In Self Defense - Episode 52: The Warning Shot Case: Part II

 

In this second look at the Marissa Alexander case, Don West and Shawn Vincent look at their long legal fight Alexander faced in defense of the warning shot she fired during a 2010 confrontation with her estranged husband.

 

TRANSCRIPT:

Shawn Vincent: Well, hey Don, how's it going?

Don West: Great Shawn, good to talk with you.

Shawn Vincent: Last time we spoke, we were talking about the Marissa Alexander case. We had a great opportunity where Mike Darter and Stan Campbell had a chance to talk to Marissa Alexander. She was the defender in the famous warning shot case where she fired a single shot at her estranged, now ex-husband after he had just assaulted her in their shared marital home, and she made the mistake of not calling the police. He called the police. They came and questioned her, ultimately arrested her for this discharge of the firearm at her husband. It was ultimately, it ended up being a case of aggravated assault with a deadly weapon.

Shawn Vincent: And in our last podcast, if our listeners haven't listened to it, they should go online and pick that one up. First, we talk about how the whole event unfolded, how she had the violent encounter with him in the bathroom. She retreated to the garage, couldn't get out, got her gun, came back inside. He saw the gun, he threatened to kill her. She fired a shot. He left, called the police. Police came, they had to call her, tell her to come out of the house with her hands up, asked her some questions and then all of a sudden she who, at first felt like she had done nothing wrong because she was defending herself and her own home, was now wrapped up in the criminal justice system.

Don West: Yes, that's exactly right. She certainly was wrapped up in it. And as we'll discuss as we go on here, how much the laws in place ... not the laws in place always drive the case. Obviously those are the rules and the guidelines and they outline not just the elements of whatever offense is charged, but in many instances potential penalties as well. And more than most cases, Marissa Alexander found herself right in the middle of this legal quagmire where her fate was largely driven by what the legislature had done some years before in reference to mandatory minimum sentences.

Shawn Vincent: Yeah. So just to give a taste of what she was in for and what she had no idea about. I'm going to play a quick segment from her podcast with Mike and Stan.

Marissa Alexand: I literally was, so I'm naive. I'm thinking, okay, it's going to be like Law and Order or the Heat of the Night. I'll go to a little room, I'll tell them what happened and be like, everything is good. And it was not the case and it really feels it's a situation where you are guilty. You're not innocent until proven guilty. You're already guilty. You got to prove your way innocent.

Shawn Vincent: So not unlike the understanding that most people have about the criminal justice system, Marissa Alexander's expectations of what she was in for were set by television --in particular, Law and Order. And we talked about this a little bit in the podcast last time. It's a great place to start up. Now, this idea that she went into that little room with investigators. She told her side of the story and thought that that would be it okay, and they'd figure out the truth from her point of view, and then she gets to go on living her life. And instead she ended up getting booked that day in jail, given a prison uniform and a bologna sandwich and told to walk a line to a jail cell.

Don West: I think in her situation it's so much a parallel with other self-defense cases that we've seen or experienced even where because you don't feel like you've really done anything wrong. It's the urgency of trying to explain it. We touched upon that in an earlier podcast, but the idea that she's desperately trying to explain why she's not guilty and there she is in custody or certainly being detained at the time. And as we've seen, and I suspect in her case as well, just continue to dig the hole. And genuinely is surprised and at the end of this interview isn't a send on home because the police finally realized how wrong they were to suspect her all along. As she said, naive. I think that's a perfect word to explain her mindset and the mindset of many people that wind up in her situation.

Shawn Vincent: Well, I mean and it perfectly until you see it actually work you don't know. The first real interaction with the criminal justice system that I ever had is when I had a chance to work with you on the big famous case. And the first trial I ever saw was the Zimmerman trial but I got an inside look to see how everything works. And since then I've been lucky to call myself a litigation consultant. I've worked on all sorts of types of cases, both on the criminal side and on the civil plaintiff side. And a lot of what I ended up doing when I interact either with a defendant or with a plaintiff is helping communicate to them in non-legalese terms, just what's going on with the justice system and why, Don, everything takes so long.

Shawn Vincent: And Marissa Alexander's case, yeah, we're looking at the shooting itself happening on August, 1st of 2010. It was essentially, gosh, May 11th of 2012 when she finally had a two day trial and was found guilty. So that's was better than a year and a half later. And then she files an appeal and that appeal in terms of how quickly appeals are done, pretty quick, September of 2013. So another year and a half goes by and then during that time she ended up incarcerated for 1,065 days. She ends up at the end, not exonerated, but pleading to a lesser sentence with a threat of serving three times what her original sentence was.

Don West: Sure.

Shawn Vincent: So, like, nearly four years, she was lucky that the case was high-profile and that some people had some sympathy for a victim of domestic abuse using a firearm to defend herself. So she had some pro bono legal services, which most people would not have the benefit of. And so there she is at a time when her kids were entering, at least, her twins were entering their teenage years. She's gone for 1,065 days in a fight for her life where she doesn't know that she's not going to spend the rest of her life in jail.

