Florida’s boiling point: Marissa Alexander

Many months ago when I first wrote about Marissa Alexander’s case, major media was by and large silent about the case. That’s changed thanks to loud music, hoodies, and skittles. In light of the recent Dunn case and the Zimmerman verdict, Marissa’s case is getting some much deserved media sunshine. For those who are just learning about Marissa’s story here’s a recap:

The backstory: Marissa Alexander was sentenced to 20 years in prison for firing a warning shot to scare her husband. The relationship was well documented with incidents of domestic violence. In her original trial, Marissa was convicted on three counts of aggravated assault with a deadly weapon, but the judge decided she should serve the three counts concurrently, meaning she would be in prison for only 20 years instead of 60 years, which Prosecutor Angela Corey is now seeking. Marissa appealed the trial court’s ruling in the first trial and in September was granted a new trial based on a technicality.

Who is the victim in this case?  Husband Rico Gray — A 245 pound truck driver with a history of domestic violence. His former pre-trial deposition is damning with admissions of abuse. At trial he changed his story stating he feared for his life, making his former deposition testimony inconsistent.

Who is the Defendant? Marissa Alexander – five feet, two inches tall; slight enough as Gray mentioned in his pre-trial deposition, that on two occasions he “tossed” her from their house without much physical effort. Marissa reportedly had an injunction against Gray at the time of the incident and had just given birth 9 days earlier. She was trained to use a weapon and had a concealed weapons permit.

The offense? Shooting drywall. Marissa asserts she fired a warning shot into a wall during a confrontation Gray.  Her two children were present. No one was hurt or hit.

The punishment sought? Prosecutor Corey has announced she intends to effectively triple the punishment in Marissa’s second case, despite the history of abuse. Ms. Corey is not convinced Marissa feared for her life although in the last trial, the final defense witness, Mia Wilson, Ph.D., testified that Marissa met the criteria for “battered person’s syndrome.”

Corey now says if she is able to secure a conviction for a second time it will be on three counts of “aggravated assault with a firearm, for which Marissa will have to serve the sentences consecutively. Corey asserts that each count is for the three people in the room when Alexander fired into a wall.

Can Prosecutor Corey do this? Yes she can. Decisions by the prosecutor on what charges to bring, how the cases are tried, whether Florida’s “stand your ground” law is applicable and whether sentences are to run consecutively or concurrently are all within the Prosecutor’s control. In the first trial, it was determined that “stand your ground” did not apply to Marissa’s case because she did not fear for her life.

Marissa’s second trial gets underway in July. But Florida is already at a boiling point. The possibility of a 60-year prison sentence, which amounts to a life sentence, has drawn nationwide attention and many legal questions. How can a 20 year prison sentence be tripled? Is it constitutional? Are Florida sentencing laws constitutional? Isn’t it a violation of the Eighth Amendment prohibition against cruel and unusual punishment?

One legal expert sees this going to the High Court. George Dekle, a retired prosecutor who is now a law professor at the University of Florida, has stated that if Alexander is convicted again the issue of whether she should get 60 years in prison could end up going to the Supreme Court. All of the above are valid arguments, and some will be used to challenge a conviction should Prosecutor Corey be successful in meeting her burden of proof. But will they hold up? As with most things legal, it depends. Here’s a preview of the “back and forth” likely to come in July:

In the beginning: Florida Sentencing laws

Florida first applied sentencing guidelines for noncapital felonies in 1983. The Florida Supreme Court ruled that no guideline sentence for a noncapital felony could exceed the maximum sentence authorized by statute for that crime.

Ten years later the Florida Legislature substituted its version of guidelines for those the judiciary had created. What emerged was the Criminal Punishment Code, which allowed guideline sentences to exceed the statutory maximum. The 1998 Criminal Punishment Code repealed and replaced the Guidelines as Florida’s sentencing scheme for all offenses committed after October 1, 1998. Section 921.0024(2), Florida Statutes (Supp. 1998), gives the trial court authority to sentence consecutively or concurrently under the Code.

Is it constitutional?

What is most perplexing is an inconsistency in the Code. Section 921.002(1) (g) allows a court to impose a sentence only up to the statutory maximum, while section 921.0024(2) directs that the sentence can exceedthe statutory maximum when the scoresheet sentence exceeds the statutory maximum.

