Punishment by Process: Defending Against Prosecutorial Abuse

By CTD Blogger published on in Legal

Controversial Miami-Dade Circuit Judge Milton Hirsch, intensely dislikes the “Stand Your Ground” concept. He ruled the legislature does not have to power to regulate the “Stand Your Ground” law.

By Dean Weingarten

The Florida legislature passed a reinforced “Stand Your Ground” law in 2017. The new law stems from prosecutorial abuses, where people who are clearly justified in using force for self defense, are put through the criminal justice system, even though the chance of a conviction in the courts is slim.

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People charged with a crime faced years of court costs and uncertainty. It is punishment by process. The legislature removed power from the prosecutors and gave it to judges, to prevent this kind of abuse.

“Stand Your Ground” laws have been popular. Two thirds of the States have similar law. The elimination of a requirement to retreat in the face of deadly force has long precedence in the United States, starting with a Supreme Court ruling in 1895.

Judge Hirsh’ decision cites English precedence to the effect that there is a requirement to retreat, and some American cases, but completely ignores the 120 years of precedence in the Supreme Court that supports the Stand Your Ground law. It shows Judge Hirsch’ bias. From Miamiherald.com:

Hirsch found that the changes to the law were “procedural,” meaning only the Florida Supreme Court has the right to make them.

The ruling cites this part of the Florida Constitution, and makes the claim that the Legislature is changing a rule of the court, rather than making a law. From Ballotpedia.com:

Text of Section 2:

Administration; Practice and Procedure

(a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

A former prosecutor and current member of the legislature, Senator Rob Bradley, disagrees. He is the author of the law. He believes the appeals court will overrule Judge Hirsch. From usf.edu:

But, Sen. Rob Bradley (R-Fleming Island)—the new law’s author—disagrees.

“I would be surprised if it were upheld on appeal,” he said.

If the courts rule that the Florida Legislature overstepped its authority in this case, an alternative would be to reform the law by making it similar to law in Washington state. In Washington, if a defendant is found not guilty after a self-defense claim is made, the state pays the court costs and legal fees of the defendant. This would be another check on the power of prosecutors to punish defendants with process costs.

Conclusion

“Stand your ground” and “Castle doctrine” have both been criticized in the past. However, while the ideal choice in any dangerous situation is to try and retreat, in a vast number of cases this is totally impossible without risking injury or death. Of course, such laws can be abused but overall they are definitely necessary, in particular because after a proven lawful defense shooting there should not be the drawn out liability of a civil suit, let alone a full scale criminal case when self-defense facts are clear and irrefutable.

Which do you support, taking it out of the prosecutors hands or forcing the state to pay the defendant’s legal fees if found to be not guilty. Share your answer in the comment section.

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Comments (50)

  • Steve Dirks

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    They should take the money from the prosecutors budget!

    Reply

  • Murphy

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    I wish in court there was a way to put a sanction on the amount of money the state can use against you. Yeah I can get a lawyer but the average guy isn’t gonna have even close to the amount that can be a fair challenge. The state has an infinite legal tab. At the risk of sounding not smart, wouldn’t it be cool if how it was is that say you could only afford 5,000 bucks on defense, that the state would have to match your budget and not be able to outspend you. Innocent until proven guilty.

    Reply

    • Dave Dolbee

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      There is a cost, but there are several legal defense insurance groups you can subscribe to. The NRA has its new Carry Guard and U.S. Law Shield is in several states as well as others. ~Dave Dolbee

      Reply

    • kevin

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      I bet you’re ok with the amount of money the state can use against black and brown people. Just not whitey.

      Reply

    • rbrittne

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      AGAIN…some a-hole has to bring in race! Why cant we just go by criminal record…..current actions….etc…..case by case Even with all the stand your ground laws, the leftist judges, prosecutors, etc are still trying to thwart our right of self defense in a time we need it most with terrorism, drug use at its highest! NO CRIMINAL OR CIVIL ACTION FOR SELF DEFENSE DEADLY FORCE ACTIONS!!!

      Reply

    • steve

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      What about the yellow!!! To be inclusive you have to say “people of color”. You racist blue eyed devil!!

      Reply

    • joe

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      Kevin, perhaps you’d like to address some particular inequalities in regards to the law. If black or brown people, and I presume you’re implying that they are poor unlike “whitey”, are arrested they get a free lawyer. Unless “whitey” is rich, he gets an average but expensive lawyer who might not be any better than the free lawyer. “Whitey” can and will be sued for all he’s worth whereas black/brown people have lawsuit immunity by virtue of their poverty. Lawyers don’t sue people without money; it’s a waste of their time. Explain to me how this all equates to equal justice before the law.