Don West: So Shawn, let me ask you this question. You've studied the case, you were watching it in the news while it was unfolding along the way. Why do you think the case got such media attention and why people were going on television programs, news programs, internet and saying what an outrage this whole case was, that it was just a warning shot. And the fact that she was not just exposed to 20 years but sentenced to 20 years is outside the realm of belief. How could anybody be treated like that by the system?

Shawn Vincent: Yeah. Well, I don't think that you can ignore the fact that this happened, this overlapped the Zimmerman case when he looks at the cultural context that this falls under. So the big cultural issue underlying the Zimmerman defense was that here's a guy who shot an unarmed black man and looked to get the benefit of the Stand Your Ground law in a time where the justice system is perceived to be, and I believe is, disproportionately stacked against African American people. And then in the midst of that outrage, then you look at this other case where now you have a black woman who defended herself and didn't even kill anybody, didn't even hurt anybody. And she's looking at that time, 20 years in prison for it. And it just seemed a disproportionate and patently unfair. Do you think that's a fair assessment?

Don West: I do. So if you take the 20 years out of it and you talk about a year or two or probation or even three or four years for shooting a gun at somebody that was a close call and put other people at risk, if you assume for the moment that it wasn't legally justified and someone who does that get prosecuted and sent to prison for two or three years, is that as outrageous or is that just people understand sometimes bad things happen to good people or that domestic situations are chaotic and bad things happen that wouldn't typically happen in a person's life, but for the 20 years. It was the 20 years that was so outrageous and looks so disproportional that it became the flag that people wave to point out why she was treated so unfairly.

Shawn Vincent: Yeah, it feels wrong in your heart. I think that's when we talk about the Zimmerman case, I talk a lot about the truth with a big “T” and truth of the little “T.” And we know all the evidence in that case inside and out, and those little facts that weren't necessarily known to the public until the trial and then nobody, not everyone watched the trial beginning to end, and that they don't know those little facts. We know they added up to a justifiable use of force incident. And those are the little “Ts” and you can argue those until you're blue in the face. But what didn't change was the big “T,” the big truth that was sparked by the case, but not necessarily supported by the facts of the case, which is that there is an inequity in how people of different races are treated in the justice system.

Shawn Vincent: And so then you look at another case where all the little details, the little “Ts” make it difficult, but the big “T” is no one was hurt. And it was a woman defending herself from an abusive husband that she had a restraining order against. And to think that she's going to face a large minimum mandatory sentence just doesn't pass the feel test.

Don West: All right. If you take that to the next step, and I think we should try to drill into this a little bit. I know this area of the law quite well. I've handled a number of cases, firearms cases that have involved mandatory minimums. I'm familiar with prosecutorial discretion, I'm familiar with claims of an abuse of that discretion. I'm familiar with plea negotiations. I'm familiar with overcharging to use as a weapon to sort of bully away into a settlement and this is sort of my wheelhouse when it comes certainly to Florida law.

Don West: So I feel like I have a unique understanding of the dynamics of how cases like this play out and I think it might be a good illustration for how people can get caught up in a system over which they have no control and frankly the judge has virtually no control. The prosecutor has some control, the most discretion and the defense lawyers have really no control over how a case is pursued and ultimately how to manage risks. That's what these cases turn out to be from a lawyer standpoint is managing risk so that the worst possible thing doesn't happen.

Shawn Vincent: Your description of that makes me think of a runaway train, in that you get a case like this, you have laws built the way they're built. You have an action like this discharge of the weapon that triggers a criminal investigation and then it's almost like this train let loose down a hill, it is just going to go and that maybe the only control is the prosecutor in the caboose with the break back there, they can decide how fast or slow it goes.

Don West: And Miss Alexander's case is a wonderful example of that analogy and also how certain cases can have an impact. And I think her case had a direct demonstrable impact on how future cases were handled or can be handled. And I think that it's probably fair that her case had resulted in changes in the law since 2010 when she was prosecuted through 2012, 2013 and then when her new trial and ultimately the case was resolved, the law has changed specifically with regard to the minimum mandatory for aggravated assault.

Don West: And that's a life-changer for people that are involved in a similar situation as to what she found herself in.

Shawn Vincent: So where's a good place to start talking about that Don, and maybe it's this idea that minimum mandatory and how ... so you and I both know that the vast, vast majority of criminal prosecutions don't end in a trial; they end up in some sort of plea settlement. A few of them probably get non-billed eventually, but yeah, most of them end up with the defendant agreeing to some plea and some compromise sentence. Is that right?

Don West: The vast majority, I don't know what the numbers are. I think it's 90% probably. Maybe somewhere in the high 80s of cases that are resolved without a trial. Frankly, the system would come crashing down if all criminal defendants insisted on a jury trial. The system would collapse.

Shawn Vincent: Right.

