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        It is impossible for any defendant, black or white, man or woman, to get a fair trial in a self-defense case in Florida. While the Florida Legislature amended the self-defense laws in 2005, Florida Statutes 776.013, 776.012 (adopting the “Stand Your Ground” law written by the N.R.A., and since 2005, adopted by 30-odd other states), the Florida Supreme Court has so horribly written the standard self-defense jury instructions (SD-JI) as to deprive all defendants of a fair trial.

        The Court refuses to instruct jurors that F.S. 776.012(b) would “justify the use of deadly force” as a result of 776.013(1)’s “presumption of fear.” Instead, jurors are only told that the “presumption of fear” gives “no duty to retreat,” but not a word about a legal right to use force in self-defense. As far as jurors are instructed by the court, you have a right to be afraid, without having to retreat to be afraid – but no right to use self-defense force as a result of that “presumption of fear.” It is F.S. 776.012(b) that adds the legal right to use deadly force in self-defense as a result of F.S. 776.013(1)’s “presumption of fear,” yet the Florida Supreme Court failed to include the provisions F.S. 776.012(b) in the standard jury instructions on self-defense. (In Re Standard Jury Instructions, 930 So. 2d 612 (Fla. 2006); for “Justifiable Use of Deadly Force” [3.6(f)], and “Justifiable Use of Non-Deadly Force [3.6(g)].)

        Next, the Florida courts refuse to instruct jurors that F.S. 776.012 [2005] now includes the vital words, “and does not have a duty to retreat,” before an imminent threat; either to prevent imminent death (or great bodily harm), or the imminent commission of a forcible felony. The new self-defense statute, F.S. 776.013(3), does not apply to “imminent” threats. The Florida Legislature amended F.S. 776.012 [2005] to add “and does not have a duty to retreat” before “imminent” threats, yet the jury never hears this part of the law, the jurors not entrusted with seeing the law, the statutes, themselves.

        Next, there is the “Stanley-Steemer-Stabber” problem: if the carpet-cleaner man pulls a knife on you, in your home, you have no legal “presumption of fear,” because F.S. 776.013(1) only applies to trespassers, not to invited guests, or workmen – or to a violent spouse.

        Next, the Florida Supreme Court refuses to instruct juries that the “presumption of fear” in F.S. 776.013(1) applies if either someone “was in the process of unlawfully and forcefully entering” your home, or already “had unlawfully and forcibly entered” your home. Instead, jurors are only instructed on half of 776.013(1), the lesser half, that a defendant only has a “presumption of fear” if someone already “had unlawfully and forcibly entered,” the past-tense, a completed break-in. The jurors are never instructed that the “presumption of fear” also applies if someone “was in the process of unlawfully and forcefully entering,” the present-tense, a break-in in progress. In effect, jurors are told that the defendant must sit by, and watch someone finish breaking into his home, before he would have any legal “presumption of fear.”

        Yet, he who hesitates, in a self-defense situation, will die.

        Next, the law itself, F.S. 776.013, added a qualification before a defendant can use deadly force in self-defense, that the defendant “was not engaged in an unlawful activity.” The problem with this instruction is that the defendant is, will be, on trial for an “unlawful activity,” the very act of self-defense itself; and jurors may very well think that the defendant cannot then be legally justified in using deadly force in self-defense, the very act of force for which the defendant had been arrested for, and is now on trial. While the law may have been intended to prevent a self-defense claim if the act of self-defense occurred in, say, robbing a bank; the law and jury instruction itself fails to define the limits of “is not engaged in an unlawful activity,” fails to add words such as “other than the crime charged.” And even with such a qualification, or definition, another problem would occur. A hypothetical example:

“Grandma took the mini-van to the church day-care center to pick up the twins, when an escaped lunatic with an axe broke into the mini-van. Grandma hesitated in reaching for her legal revolver, and so died, because she knew that under the circumstances, of being double-parked in a loading zone, that she was “engaged in an unlawful activity,” and so had no legal right to defend herself, under Florida law.”

