Violent Crimes

California Shaken Baby Conviction Set Aside After 15 Years

Adding to the increasing numbers of exonerations in “shaken baby” cases, the New York Times reports Zavion Johnson may be released:

A California man is set to walk out of prison after 15 years, after a judge on Friday set aside his life sentence for shaking his 4-month-old daughter to death in 2001.

Amazingly,

At least 14 people nationwide had already been exonerated since 2011 in shaken baby cases, attorneys said, citing the National Registry of Exonerations. Northwestern University’s Medill Justice Project said in 2015 that there were more than 3,000 shaken baby syndrome cases nationwide, though attorneys said it’s not clear how many might have resulted in wrongful convictions.

The prosecution typically rely on medical testimony to prove these cases. They allege a certain triad of symptoms cannot occur accidentally or in absence of intentional shaken force. Defending their acquiescence to the judgment being set aside, Johnson’s prosecutors stated:

“Research and scientific studies conducted after the date of Zavion Johnson’s trial have altered the opinions of the prosecution experts,” Sacramento County Chief Deputy District Attorney Steve Grippi said in a statement.

There is a newly released documentary which highlights these prosecutions and the increasing doubt:









And lastly, here is another story of a lady adopting her nephew when she was convicted of murder:

Baumer was able to get her case retried and several expert witnesses were brought in to testify on her behalf. They filed for a 6500 motion which would introduce new evidence that Baumer’s nephew had not suffered from shaken baby syndrome, as originally believed, but rather Cerebral Sinovenous Thrombosis, a form of childhood stroke which had caused the brain hemorage. This process took three years to go through the court system and it wasn’t until Oct. 2010 that the jury finally came to a verdict. . .

Her case demonstrates what can go wrong in the American legal system when pride and ego get in the way of what is right and just. In her second trial, Baumer’s defense lawyer testified that he hadn’t been knowledgeable enough about the medical aspects of her case to provide her with an adequate defense, just one of the many factors that led to her wrongful conviction and imprisonment.

When it was all said and done, Baumer served almost five years of her 10-15 year sentence.

 

 

A little jurisdictional divide on pre-trial Stand-your-ground Immunity hearings

I have previously suggested that Alabama courts should follow the uniform persuasive authority of other states (Colorado, Georgia, Florida, South Carolina) concerning immunity from prosecution for Stand-Your-Ground type cases. (See here, here, here, and here.) I suggested further that the procedures of these immunity hearings from these other jurisdictions was uniform.

However, two states (Kentucky and Kansas), with copycat Stand-Your-Ground immunity statutes, have shifted the burden onto the prosecution. More importantly, though, they have adopted a different standard of proof: probable-cause. The Kansas Supreme Court ruled in State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020, 1031 (2013)

In summary, we find that the standard of proof for whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 21–3219 is probable cause. We further find that the State bears the burden of establishing proof that the force was not justified as part of the probable cause determination required under K.S.A. 21–3219(b) and (c).
The Kansas Court largely followed the precedent of Kentucky. The Kentucky Court in Rodgers v. Com., 285 S.W.3d 740, 755 (Ky. 2009) adopted a probable-cause type hearing position.
The sole remaining issue is how the trial courts should proceed in determining probable cause. The burden is on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record. Although Rodgers advocates an evidentiary hearing at which the defendant may counter probable cause with proof “by a preponderance of the evidence” that the force was justified, this concept finds no support in the statute. The legislature did not delineate an evidentiary hearing and the only standard of proof against which a defendant’s conduct must be measured is the aforementioned probable cause.
My thoughts of these divergent jurisdictions:
First, regardless of this potentially important divide between jurisdictions, one thing is clear: we have two more states affirming the right to a pre-trial Stand-Your-Ground immunity hearing.
By declaring that one who is justified in using force “is immune from criminal prosecution,” and by defining “criminal prosecution” to include “arresting, detaining in custody, and charging or prosecuting the defendant,” the General Assembly has made unmistakably clear its intent to create a true immunity, not simply a defense to criminal charges.
Rodgers v. Com., 285 S.W.3d 740, 753 (Ky. 2009)
Secondly, shifting the burden of proof onto the prosecution may be better policy. Commenting on the burden of proof issue, one concurring Florida court judge stated the following:
Kentucky and Kansas, states with statutes that were modeled directly on our “Stand Your Ground” law, have found that the burden of proof properly rests with the State at the pretrial stage to demonstrate that the use of force in self-defense was unjustified. This construction creates a better procedural vehicle to test the State’s case at the earliest possible stage of a criminal proceeding. Self-defense immunity statutes are designed to relieve a defendant from the burdens of criminal prosecution from arrest through trial. Placing the burden of proof on the State throughout each phase of criminal prosecution best fulfills the legislative intent to create a broad grant of immunity.

