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November 19, 2013

Host: Ted Simons

Arizona Stand Your Ground Law

  |   Video
  • A forum will be held Saturday, November 23 at Arizona State University’s Sandra Day O’Connor College of Law on Arizona’s Stand Your Ground Law. The law came into focus in the shooting death of Trayvon Martin in Florida. State Representatives John Kavanagh and Martin Quezada will discuss the future of Arizona’s Stand Your Ground Law at the forum, and will debate the law on Arizona Horizon.
  • John Kavanagh - State Representative
  • Martin Quezada - State Representative
Category: Law   |   Keywords: Stand Your Ground Law, law,

View Transcript
Ted Simons: George Zimmerman is in the news again. He was arraigned today on charges of domestic violence. Zimmerman’s killing of teenager Trayvon Martin this summer in Florida brought national attention to Stand Your Ground laws, which shift the burden of justification for use of deadly force to the state. Florida's Stand Your Ground law was not specifically used in Zimmerman's defense but the issue continues to divide those with differing views on the legal duty to evade or retreat from confrontation. A forum on Arizona’s Stand Your Ground law will be held this Saturday at ASU’s Sandra day O'Connor College of Law. State Representative John Kavanagh will be participating in the event as will State Representative Martin Quezada. Good to have you both here on Arizona Horizon.

John Kavanagh: Always a pleasure.

Ted Simons: Let’s set some parameters. What does Arizona's Stand Your Ground law do?

John Kavanagh: Arizona's Stand Your Ground law is a model for brevity in legislation. It's one paragraph and I'll read it. “A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.” That's it in a nutshell.

Ted Simons: That's how you see it as well?

Martin Quezada: Well, it certainly is a brief statute, but it's more than that. In a nutshell this is encouraging people to engage in violent activity, encouraging people to engage in vigilantism. Especially in situations where there's no need to promote further violence. That's one of the big problems with that law.

Ted Simons: This has been described as shoot-first legislation.

John Kavanagh: You can't understand Stand Your Ground without understanding the basic law of self-defense. In Arizona and just about the entire country because it's all pretty much the same, Stand Your Ground does not relieve a citizen of the necessity of complying with the basic law of self-defense. If they violate the basic law of self-defense, then Stand Your Ground means nothing and they will be convicted of murder or manslaughter. Let's look at the actual law. When can a person use deadly force to defend themselves? The law is very simple. You have to have a reasonable belief that it is immediately necessary to use deadly force to defend yourself against somebody using unlawful deadly force against you. If you don't have the reasonable belief you can't prove it was immediately necessary to defend yourself, then you're finished. You're guilty of a crime. If you killed a person it's murder or manslaughter. If you injure them it's aggravated assault. Stand Your Ground has no effect. But if you are in fact justified in using the deadly force, then with Stand Your Ground, it says you don't have to run away before using force because without Stand Your Ground, you could be second guessed later by prosecutors who said “We think you could have run away and therefore, you're guilty of murder.”

Ted Simons: Should someone who is facing this kind of confrontation have a duty to evade or, in the representative's words, run away?

Martin Quezada: Well, the question arises, what is the need for Stand Your Ground if the self-defense laws are already in place? The self-defense laws give a person the ability to defend themselves. What this Stand Your Ground law does is it encourages that violence to occur. It ensures that violence is going to occur in situations where violence could be voided. That's the situation. If violence can be avoided why not avoid it?

John Kavanagh: The operational word is could. You don't know. Justice Oliver Wendell Holmes summed up in a phrase why we need Stand Your Ground. In a case called Brown versus U.S. where the Supreme Court upheld the no duty to retreat principle, he said, I quote, “Detached reflection cannot be demanded in the presence of an uplifted knife.” In other words, when you're in that tense situation you're not in a position to reflect on what you're doing. I would add that today it's not the uplifted knife that you may be facing, you may be facing a Glock 9-millimeter with 15 rounds. It's too dangerous to pause to think should I run away?

