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 Amazon.com as it’s #1 seller in the Sports 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.
OK, now onto the self-defense cases coming up in 2014.
MAY 21: Joseph Walker Trial Still On Track to Start May 21
Joseph Walker is the NJ police officer who got caught up in a road rage incident while traveling through Maryland and shot and killed Joseph Harvey, Jr. The main legal issue appears to be one of Maryland’s vigorously imposed duty to retreat, given that the facts suggest a safe avenue of retreat existed. This duty, however, strictly speaking applies in cases of self-defense but not necessarily to cases of defense of others. Because Walker was accompanied by his wife and children, it seems likely he will assert a defense-of-others defense and thereby seek to side-step the otherwise damning duty to retreat.
Walker had previously filed a motion to dismiss the indictment, based on allegations that the prosecution had acted improperly in their presentation of evidence to the Grand Jury. This motion was denied on April 23 by Circuit Court Judge Michael Wachs, as reported by the Capital Gazette. Wachs noted that the prosecution’s presentation of the case to the Grand Jury was misleading, but did not warrant dismissing the indictment.
Walker’s trial is scheduled to begin on Wednesday, May 21.
JUNE 2: Theodore Wafer Receives a New Trial Judge Just Weeks Before Trial Beings
Wafer is the Detroit man who was awoken from his sleep around 2 o’clock in the morning by a very drunk–three times the legal limit for driving–Renisha McBride who was banging on his front door some hours after abandoning the car she crashed. He armed himself with a short-barreled, pistol-grip shotgun, opened his front door, and then under uncertain circumstances–and it is on these that the case will hinge–shot McBride dead on his front porch. Wafer’s trial is scheduled to start on June 2, as reported by Reuters and other news agencies.
In recent weeks defense counsel for Wafer have been arguing that the assigned judge, Qiana Lillard, should recuse herself from the case because of the appearance of possible bias. Lillard had previously been an assistant prosecutor herself, and one of the prosecutors trying the Wafer case had contributed to her campaign to become judge, and also sold fundraising tickets on Lillard’s behalf.
Lillard herself had refused to step down, according to CBS reporting, but the defense appealed to the appellate courts and they have ordered that a new judge be assigned.
Wafer’s trial is scheduled to begin on Monday, June 2.
JULY 21: Marissa Alexander To Receive a Do-Over on Claim of Self-Defense Immunity
Alexander is the woman who, in the course of a loud argument with her husband, left the scene of the argument, retrieved a pistol from the garage, returned to the scene of the argument, and fired a bullet past his head, and that of his two minor children. The bullet penetrated the wall behind them, entered the next room, and buried itself in that room’s ceiling.
She refused a plea offer of 3 years (perhaps because she did not wish to be separated from her just born baby), and was convicted of three counts of aggravated assault at trial. Florida’s “10-20-Life” law imposed upon her a mandatory minimum sentence of 20 years (three counts, each 20 years, run concurrently).
Alexander appropriately won a re-trial because the trial judge’s instructions on self-defense were improperly stated. Since her first trial, however, Flroida case law has found that sentences under “10-20-Life” must be run consecutively, not concurrently. As a result, Alexander now faces up to 60 years in prison on the three counts of aggravated assault with a firearm if she is convicted again–which seems likely given the evidence in the case.
She had previously received a self-defense immunity hearing under Florida’s 76.032–“Immunity from criminal prosecution and civil action for justifiable use of force”–and been denied. To win immunity under this provision the defendant must show, by a preponderance of the evidence, that they acted in lawful self-defense. This is a vastly greater degree of proof than is required to win self-defense at trial, where the defendant need raise merely a reasonable doubt that they may have acted in lawful self-defense. Regardless, Alexander failed on this earlier motion.
Now she is to receive a second shot at the apple, with a new self-defense immunity hearing to be held on May 16, as reported by MSNBC and other sources. Given the facts of the case it seems impossible that she would be able to bring to court a preponderance of the evidence of self-defense–any narrative of self-defense seems scant, at best, under the facts of this case.
If her motion for self-defense immunity is denied, as seems likely, her re-trial is scheduled to being on Monday, July 21.
???: Michael Dunn Re-Trial Date of May 5 Delayed Indefinitely
Those who have followed along will recall that Michael Dunn fired several salvos of bullets into the red SUV carrying teenager Jordan Davis and several of his friends. The jury convicted Dunn of attempted murder for the latter salvos of shots, but hung on the charge of murder for the initial salvo that mortally wounded Davis.
Dunn has a Florida constitutional right to a re-trial within 90 days of his hung verdict, and had been scheduled to begin that re-trial on May 5. This past week, however, his legal counsel (different counsel than the first trial) waived his right to a speedy trial and requested–and was granted–more time to prepare their case, according to news reports including that of First Coast News. No specific new date for the re-trial has yet been set. That said, there is no doubt that he WILL be re-tried, and in my professional opinion convicted of murder. (But THAT said, recent observation of Florida prosecutors leads me to hedge that bet considerably.)
OK, folks, that’s all I have today. I plan to live-tweet each of those trials as they occur, and of course to report on them in real-time right here at Legal Insurrection.
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, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.DONATE
Donations tax deductible
to the full extent allowed by law.