Bretherick v. State, 135 So. 3d 337, 344 (Fla. Dist. Ct. App. 2013) review granted, 145 So. 3d 821 (Fla. 2014) (However, in any other case involving immunity, the burden rests with the Defendant and the standard of proof is preponderance of the evidence.) Third, the shift to a probable-cause style pretrial immunity hearing would gut the statute and make the immunity provision meaningless. The Florida Supreme addressed this well:

We also reject the State’s contention that the pretrial hearing on immunity in a criminal case should test merely whether the State has probable cause to believe the defendant’s use of force was not legally justified. Prior to the enactment of [the Stand-Your-Ground statute], Florida law defined certain types of justified force… and the Florida Rules of Criminal Procedure mandated that a trial judge make a pretrial nonadversarial probable cause determination either before or shortly after a defendant was taken into custody. “It is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’ ” Martinez v. State, 981 So.2d 449, 452 (Fla.2008) (quoting State v. Bodden, 877 So.2d 680, 686 (Fla.2004)). Accordingly, the grant of immunity from “criminal prosecution” in [the Stand-Your-Ground statute must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.
Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010)

 

Lose your right to self-defense defense? ITS INCONCEIVABLE

A new twist has arisen on the Stand-Your-Ground immunity hearings debate. ISSUE: If a Defendant is actually granted an immunity hearing and then loses, has he forfeited his right to raise self-defense at trial. The answer is a resounding NO.
First, there are differing standards of proof and burdens of proof at the pre-trial immunity hearing and in the guilt phase at trial. As discussed on the blog posts about Alabama’s Stand-Your-Ground statute, at the immunity hearing, the standard of proof is preponderance of the evidence and the burden of proof is on the Defendant.
“We hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.  Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008)
Whereas at trial, the state has the burden to prove beyond a reasonable doubt that the accused did not act in self defense:
“Once the issue of self-defense [merely] is raised, the State ‘must prove that the accused did not act in self-defense in the sense that the State must prove a prima facie case of unjustified homicide.’ Booker v. State, 645 So. 2d 355, 358 (Ala. Crim. App. 1994)
Second, each other appellate court within states adopting a Florida-copycat Stand-Your-Ground statute (like Alabama’s), have declared that there is no preclusive effect of an immunity hearing.  The trial court in Peterson granted him a pretrial hearing and then denied his Motion for insufficient evidence. Nevertheless, the Peterson appellate court, while sustaining the denial of immunity, specifically held “Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.” Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008)
The Colorado court in  People v. Guenther, 740 P.2d 971, 981 (Colo. 1987) is more direct:

If, on the other hand, the court determines that the defendant has not met his burden of proof and denies the motion to dismiss the charges, there is nothing in [the Stand-Your-Ground statute to suggest that the defendant should somehow be precluded from raising the same statutory conditions for immunity as an affirmative defense to the charges at trial. Since the legislature clearly intended [the Stand-Your-Ground” to operate as a complete immunity to criminal charges when an occupant of a dwelling used physical force against an intruder under the conditions set forth in the statute, it cannot plausibly be argued that the legislature thereby intended to deprive an accused of the lesser benefit of an affirmative defense at trial when those same statutory conditions are established under appropriate standards of proof applicable to the trial of a criminal case. Thus, if the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant’s use of physical force against an intruder into his home. . .

