Tuesday, March 18, 2014

MUCH ADO ABOUT NOTHING or WHY LET THE FACTS STAND IN THE WAY OF A GOOD STORY?

I have not followed the Marissa Alexander

case, but I have been exposed to it because

reporters keep calling me and asking me

about it. Today I resolved to do a little

research, not by reading news articles, but by

reading the case itself. It was an enlightening

experience. The standard scenario that has

been trumpeted in the press is this:


Alexander was defending herself against a vicious attack by her husband and fired a warning shot to stop him. If she had only shot him, she would have been exonerated under Florida’s Stand Your Ground Law. It’s horrible that a person can be imprisoned for firing a warning shot when they would have gone free if they had only killed the victim.
 

The media has emoted over this injustice, the

NRA has lobbied over this injustice, and the

Legislature is poised to fix this injustice with a

“warning shot” law.
 

What’s wrong with this picture? Everything.

First, the “factual” scenario being trumpeted in

the press is not what happened. The jury did

not convict Alexander because she used non-

lethal force. They convicted her because they

rejected her self-defense plea. Second, it is

not now nor has it ever been the law that

people firing a gun in self-defense are

penalized if they miss. It is now and has

always been the law that if you are justified in

taking a life in self-defense, you are also

justified in using non-lethal force in self-

defense.


When he rejected her SYG motion for

immunity, the trial judge made the following

findings of fact:


On August 1, 2010, the Defendant shot at or near Rico Gray Sr. [and his two sons]. The Defendant had not been living in the marital home for the two months leading up to the shooting. On the evening of July 31, 2010, the Defendant drove herself to the marital home and parked in the garage, closing the garage door after parking her vehicle. The Defendant stayed the night in the marital home. The next morning, on August 1, 2010, Rico Gray Sr. arrived at the marital home with his two sons [ ] and the children entered the home through the garage door. Rico Gray Sr. made the family breakfast and nothing went awry.

After breakfast, the Defendant went into the master bedroom. Before entering the bathroom, the Defendant handed her phone to Rico Gray Sr. to show him pictures of their newborn baby [ ], who was still in the hospital. At that point, the Defendant went into the master bathroom while Rico Gray Sr. looked through the phone. While going through the phone, Rico Gray Sr. observed texts from the Defendant to her ex-husband Lincoln Alexander prompting Rico Gray Sr. to question whether the newborn baby was his. At this point, Rico Gray Sr. opened the bathroom door to confront the Defendant regarding the texts. A verbal argument ensued between the Defendant and Rico Gray Sr. For this reason, Rico Gray Sr. stepped out of the bathroom and yelled for his sons to put their shoes on because they were leaving. Rico Gray Sr. returned to the bathroom and demanded that the Defendant explain the texts and the verbal argument continued. During the verbal argument Rico Gray Sr. stood in the doorway to the bathroom and the Defendant could not get around him. Either Rico Gray Sr. moved from the doorway or the Defendant pushed around him to exit the bathroom.

Rico Gray Sr. moved to the living room where his children were. Subsequently, the Defendant emerged from the master bedroom and went into the garage where her car was parked. The Defendant testified she was trying to leave the residence but could not get the garage door to open. (The Court notes 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. Additionally, the garage door had worked previously and there was no evidence presented to support her claim.) The Defendant then retrieved her firearm from the glove box of the vehicle. The Defendant returned to the kitchen with the firearm in her hand and pointed it in the direction of all three Victims. Rico Gray Sr. put his hands in the air. The Defendant shot at Rico Gray Sr., nearly missing his head. The bullet traveled through the kitchen wall and into the ceiling in the living room. The Victims fled the residence and immediately called 911. The Defendant stayed in the marital home and at no point called 911. The Defendant was arrested on the date of the incident.

The Defendant posted bail prior to arraignment and was ordered by the Court and signed a document through Pretrial Services stating she was to have no contact with the Victims in the instant case. However, the Defendant continued to have contact with the Victims in this case, more specifically with Rico Gray Sr. Prior to Rico Gray Sr.'s deposition, the Defendant and Rico Gray Sr. discussed what he should say at deposition.

Shortly after Rico Gray Sr.'s deposition, the Defendant drove to Rico Gray Sr.'s new house where his two children [ ] were staying (not the Defendant's home). While there, the Defendant physically attacked Rico Gray Sr., causing injury to Rico Gray Sr.'s face. Again, Rico Gray Sr. immediately called 911 after the incident and the Defendant did not. The Defendant was arrested on new charges and her bond was revoked.

* * *

There is insufficient evidence that the Defendant reasonably believed deadly force was needed to prevent death or great bodily harm to herself, another or to prevent the commission of a forcible felony. During the date in question, the Defendant alleged that while in the bathroom Rico Gray Sr. pushed her, and the bathroom door hit her in the leg when it swung open. Per the Defendant's own testimony, she did not suffer serious bodily injury as a result of the altercation that took place in the bathroom. Further, after Rico Gray Sr. exited the master bedroom, the Defendant intentionally passed by the Victims and entered the garage where she immediately armed herself and proceeded back into the home. This is 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. Hence, the Defendant has not met her burden of establishing her right to immunity as a matter of fact or law.

Alexander v. State, 121 So.3d 1185, 190n.5

(Fla. 1st Dist., 2013) [emphasis original].


When you leave a confrontation to arm

yourself and return to the confrontation, you

are not under any rational interpretation of

self-defense laws acting in justifiable self-

defense. Nor are you firing a warning shot

when the bullet whizzes within inches of your

victim’s head. Not only did the judge rule that

Alexander couldn’t prove self-defense, the

jury ruled that the state had proven beyond a

reasonable doubt that she didn’t act in self-

defense. The result would have been the

same whether she shot her husband between

the eyes or she shot into the ceiling.


The District Court further ruled in their opinion

that it was not necessary to prove that

Alexander injured her husband for her to win

on a self-defense plea. They specifically ruled

that self-defense was available where

absolutely no injury was done to the victim.

Not only did the district court say this, there

was pre-existing legal precedent that held

this. Brown v. State, 59 So.3d 1217, 1218

(Fla. 4th DCA 2011).


Furthermore, in my 32 years’ experience of

prosecuting and defending criminal charges, I

have never seen or heard of a judge telling a

jury that the defendant had to injure the victim

before self-defense was available to him. And

I never saw a jury return a verdict of guilty

with the admonition, “If the defendant had

only shot the victim instead of scaring him half

to death, we would have found him not guilty.”

Now we have a veritable circus, as a distorted

version of the facts is trumpeted as true, an

erroneous interpretation of the law is

trumpeted as correct, and the Legislature is

making daily headlines with a bill designed to

fix something that wasn’t broken. I suspect

this commotion advances numerous agendas

on the part of some parties, but I know that it

doesn’t advance the cause of justice.