      Reply

    • Keith

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      Kevin grow up. How do you know all these people are not black or brown people.

      Reply

    • Phil

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      Kevin, is this all you have?

      Reply

    • Adam

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      Stop this ignorant trolling. Your unfounded accusations of racism are absurd. Kevin, you are a fool, and a fool of the worst kind.

      Reply

    • Stu

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      … and there it is. The easy over-generalization of the subject into a race issue. The color of a person’s skin should have any bearing in this discussion. The issue at hand is the treatment of the victims of an intrusive violent act, either of their dwelling, their property or their person.

      Reply

    • Dale2

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      Where did you get from Murphy’s post that he would be ok with unequal treatment. He said average guy. Nothing about color. Unless you are stating that white guys are all only average. Unless I am missing something here.

      Reply

  • Dan

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    I support both…I support the revised law that places the burden of proof on the prosecutor during the preliminary hearing…and I support reimbursement if taken to court and the persecution fails to get a conviction.

    Reply

  • JOSEPH MAFFEI

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    This judge seems to forget that, golly gee, I have my own bodyguards (armed of course) to protect me, why do I need to care about SYG ??? (see the word “a$$hole” in Wikpedia).

    Also hard to believe the WA state is being held up as a model for SYG.. Since I left there in 2009, it has become one of the worse ant-gun states in the union.

    Reply

  • Lorenzo

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    “Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”

    Okay, so what’s the issue here?

    Reply

  • John Krysiuk

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    The deeper part and the part most offensive concerning the approach of prosecutors who take this approach is their relegation of the simple concepts of respect and personal sanctity into the realm of the criminal.

    When a break in occurs, when your homes sanctity as well as respect for your life and security has been violated you find them assaulted a second time and the ground you stood on to defend them shaken by the very body of law and processes created to protect those very concepts. How long should we put up with this kind of government? Where we get double talk about rights and find deliberate process designed to impede their establishment under law and their defense in the most intimate of settings. I am hurt by my own blessed and beautiful nation’s governments. Is there any wonder why there is no real peace.

    Reply

  • Jim F

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    One should have the and in my humble opinion does have, the right not to retreat from a threat that would cause injury or death, unless in their immediate assessment of the situation it is possible to leave without injury, or death. this should of course apply to preventing someone else from suffering that fate … R/

    Reply

  • Doug

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    The last place FL should be looking for guidance is Washington State. Florida has been the leader in upholding the 2nd Amendment and all that it encompasses. They’ve been the one to set the standards not follow them and to begin doing so by looking to a liberal hotbed like the west coast would be bad all around. We don’t know what the vote margins were in enacting the change but if it was high enough they should just repeal their law, NOT adopt someone elses.

    Reply

    • Spencer

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      I suspect it’s because most senior citizens have learned over the tears just how important how important the 2nd amendment really is.

      Reply

    • Dale2

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      I would not bet all my money on the seniors. Being a Florida senior my self, I know that in my dads and my step moms case, they became very liberal and passive as they got older. And a vast majority of Florida seniors are from liberal New England states. Thankfully a lot of Florida is full of good old Florida cracker country boys and girls that vote.

      Reply

    • Spencer

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      That’s supposed to be “years”,,,,, not “tears”
      Sorry, but the “T” is located next to the “Y”.

      Reply

    • Mark

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      Years and Tears – equally applicable especially to those who have lost their lives and livelihood to criminals…

      Reply

    • Dale2

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      I will take a law the helps my 2nd amendment rights, from any where I can find it.

      Reply

  • Alan

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    If the defendant wins, the state pays ALL costs.
    It works that way in NSW Australia and would be a blessing here.
    It would put the brakes on those intent to further their law careers at the expense, time and emotional distress of the innocent.

    Reply

    • Bobby Jay

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      The only reason some DA’s go after people, victims and not the criminal, is to make a name for themselves is to climb up the food chain and become a judge. Anymore the criminals have more right them the victims.

      Here’s a wild one. Not guilty and SUE THE DA, AND THE JUDGE.

      Reply

    • Norm

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      All costs PLUS…cover the time, stress, and aggravation of having had to go to court in the first place.

      Reply

  • Dustin

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    So… Legislating from the bench is the only kind of legislating allowed now?

    Hirsh is a complete piece of sh!t.

    Reply

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