lawyers fear 'Stand Your Ground' backlash

Friday , April 06, 2012 - 9:57 AM

David Ovalle

MIAMI — With the worldwide scrutiny of "Stand Your Ground" law after the shooting death of Trayvon Martin, criminal-defense lawyers statewide fear that the widespread publicity will hinder their efforts in front of judges and juries in upcoming self-defense cases.

Sanford police cited the law when they did not arrest neighborhood watch volunteer George Zimmerman, 28, who fatally shot the 17-year-old Martin on Feb. 26 in Sanford.

Lawyers in unrelated cases will undoubtedly have to question potential jurors about the "Trayvon Martin Effect" or the "Trayvon Factor," said Nellie King, president of the Florida Association of Criminal Defense Lawyers.

"The climate could not be worse for those folks who have been arrested, yet have viable self-defense claims. Florida defense lawyers can only hope that jurists, as well as jurors, tasked with reviewing future Stand Your Ground claims will weigh the case-specific facts before them in an impartial manner against Florida’s law, irrespective of the larger issues being debated in this country," she said.

Florida’s 2005 law eliminated the duty to retreat when confronted by an attacker, while allowing judges — well before a jury trial — to decide whether a defendant is immune from prosecution because he or she acted in self-defense.

Critics, including many police officers, say the law encourages vigilantes to shoot first and ask question later, while some prosecutors think that juries, not judges, should decide the self-defense question.

Zimmerman, who is white, shot and killed Martin, who was black, during a sidewalk scuffle inside a gated housing community just north of Orlando. Gov. Rick Scott appointed a special prosecutor to review whether there is enough evidence to charge Zimmerman in the racially charged case.

The U.S. Justice Department is also examining the case and the police investigation for potential civil rights violations. The governor is also reviewing the law, as is a panel of elected officials.



Since the shooting, rallies and marches have dominated the news. President Barack Obama chimed in, saying that if he had a son, he would look like Martin.

Countless columnists, commentators and bloggers worldwide have spotlighted Florida’s self-defense law, one of more than 20 similar laws in states across the nation. More than 50 online petitions asking for the law’s repeal, signed by more than 2 million people, have also been created on Change.org.

In popular culture, Martin’s image — and criticism of the law — has exploded into the public consciousness. Miami Heat players posed for photos wearing hooded sweatshirts similar to one Martin wore the night he was killed.

The rock group Red Hot Chili Peppers, playing Monday in Sunrise, made a reference to the law, donning black hoodies with the phrase "Ode to Trayvon Stand What Ground" printed on the back.

It is against the backdrop of public backlash that Miami defense attorney David Macey is hoping to get a judge to grant immunity to his client, Cristobal Palacios, on a 2008 murder charge.

Miami-Dade police and prosecutors say Palacios, in cold blood and in a jealous rage, gunned down his ex-wife’s new husband outside Palacios’ Kendall home. Palacios’ ex-wife and husband, Paul Winter, had gone to the home to drop off Palacios’ young twins for a court-ordered week of custody.

Palacios claims he acted in self-defense outside his own home when he saw Winter reaching for something he thought was a weapon. Winter was unarmed.

Trial is scheduled for July, and Macey said that in selecting jurors, it will be "important to weed out the people who want to get revenge for Trayvon Martin."

But, before that, a Miami-Dade judge will decide whether to dismiss the case based on the Stand Your Ground law.

"I’m fearful that there will be backlash and people who deserve the protection of the law will be denied because of the public pressure," Macey said.

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One of the most controversial aspects of the law, as interpreted by the Florida Supreme Court, is that judges can hold an evidentiary hearing to determine whether someone acted in self-defense. These immunity hearings are governed by a looser standard than the "beyond a reasonable doubt" rule one used in jury trials.

But judges are also elected, and legal and political observers say jurists could be hesitant to throw out criminal charges, especially in murder cases, lest they draw criticism.

Miami-Dade Circuit Judge Beth Bloom this month tossed out a murder charge against Greyston Garcia of Miami, who chased down a man who broke into his car and stabbed him to death during a confrontation in which the victim swung a heavy bag containing car radios at him.

While Garcia’s attorneys hailed the decision as brave, the decision infuriated police and drew worldwide press attention at the same time that the Sanford case was exploding into the public consciousness.

"Considering it is an election year for some judges, rulings on immunity are a hot topic and will be greatly scrutinized by the public. What judge wants to be in the spotlight on an immunity case? Judges could find themselves making very unpopular decisions when applying this law," said Miami defense attorney John Priovolos, is waiting for the publicity to die down before filing an immunity motion on a non-murder self-defense case he is handling.

"And what happens when a judge does not grant immunity, and a jury is left to decide the fate of the defendant? Does it water down a self-defense claim for all defendants? Will a jury disbelieve a defendant if he takes the stand? It’s a legitimate concern."

As for the effect of publicity with juries, it is an issue that universally bedevils defense attorneys on cases of all stripes.

Nevertheless, legal observers believe defense lawyers can overcome the "Trayvon Effect" during the questioning of potential jurors before a trial begins. Some defense lawyers hope to even use the case to draw a sharp distinction between their clients and the widely reported conduct of Zimmerman.

Former Miami-Dade Circuit Judge Mary Barzee Flores said that prosecutors and defense attorneys will have "to seriously consider how the public perceives the Martin shooting" in deciding whether to take a case to trial in the coming months.

Judges, she said, must carefully help in screening jurors who cannot leave their feelings at the door.

"The jury room is the place for careful, deliberative analysis of oftentimes very difficult and disturbing facts," she said. "It’s not the place for vengeful, emotional reaction to facts and circumstances that have nothing to do with the case at hand."

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(c)2012 The Miami Herald

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