Don West: And there's lots of reasons why cases resolve without a trial. And some of them are honest and forthright and based upon a better understanding of what happened after investigation and discovery and discussion. And the end result is a negotiated resolution that both sides are reasonably happy with.

Shawn Vincent: So what you're saying is that sometimes a prosecutor will see some evidence come out, listen to some argument and testimony and say maybe you're right, we don't have a real assault charge here. We're going to find a misdemeanor, and plea it out to that. And here's something that everyone can live with.

Don West: Yeah, that's right. The facts may be tweaked or changed. There may be assumptions that the prosecutor made based upon certain witness statements or evidence that when further investigation are done shown not to be exactly as that impression was. And frankly, a good defense lawyer will spend some time helping the prosecutor better understand who the defendant is, of course, if that's favorable. And why maybe their discretion should be exercised in favor of the accused. The prosecutor has all the cards, they make the charging decision, they involve are involved in any plea discussions which could result in one or two directions.

Don West: One direction could be that since every crime has a relative range of punishment with it, by offering a plea to a lesser crime, you've resulted necessarily in a different sentencing range typically. So the prosecutor may conclude at the end of the day, let's talk about a serious crime that could be a murder charge. And there are several lesser included charges. A first degree murder charge might carry a mandatory life sentence without parole. A second degree murder charge of the firearm could carry a life sentence. And then there's manslaughter, that is a lesser included offense of murder, but does not have mandatory minimum sentences typically. And the sentencing ranges considerably less on that.

Don West: So after investigation, the prosecutor may believe that the defendant committed a criminal act and the evidence may show it pretty convincingly, but be satisfied that it's more in the context of manslaughter rather than murder. So a defendant that's looking at a lengthy lengthy sentence may be life could wind up with a five year or 10 year sentence, which is still a lot of time, but it may in fact be a good and fair resolution of the case.

Shawn Vincent: Yeah, but all that said, you and I have seen cases where we think they're overcharged. And maybe a prosecutor might think, this could be manslaughter, but they're not going to talk you down the manslaughter if they start there. So they might start somewhere like it's second degree murder or first degree murder. And you talked about they hold all the cards. Now it's the defendant that has to call that bet. And going to trial is an all or nothing proposition. So you get in a situation where you're going to face this maximum prosecution that the DA wants to pursue, or you get this offer, which is a guarantee of less time or maybe a lesser charge that is easier for you to live with afterwards. Or you have the option to roll the dice, see what a jury thinks and either spend way more time in prison or none at all. That's the bet.

Don West: It is the bet and that's a calculation based upon your knowledge of the evidence of what you think the strengths of the prosecution case is, the strengths of your defenses, the intangibles, how certain evidence might resonate with a jury. We talked about several cases in prior podcasts including the Gerald Strebendt case where there was a guy who had a pretty good self-defense claim but was simply not willing to take the chance that at the end of the day, because of some prior events in his life and the fact that an AR-15 style weapon was used, and the deceased was unarmed, you put all that stuff together, and he made a decision that he would rather serve a relatively short prison sentence to avoid the risk of a lengthy -- if not life sentence --  and they entered into a plea and that happens every day in the criminal justice system.

Shawn Vincent: Yeah. And add onto that, that Strebendt had been in jail long enough to where he was already starting to become institutionalized. It's your perception of what's acceptable for the rest of your life changes, the deeper that you get into it. And you've seen this with clients who come at first, convinced of their innocence, and they're not going to serve a day in prison for this crime. They're never going to plead guilty to, after sometimes years, certainly months and months and months of prosecution with their savings drained,  and probably their relationship shattered, and they've lost their job. Now they're a broken person and any light that gives them a way out of this prosecution now takes on a new luster, doesn't it?

Don West: Certainly does. Why don't we circle back and let me take a minute and explain some of the legal issues that Marissa Alexander found herself facing once she was arrested and then ultimately charged.

Shawn Vincent: Okay.

Don West: Then we can parse through that a little bit and better understand the decisions that were made by her lawyers and by her. And I think we can see a pretty clear trajectory as to how she wound up where she is now. And then we can actually talk a little bit about some of the changes, her advocacy and maybe some about the real effect of some of the advocacy.

Shawn Vincent: Great. So do you want to start?

Don West: Well, let's go back to the beginning and let me set the stage. This was in Jacksonville, Florida. The elected State Attorney was Angela Corey. She's pretty controversial. She's no longer the State Attorney. She was appointed by the governor, Rick Scott to handle the George Zimmerman / Trayvon Martin case. So I have a lot of firsthand experience with her and the lawyers that work for her, that are assigned to various serious high profile cases. And I can tell you that most of my experiences with her are not favorable. Well, without going into all of that, I can tell you that I'm no fan of hers, but at the same time I want to talk about the way her office handled this case as objectively as possible. So I'm going to give her office the benefit of the doubt, even though personally I don't feel that way.

Shawn Vincent: Fair enough.

