'Stand your ground' immunity largely gutted

Discussion in 'GA Laws and Politics' started by kkennett, Feb 26, 2007.

  1. kkennett

    kkennett New Member

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    Good folks,

    The decision published today by the GA Supreme Ct. has largely gutted, IMHO, the immunity from prosectution portion of the 'stand your ground' law, 16-3-24.2. http://www.gasupreme.us/pdf/s06a1579.pdf

    Here's the case, as I understand it. Fellow shoots someone else and claims self-defense, filing a motion for dismissal of the charges under the 16-3-24.2 immunity from prosecution. The trial court denies that motion. The defendant filed an interlocutory appeal of that order before his trial. Few things can be appealed this way - typically you have to wait for a final judgement. The GA Sup Ct. has dismissed the interlocutory appeal as not meeting the proper criteria for an order appealable before a final verdict in the case. It said that the claim of immunity from prosecution and the claim of justifiable self-defense were essentially the same issue (probably true), and that the self-defense claim was properly one for a jury (true), thus the appeal would have to wait for a final verdict.

    This is really what I expected all along with the immunity from criminal prosecution. If the use of force is clearly justified, the DA won't prosecute and there's no need for the statute. If the use of force is clearly unjustified, then it's murder and the DA will prosecute. If the use of force was questionable, how is the court to decide to decide, a priori, that you are immune, before the trial has taken place. Essentially what you're asking is for the court to become the trier of fact instead of the jury. Basically circular logic. So then I ask, when is the immunity from criminal prosecution going to help you? Likely, never. Only in those cases where the DA is prosecuting an obvious case of self-defense, which is likely very rare indeed. I don't like the GA Sup Ct decision, but what else were they going to do? Probably the guy will be found not guilty, then he will go back and try to sue (unsuccessfully), saying, "I was supposed to be immune from all this."

    While I think the immunity from civil litigation is important and welcome, the immunity from criminal prosecution has largely been gutted and revealed as the circular logic that it basically was. If you can't appeal the order before the verdict, and the only relief is that there be no trial (immune from prosecution), that right is essentially lost.
     
  2. kkennett

    kkennett New Member

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    Just thinking further on this, it's another instance of "heads we win, tails you lose." Let's say you win your motion to dismiss the charges under 16-3-24.2, well the State can appeal because that is the final word on the matter. If you lose, well you're out of luck and cannot appeal. Nice, huh? Maybe the solution would be for the court to hold an evidentiary hearing? But then, the defense is forced to preview its case at trial, harming the defendant if he loses. See why this part doesn't work well in practice?
     

  3. jccls

    jccls Guest

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    Why will he be unsuccessful when he sues the state?

    Sorry! I'm not very good at these things.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Interesting. I have not yet read it, but there is no immunity at all if it has to await determination by a jury.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Now that I have read it, I am not sure I agree with kkennett. The appeal did not follow the interlocutory appeal procedure, which is required if there is no final judgment yet. Instead, his attorney (or he personally, this printout does not say) filed a direct appeal. The only discussion of a jury resolution is in a discussion involving the collateral order exception to the necessity of an interlocutory appeal.

    This case does not hold that a jury must determine the immunity issue. Rather, it is a case about appellate procedure only. That is my take on it.

    :2cents:

    :ianal:

    :D
     
  6. kkennett

    kkennett New Member

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    MP is right that they conclude on page 2 that the appeal suffers from a fatal procedural flaw. But then, they conclude the entire opinion with this paragraph:

    In his motion to dismiss, Crane does not contest the State’s assertion that
    he shot DeCesaro to death, but asserts the killing was justified. Since
    justification is an affirmative defense to a criminal charge (Broussard v. State,
    276 Ga. 216 (2) (576 SE2d 883) (2003)), Crane would be entitled to a verdict of
    acquittal if he established the defense of justification and the State failed to
    disprove the defense beyond a reasonable doubt. State v. Royal, 247 Ga. 309
    (1) (275 SE2d 646) (1981). Thus, the ultimate issue in Crane’s motion to
    dismiss pursuant to OCGA § 16-3-24.2 is the same as the ultimate issue at trial,
    whether he was justified in killing DeCesaro or is guilty of the offense charged.
    That being so, the first requirement for application of the collateral-order
    exception, that the issue be substantially separate from the basic issue in the
    case, is not met in this case. Accordingly, this direct appeal from an
    interlocutory order must be dismissed.
    Emphasis mine