Third, such a preclusion would deny him his constitutional rights to due process and a jury trial:

“Evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952)

When the accused have exercised their constitutional right to a trial by jury, their right to present a full and complete defense includes the right to have a jury consider and weigh all relevant and probative evidence in support of his defense. See United states v. Scheffer, 523 U.S.  303, 315 (1998); Crane v Kentucky, 476 U.S. 683, 690 (1986)  The Supreme Court of the United States has expressly recognized that, under the Due Process Clause of Fourteenth Amendment, and the Compulsory Process and Confrontation Clauses of the Sixth Amendment, a criminal defendant must be given “a meaningful opportunity to present a complete defense” -i.e., a right to make a full defense , and tell his or her story, by presenting relevant and probative evidence that supports his case. See, e.g. California v. Trombetta, 467 U.S. 479, 485 (1984).

Look at Crane v Kentucky, 476 U.S. 683 (1986). SCOTUS found unconstitutional a Kentucky rule which barred defendant from placing evidence of the facts and circumstances surrounding his confession before the jury, after the confession had been found by a judge at pre-trial to have been voluntary.  SCOTUS declared this violated his right to the fair opportunity to present a defense.

Similarly, just because a Defendant cannot prove self-defense pretrial by a preponderance of the evidence at the immunity hearing should not preclude his ability to require the state to prove lack of self-defense beyond a reasonable doubt

In the words of the Colorado Supreme Court: “it’s implausible”

Or better yet: in the words of the The Princess Bride, “ITS INCONCEIVABLE.”

Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)

 

Inmate on Prison Rape: “The opposite of compassion is not hatred, It’s indifference.”

Rape in the American Prison

Rape in the American Prison: a grisly article on rape in male penal facilities.

“rape in prison is rarely a sexual act, but one of violence, politics, and an acting out of power roles.” Being raped, or “turned out,” he explained, redefines the male victim “as a ‘female’ in this perverse subculture, and he must assume that role as the ‘property’ of his conqueror or whoever claimed him and arranged his emasculation. He becomes a slave in the fullest sense of the term.”

Read this article and know that in Alabama: 16 years olds can be tried as adults and sentenced to the ALDOC.

“In hindsight, it might have been poor science. But it was the science of the day.”

Scary, long-read about “poor” science of arson forensic science: Playing with Fire: How Junk Science Sent Claude Garrett to Prison for Life.

The convictions of Babick, Hugney, Lee and Rosario all relied, at least in part, on the same kinds of burn patterns identified by Special Agent Cooper as telltale signs of arson in 1993. The fire investigative community has since acknowledged such flaws in its old methodology and, although it was slow to do so, has revised its literature and practices. Yet within the criminal justice system, even as the same junk science reappears over and over again in wrongful convictions, there has been no systemic reinvestigation of old arson cases.

TV crime dramas have unfortunately caused too much credence be given generally to forensic experts:

Recent experiments have yielded troubling results. In one 2005 test, ATF researchers asked 53 professional fire investigators to pinpoint the origin of a series of post-flashover fires. Only three were able to do so accurately — most drew false conclusions based on burn patterns. In 2011, a test conducted by  the California-based Arson Research Project asked professional fire investigators to assess 12 post-flashover burn patterns and distinguish between those that involved a liquid accelerant and those that did not. In reality, there is no way to tell the difference based on visual evidence alone. Yet out of 33 investigators, only three responded that such a conclusion could not be determined based on this evidence.

I once had an expert, on the witness stand, state that she had never made a mistake nor had she called her colleagues conclusions into doubt. State forensic scientists, although an independent agency from “law enforcement,” fall into a pro-prosecution bias.