Don West: So the case that the police got with Marissa Alexander was, as we've talked about at some length, she shoots a gun inside the house in the general direction of her husband. There's a bullet in the wall. It goes into the ceiling in the general vicinity of where he was standing. She claimed that she was attacked and he threatened to kill her and that she had no choice but to use deadly force. So the prosecutor had a wide range of charging options at that point. There were the attempted homicide or criminal homicide charges. There was certainly attempted first degree murder if they thought she fully intended to kill him, but just was unsuccessful. Attempted second degree, which is a reckless, wanton disregard for the safety of people. They could have charged even an attempted manslaughter, which is kind of a weird charge these days, but it would be on the books.

Don West: But they chose to file her with a specific intent crime of aggravated assault, meaning that she intended to threaten but did not necessarily have the intent to kill. It's typically a third degree felony punishable by up to five years. If you put a deadly weapon involved, specifically a firearm, then you have a three-year mandatory sentence that the judge has no discretion but to impose on a conviction.

Don West: Here's where the prosecutor has some discretion. They had discretion not to charge an attempted murder of some sort. They also had the discretion what level of aggravated assault to charge. They charged the enhanced crime under Florida's “10-20-Life” provision that was in effect at the time, which basically says that if you are committing a crime and you use a firearm, depending on the circumstances, you will receive a mandatory minimum sentence upon conviction at a certain level. With aggravated assault if you use a firearm and discharge it as opposed to just using it to point. If you discharge it, the mandatory minimum becomes 20 years.

Shawn Vincent: Just for context, like a manslaughter conviction, you could realistically be sentenced for much less than 20 years.

Don West: Interestingly enough, in Florida, if you use a firearm to commit the crime of manslaughter, there is no mandatory minimum associated with using a firearm for manslaughter because it's in a sense a crime of a gross negligence. It does not have the enhancement. So for example, while a firearm increases the potential maximum penalty, it does not impose a minimum penalty. So Michael Drejka, the Clearwater handicapped parking spot case that we've talked about-

Shawn Vincent: Sure.

Don West: ... he was charged with manslaughter, but he clearly used a firearm and then he was facing a maximum 30 years because of using a firearm, but there was no minimum. Interestingly enough, a different kind of crime could have resulted in a higher sentence, even if it didn't result in a death. So back to Marissa Alexander for a second, the prosecutor chose to charge her with aggravated assault with the discharge and that would apply to Rico Gray and also to the kids in the house if the prosecutor chose to charge her with that.

Don West: So going into it, she would have known after meeting with her defense lawyers and seeing the prosecution documents, that if she were convicted, she would face a mandatory minimum of 20 years, which means that the judge has no control over it. The judge cannot impose one day less than the 20 years upon a conviction.

Shawn Vincent: Sure. And the jury would have no idea what the minimum was if they chose to.

Don West: That's a really important part. I've been watching the Amber Guyger case in Texas where Texas juries actually impose the sentence after finding an individual accused of a particular crime. And unlike Texas, Florida juries and most juries around the country have absolutely no idea what the range of sentences will be on a conviction, whether there's a mandatory minimum, if so, how much. They're looking at the evidence and whether the evidence supports the elements of the particular crime.

Don West: And frankly, if you have a hole in the wall from a bullet and you have a person saying they fired the gun, it's kind of a no brainer to conclude that the person discharged the gun. So from a factual standpoint, if the jury rejected self-defense, Marissa Alexander was in big trouble. And you're right, the jury would not have known the actual effect of the conviction. So when I said before, I'm no fan of Angela Corey, I do want to point out that in the plea discussions, in the negotiations of the case, right at the very beginning, Ms. Alexander had a plea offer. The prosecutor agreed that upon a guilty plea or no contest plea, whatever the terms were, that they would amend the charge from the aggravated assault with a discharge to an aggravated assault with the possession of a deadly weapon, specifically a firearm.

Don West: And what that would have done is taken the mandatory minimum from 20 years down to three. Again, no discretion if she pleads to it, the judge has to impose a sentence of at least three years. So she would have been looking at a maximum of five years, a minimum of three. And I think the deal was she would just serve the three years and be done with it.

Shawn Vincent: So now the gambling bet given to Alexander at this point is a guaranteed three years or roll the dice and it's either 20 years or nothing. There's nothing really in between here.

Don West: There's not going to be much in between because like we were saying, the facts clearly showed she pulled the trigger, clearly showed she fired the gun, and if the jury didn't buy self-defense then there was no reason for them not to convict her of the aggravated assault with a discharge. So that was the decision she made with the benefit of counsel. I'm sure they agonized over it, and I imagine she knew what the risk was, but interestingly-

Shawn Vincent: She said, "I'm innocent, I'm going to go for it.”

Don West: Yeah, but I think what's really interesting about this case too, is Florida, in 2005 when they passed this Stand Your Ground, wide ranging comprehensive statute included the self-defense immunity provision that allowed people charged in a criminal offense who claimed self-defense to take it before the judge, prior to the criminal trial and present their case. And if the judge believed there was a sufficient showing that it was in self-defense, then the judge could dismiss the case. The law has changed since then. Under the law in effect during Ms. Alexander's case, the defense files a petition with the court and then at the hearing has to show by a preponderance of the evidence, like 51%, that she acted in self-defense.

