Mediaboss Marketing

(Photo: Bill Day/Cagle Cartoons)

Critics of a defendant-friendly proposal say dust off the GunshineState moniker:Florida is blazing new legal territory in a quest to expand Stand Your Ground rights.

SB 128, which has yet to be delivered to Gov. Rick Scott for a final signature, establishes a new threshold for a homicide charge in pre-trial hearings when a defendant uses deadly force.

"If the governor signs it then every other state will be looking to Florida for all the wrong reasons," said Sen. Perry Thurston, D-Ft. Lauderdale. "There is a reason why every state attorney in Florida is against this. There is a reason why no other state has a law like this. It ties the prosecutor's hands. It's not just bad. It's bad-bad bad."

Second Amendment advocates, the NRA, and the Florida Public Defenders Association say state attorneys have routinely abused their prosecutorial authority in cases where citizens have defended themselves against an attack. They say SB 128 reins them in and protects the constitutional rights of people under investigation following a violent encounter.

"They ( prosecutors) are able to extract pleas from innocent people because ... in some cases you have to turn down a favorable plea offer and face life in prison if you even want to take a deposition in a case to find out what witnesses will say under oath," said Stacy Scott, public defender in Gainesville, which is part of the 8th Judicial Circuit.

Hiaasen opinion: New stand your ground rules offer creative opportunities for defendants

Victims mother: Stand Your Ground law emboldens shooters

The bill is in response to a 2015Supreme Court ruling that found a defendant must prove deadly force was allowed under the Stand Your Ground law - a 2005 measure that says one does not have to retreat when threatened.

Florida's Stand Your Groundlaw was the first in the nation about two dozen other states have followed suit. A 2016 study found the state's monthly homicide rate has increased 24 percent since. Critics faulted the AMA study for flawed methodology, pointing out that the data conflated justifiablehomicides and murder rendering the results misleading.

Lawyers in the Florida Senate where a third of the 39 members have law degrees, overwhelmingly sided with the defendants voting 10-3 in favor of SB 128. Senate President Joe Negron argued if the state wants to deprive someone of their freedom then it must prove guilt at every step of the proceedings.

"The highest legal standard in the world has served us well," Negron explained. "If the government wants to send you to prison, it has the burden beyond and to the exclusion of every reasonable doubt."

Scott has said the court ruling had tilted the scales of justice against domestic violence and battery victims;often citizens with low incomes are unable to match the state's resources.

"This bill by forcing the state to have the burden of proof at the immunity hearing, it gives meaning to the hearing," said Scott. "It gives teeth to the hearing and it gives the citizen a fair opportunity to negotiate with the state."

Prosecutors say Negron and Scott's defense is inaccurate and misleading to those unfamiliar with how the judicial system works. PhilArcher, Brevard state attorney, said the burden is often on the defendant in pre-trial hearings such as one claiming a violation of rights or to plead insanity.

Archer said SB 128 mandates such an extraordinary standard of proof that it creates a huge loophole for defense attorneys to exploit.

"Last year in my jurisdiction of a million citizens, we had four Stand Your Ground hearings," Archer told lawmakers during a committee hearing. "With this bill, I expect that to rise to more than 6,000."

Archer predicted every battery case, every one-on-one confrontation, every violent crime potentially will include an immunity hearing.

The measure cleared both the House and Senate along mostly party-line votes. Thurston, a defense attorney by trade, led the Democratic opposition and tried to killthe bill during four separate committee and Senate floor meetings. His best shot was that the proposed legislation fosters a"shoot to kill" mentality because "dead men tell no tales."

"This is simply kowtowing to the NRA," said Thurston, the lawmaker.

Thurston the defense attorney though has a different take. If the governor signs the bill, he said he will use it every chance he gets.

"I see an avalanche of motions; domestic battery, aggravated battery, homicide. Every violent crime, you name it," Thurston said. "It would be malpractice for a criminal defense attorney not to. It would be ineffective legal assistance not to file that motion in every case I can think of."

The bill has yet to be sent to the governor. When asked the governor's intentions a spokesman said the bill will be givena thorough review once it arrives.When it makes it to his desk, Gov. Scott will have15 days to decide whether to allow it to become law.

Reporter James Call can be reached at jcall@tallahassee.com. Follow on Twitter @CallTallahassee.

Read or Share this story: http://www.tallahassee.com/story/news/2017/05/27/defense-attorneys-want/347121001/

See the original post here:
Lawmaker plans to use "shoot to kill" bill every chance he gets - if Governor signs it - Tallahassee.com