In a subsequent report, the Arson Research Project warned that between their subjective methodology and close identification with law enforcement, fire investigators are “uniquely positioned” to be susceptible to the affects of cognitive bias — in which one’s perception is colored by preexisting knowledge or assumptions.

Scariest thought.

“In hindsight,” Fulton said, this “might have been poor science. But it was the science of the day.”

What forensic “most sophisticated science of today” will be viewed as poor science in 20 to 30 years? How many convictions will be obtained and prison sentences imposed with such “poor science.”

Battered Woman Syndrome Evidence in Alabama Self-Defense Cases

The Supreme Court of the United States has expressly recognized that, under the Due Process Clause of Fourteenth Amendment and the Compulsory Process and Confrontation Clauses of the Sixth Amendment, a criminal defendant must be given “a meaningful opportunity to present a complete defense” -i.e., a right to make a full defense, and tell his or her story, by presenting relevant and probative evidence that supports his or her case. See, e.g. California v. Trombetta, 467 U.S. 479, 485 (1984). See also Crane, 476 U,S, at 689

Rule 405(b) of Alabama Rules of Evidence states:  “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.” The Alabama Court of Criminal Appeals has previously ruled that Rule 405(b) “authorizes the admission of testimony concerning specific instances of a victim’s violent conduct in a case where the victim’s violent character is essential to a defendant’s claim of self-defense.” Clancy v. State, 886 So. 2d 166, 169 (Ala. Crim. App. 2003)

Prior specific acts actually are proper evidence of the reasonableness of a defendant’s actions and his “state-of-mind” in  a self-defense case. Williams v. State, 938 So. 2d 440, 448 (Ala. Crim. App. 2005)

The Alabama Court of Criminal Appeals has even found that evidence of a general reputation for violence, blood-thirstiness or dangerousness, much less specific acts toward the accused, is admissible as having probative value on elements of the doctrine of self- defense. “Evidence of this type is also admissible for the purpose of showing a reasonable apprehension of immediately pending danger which would justify the accused in striking more quickly, under the circumstances prevailing at the time of the homicide.” Brooks v. State, 263 Ala. 386, 389, 82 So. 2d 553, 555 (1955) Alabama law even recognizes the right of one who has received mere threats to “act more promptly and on slighter overt act or demonstration than it would in the absence of such proof”. Raines v. State, 455 So. 2d 967, 971 (Ala. Crim. App. 1984)

Also, evidence of “physical and emotional injuries received by [a Defendant] in the prior difficulties” was relevant and probative on the issue of state-of-mind “by reason of continuing pain from injuries suffered by him.” Dickerson v. State, 360 So. 2d 1045, 1053 (Ala. Crim. App. 1978)

However, Alabama also fully allows expert testimony of battered syndrome.

 “[E]xpert testimony on Battered Woman Syndrone can be admitted to assist the jury in understanding the syndrome, and also to help the jury determine whether the defendant had an honest belief that she was in imminent danger, as that determination related to a claim of self-defense.

Harrington v. State, 858 So. 2d 278, 294 (Ala. Crim. App. 2002) Alabama courts have actually elaborated extensively on the policy behind these principles of admissibility of testimony, both lay and expert, on the effects of being a battered woman.  This Court in Bonner quoted, at length, State v. Kelly, a New Jersey case:

What the expert could state was that defendant had the battered-woman’s syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant’s belief. Depending on its content, the expert’s testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury’s evaluation of the reasonableness of defendant’s fear for her life.

Accordingly, lay and expert testimony regarding the history of abuse and the resulting behavioral responses are admissible and relevant in self-defense cases to provide the jury with a proper understanding, unencumbered by prevailing myths concerning battered women, of the circumstances surrounding the reasonableness of the defendant’s actions. Alabama case law makes such evidence admissible and relevant to the state-of-mind necessary for the defense of self-defense.

Many states have actually enacted statutes to specifically allow such evidence. This issue is so important that the Alabama Court of Criminal Appeals made an unusual request of the Legislature.