Shawn Vincent: So in the immunity hearing back then, the defense has the burden of proof, to prove that it, in fact, was self-defense.

Don West: That it was self-defense. Yeah. So she had that opportunity and they took advantage of it and they had the hearing and at the end of the hearing, which it's an evidentiary hearing. I mean, they would call witnesses and make arguments. You can call experts.

Shawn Vincent: It's like a mini-trial. It's essentially a trial.

Don West: It is. I've been involved in one and you as well, that lasted a full five days. There was 30 or 40 hours of testimony and argument.

Shawn Vincent: Which was three days longer than Marissa Alexander's ultimate trial. Yeah.

Don West: That's right. So somebody walking into the courtroom would see this going on and have no reason to think, it wasn't a full blown trial.

Shawn Vincent: Except there is no jury there.

Don West: Exactly right. So Marissa Alexander lost the hearing. The judge ruled against her and concluded that she'd not made the necessary showing and refused to dismiss the case. I would have thought that's a pretty good indication to me that self-defense was not clear, which in my mind would have heightened the risk of going to a jury trial.

Shawn Vincent: Sure.

Don West: But however it sorted out, she still rejected the plea offer and decided to take her chances with a jury. Unfortunately, as we know, not only did the jury convict her of aggravated assault, but they also convicted her of the aggravated assault with the discharge of the firearm, which triggered the mandatory minimum. They didn't give her the lesser charge.

Shawn Vincent: Go straight to jail, do not pass “Go.”

Don West: Yeah, and the judge had no choice but to sentence her to 20 years. So if I look back on it, I can't say that the prosecutor's office was completely outrageous or irresponsible. They made from their perspective a pretty decent offer in that they were convinced they had the evidence to prove that she was not justified, that she in fact committed a crime. They clearly could have gone for attempted murder if they wanted to really overcharge. They charged the aggravated assault with the discharge, which is pretty consistent, although extremely punitive as we know because of the mandatory minimum and then to avoid the risk of trial and to exercise their discretion, they offered a plea that while it would have meant a prison sentence would have been capped at three years and that would have been the end of the case.

Shawn Vincent: But it was not the end of the case.

Don West: So we can criticize prosecutors all the time and point to them and I think Ms. Corey certainly had the fingers pointed at her. She became the person that was vilified in all of this, when the case got characterized as just a warning shot and all of that. But in my experience, I have a hard time concluding that it was outrageous. Three years, people may think was outrageous, but I've seen too much in the system to think that if the self-defense claim was rejected and the 20 years may have been a bit of a bludgeoning tool, but they did make the offer that would have allowed her to resolve the case in three years. So it's rejected. She's convicted, she sentenced to 20 years. I imagine her mind is blown at that point. This was the worst possible outcome for her under the circumstances.

Shawn Vincent: Well, she says in the podcast with Mike and Stan that she said immediately, “All right, round two. What's next?” She was still convinced of her innocence and was going to exhaust the procedural opportunities that she had.

Don West: Well for a jury to convict somebody -- unless they are a complete rogue jury that's operating out of bias or prejudice or emotion or something that's not supposed to factor in -- if a jury convicts you, they have to be unanimous. They have to have concluded that the prosecutor proved the crime beyond a reasonable doubt, and also convinced that in self-defense that the state proved beyond a reasonable doubt that it was not lawful self-defense, in some ways an extension of what the judge said that Marissa hadn't established in the immunity hearing.

Don West: So I don't know what Marissa was thinking, whether she was somewhat diluted or confused about what the evidentiary standard was or what the power of the evidence was. But for someone on the outside, once you lose the immunity hearing and once you get convicted by a jury, I think the writing is pretty much on the wall at that point. So the next step procedurally is an appeal.

Shawn Vincent: Right. And we've talked about appeals before. Not everyone understands what an appeal is. Sometimes people think it's a second shot at the trial with judges from a different court, but in fact, you can't appeal the result of a trial, you can only appeal specific errors that perhaps the judge made.

Don West: Legal errors typically. Sometimes if the prosecution commits ethical mistakes or if they comment on the right to remain silent, if they appeal solely to emotion, if they make it unfair, that can be a subject of an appeal. But usually it boils down to decisions the judge made and whether or not those are consistent with the law or there's been some sort of fatal mistake. Sometimes mistakes can be real but found not to have an impact on the outcome. So it's no harm no foul kind of thing, but what appeals are not, and I think this is the area of the greatest misunderstanding, is a reevaluation of the credibility of the witnesses.

Don West: For Marissa Alexander to have been convicted, the jury would have had to accept the testimony of Rico Gray or the kids or some combination of that and reject her testimony and conclude that either he didn't threaten her, and that she sort of made that up to justify shooting at him, or that the threat didn't rise to the level of an imminent threat of serious bodily harm or death or some part of that, that satisfied the jury; that she was not allowed to act in the manner that she did and that it wasn't self-defense. So the appeal court doesn't go back and decide who they believe more than the jury did.

