"Stand Your Ground"

     The 'stand your ground' law in the notorious case in Florida is not that different from Washington law. 

     In Florida, the law reads this way: "a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another."  [Florida Statute Section 776.012.]
"The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located." [Florida Statutes Section 782.02]

    In Washington, if someone claims a killing was done in self defense, then the jury would be instructed this way: " It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction. Homicide is justifiable when committed in the lawful defense of the slayer when:
     1) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;
     2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
     3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

     The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty."  [Washington Pattern Instruction #16.02]

The jury would also be instructed: "It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat."  [WPI # 16.08]  For many years this 'no duty to retreat' instruction was derisively referred to as 'the law of the Old West.'  Washington was one of many Western states that used this instruction.

The key ingredient in both Florida and Washington is the "reasonable belief."  To use the facts of the Trayvon Martin case, the state will have to convince the jury that Mr. Zimmerman's use of deadly force was not based on a reasonable belief.  Put another way, first, was he reasonable in following Martin after the 911 operator told him not to?  And more importantly, did Zimmerman reasonably believe that Trayvon Martin was about to kill him or commit a 'forcible felony' or cause great bodily harm?  Suppose that Zimmerman testifies that Martin punched him in the face or pushed him away, or even kicked him.  Is that sufficient for Zimmerman to reasonably believe Martin would kill him or cause great bodily harm?  Preventing a bloody nose or a black eye do not seem to be sufficiently threatening so as to justify deadly force, i.e., pulling out a gun and shooting.

I have had several murder trials where deadly force was used in a situation where some force would have been justifiable.  In one case, my client agreed to leave the bar and face a bully who was tormenting him.  They began a fistfight.  Then during the tussle, my client pulled a steak knife from his sock and began stabbing his opponent until the fight broke up.  The other man died of his wounds two weeks later.  Two juries heard this case (1st one reversed on appeal) and both convicted. 

Another case involved a client sleeping in his room.  His mother's boyfriend, a drunk and a bully, suddenly burst into the sleeper's room and began a fight.  My client pulled out a large kitchen knife he kept in his room and cut him more than a dozen times, killing him.  Some of the wounds were 'defensive'--to the hand and fingers, so a murder charge was filed.  The first jury voted 7-5 to acquit but could not reach a decision.  The re-trial jury convicted him of the lesser included offense of manslaughter.  And a third case involved a client who got into a fight near his home with his sister's ex-boyfriend.  When the ex-boyfriend began threatening to kill my client, he ran into his house got a .45 caliber gun and shot the ex-boyfriend from the front porch about 6-8 times.  The jury convicted him but said if he had only fired one time, they might have acquitted.

The similarity in the three cases is that the jury probably found that the force used was greater than necessary.  Washington law adds the requirement that the force be what a "reasonably prudent person" would use, but arguably the term "reasonable belief" in Florida can encompass that. 

The biggest difference may be the jury.  On the same facts, juries will differ in deciding what is "reasonable."  Stereotypically, in the South, or in rural areas, there is more tolerance for excessive force in self defense, but not always.  Another major factor in the Florida case will be Zimmerman's credibility and how he does on cross examination.  Since there are no other eyewitnesses, his version will largely be uncontested--except for the 911 calls.  A well prepared defendant will be advised to avoid contradicting those calls. 

In the end, the law that applies in Florida will not be that different from what is applied here in Washington.  Since the details of Zimmerman's story is not publicly known, there is no way to predict what the jury will do.  Whatever they do, it'll hit the fan hard.

  

Getaway Drivers and Other Accomplices

Even if you don't go in the bank but wait outside in the car, if you know your buddy is armed and goes in the bank, you can be punished just as harshly. This is known as accomplice liability.


The formal law is roughly as follows: If you solicit, encourage, command or request another person to commit a crime, you are as guilty as the one who actually does it. Obviously if you directly aid or assist in the planning or commission of the crime, you are also equally liable for the crime. You do not have to be present at the scene of the crime to be guilty. On the other hand, your mere presence at the crime scene and knowledge of the crime alone are not enough. You have to do something, or encourage, aid, or by your presence, support or encourage THE CRIME. If you are just there but also acting as a 'lookout,' then you are an accomplice.


I capitalized THE CRIME, since the state has to prove that you are involved in the particular crime charged. For example, if you agree to be the lookout for a burglary and your buddy heads toward the house and then assaults someone on the street on the way into the house, you would not be liable for the assault. It is a more complicated question if the person going in the house, assaults or kills someone inside since prosecutors might consider that part of the burglary crime.


In the drive-by shooting case from Ballard H.S. in the mid-1990's, the driver was convicted of murder in the second degree because he "knowingly facilitated the drive-by shooting." The prosecutor argued that old favorite: "in for a dime, in for a dollar." And on appeal the driver argued the jury instructions were misleading and the prosecutor's argument was simplistic and unfair. This area of law is so complex that his appeals went on until just last month. He had won a new trial at one point, but then the U.S. Supreme Court reversed that.


I am involved in a murder case, where I represent an uncharged suspect. In that same case, the alleged driver to the murder scene is currently on trial. His defense is that he had no idea that the two men in his car would later shoot the victim in front of a bar. The state probably can prove he had parked the car some distance away while he waited in the car. So the question will be whether they can prove he did so, knowing of their design to shoot when they left the car.


Another case I have is that of a young man accused of starting a fight outside a bar, where the 'victim' voluntarily went outside to confront him. Ordinarily that would be a misdemeanor assault. (A mutual fight is no defense for the person who threw the first punch.) However, when the two were grappling, my client's friend began punching and kicking the victim. The friend's blows caused the victim a fractured nose and cheek bone. My client did not do any serious damage. Yet my client is charged with a felony assault in the second degree. There, the issue will be if they were acting in concert or if the friend, unbidden by my client, just jumped in and acted on his own.


In federal court, the prosecutors frequently charge conspiracy crimes. In such a case, a person can be guilty when (1) two or more people agree to commit a crime, (2) when the accused joins this group knowing of its criminal purpose and intending to help it, and (3) someone performs an overt act for the purpose of carrying out the conspiracy. Take a mortgage fraud scheme, where people lie on their applications to get the loan. And then, never intending to live there, turn the property over to others who try to flip it at a higher price. Even if the person who filled out the application never benefitted from the scheme, a conspiracy charge would lie.

Another problem for co-conspirators, for example, is the schlep who agrees to move the hockey bag with marijuana it over the border. The schlep may be facing as much time as the owners of the dope. I like to explain this with the Macdonald's analogy. Imagine if making burgers were illegal like cocaine is. Then if you agree to flip some burgers for one of the golden arch stores, you are potentially liable for all of the whole corporate output. After all, everyone knows the signs say 'so many billions sold. . .' Of course the schlep could say he didn't know there were 100's of hockey bags involved. Perhaps. . .

In short, choose your friends carefully and don't do any favors such as carrying that bundle across the border . . .