“In light of these and similar tragic events, a reevaluation of Alabama’s body of law surrounding self-defense and battered spouse syndrome is necessary. It has become increasingly clear that leaving an abusive relationship may not, in fact, mean that the victim’s safety is no longer threatened. As our own cases show, domestic violence often escalates to deadly levels. . .The difficult situation presented to this Court in [battered woman cases] can be avoided in future cases if the Alabama Legislature seizes the opportunity to address this important issue, as the legislatures in other jurisdictions have done. We encourage the Legislature to address the existing body of law on self-defense as it relates to battered spouse syndrome.

Harrington v. State, 858 So. 2d 278, 299 (Ala. Crim. App. 2002)

So far, the Legislature has not taken up this call.

Police Don’t Decide Immunity

In scrambling for some way to avoid pre-trial Stand-Your-Ground type immunity hearings, a couple of Alabama prosecutors have relied upon a weak reed:  Ala. Code § 13A-3-23(e). It reads:

A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Prosecutors declare: “See, See: the statute says law enforcement decide whether someone is immune.” But it doesn’t say that.

By vesting a separate screening function to law enforcement, the Legislature in no way removed the judicial function of determining whether a person is immune, as a matter of law, from further criminal prosecution.

Remember that Alabama copied its Stand-your-Ground statute from Florida. Florida’s “Stand-your-Ground” law includes Fla. Stat. Ann. §776.032(2).

A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

Can you see the slight similarity between Florida’s §776.032(2) and Ala. Code § 13A-3-23(e).

But even with the presence of Fla. Stat. Ann. §776.032(2), each and every Florida appellate court, addressing the issue, has established a right to a pre-trial hearing for the accused to establish his eligibility for immunity, separate and in addition to the “law-enforcement” screening function. See Peterson v. State, 983 So.2d 27; State v. Gallo, 76 So.3d 407; Gray v. State, 13 So.3d 114; Fair v. State, 664 S.E.2d 227; Dennis v. State, 51 So.3d 456; Hair v. State, 17 So.3d 804.

Accordingly §13-3-23(e) does not eliminate the accused’s right to a pre-trial hearing concerning his immunity of §13-3-23(d).

(This section actually drew some national notoriety. Remember the hub-bub surround George Zimmerman’s non-arrest. It was initially reported that Sanford police did not arrest Zimmerman due to lack of probable cause under Florida’s “Stand Your Ground” statute. Zimmerman waived his right to a pre-trial Immunity hearing after a fairly lengthy and extensive colloquy.)

What should “Stand-Your-Ground” immunity hearings look like?

In a previous post, I discussed the legal authority showing a right to a pre-trial, evidentiary Stand-Your-Ground  immunity hearing.

In such cases, the Defendant should bear the burden to prove his or her entitlement to a judicial declaration of immunity and order of dismissal on the basis of statutory immunity. Every appellate court addressing this issue has determined that the accused has a right to a pre-trial evidentiary on their claims of statutory immunity pursuant to the respective “Stand-your-Ground”-type laws.

Similarly, each court has placed the burden of proof on the accused to prove their entitlement to such immunity at the pre-trial hearing. See Peterson, Guenther, Duncan, and Dennis v. State, 51 So. 3d 456 (Fla. 2010)

For instance, the Supreme Court of Colorado held that “[s]ince [the “Stand-your-Ground” statute] contemplates that an accused should be permitted to claim an entitlement to immunity at the pretrial stage of a criminal prosecution, we believe it reasonable to require the accused to prove his entitlement to an order of dismissal on the basis of statutory immunity.”  People v. Guenther, 740 P. 2d 971, 980 (Colo. 1987)

I see no rationale nor cause for Alabama to deviate from the persuasive authority on this issue from the other jurisdictions. Accordingly, in Alabama, the appropriate burden of proof at pre-trial, evidentiary immunity hearings pursuant Section 13A-3-23(d) should fall upon the person seeking to invoke such immunity.

