In Florida
A group of prosecutors say that the stand your ground law, more correctly known as “no duty to retreat,” is unconstitutional because cases are tried in front of a judge and not a jury.
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October 31st, 2018 at 4:22 pm
IANAL and maybe one can correct me, but it seems that these idiots are twisting the meaning of the 6th amendment. Jury trial is a right of the accused, not the prosecution or accuser. AFAICT, the “stand your ground” defense is a motion to dismiss (or summary judgement?) which is always heard by a judge and never by a jury.
October 31st, 2018 at 5:23 pm
I believe Ken is correct.
October 31st, 2018 at 5:23 pm
Ken;
You don’t have to be a lawyer to correctly understand – as you basically do – court proceedings.
October 31st, 2018 at 6:32 pm
No, Ken, the Supreme Court has held that the Sixth Amendment right to trial by jury applies to the government, too. But in federal cases only, not state prosecutions. I imagine these prosecutors have a similar theory for Florida’s constitution.
October 31st, 2018 at 6:47 pm
Except that a stand your ground hearing is not a trial in that the accused cannot be found guilty. All the hearing does is a hearing on what is basically a motion to dismiss.
November 1st, 2018 at 3:46 am
I would be more sympathetic to these completely immunized and largely unaccountable prosecutors if they would use the grand jury system in their charging decisions. Was Zimmerman charged by a grand jury, or by the sole decision of a special persecutor? Was the McGlockton case presented to a grand jury? I think the answer is that the prosecutor wasn’t sure if the GJ would issue any indictments.
Many of these stand your ground immunity decisions would be made by the grand juries deciding not to recommend charges instead of by judges that are hearing motions to dismiss the charges after they are issued.
November 1st, 2018 at 1:35 pm
nk: Does that actually contradict what Ken said?
The defendant has the right to a jury trial, even when the defendant is the Government, absolutely.
But there’s no right/requirement for a motion to dismiss to have a jury decision anywhere, is there?
November 2nd, 2018 at 11:10 am
nk: I would be interested in reading the SCOTUS opinion. Do you have a citation?
I think the 6th amendment is clear in saying the “the accused shall enjoy the right”. This appears to be prosecutors who are not accused of anything, except being slimy pieces of shite, trying to usurp that right to over turn a law they do not like.
November 2nd, 2018 at 11:15 am
Miles: Unfortunately, I think you do have to be a lawyer these days. My interpretation of interstate commerce apparently is completely wrong according to SCOTUS. I have a difficult time divining the emanations forming penumbras that allow SCOTUS justices to make up laws from reading tea leaves and throwing chicken bones.
November 2nd, 2018 at 3:21 pm
By that same logic, all pretrial motion practice violates the 6th amendment. It’s obviously not true because that’s 99 percent of crim law practice. The point of the pretrial motions (including stand your ground motions) is to let judges dispose of cases in an hour that would otherwise waste days in front of a jury… And if the jury convicts, only to get overturned on appeal because the case was fundamentally flawed in the first place.
Stand your ground basically consists of the defense showing their hand before trial and the judge deciding the case. Since revealing your trial strategy before the trial is a huge disadvantage, it follows logically that the defense will only do that if they have a very strong case which means you’re just saving time to get to the same place that you would get with a jury trial.