Shawn Vincent: Right. And then in this case, the appeal was granted based upon the jury instruction that was given, the defence felt, errantly.

Don West: At the end of all of the evidence, meaning whatever the prosecution puts on, whatever the defense puts on before the final arguments, there is a meeting with the lawyers outside the presence of the jury and the judge to decide what instructions the jury will receive. A lot of them are boilerplate rules for deliberation and definition of reasonable doubt and that sort of stuff. But then there's a number of them that are case specific and in self-defense cases making it clear whose job it is to prove what and if the judge decides to give certain instructions, a certain instruction specifically as to which side has to prove what element or by what standard, then those become the guidance for the jury to apply when they're trying to evaluate the evidence and decide whether the laws were broken and if so if the defenses are sustained and that sort of thing. So it'd becomes-

Shawn Vincent: So if the jury was given the wrong instruction, like in the Gyrell Lee case that we talked about, than it's pretty easy to make an argument to the appellate courts at least, that had they been given the proper instruction, the jury could have come up with a different result.

Don West: Exactly right. And we have a parallel to that case here where on appeal, the appeals court decided that the jury was miss-instructed on a couple of key aspects of the law of self-defense, and that it was important enough that it may have affected the jury's verdict, and as a result, reversed the conviction and ordered a new trial. So that's how Marissa Alexander wound up basically with a do-over because the appellate court found that the first jury really didn't have the right instructions.

Shawn Vincent: But get this. So in this particular case, the do-over is a triple or nothing do-over because, in the intervening time, there had been some controversy over how the 20-year minimum mandatory would be applied. And Angela Corey's office made the case that there were three of them, there was Rico Gray and then his two children who are in the vicinity and that aggravated assault applied to all three of them. And a higher court ruled, that 20 year minimum would be now consecutive instead of concurrent. So instead of it all running in one 20 year sentence, she was facing in the second trial, a minimum mandatory of 60 years if convicted.

Don West: I don't know Shawn, whether frankly from my standpoint as a criminal defense lawyer looking at this case and looking at the history, I don't know if that would have made a difference to me because 20 years is a hell of a long time, and I'm not sure adding more on top of that would have made a difference in whether given the history of the case and the lack of success at the various stages before would have convinced me not to go to trial when I was otherwise going to go to trial.

Shawn Vincent: So it's a big enough number where 20 and 60 is still essentially the best part of the rest of your life?

Don West: It depends on how the choice was presented. The prosecutor, like we said, holds all the cards, assuming they decided to raise the stakes for a trial. I think it depends on what they do as well and their discretion to offset that. We know that first time around they had offered a reduced charge to the three year mandatory minimum and then this time from what you described, they raised the stakes from 20 to 60. Now if I'm looking at serving 20 versus 60 I don't know if I would opt at my age, I may not make the 20 so what difference does the extra 40 make?

Don West: On the other hand, if I'm a lot younger, I may decide that if I've got no choice and I'm convinced I'm going to lose, I may opt for 20 to avoid the risk of facing 60, that's not what she was facing though.

Shawn Vincent: Right. But then you get the offer again for three years and you've already served a thousand days of that.

Don West: So I think realistically the analysis has to be three versus 20 and to me 63 versus 20 given the history of this case doesn't make that much difference to me. Marissa Alexander with her lawyers opted, and I think this is where the prosecutor deserves some credit, I think for ... They do not have to make any plea offer whatsoever. There is no requirement that they offer any reduced plea or any reduced sentence. They may have felt the pressure of the media. They may have felt that they couldn't withstand the onslaught of what would happen, no doubt if they insisted on going forward and she wound up with 20 years again or God forbid, 60 years. But I think to their credit, regardless of whether the motives were sincere, they made the plea offer that they'd made before, which is plead aggravated assault, get a three year sentence and be done with it.

Shawn Vincent: Well, let's wrap it up. Let's listen real quick to what Marissa Alexander had to say about contemplating that plea.

Don West: Okay.

Marissa Alexand: And I have to make a decision not only for myself but for people who also have to be called to be witnessed. And these are teenagers, there was a lot of decision making to make that process. And like he mentioned, it's an easy one for some but for me it was not because I had that to consider plus the fact that she was trying to give me 60 years this time. So if I've gone to trial again, then I wasn't facing 20, it was 60 years.

Speaker 1: Wow.

Shawn Vincent: So she mentions the 60 years and they're thinking there, but she also has to kind of think about what another trial is going to do to her family and a particular her teenage twins and other people she loves and cares that would be called to testify and go through that whole ordeal again.

Don West: Oh my goodness, imagine for a minute what it would be like to be in that situation, believing that you really didn't do anything wrong, but at every opportunity along the way for someone on the outside to evaluate that I'm rejecting your claim and now you've got the biggest decision of your life. Am I going to roll the dice facing 20 years, 40 years, 60 years, knowing that that would effectively not only be the end of her life and freedom, but how it would impact her children. It's just gut-wrenching.

