Wednesday, November 18, 2015


In my last blog, I talked about how incredibly ill-advised the proposed open-carry law (CS/HB 163) was, and went on to say that it wasn’t the worst NRA-backed bill pending before the legislature. I promised to talk about that bill in a later blog. Thankfully, before I got a chance to point out everything that was wrong with it, the bill was defeated. I think the main reason the bill was defeated (at least the main reason it should have been defeated) was that it was basically a prosecutor-intimidation bill. It was designed to make the prosecutor's job twice as hard as it already is, and it also threatened the prosecutor with a financial penalty of potentially $200,000 for every case of violent crime lost by the prosecution. Net result? Many prosecutors in many cases will throw up their hands and say "Although this defendant should be prosecuted, it's too hard to get a conviction and too risky to try. I'll just have to let the defendant go this time and hope that the next time he shoots/stabs/kills someone, I'll have an open-and-shut case."

The NRA says they’ll be back next legislative session to try again, so I’m going to go ahead and analyze the defeated bill in hopes that I can contribute to its defeat in the next legislative session.

The description of the bill reads: “Provides legislative findings & intent; provides for retroactive application; specifies that once prima facie claim of self-defense immunity has been raised, burden of proof shall be on party seeking to overcome immunity from criminal prosecution; entitles criminal defendants who successfully claim such immunity to award of specified costs, attorney fees, & related expenses; specifies procedure for reimbursement requests; requires reimbursements to be paid from operating trust fund of state attorney who prosecuted defendant; limits amount of award.[1]

Sounds harmless enough, doesn’t it? It isn’t. Here’s some history. First, the Stand Your Ground (SYG) law conferred immunity on anyone who uses deadly force in lawful self-defense. Under the law as it has existed since 1776, whenever anyone has ever claimed any type of immunity from prosecution or suit, they have had to prove that they were immune. For example: If I were tried for and acquitted of battery on Joe Blow and got arrested and charged with the same crime again, I would have immunity from prosecution. In order to enforce that immunity, I would have to file a motion to dismiss and go to court and prove by a preponderance of the evidence (POE) that I had previously been tried for and acquitted of the same battery.

I actually got a client acquitted once when I was a PD on such a motion. He was charged in misdemeanor court with resisting “Officer Friendly” and in felony court with violently resisting “Officer Friendly.” I tried him in misdemeanor court and the jury acquitted him. I then filed a motion to dismiss the felony case. I produced certified copies of the misdemeanor court charging document and the verdict and proved by a POE that my client was immune on grounds of former jeopardy. Case dismissed.

That’s the way it works with all types of immunity. Well, the courts of Florida decided that SYG immunity was no better than any other kind of immunity, and they required the defendant to prove by a POE that he was entitled to immunity. If he didn’t, then the prosecution still had to prove to a jury beyond a reasonable doubt (BRD) that he didn’t act in self-defense. So the defendant got two shots at getting himself acquitted on grounds of self-defense, once by proving to a lower standard of proof that he acted in self-defense, and once by requiring the prosecution to prove to the highest standard of proof that he didn’t act in self-defense.

Enter the NRA, and they lobby for a bill which moves the burden of proof in the immunity hearing to the prosecution. And it makes the burden BRD. Now the legislature commissioned a staff analysis on this question trying to decide whether the bill made sense.

The first finding of the staff was pretty much what I’ve already said.[2] The next finding said that the staff had looked at all the SYG statues around the nation, and NOBODY ELSE required the state to prove BRD at an immunity hearing that the defendant didn’t act in self-defense. They found some states which required the prosecution to show probable cause to believe the defendant didn’t act in self-defense, which is a much lower burden of proof than POE.[3]

After finding that absolutely no SYG statute anywhere requires the prosecution to prove the defendant guilty BRD at a pretrial hearing, the report observed that no other kind of immunity in Florida requires the prosecution to prove BRD that the defendant is not entitled to immunity.

The report then talks about burdens of proof at trial before a jury, noting that the prosecution has the burden of proof at trial.[4] Imagine that! Remarks about the burden of proof being on the prosecution at trial before a jury are irrelevant to the issue of whether the burden of proof should be on the prosecution at an SYG hearing.

The report then notes that the makes prosecutors liable to the tune of up to $200,000 to the defendant if they lose an SYG hearing.[5] Now this money doesn’t come out of the prosecutor’s pocket, dear taxpayer, it comes out of the prosecutor’s budget. BUT the prosecutor’s budget is funded by your tax dollars.

Finally, the report states “The bill does not appear to have any impact on state government revenues.” [Staff Report, page 6] Really? Making the prosecution prove their case beyond a reasonable doubt TWICE isn’t going to be more expensive than making them prove it BRD once? It won’t be quite twice as expensive because you’ll only have to pay one jury instead of two, but every other expense will quite likely be doubled. And making the prosecution fork over $200,000 to every defendant who wins an SYG hearing isn’t going to have an impact on state government revenues? Especially when the prosecution has to win the SYG hearing BRD?

Now, here’s a thought. The BRD standard was made a part of the law to make it just as hard as possible to convict. It was decided that we should make it just as hard as possible to convict because “It’s better that ten guilty go free than one innocent be falsely convicted.” Okay, by that reasoning, we would expect that for every eleven times the prosecution fails to prove a case BRD, ten of the defendants who go free are actually guilty.[6] And that means if we make the prosecution prove their case BRD twice, we run the risk of winnowing out ten guilty defendants at the SYG hearing and ten more guilty defendants at the jury trial, for a grand total of twenty guilty going free.[7]

But for those lucky ten guilty defendants who win the SYG hearing, it’s Christmas! They not only win their freedom, they can win up to $200,000.  So if the legislature ever passes this bill into law, you’re more likely to win $200,000 by shooting somebody than you are by buying a lottery ticket. Okay, that last remark may be somewhat of an overstatement. Sometimes I get carried away when I’m arguing against something that I think is so goshawful wrong.