In Florida, More Journalistic Malpractice

A Jacksonville, Florida jury has found Michael Dunn guilty of several counts of attempted murder, but hung on the more serious charges of first and second degree murder, and manslaughter. The facts, very briefly: Dunn pulled into a gas station with his fiancé. Black teenagers in a nearby SUV were playing loud rap music. Dunn asked them to turn it down; they refused. Dunn testified in his own defense, something of a rarity in criminal trials, and told the jury that one of the teenagers, Jordan Davis, then pointed a shotgun at him from a window, threatened to kill Dunn, and started to get out of his vehicle. At that point, fearing that Davis was about to shoot him, Dunn says he pulled a 9 mm. pistol from his glove compartment and fired at Jordan, hitting him three times. He continued shooting as the other teenagers drove away. No shotgun was ever found, although it could easily have been disposed of by the other teenagers after the incident. On the other hand, Dunn’s fiancé testified that in the day and a half following the shooting, Dunn never mentioned seeing a shotgun to her. Further, following the incident, Dunn didn’t call the police, but proceeded on to his hotel.

The verdict indicates that at least one juror wasn’t convinced, beyond a reasonable doubt, that Dunn was lying about the shotgun, and further believed that if Jordan was threatening him with a shotgun, Dunn reasonably believed that he was in danger. On the other hand, any threat was removed when the teenagers started driving away, and Dunn had no self-defense justification for continuing to fire at the vehicle. Hence the attempted murder convictions.

The Dunn case has inevitably engendered comparisons with Trayvon Martin and George Zimmerman, but the cases are entirely different. In the Zimmerman case, physical evidence and eyewitness testimony overwhelmingly supported Zimmerman’s claim of self-defense. In the Dunn case, there was no evidence to support Dunn’s self-defense claim, other than Dunn’s own testimony, and other facts seemed to undercut it.

What the two cases have in common is terrible news reporting. The concept of self-defense is not hard to explain. This is what Florida jurors are told; the instruction would be similar in any state:

[A] person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony….

Now watch how the New York Times mischaracterizes the scope of the right in the context of the Dunn case:

It also drew renewed attention to Florida’s expansive self-defense laws that allow people who say they feel threatened to use lethal force to protect themselves.

Wrong, on two counts. First, Florida’s self-defense laws are not “expansive,” they are typical. Second, the Florida law doesn’t say that if you “feel threatened” you can use lethal force. That would be a subjective standard. Rather, it says you have to reasonably believe that you are in imminent danger of death or great bodily harm. “Reasonable” is a term that is used all the time in the law. It is an objective standard: not what the defendant thinks, or would do, but what a reasonable person in his situation would think or do. So Dunn can’t just hallucinate a shotgun, he has to reasonably believe that he is in danger.

The Times blows the self-defense standard again:

Under the law, Mr. Dunn needed only to have been convinced that he saw a shotgun, whether or not one was present.

It is true that Dunn could be mistaken and still have a valid claim of self-defense, but again, the jury has to conclude that it was “reasonable” for him to believe that he was in imminent danger. That standard would have been satisfied if the jury believed what Dunn told them:

“It was Jordan Davis who kept escalating this to the point where I had no choice but to defend myself,” Mr. Dunn said on the stand. “It was life or death.”

The verdict is surprising, in my view, because other evidence undermined Dunn’s version of events. The facts that he never mentioned a shotgun to his fiancé, and didn’t call the police, cast severe doubt on his testimony, in my opinion. But to convict, the prosecutor has to convince all 12 jurors, beyond a reasonable doubt, on all elements of an offense. Evidently one or more jurors did not believe that the prosecution’s evidence met that standard. It may not have helped that the prosecutor (the same woman who overreached in the Zimmerman case) overcharged the case by trying to convict Dunn of first degree (premeditated) murder.


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