Shawn Vincent: Well, it's also a great lesson that the prosecution itself is a punishment. Set aside any jail time that you might serve. Just the ongoing nightmare of being accused and facing a criminal prosecution is difficult to explain. And I've known people well as they've gone through that process and yeah, I can't even understand it the way that somebody who's been through it can understand it, of course.

Don West: I've been involved in cases where the client gets so desperate, so frustrated, exasperated and fearful of what their future will bring that they just want it over. They lose perspective and proportionality and they get to the point they don't care as long as it's over. And that's because of what you're talking about. The fear of waking up every morning and not knowing.

Shawn Vincent: Go ahead.

Don West: Also, keep in mind that, after losing the first trial, the time that the case was on appeal, Marissa Alexander was in prison. So she suffered the consequences of being in prison, not knowing whether she was going to have to serve the rest of that sentence, but by the time she got the second opportunity, the new trial and the opportunity to make this decision how to resolve it, she'd already accumulated the better part of three years. Now, while she can't get that back, if she went to trial and were acquitted, and it's not like you can store it up and get a refund for the time that you've been in prison, at the same time, she is required by law to get credit for any time served against any new sentence.

Shawn Vincent: And so she had already spent $2.80 out of that three bucks.

Don West: All right, so let's say then that she's looking at a deal for three years versus the risk of 20, 40 or 60 years and the three years now is-

Shawn Vincent: 64 days.

Don West: 64 days. She's a convicted felon. As a result of it, she has to deal with that the rest of her life. She entered a plea which acknowledged guilt in some way, but on the other hand, it had to make so much sense to her to serve another month or two, effectively. Now there may have been some after supervision, some other conditions, but the bottom line is she could effectively, at that point, trade two months for the risk of 60 years.

Shawn Vincent: And just the relief of having it behind you and resolved must be a huge weight off, knowing that the uncertainty is over, and now you know how you can go forward with your life.

Don West: So this is a fascinating story because it touches on so many things, including idealism, knowing you didn't do anything wrong ultimately to a compromise that everyone would have to agree was in her best interest. Why would she possibly take the chance on being away from her children's life for the next 20, 40 60 years? At the same time, it doesn't sit well with her. She feels like she was victimized by the very system that she respected and believed in all those years of her life. So it's a really really interesting dynamic.

Shawn Vincent: Let me play a little clip real quick. That I think encapsulates how she felt about the experience going through that prosecution.

Marissa Alexand: Very dark, very hard, very difficult times. There were a lot of very difficult decisions to make. There was a lot of very difficult conversations to have, and so when I explained to people as you are doing on your show, is  if you get yourself in this system, it's like an octopus. It's just wrapping itself around you, and it's so difficult, once you're in, it is so very difficult to get out of it.

Shawn Vincent: I was struck by that metaphor of the octopus, and that's really why we talk. We spent this whole almost an hour now talking about this complicated legal path that Marissa Alexander went down. But we talked at the beginning about that being a runaway train and the initiation of that was her decision to pull the trigger and-

Don West: I think more than any one thing, it was her decision to pull the trigger. Her decision to go out to the garage to get the gun, I think was a bad one. Her decision to go in the house with it was a bad one. Probably setting the stage for the illegality at that point, regardless of how it's settled out. But pulling the trigger is what turned it from something relatively little to something that nobody could ignore and put her on this path. So how many times have we told people if there is any possible way to avoid it, take every ... no matter how legally right you are, know how justified or angry or offended or how much you want to show that you can't be treated like that, no matter what part of that surging through the brain. The only smart choice is to avoid it.

Shawn Vincent: If you possibly can. And let me play this. You talked at the beginning about how the law changed and some things changed after this case, and I want to play what she said about the 10-20-life minimum mandatory. And I think that's a great way to segue into what the bigger resolution of this case was beyond just her,

Marissa Alexand: The intent of 10-20-life was for habitual violent offenders. It was just not used, just the willingly they throw around. But in addition to that, prostitutes absolutely like everything else have the right to be able to say, well no, we're not going to use the enhancement, incident enhancement. And they had discretion.

Shawn Vincent: So that goes said, to the discretion that you talked about. Now you had mentioned that some things changed after this case.

Don West: The big thing that changed relates specifically to aggravated assault as being one of those enumerated crimes on this list of crimes for which the use of a firearm triggers the enhancement. The 10-20-life enhancement under Florida law applies to a number of specific crimes, and she is exactly right. I think in terms of the legislative intent, somebody commits a robbery and uses a gun, shoots the gun, hurts somebody. All of those have higher and higher mandatory minimum sentences. Kidnapping, sexual assault, that kind of stuff, burglary makes perfect sense why it would be on that list. Even degrees of murder. However, aggravated assault was on the list as well. And that's what triggered in her case, the 20 year mandatory for the discharge of her firearm.

