--had once again been offered, and this time accepted, a 3-year plea agreement:  UPDATED: “Warning shot” defendant accepts 3-year plea deal. The renewed 3-year plea counted much of Alexander's time already served, resulting in her release from jail yesterday:  Judge: Marissa Alexander released to house arrest. video platformvideo managementvideo solutionsvideo player Alexander's failure to accept a similar agreement in the immediate aftermath of the 2010 shooting led to her conviction and three concurrent 20-year mandatory minimum sentences under Florida's "10-20-Life" law (§775.082 Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison).  She earned a re-trial after the appellate court correctly found that there was a substantive defect in the trial court's self-defense jury instructions.  In the meantime, the Florida law on "10-20-Life"  had changed to require that sentences be served consecutively, so that Alexander now faced a mandatory minimum of 60 years.

The Marissa Alexander defense team had a terrible, awful, very bad day yesterday in a pre-trial evidentiary hearing.  Much evidence that would have been favorable to their case was excluded by the trial judge, and the remaining evidence left undecided also seems unlikely to be admitted. The hearing was live-tweeted and reported on by Larry Hannan of the Florida Times-Union newspaper. As has become in the norm in many of these cases a great deal of misinformation has been promulgated about this case in an effort to control the public narrative. We have previously debunked much of this in prior posts here at Legal Insurrection, most recently:  Three Weird Myths About Marissa Alexander That People Think Are True. Alexander's defense counsel Faith Gay and Bruce Zimet wished to exclude evidence of Marissa Alexander's domestic assault of Rico Gray.  Alexander later pleaded guilty to criminal charges resulting from the case.  She also had her bail revoked, and as a result spent several years in jail. The defense also sought to exclude all evidence recovered by police in the immediate aftermath of the shooting, including the hole in the wall behind Rico Gray's head that puts the lie to the popular "warning shot" narrative. Marissa Alexander bullet hole Finally, the defense sought to admit evidence of alleged prior acts of violence by Rico Gray upon other women with whom he has had relationships. Arguing against these motions were Assistant state attorneys London Kite and Richard Mantei. By the time the hearing was finished, the state had won on the first two motions, and seemed highly likely to also win on the third.

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.

Marissa Alexander has been denied a second shot at a self-defense immunity hearing (often incorrectly referred to as a "Stand-Your-Ground' hearing), reports by First Coast News. Under Florida's self-defense immunity statute (FL 776.032 Immunity from criminal prosecution and civil action for justifiable use of force) a person claiming self-defense can seek immunity from criminal prosecution and civil suit.  To do so they generally request a hearing in court in which they present their evidence in support of self-defense. If the hearing judge determines that there is a preponderance of the evidence in support of self-defense, immunity is granted.  Given that a preponderance of the evidence is a vastly greater level of proof than the reasonable doubt required to sustain a claim of self-defense at trial, this approach only makes common sense. Alexander sought and received a self-defense immunity hearing prior to her first trial (since reversed, and she now awaits retrial). Following that hearing, her motion for self-defense immunity was denied--no surprise, as there is scant evidence in support of her claim of self-defense (and that's being exceedingly generous). When Alexander sought a second self-defense immunity hearing leading up to her re-trial, it raised a novel question under Florida law whether a second such hearing was legally required upon demand or even permitted (see Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again and Will Marissa Alexander get second shot at Self-Defense Immunity?). This past Friday the electronic court records of the case were changed to indicate that Alexander's current motion for a self-defense immunity hearing was denied, and the actual order denying the request for a second self-defense immunity hearing was released this morning.  It's embedded below, but here are the highlights:

A couple of days ago I posted up a piece re: Florida's passage of its "warning shot" bill and the prospects for that bill helping the case of Marissa Alexander.

Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander

I neglected, however, to point out one particular facet of Florida's new law that could potentially--not reasonably, but potentially--provide some benefit to Alexander.  So, I'll cover that here. Before I do, however, the enormous volume of misinformation that continues to be promulgated about this case obliges me to first point out all the ways the "warning shot" bill does not help Alexander.

Guilty On Retrial Seems Highly Likely, Despite "Warning Shot" Bill

The "warning shot" bill does not legitimize Alexander's conduct as the deadly force aggressor, and does not turn that conduct into lawful self-defense. Leaving a non-deadly force fight and returning armed is not self-defense, particularly when the person you shoot at is lawfully in their own home (a different argument could be made in the case of an intruder, but not under the facts of this case).  The "warning shot" bill does not modify Florida self-defense law to allow one to act as the deadly force aggressor and justify that conduct as self-defense.

It was with considerable astonishment that I read the following headline in an ABC news post:

Marissa Alexander, who fired warning shot at husband attacking her, likely won't see prison after Florida changes 'Stand Your Ground' law

One wonders if they had to work extra hard to get four errors into a single headline, or if it's just a talent.  I guess we'll never know, because no authorship is associated with the piece.  If I'd written this post, I'd want to be anonymous, too.  Let's take a look at the errors one at a time.