        But if Grandma had not hesitated in reaching for her legal revolver, to attempt to puzzle out exactly what “not engaged in an unlawful activity” really meant (because, after all, she knew that it was “unlawful” to double-park, especially in a loading zone, a place she “had no right to be” (the other qualifying phrase in F.S. 776.13(3)) and had grabbed her gun in time to fire a warning shot out of the window of the mini-van (she wouldn’t want to hurt anyone if she didn’t have to do so), Grandma would have gone to prison in Florida for 20 years, for violating Florida’s “10-20-Life” law, F.S. 775.087; which requires a 20 year mandatory minimum prison sentence for any “discharge” of a firearm during the commission of an “aggravated assault.” Here, Grandma’s use of her legal gun to fire a warning shot was in fact an “aggravated assault,” a “threat with a deadly weapon.” And if Grandma had not fired a warning shot in self-defense, but had just displayed her gun, or pointed it at the lunatic with an axe breaking into her mini-van, she still would have gone to prison for violating the “10-20-Life” law, for “using” a firearm during her “aggravated assault,” threatening the person attacking her.

        And I suppose that Grandma would have no legal “presumption of fear” at all, until the lunatic with an axe had finished, completed, breaking into the mini-van; because jurors are only instructed on half, the lesser half, of F.S. 776.013(1), that her “presumption of fear” would not apply if someone “was in the process of unlawfully and forcefully entering,” but only after someone “had unlawfully and forcibly entered,” the past-tense, a successful break-in into the mini-van.

        Next, the courts refuse to instruct jurors that F.S. 776.013(1)’s “presumption of fear” applies if someone has a “reasonable fear of imminent peril of death or great bodily harm,” the standard jury instruction 36(f) omitting the words, “peril of,” important words that expand this right:

        “A man with a knife who is 30 feet away, puts you in fear of imminent peril of death, soon.”

        “A man with a knife who is 3 feet away, puts you in fear of imminent death, now.”

        The words, “peril of” expand the right of self-defense, beyond striking distance, beyond imminent death, yet jurors are never instructed correctly on this vital issue.

        Next, and of most vital importance, a most vital problem is that the Florida Supreme Court just deleted the entire “defense of home” jury instruction in 2006 (In Re, 930 So 2d 612, at 616 (Fla. 2006), and replaced it with absolutely nothing at all. The new self-defense law, F.S. 776.013(3), does not permit self-defense force in your home, but only in “any other place [i.e., other than a dwelling, residence, or vehicle” (Behanna v State, 985 So 2d 550.555 (Fla. 2d DCA 2007)). But not in your home, or what used to be called your “home;” that emotionally important word “home” being replaced, to the jury, with the generic “dwelling or residence.” While “home may be where the heart is",  the word “home” is not in Florida’s self defense law.

       On 25 May 2006, the Florida Supreme Court, wrongly, deleted the long time “defense of home,” “castle-doctrine” jury instruction, deleted the existing instruction which had long given an unqualified, lawful right to use deadly force in self-defense, if one was attacked in one’s home. That “unqualified” right was replaced with two new, added qualifications, that the defendant “not be engaged in an unlawful activity,” and that the defendant was in a place that he “had a right to be.” (Do the jurors need to see a deed, or a lease? Did Grandma own the mini-van? Did she have a right to be in the mini-van, without a written authorization from her daughter-in-law, who owned the mini-van?)

       Someone on the Florida Supreme Court Committee on Jury Instructions just sat down at a computer, highlighted the “defense of home” jury instruction, hit
<strike-out> and then hit <Enter>, and …

       “Poof!..., and the long-time “defense of home” jury instruction on self-defense
              was gone, and the castle vanished into the mist; as William Pitt’s dog fled from under the
              front porch of where his home used to be, running scared, looking back…

        [Based on Benefield v. State, 160 So 2d 706,709 (Fla. 1964); more or less.]

        But – to make up for all of these errors in the deadly self-defense force instructions, as if to atone for their many, many, errors, the Florida Supreme Court did manage to “bring-a-gun-to-a-fistfight,” somehow managing to cut-n-paste F.S. 776.013’s justifiable use of deadly self-defense force, into the non-deadly jury instruction, 3.6(g).

       They “brought-a-gun-to-a-fistfight,” is what they did; wrongly. There is nothing in Florida Statute 776.013 [2005] which would apply to the use of non-deadly self-defense force, yet 776.013’s deadly force got cut-n-pasted into the non-deadly instruction.

       Perhaps you could say that “cutting-and-pasting” is a “deadly weapon,” killing a citizen’s right to have a jury correctly instructed on the self-defense laws of Florida. An error like this, errors like these, would never have occurred if a pen had been used to write out the self-defense jury instructions by hand, giving time to reflect upon, and to carefully examine, exactly the words going into Florida’s self-defense jury instructions. Men should not be imprisoned because a law clerk so carelessly prepared jury instructions, so that jurors never heard the correct laws of self-defense in Florida. This is shameful behavior by the Florida Supreme Court; which has confused the speed of computers with human intelligence.

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