New ‘stand your ground’ law ruled unconstitutional

A new law that makes it easier for accused criminals to invoke Florida’s “stand your ground” selfdefense claim was struck down by a Miami judge on Monday.

But the ruling does not apply anywhere else in the state— for now.

Miami-Dade Circuit Judge Milton Hirsch ruled the Florida Legislature overstepped its authority in crafting the law, which took effect when it was signed by Gov. Rick Scott on June 9. The law shifts the burden of proof in stand your ground claims from the defense to the prosecution.

Under the previous law, a defendant invoking the stand your ground defense was required to prove his case to a judge by a preponderance of the evidence, a legal standard that means there’s more evidence in favor of selfdefense than there is against it.

If a judge decided the defendant did not prove his claim during a pre-trial hearing, the case would

go to the jury. The defendant would still be allowed to argue self-defense, and prosecutors were allowed to tell jurors about testimony fromthe hearing.

The new law makes it the prosecution’s responsibility to prove by “clear and convincing evidence” that the charged crime was not an act of self-defense.

Hirsch ruled Monday the change is unconstitutional because the state Legislature does not have the authority to establish the kind of legal procedures that govern court proceedings.

“Because questions of burden of proof are procedural rather than substantive, I necessarily find the demised legislative changes to be unconstitutional,” Hirsch wrote.

Hirsch’s ruling would not apply to the rest of the state unless appeals courts, or the state Supreme Court, decides to uphold it. And supporters of the law predicted an appeal.

“I’d be surprised if this decision wasn’t overturned by the appellate court,” said Sen. Rob Bradley, R-Fleming Island, a former prosecutor who sponsored the legislation.

House Speaker Richard Corcoran, a lawyer, also predicted the circuit judge’s ruling would be overturned.

“It is the role of the Legislature to write the laws that govern how Floridians may exercise their statutory and constitutional rights,” Corcoran, R-Land O’ Lakes, said. “The Florida House will continue to stand with ordinary citizens who exercise their right to self-defense. We look forward to this decision being reversed on appeal.”

But Broward defense lawyers who have invoked the stand your ground law said while the new law would increase the odds their clients would walk, Hirsch’s interpretation of the state constitution was correct.

“It’s a classic separation of powers issue,” said Frank Maister, who has tried to use the “stand your ground” law to clear James Patrick Wonder of a manslaughter charge stemming from the 2008 shooting of a Customs and Border Protection agent in Pembroke Pines.

“The Legislature has invaded the province of the judiciary,” he said. “As defense lawyers, we would like the state to prove you’re not entitled to immunity by clear and convincing evidence. But we also fight every day to defend the constitution, and the separation of powers is one of the most important of principles.”

Attorney H. Dohn Williams said the law required prosecutors to prove what wasn’t going through the defendant’s mind at the time of the alleged crime.

Williams represented Nour Jarkas, Broward’s first defendant to be granted immunity under the “stand your ground” lawin 2011.

Both Williams and Maister said the new law effectively forces prosecutors to try the accused twice — once in front of a judge, and the second time in front of a jury.

“The statute works greatly in my favor,” said Williams. “But I predict Hirsch’s reasoning will probably be affirmed.”

As a legal standard, “clear and convincing evidence” is a difficult burden to meet. Florida statutes define the standard as “evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.”

Only two legal standards are stronger — “beyond a reasonable doubt,” which is required to convict someone of a crime, and “proof evident; presumption great,” which is a finding of certain guilt invoked to deny bail to defendants accused of capital crimes.

To win an acquittal, a defendant and his attorney need to convince a jury that there is reasonable doubt, which is an argument that the prosecution has failed to prove its case.

Williams said raising reasonable doubt is the easiest standard for a self-defense claim, but it’s also the riskiest because if it fails, the client is convicted.The proposal was approved along party lines on the final day of the regular legislative session that ended early in May.

“Yet another ill-conceived law rammed thru the legislature by GOP is ruled unconstitutional,” Rep. Carlos Guillermo Smith, an Orlando Democrat, tweeted shortly after Hirsch’s Monday ruling.