Alexander "Fired Warning Shot"

The article states:

Well, it's about time. Today, Florida's Governor Rick Scott finally signed the "Warning Shot" bill (HB-89) that had been passed by the state House and Senate and sent to his desk way back in early April (h/t Miguel, over at Gun Free Zone). I won't go into all the ways that this bill is NOT a "warning shot" bill, because I've already done so, here:  Florida “Warning Shot” Bill Passes Senate, Heads to Governor’s Desk. One thing that might not be clear from that earlier post is that this bill does not so much create a new statute (although it does create a small one), rather it primarily serves to amend a wide variety of Florida's existing self-defense statutes, including (note that all indented sections of this post are copied directly from the statute, hence the odd phrasing):

Amending s. 775.087 "10-20-Life," Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, prohibiting the court from imposing certain mandatory minimum sentences if the court makes specified written findings;

Amending s. 776.012 Use of force in defense of person, applying provisions relating to the use of force in defense of persons to the threatened use of force; providing that a person who lawfully uses or threatens to use nondeadly force does not have a duty to retreat; providing that a person who lawfully uses or threatens to use deadly force does not have a duty to retreat if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be;

Amending s. 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm, applying presumption relating to the use of deadly force to the threatened use of deadly force in the defense of a residence and similar circumstances; applying provisions relating to such use of force to the threatened use of force; removing provisions relating to one's duty to retreat before using force;

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.

Well, three hours of a pre-trial hearing on whether Marissa Alexander should be permitted yet another pre-trial self-defense immunity hearing wrapped up this morning. Rather than bury the lede, here’s the bottom line. No decision. Daniel says no ruling today Daniel tells both sides Instead, Judge James Daniel elected to schedule still another pre-trial hearing on whether Marissa Alexander should be permitted yet another pre-trial self-defense immunity hearing, this one being scheduled for June 10, at 10:00AM. Daniel’s apparent uncertainty about how he would rule was apparently all but palpable in the court room. Daniel seems very uncertain On the plus side, Judge Daniel did suggest that at the June 10 meeting to decide whether to have a second self-defense immunity hearing, if the decision was in the affirmative the would likely hold that self-defense immunity hearing that same day.

Yesterday I promised an update on the key self-defense trials coming our way over the course of this summer, and so here I am to keep that promise. Before I get into that, however, I'd like to share a couple of items that have been brought to my attention in the last 24 hours.

"Law of Self Defense" Ranked #1 by Amazon in Sports Shooting Category

"The Law of Self Defense, 2nd Edition," has been ranked by as it's #1 seller in the Sports Shooting category. Law of Self Defense #1 in Amazon Sport Shooting Category Now, I'm not sure how self-defense has much to do with sports shooting, but you take the #1's where you find them. Two critical keys to achieving this #1 status have certainly been the Twitter campaign launched against me by the Coalition to Stop Gun Violence, and the uproarious kerfuffle generated by the antics of CNN legal analyst Sunny Hostin. So, before proceeding to substantive matters, I'd like to thank @CSGV, @SunnyHostin, and the UC Berkeley School of Law--I couldn't have done it without you guys.

CNN Legal Analyst Sunny Hostin has Wikipedia Page Updated to Reflect Reality

Last night somebody brought to my attention that the Wikipedia page for CNN Legal Analyst Sunny Hostin had been updated to reflect her losing debate performance as well as her welshing on our wager. I feel obliged to note that I had nothing whatever to do with this entry, but also that it is entirely factually correct. Sunny Hostin Wiki with debate welch OK, now onto the self-defense cases coming up in 2014.

Florida news outlets -- including First Coast News -- are reporting  today that Marissa Alexander has had her re-trial delayed until July 28. The re-trial had been scheduled to being in March.  The delay was the result of a motion by the defense. Given that it seems most unlikely any new evidence or legal arguments will develop in that additional time, the four month delay suggests the defense may attempting to buy time to negotiate a plea agreement.  Should Alexander be retried on the same evidence as was presented at her first trial, a re-conviction seems all but unavoidable. In 2012 Alexander was convicted of three counts of aggravated assault for firing a bullet past the head of her estranged husband and his two minor children.  Under Florida's "10-20-Life" law requiring mandatory minimum sentences for the use of a gun in a crime, she was sentenced to 20 years in prison. An error in the jury instructions on self-defense at her trial won her the re-trial now delayed until July. The case of Marissa Alexander has been covered extensively here at Legal Insurrection, including in these prior posts: Sheriff’s Office Takes the Heat for Marissa Alexander Bail Kerfuffle Marissa Alexander Remains on Bail, Under Tightened Conditions

Marissa Alexander will learn on Friday if her current bail and home detention will be allowed to continue, or if it will be revoked, sending her back to jail until her re-trial. Alexander is currently on bail following her earlier conviction for aggravated assault with a handgun and the resulting mandatory minimum sentence of 20 years under Florida's "10-20-Life" statute.  Her defense to the charges seems to be largely based on the notion that she "only fired a warning shot," a claim we've previously shown to be disingenuous here: The Myth of Marissa Alexander’s “Warning Shot” As I’ve previously commented, Alexander never struck me as a reasonable candidate for bail, given her previous conduct while on bail (e.g., committing battery against her husband, Rico Gray, while under an order of protection to remain away from him) resulting in that earlier bail being revoked. See my previous commentary on the subject of Alexander’s bail here: Marissa Alexander’s Bail Hearing in “Warning Shot” Case Delayed To Next Week Marissa Alexander Released on Bail Nevertheless, On November 27, 2013, Circuit Judge James Daniel elected to grant Alexander bail again, albeit while noting that “the prior judge appropriately revoked the Defendant’s bond” and that “it is not this court’s customary practice to allow continued pretrial release for defendants who commit a crime while they are out on bond awaiting trial.” As part of that bail arrangement, however, Judge Daniel imposed a number of stringent conditions, including the following:

Well, Marissa Alexander simply can't bring her self to abide by the orders of a court, according to a story from First Coast News (FCN), Florida. The last time she was out on bail, and under a restraining order to stay away from her estranged husband,...