Some documented challenges to Section 921.0024(2) assert that it violates the notice requirement of the Due Process protection afforded by the Florida Constitution and the Fourteenth Amendment of the United States Constitution. The argument goes something like this:  It is impossible for a reasonable person to determine whether section 921.002(1) (g), or section 921.0024(2) will apply to their sentence. Therefore, section 921.0024(2) violates due process. Good argument.  But actual knowledge isn’t necessary. Generally, citizens are charged with constructive knowledge (presumed to have known) of the charges, penalties, and possible sentences for committing a crime.

What about an equal protection challenge? Article XIV, section 1 of the United States Constitution, prohibits the states from denying “any person” equal protection. Similarly, Article I, section 2 of the Florida Constitution provides that “all natural persons, female and male alike, are equal before the law.” But Florida case law has held that equal protection does not require that the defendant and the state be treated equally in criminal cases.

In the alternative, one could certainly argue that the two inconsistent code sections discussed above are vague. After all, according to Florida case law, “When reasonably possible and consistent with constitutional rights, the court should resolve all doubts of a statute in favor of its validity. But when there is doubt about a statute in a vagueness challenge, the doubt should be resolved in favor of the citizen and against the state.”

Brown v. State, 629 So.2d 841 (Fla. 1994); State v. Brake, 796 So. 2d 522 (Fla. 2001); State v. Wershow, 343 So. 2d 605 (Fla. 1977).  But the Supreme Court of Florida has a rationale for this apparent inconsistency in the two codes.

In Butler v. State, 774 So. 2d 925, 927 (Fla. 5th DCA 2001) the court explains:  “[t]he first provision (section 921.002(1)(g)) applies to general sentencing, while the second provision (section 921.0024(2)) applies to those circumstances in which “the lowest permissible sentence under the Code exceeds the statutory maximum.” “By this rule, application of section 921.0024(2) is an exception to the general provision of section 921.002(1) (g) that sentences cannot exceed the statutory maximum.” So the inconsistency in the applicable code provisions is basically an exception to the general rule according to the Supreme Court of Florida.

Cruel and Unusual Punishment

The Eighth Amendment prohibits cruel and unusual punishment. Marissa’s attorney Bruce Zimet plans to argue in her second trial, not only self-defense, but that the 10-20 –life law is unconstitutional because it violates the Eighth Amendment. While the Eighth Amendment does not require strict proportionality between crime and sentence, it does forbid extreme sentences that are “grossly disproportionate” to the crime.

There’s an argument to be made that 60 years (a life sentence) for shooting drywall is “grossly disproportionate.” Recently, the Supreme Court held that imposing a life sentence on a juvenile offender violated the Eighth Amendment. Can the same rationale be applied to a victim of domestic violence?

The Apprendi Factor

Apprendi v. New Jersey 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) is considered a landmark Supreme Court case that presented the question: Does the Due Process Clause of the Fourteenth Amendment require that any fact that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt?

The Court said yes. In a 5-4 opinion the Court held that the Due Process Clause requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

In order for Florida law to comply with Apprendi, any fact that raises the sentence above the statutory maximum (other than a previous conviction) must have been found by the jury beyond a reasonable doubt. But here, section 921.0024(2) of the Code directs that the sentence can exceed the statutory maximum when the scoresheet sentence exceeds the statutory maximum. This language of this section clearly conflicts with Apprendi in that the jury is not making the determination of the increased penalty based on the stringent beyond a reasonable doubt standard. The code is the jury and there’s no burden of proof.

This is by no means a definitive list of the legal questions and debates that will present themselves between now and July surrounding Marissa’s case. There are, and will be, more questions and legal theories upon which to appeal a possible conviction. There are, and will be a host of legal analysis on whether or not Marissa was acting in self- defense. Even more so, scrutiny will fall on what “self-defense” really is in Florida versus its “stand your ground law” which was unsuccessful in Marissa’s first case.

There’s no way around it. Florida’s sentencing laws and self-defense laws are complicated, confusing, and sometimes messy–much like the concept of Justice.