GEORGIA V. THREE GUYS AND A TRUCK (PART 2)

Level the Playing Field - Never! » Brand Constructors Brand Constructors

Some truth about the defense of justification (“self-defense”). Submitted for your consideration relative to the SHOULD of my deadly force paradigm, with a hat tip to The Tactical Professor‘s take on it.  (HERE). Contrary to media assertions that “Stand Your Ground” laws routinely exonerate the “guilty” — that is extraordinarily rare, if it happens at all. The prosecutor is about a 4:1 favorite. Almost always.

The “playing field” isn’t level; obtaining a complete acquittal is difficult, always an uphill battle, with some luck needed. It isn’t that difficult for the State to disprove (beyond a reasonable doubt, its burden of proof) a self-defense prerequisite (subjective or objective reasonableness, necessity, imminence), or to prove an unfavorable condition to put on the defendant (failure to attempt required retreat, aggressor status, excessive force). The State usually has more than one applicable criminal charge, and also backups, what are known as lesser included offenses. And then, in a multi-defendant case, there is a charge of conspiracy available, with all of its stand alone and complex body of law. And unpredictable jury verdicts. Defendants often feel compelled to testify to obtain the desired acquittal. That often backfires and provides the jury with reason(s) to convict.

In theory, the defense of justification should exonerate a defendant of all charges directly related to the use of force in defense of property, self, or others. But, juries return “compromise” and “inconsistent” verdicts. Which are sustained on appeal. All the time. You often hear that a defendant need only persuade the hoped-for “lone juror” to hold fast to a vote of not guilty. Sure, but that usually gets the defendant nothing more than a new trial and maybe a better plea bargaining position.

In the Georgia case, the three defendants are also charged federally, which charges could easily result in a life sentence or one that is effectively such a sentence. But what of Double Jeopardy per the Fifth Amendment? In the legal battle between dual sovereigns and Double Jeopardy, the former remains the victor. Despite several Supreme Court reviews. I don’t expect the current USDOJ to discontinue a “hate crime” prosecution because a federal defendant has already suffered a state conviction and lengthy prison sentence. The federal “policy” (“Petite,” HERE) is easily skirted, and it isn’t enforceable anyway. (Remember Officer Chauvin).

Not mentioned above is the near certain exposure to civil liability (for damages) after a criminal prosecution which determines that the force used was not justified. Win or lose, it can cost all you have and will ever have.

Never forget, it’s not a level legal playing field despite Constitutional protections and even the best defense counsel lawyering; it’s an uphill battle, often nothing but a crap-shoot. Bad odds for sure.  Don’t go looking for trouble; avoid conflict; disengage or “retreat” whenever you are able. Non-deadly force skills and tools are a must (HERE).

There is no shortcut to knowing the actual MAY, or excuse for not knowing, as ignorance of the law is not a defense.

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About Steven Harris

Steven Harris (Florida Bar, 1979 - Martindale "AV" and Preeminent) consults and co-counsels with other defense attorneys in "self-defense" cases, and represents federal agents and state and local LEOs in duty related disciplinary and use of force matters. He writes and lectures about OIS, duty-related legal issues, and self-defense law for the nonsworn. He writes regularly (since January 2020) on related topics for Florida lawyers in Forum 8, a monthly Bar newsletter. See https://www.8jcba.org/page-18058. Steve has also authored articles in numerous legal, accounting and business publications for over 45 years, and is a co-author of a two volume treatise on federal criminal and civil tax and money-laundering litigation, which has been cited by several federal courts, including the United States Supreme Court. Steve has been shooting various competition handgun disciplines for more than 30 years.