    I took that to read that even a properly filed appeal would have failed to satisfy the exceptions necessary for an interlocutory appeal. In other words, they seem to get to the meat of the matter (ultimate issue), notwithstanding the procedural flaw.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    My take is that the collateral-order exception was one of two arguments Crane used to get the Court to take it as a direct appeal, not an interlocutory appeal, and because the issue in this case is the ultimate issue in the case, the first requirement for application of this exception is not met.

    I am not sure the sky is falling (yet), but I am open to being convinced.
     
  8. kkennett

    kkennett New Member

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    Given the brevity of the opinion, this is probably all the evidence we are going to get in this case. The resolution of this question thus may have to wait for a better test case with better lawyers. Procedural flaws or not, I do think the basic question of the circular nature of the statute provision is tough to get around. Looking at it from the other direction, you don't want every murderer to be let off because he claims justification immunity. Somebody has to sort that out - and that somebody has to be the jury. Here's an idea though: change to the statute to specifically place responsibility for the attorney's fees, emotional harm, and all other damages you can think of on the State if they fail to get a conviction after an asserted 16-3-24.2 immunity, then successful defense. The defendant would be required to stipulate to the killing and argue on justification alone at trial. No scatter-shot defense foolishness. This increases the stakes for the DA and forces the defense to make a real argument and put their eggs completely in that basket.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    No, not so. Immunity from prosecution should be determined by a judge on motion and a hearing before trial. The statute states "immune from criminal prosecution," not immunity from a jury verdict if they, the jury, decide to apply immunity. Prosecution is what the prosecutor does.

    Same thing in the civil arena.
     
  10. kkennett

    kkennett New Member

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    But then that is really two bites at the apple. DA, "This guy committed murder." Def. "Nope, self defense, I'm immune from the whole process." Then the judge holds a hearing wherein he has to weigh the credibiliy of the witnesses and physical evidence himself (assume the defense wants to preview their case). Does the DA now get two chances to cross the defense witnesses. What defense attorney is going to go for that? Isn't this basic first step what grand juries are supposed to do? What is the judge's standard for dismissal under 24.2? Preponderance of the evidence - less than the trial, but what the heck, let's give it a go. Reasonable doubt - you're probably guilty of murder, but we're not even going to have the trial because there may be a doubt about your justification. You see my point: this is a sticky mess when it comes to actually sorting out this statute in marginal cases.
     
  11. jrm

    jrm Sledgehammer

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    I tend to agree with MP. The appeal was dismissed for lack of jurisdiction. The supremes did not rule that denial of the motion to dismiss was not appealable. The appellant just didn't appeal it correctly.

    As for the merits, and kkennett's circular logic concern, I also agree with MP, and would add this. The motion to dismiss on account of immunity MUST be heard by the trial court, in a hearing, before trial. It is true that some of the same evidence that ultimately will be presented to the jury, if the case is tried, also will be presented to the judge, at the motion hearing, but that happens all the time. For example, when there is a probable cause hearing, the state presents a mini version of its case to the judge, who must rule whethere there is probable cause before the case can go to trial.

    Whenever a defendant files a motion to dismiss on the grounds of immunity, there has to be a hearing, on the issue of immunity, before the case can be tried. We don't have enough information, based on the opinion, to know if the defendant got his hearing or not. If the judge had a hearing, and denied the motion based on the hearing, then the defendant probably will have to go to trial. On the other hand, if the judge did not hold a hearing, essentially ignoring the meaning of immunity and the procedure that must be followed, that case is an appropriate one for an interlocutory appeal.