Don West: Well following her case, and the attention that her case brought to this, the legislature sort of revisited and around 2014 didn't eliminate it, but they gave the judge some discretion finally. So if you are convicted of aggravated assault under one of these 10-20-life enhancements and the judge felt that the circumstances were mitigated, that whether it was cause of a self-defense scenario, but not necessarily completely legal, but there was some reasonable explanation for how this was transpired. The judge would have the authority to mitigate and impose a sentence less than the mandatory minimum.

Don West: And then finally, a couple of years later in 2016, the legislature simply removed aggravated assault from that list of enumerated felonies triggering the 10-20-life. So at this point you can commit the crime of aggravated assault, you can still go to prison for it, and you'd still go to prison for at least three years under most circumstances, but no longer are you facing the 20-year mandatory if the gun is discharged.

Shawn Vincent: Which changes the bets you make as a defendant, it puts a couple of cards back into your hand, when you-

Don West: It may have changed. Yeah. It could have changed the entire direction this case went. Now whether it ... I'm a bit cynical, I'm a bit jaded from having done this for so long, and I expressed my frustration about Angela Corey early on, and I'll digress for a moment. One of the things that really made me mad was we were in the Zimmerman case and I'd pulled into the courthouse, I think it was a Saturday in fact, and the jury was out deliberating and we had to show up. We'd been trying the case for about a month and I pulled into a parking place, parked, went inside and about 20 minutes later the deputies came in to find me and said, you're parking in Ms. Corey's space and she wants you to move the car.

Don West: I didn't need any more aggravation so I wound up doing it. But just that kind of ego driven pettiness just and of course subject about an entirely different conversation would be some of the ethics and some of the shenanigans that were pulled in that case. Not by her specifically but-

Shawn Vincent: Just by the team.

Don West: Well, I have enough stuff there that we could talk about.

Shawn Vincent: I'm thrilled that after all these years there are still stories about that time that I haven't heard.

Don West: I wonder what would have happened in this case if the prosecutor couldn't use that enhanced aggravated assault charge on her. Would they have charged her in this sort of overcharging bullying context with an attempted murder of some sort, but assuming not, then she would have had a much more reasonable, realistic way to address the charges, make an informed decision whether to roll the dice.

Shawn Vincent: And had she been convicted, there would've been a much broader sentencing range and it almost certainly wouldn't have been 20 years.

Don West: Agreed.

Shawn Vincent: We have like a minute left here. I want to play something real quick that Marissa Alexander said about self-defense in the legal process that follows that I think encapsulates everything that we've ever talked about. So hold on.

Marissa Alexand: And your options are life and death or prison and freedom. I mean, essentially at the end of the day, that's what it's going to be. You either have to choose between life or death, depending on how bad it is. If you could leave, then you have your life and you have your freedom. If not, then you risk, ultimately in the end, which would be something tragic as death. And if you survive it, then you could be prison, which was my case. So these are your options in these things.

Shawn Vincent: She says, when you choose to carry and when you've committed to using a gun for self-defense, then you may one day face a choice that is life, death, freedom, or prison and what she buries in there is the final lesson that we touched on earlier that if you can leave with your life then you'll leave with your freedom, too.

Don West: Profound, insightful and coming from a person who certainly knows what she's saying.

Shawn Vincent: Yep. I think that does it, Don, that was ... I think there's ... often we want to talk about the legal minutiae, and I know for non lawyers and non-litigation consultants that can get a little dry, but in the context of this case, I think it was a great case to walk through that. So I hope it gives our listeners some better perspective at what that fight after the fight looks at.

Don West: And I'm going to I'm going to hold us up one more minute and finish our brief discussion since you brought it up about the legal minutiae and Marissa Alexander's fate.

Shawn Vincent: Sure, please.

Don West: She lost her self-defense immunity hearing when the law required her to prove by a preponderance of the evidence that she acted in self-defense. Another area of the law that she had complained about was having to prove that when at trial the prosecutor had to prove that it wasn't self-defense. There was a concerted effort and movement and the legislature changed that statute as well. So now in a self-defense immunity hearing in Florida instead of the defendant having to prove by a preponderance that they acted in self-defense. Now when you claim immunity and you file your petition and have your hearing with the judge, the judge applies the standard of whether the prosecutor has shown by clear and convincing evidence a high standard, not quite beyond a reasonable doubt, but getting up there has to prove by clear and convincing evidence that you did not act in self-defense, much closer to the standard used at the jury trial.

Don West: And I don't know how much credit Ms. Alexander gets for that, but it's something that she talks about and there has been a clear change in the law in Florida, in the defenders' favor when it comes to the self-defense immunity, and I think to some degree, that's a byproduct of her case as well.

Shawn Vincent: All right, everybody, that's it for today. Thanks for listening. I hope you get some new insights into the complexities and difficulties of the legal fight that can ensue after a self-defense shooting even when nobody's hurt. This is Shawn Vincent. Until next time, stay safe out there.