But what is the standard of proof at such hearing? In my opinion, following the authority of other jurisdictions, “preponderance of the evidence” should be the proper standard for the trial court to use in determining such immunity. Each foreign appellate court has also determined that “preponderance of the evidence” is appropriate standard of proof for those invoking such statutory immunity at pre-trial hearings.

In Guenther, at  980, the Supreme Court of Colorado held:

While we conclude that the burden of proof should be placed on the defendant, we decline to require that the defendant prove his entitlement to immunity beyond a reasonable doubt. We believe that the “preponderance of the evidence” is the appropriate standard of proof applicable to a defendant’s pretrial motion to dismiss pursuant to [the “Stand-your-Ground” law] . . . The preponderance of evidence standard, in our view, is more consistent with that expressed legislative intent than is the more rigorous reasonable doubt standard of proof.

Similarly, the Florida Appellate Court held:

we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

Peterson v. State, 983 So. 2d 27, 29 (Fla.Dist.Ct.App. 2008)  See also Duncan and Dennis.

It is important to note that these courts have constantly found on these issues that the “Stand-your-Ground” immunity provisions establish greater rights than provided for other crimes.  These type of hearings cannot be determined by a summary judgment-type standard. “[A] motion to dismiss based on “Stand-your-Ground” immunity cannot be denied because of the existence of disputed issues of material fact. Hair v. State, 17 So. 3d 804, 806 (Fla.Dist.Ct.App. 2009)  A Florida intermediate court stated that “[w]e reject any suggestion that the procedure . . . should control so as to require denial of a motion whenever a material issue of fact appears.” Peterson v. State, 983 So. 2d 27, 29-30 (Fla.Dist.Ct.App. 2008)

A “probable-cause” analysis does not control either. [“Stand your Ground”]-type immunity provisions “must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.” State v. Duncan, 392 S.C. 404, 410-11, 709 S.E. 2d 662, 665 (2011), reh’g denied (June 8, 2011)

In Dennis, the Supreme Court of Florida held:

We also reject the State’s contention that the pretrial hearing on immunity in a criminal case should test merely whether the State has probable cause to believe the defendant’s use of force was not legally justified.

Instead as expressed by an intermediate appellate division in Florida:

The legislature’s enactment of [the “Stand-your-Ground” statute] placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders. In this case, that burden required the trial judge to make order out of the chaos. . .

State v. Gallo, 76 So. 3d 407, 409 (Fla.Dist.Ct.App. 2011)

Accordingly, the trial court must weigh the evidence presented at the pre-trial evidentiary hearing, and if a preponderance of the evidence suggests the accused acted in self-defense as defined by Section 13A-3-23, the Court must, as a matter of law, declare the accused immune from further criminal prosecution and dismiss the indictment or criminal complaint.

When will Bama courts acknowledge a right to a pre-trial “Stand-your-Ground” immunity hearing?

In 2005, the Florida State Legislature passed what has become known as the “Stand-your-Ground” law. Approximately twenty-four (24) states have followed the lead of Florida in passing similar laws. In 2006, Alabama lawmakers substantively copied provisions from the Florida “Stand-your-Ground” law and modified several provisions of the Alabama self-defense statute; for instance, it removed the historic “duty-to-retreat” in certain circumstances.

However, another critical modification was the addition of Ala. Code § 13A-3-23(d). It reads as follows:

A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

The Legislature clearly employed the term “immunity.” The statute employs the language immunity and not merely justification. Black’s Law Dictionary defines immunity as “freedom or exemption from penalty, burden or duty.” A person meeting the requirements of Ala. Code § 13A-3-23(a) is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code § 13A-3-23(d) provides not just a defense at trial but a bar to trial.

The statute, though, is silent concerning the processes and procedures for invoking and adjudicating such statutory immunity. Multiple state appellate courts, from jurisdictions with similar copycat “Stand-your-Ground” legislation, have addressed similar statutory silence and have judicially established certain procedures.

