Editor’s note: Darren Kavinoky is a criminal defense attorney at the Kavinoky Law Firm in California. He is the creator and host of “Deadly Sins” on Investigation Discovery, a TV legal analyst and keynote speaker. He is on Twitter and Facebook.
So let me get this straight: Michael Dunn was convicted of attempted murder and shooting a “deadly missile.” This means he will be punished for not killing three people, but he’s not going to be punished (yet) for anything concerning the one person he actually did kill, Jordan Davis? What is going on here?
Welcome to yet another case from the Sunshine State that has shocked everyone in the court of public opinion. The Dunn verdict now has people seriously wondering, “Is murder legal in Florida?”
I was in front of my computer Saturday as it became clear that jury deliberations were drawing to a close. My #OnTheCase Twitter stream was full of tweets that ranged from expletive-filled to eloquent. Two of my favorites came from anti-racism educator and author Tim Wise, who wrote:
— Tim Wise (@timjacobwise) February 15, 2014
— Tim Wise (@timjacobwise) February 15, 2014
I actually disagree with Wise’s first statement (and told him so -- though he hurt my feelings by not following me back). I see this trial as proving less about the value of “a black man’s life” and more that the prosecutors failed to effectively cross-examine Dunn when they had a crack at him on the witness stand, failed to effectively articulate what premeditation was and how quickly it can be formed and, most egregiously, failed to emotionally connect with the jurors and make impassioned arguments that don’t include a bunch of legal “blah blah blah.”
Many of the tweets were highly critical of Florida’s now-infamous Stand Your Ground law, including one that was retweeted hundreds of times:
— Darren Kavinoky (@DarrenKavinoky) February 15, 2014
So why is all of this controversy happening in Florida? Is this just about Stand Your Ground, or is there something else afoot? There are nearly two dozen states that have some version of Stand Your Ground on the books; why is Florida grabbing the spotlight with these controversial cases that have captured national attention?
Stand Your Ground vs. traditional self-defense
Although Stand Your Ground law is once again capturing headlines, neither the Dunn trial nor the George Zimmerman trial (for the killing of Trayvon Martin) was really a Stand Your Ground case.
Before you launch hate tweets at me (@DarrenKavinoky, if you care to), let’s do a little legal review.
Both the Dunn and Zimmerman trials involved the somewhat standard self-defense principle that a person is justified to use deadly force if they reasonably believe that this force is necessary to prevent imminent death or great bodily harm. This is the same legal standard all across the United States.
Where Stand Your Ground comes in is the notion that there is no “duty to retreat,” which means that in Stand Your Ground states, you don’t have any obligation to try to get away before using that deadly force.
But this “duty to retreat” wasn’t an issue in either the Dunn or Zimmerman trials. In both of these cases, the defendants’ argument was simply that their use of deadly force was reasonable, since they believed it was necessary to prevent imminent death or great bodily harm. The portion of Stand Your Ground -- the lack of “duty to retreat” -- was simply not a central part of their cases.
The other important feature of Stand Your Ground is the opportunity to have an immunity hearing which can be a shield for the defendant. That’s where a judge decides, as a matter of law, whether the shooting was justified. If it is, then the case is over and the accused cannot be criminally prosecuted or even sued civilly.
Neither Dunn nor Zimmerman asked for this hearing. The reason they didn’t was, in my view, for tactical reasons: They didn’t want it known that a judge had considered and rejected the issue. Nonetheless, Stand Your Ground didn’t make either case different than it would have been anywhere else in the United States.
JANE VELEZ-MITCHELL: Stand Your Ground is license to kill
So that leaves the answer to the question “Is murder legal in Florida?” as murky and ambiguous as it was before either Zimmerman or Dunn grabbed the national headlines. The best and most lawyerly answer I can give is simply “it depends.”
That’s because we’ve yet to hear from the jurors in Dunn’s trial. As of right now, we don’t know whether the reason for the mistrial on the murder charge was a debate between murder and self-defense or a debate between first-degree and second-degree murder. If the former, those who think murder is legal in Florida will find support for their position. If the latter, those who believe the failure to convict was a breakdown in the prosecutor’s office will find even more.
So, what’s next?
Florida State Attorney Angela Corey (the same chief prosecutor as in the Zimmerman trial) has indicated Dunn will be retried on the murder count. Some argue that there is no need to retry Dunn for the murder charge, that he will serve a minimum of 60 years for the charges he was convicted on and that taxpayers don’t need to spend the money.
This is misguided for several reasons. First, the justice system is not now, and never has been, about money. (If it were, we would do away with capital punishment, which is undeniably more expensive than life in prison, but that’s another blog for another day…) Lady Justice is not just blindfolded; she also doesn’t carry a purse. Retrying Dunn for the murder charge is simply “the right thing to do.”
Also, any seasoned criminal defense attorney knows that “a conviction is just the first step toward a successful appeal.” A conviction on the Dunn retrial would be the equivalent of wearing both a belt and suspenders to keep one’s pants up; while the odds of overturning any conviction are very low, the odds of overturning two separate jury verdicts are astronomical. Dunn’s lawyer has promised an appeal on the convictions thus far. What if he wins?
With all humility, I think the best thing to do is to have a special election. Not to toss out Corey for blowing it (which ain’t a bad idea), but to do something radically different: An election that would specially appoint HLN legal analyst Joey Jackson and me to handle Dunn’s retrial. Put that one to a Twitter vote; I promise you, the results of that verdict would be unanimous. Pack your bags, Joey!