Marissa Alexander will get a second chance to convince a jury that she feared for her life when she fired a warning shot to scare her abusive husband and that Florida’s “stand your ground” law should keep her out of prison.
The 1st District Court of Appeal overturned Ms. Alexander’s aggravated battery conviction and 20-year mandatory sentence, ruling that the trial judge made a fundamental error in the jury instructions on self-defense. Ms. Alexander will get a new trial, but not a second pre-trial hearing to determine if she should get immunity from prosecution under stand your ground.
The 1st DCA agreed with the trial court that Ms. Alexander’s decision to confront her husband with a gun was inconsistent with someone in “genuine fear of his or her life.” But Ms. Alexander’s attorney, Bruce Zimet, said stand your ground still applies, and he will use the law as her defense.
Ms. Alexander was separated from, and had a restraining order against Rico Gray when she returned home in August 2010 to retrieve her clothes. Mr. Gray said in a deposition that he got angry when he saw text messages on Alexander’s phone from her ex-husband. He threatened her, and she retreated. Ms. Alexander said he came inside a bathroom, where they struggled until she freed herself. She ran into the garage, got a gun from her car, went back inside, yelled at him to leave and fired when he approached.
Duval County State Attorney Angela Corey contends that Ms. Alexander fired the shot in anger not fear. But her husband initially backed up Ms. Alexander’s version of events. Mr. Gray has children by five women, and admitted to abusing four of them, including Ms. Alexander.
It took a jury only 12 minutes to convict Ms. Alexander. Perhaps that was because of the flawed jury instructions. Circuit Judge James Daniel mistakenly shifted the burden to Ms. Alexander to prove that she was acting in self-defense. The burden of proof that she wasn’t belongs to the prosecution.
The appeals court noted that “it is entirely possible ‘that a verdict of guilty could not have been obtained without the assistance of the error alleged.’ ” Consider the instructions to jurors who acquitted George Zimmerman. He pleaded not guilty based on self-defense, and the stand your ground language was a part of those instructions: “If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.”
Ms. Alexander is among the 30 percent of Floridians who have unsuccessfully used “stand your ground.” Among the 70 percent who went free using the law are a man who killed two unarmed people, one who shot a man as he lay on the ground and others who shot their victims in the back. These disparities should prompt legislators to revise stand your ground. It has redefined self-defense law in a way that does not serve justice.
for The Post Editorial Board