Each state appellate court which has reviewed and addressed “Stand-your-Ground”-type immunity claims has determined that the accused has a right to a pre-trial evidentiary hearing to adjudicate the accused entitlement to the statutory immunity.

Colorado appellate courts were the first to address the entitlement to a hearing and the procedures thereto. In People v. Guenther, 740 P. 2d 971, 975 (Colo. 1987), interpreting their “Stand-your-Ground” statute, the Supreme Court of Colorado found as follows:

In accordance with the plain meaning of these terms, the phrase “shall be immune from criminal prosecution” can only be construed to mean that the statute was intended to bar criminal proceedings against a person for the use of force under the circumstances set forth in subsection (2) of section 18–1–704.5.

In the silence of statutorily delineated procedures, that Guenther Court proceeded to find that their “Stand-your-Ground” statute:

confers authority on a court to conduct a pretrial hearing on whether the statutory conditions for immunity from prosecution have been established and, if so established, to dismiss the criminal charges.

Following the reasoning of the Guenther, the District Court of Appeals of Florida, First District, found also the right of the accused to an evidentiary, pre-trial hearing on the claims of statutory immunity, pursuant to the Florida “Stand-your-Ground” law. After analyzing their “Stand-your-Ground” statute, this Florida intermediate appellate court declared:

The wording selected by our Legislature makes clear that it intended to establish a true immunity and not merely an affirmative defense.

Peterson v. State, 983 So. 2d 27, 29 (Fla.Dist.Ct.App. 2008) Therefore, the Court held:

Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The Georgia Supreme Court similarly held that a trial court erred in refusing to rule pre-trial on the defendants’ motions for immunity, and remanded the matter for a pre-trial determination of whether the defendants were entitled to immunity from prosecution under the State of Georgia “Stand-your-Ground” law. Fair v. State, 284 Ga. 165, 166, 664 S.E. 2d 227, 230 (2008)

And lastly, the Supreme Court of South Carolina interpreted their “Stand-your-Ground” statute as providing the accused a right to a pre-trial adjudication of statutory immunity. “Immunity under the Act is therefore a bar to prosecution and, upon motion of either party, must be decided prior to trial.”  State v. Duncan, 392 S.C. 404, 410, 709 S.E. 2d 662, 665 (2011), reh’g denied (June 8, 2011)

Many other courts have affirmed a right to a pre-trial hearing for the accused to establish his eligibility for immunity. See  State v. Gallo, 76 So.3d 407; Gray v. State, 13 So.3d 114;  Dennis v. State, 51 So.3d 456; Hair v. State, 17 So.3d 804; and Mederos v. State, 102 So. 3d 7.

Each appellate court which has addressed this issue has determined that the “Stand-your-Ground”-type immunity claims must be determined by a trial court as a matter of law before the trial commences.

At least one other Alabama trial court has employed the procedures suggested herein and in fact that court found the Defendant immune. In September 2010,  Jefferson County Criminal Court Judge Tommy Nail dismissed the state’s case against Robert “Bob” Allen Carleton, 49, of Pell City, who was accused of murdering his 67-year-old father, William “Bill” Randolph Carleton Sr., after defense attorneys asked the court that their client be immune from prosecution based on the 2006 change in the self-defense law of the state. Nail ruled that the defense “met its burden of proving by a preponderance of the evidence that he (Carleton) is entitled to the immunity provisions of Alabama Code 13A-3-23 (d) and (e),” and the defense motion to dismiss was granted and the murder indictment was dismissed before a jury could hear any evidence in a criminal trial. The Court of Criminal Appeals affirmed, by memorandum, the Order because the State failed to properly preserve any issues on appeal.

When will Alabama appellate courts declare such a right exists and importantly declare the processes and procedures for such hearings?  Alabama should follow the persuasive authority of every court which has addressed this issue. The accused is entitled to an evidentiary, pre-trial hearing to adjudicate his entitlement, when raised, to the statutory immunity of Section 13A-3-23(d).