We first told you earlier this week that Marissa Alexander’s attorney intended seek another “Stand Your Ground” immunity hearing ahead of her trial- and we’ve now obtained the documents backing that up.
More than 1200 pages were filed today in support of five separate motions. One would seek a pre-trial immunity hearing under “Stand Your Ground”. Two deal with the sentence Alexander could face if convicted. Two more deal with interactions between Alexander and Rico Gray.
Alexander was initially convicted of shooting a gun in the presence of Gray and two children and was sentenced to 20 years in prison. That conviction was overturned because of how the jury instructions were phrased. Alexander claims she fired a warning shot, fearing that Gray meant to harm her.
Alexander sought SYG immunity ahead of her initial trial, but was denied. The motion now filed argues that neither the initial denial or the appeals court decision not to “reweigh” the case prevent Alexander from seeking this immunity again.
“This Court is able on remand to consider anew legal issues decided as part of the original proceeding, and the use of that discretion is especially vital where failure to do so would result in manifest injustice,” the motion reads.
The attorney, Bruce Zimet, says there has been “critical” new evidence since the initial SYG hearing and that the initial hearing itself included evidentiary problems. Zimet says the ruling in the SYG hearing was made largely on the testimony of Gray’s two sons, and he says one has since recanted and the other admitted to lying about a “prior altercation” between Gray and another woman, which Zimet believes woduld have established a pattern of Gray as abusive toward women. He additionally argues that expert testimony on Alexander’s state of mind when she pulled the trigger was not previously introduced.
Zimet further says the initial SYG hearing was argued under the wrong statute. He says the section used includes more stringent rules that require someone to have been attacked before returning with force of their own.
“By contrast, § 776.012—which applies to an individual in her home, as is the case here—eliminates any duty to retreat and allows deadly force if a person reasonably believes that such force is necessary to prevent imminent death, great bodily harm, or a forcible felony,” the motion says.
A second motion claims sentencing Alexander to a mandatory minimum 20 years in prison is cruel and unusual punishment because it is “grossly disproportionate” to any offense Alexander is accused of committing.
Zimet argues the Florida legislature, who established 10-20-Life, never intended to have it applied to “battered women attempting to defend themselves”. In fact, Zimet cites current efforts at the state level to specifically exempt “warning shots” from such consequences, as proof that the statute was improperly applied.
While Zimet argues that Alexander should not face conviction at all, he says if she is found guilty, the sentence is out of proportion. He says most other states have a mandatory minimum nowhere near what Florida law outlines.
Consecutive vs. concurrent sentencing
The State Attorney’s Office tells WOKV that Florida statute requires Alexander to serve concurrent sentences if convicted, meaning she would face a minimum 60 years in prison for the total three counts of aggravated assault with a deadly weapon.
This motion is condition on the ruling over 10-20-Life. Zimet says if the court does not rule mandatory minimum sentencing should not apply here, than it should rule sentences should at least not run consecutive- a total sentence Zimet argues would be unconstitutional in two ways.
First, Zimet argues the State is not allowed to pursue a steeper sentence on appeal unless there is new evidence introduced to warrant it. Zimet says the State did not object to concurrent sentences on the initial trial, so consecutive sentencing now would be an unconstitutional increase.
Second, the motion states the 60 year sentence in itself would be unconstitutional.
“A sentence of such enormous length is grossly disproportionate to any offense Alexander may have committed by firing a single, upward warning shot to protect herself against an enraged husband with a history of abuse who only minutes before had violently assaulted her,” the motion says.
Rico Gray, Sr. prior actions
The fourth motion filed is notice of Zimet’s intent to introduce past actions by Gray as part of Alexander’s affirmative defense that she feared for her life.
“At Alexander’s first trial, the jury heard a he-said/she-said about the events of August 1, 2010,” the motion says.
There was as discrepancy between those sides on whether the argument was verbal or physical, who the aggressor was, if there was an imminent threat, whether Alexander could leave the scene and more.
“What the jury did not hear—and what Alexander is now entitled to introduce—is specific evidence of Gray’s prior similar attacks on women, his repeated lies to law enforcement to avoid prosecution, and his implicit and explicit threats of violence against and coercion of witnesses, including his own children, to falsely accuse his female victims of attacking him,” the motion says.
Zimet says there is evidence Gray attacked Alexander as well as other women, which makes it hard to believe he is a victim. While Alexander introduced evidence of prior violent acts against her by Gray in the initial trial, Zimet says they plan to offer further evidence of violent acts by Gray against other women as well, and repeated attempts to obstruct justice- including a threat to kill Alexander and cover it up.
Subsequent “incident” with Rico Gray
While out on bail for the initial charges, which happened in August 2010, Alexander communicated on several occasions with Gray. In December 2010, Alexander was charged with Domestic Battery stemming from a fight with Gray. Gray claims that he refused to let Alexander spend the night after she dropped off their daughter, and she became angry and punched him, leaving marks on his face. Alexander claims Gray was the one who was angry and violent because she refused to spend the night, but police did not notice any physical marks on her.
In the first trial, the defense sought to preclude any evidence of this incident, but was denied. Zimet has filed a new motion asking the court to reconsider that motion to preclude.
Zimet says the fact that Alexander had contact with Gray cannot rebut her claim to self-defense. He says the charge deals with Alexander’s state of mind and fear of harm the moment she fired the gun, so only evidence dealing with that moment should be presented to a jury.
“The December 30 incident is not probative of Alexander’s state of mind nearly five months earlier, before she and Gray went to marital counseling, before Gray’s profuse apologies and proclamations of love, and before Alexander learned that her daughter Rihanna’s insurance was set to expire at the end of 2010 unless Alexander obtained Gray’s signature on Rihanna’s birth certificate,” the motion says.
Zimet further says the incident is “excessively prejudicial”, which hampers the interest of justice.
The State’s response
The State Attorney’s Office has issued a statement reading, in part, that they are reviewing these most recent motions.
“The State Attorney’s Office is committed to seeking justice for our two child victims and their father,” the statement says.
It further reads that they will make a response to these motions at the appropriate time.