Ted Simons: On the other side the lowering of the threshold of using lethal force means you'll see more lethal force in situations that otherwise would not have presented themselves.

John Kavanagh: You're not lowering the threshold. You still have to meet those basic principles that I said, the reasonable belief, the immediate necessity. All it says is that you don't have to run away and the reason for that is if you had that requirement and the person thinks that they can't run away safely and they use deadly force they could be second guessed by a jury or a prosecutor. They could wind up spending tens of thousands of dollars defending themselves in court.

Ted Simons: The threat of the burden of proof on the person defending themselves seems to be a major aspect here. How do you see that?

Martin Quezada: Well, those protections are already in place with self-defense laws as they are in statute now. Again, what this comes down to is there are going to be situations where a person has a choice. They could stand and fight and incur violence or they could retreat. This is going to give them the motivation to engage in that violent behavior. What happens, what that brings, is the possibility for more victims rather than less. When a person decides to not engage in violent activity and retreat, seek shelter, find a safe place, the chances of serious injuries and death are decreased by that action.

Ted Simons: The argument that this makes for a more dangerous community, the argument that this makes for a less – I’ll start with you. The argument that this helps secure communities. You buying that?

Martin Quezada: No. In fact we have no research that shows these Stand Your Ground laws are effective at all. That's why I think these laws need to be reviewed. We need to take a look at them, see if these are promoting violence, if they are promoting safety in our communities or if they are not having that effect at all. If they are not having that effect, are they having the opposite effect of promoting violence?

John Kavanagh: It's impossible to do. I have looked at the studies. Some studies say Stand Your Ground laws are good, some say they are bad. All the studies are fatally flawed because the data that records the shootings doesn't specify if Stand Your Ground was an issue. The researchers have to look at overall homicide and assault rates in states that have it and don't have it and try to say, well, if there are more homicides in a Stand Your Ground state it encourages violence but they can't control for all the other factors that are involved, and they can't determine whether, if there are extra homicides, if they’re justified. Because if they are legally justified homicides, there's nothing wrong with them, that's people saving their own lives against a criminal attack.

Ted Simons: Back to the idea this encourages engaging in conflict as opposed to avoiding it, do you buy that?

John Kavanagh: No. I don't. Know why? The average person not only doesn't know the basic law of self-defense, they don't even know what Stand Your Ground means. When they are confronted with a life and death situation, they basically say what do I got to do to save myself? They are not thinking about a reasonable belief, immediate necessity. They’re not thinking about Stand Your Ground. They are thinking about saving their lives. So when you don’t have a Stand Your Ground law, you wind up subjecting people who wind up having done the right thing to prosecution, potentially bankrupting them because a prosecutor somewhere says I think they might have been able to run away.

Martin Quezada: Ted, that might have been true several years ago. Now because of the situations like the Trayvon Martin situation in Florida, Stand Your Ground has been in the news all over the country. People are aware of this law and the message this law is giving them is to fight, to engage in violent activity. That has to have an effect on our communities.

Ted Simons: Without this law, though, I'm seeing both sides here, trying to figure out where both sides are coming from. I'm trying to figure out how did we get by without Stand Your Ground laws all these years? The idea that self-defense laws were good enough. Were they not good enough?

John Kavanagh: First of all, if you go back historically, there was no requirement to retreat in many states. Stand Your Ground law -- the requirement to retreat outside of your home, that requirement was pretty much nonexistent until the 1960s when a research group called the American Law Institute promulgated what they called the model penal code to try to get consistency between states and they slipped that in, but it's never been popular principle that you have to retreat if safe to do so because people recognize like Justice Holmes did that “detached reflection cannot be demanded in the presence of an uplifted knife.” It's unreasonable to make people engage in that type of calculus in a split second. It could cost them their lives.

Ted Simons: The chaos of the moment, is it wise to have to have someone have to think about these issues as opposed to defending themselves?

Martin Quezada: No. We're not asking people to think in life and death situations. If it is a true life and death situation self-defense laws provide people with the opportunity to defend themselves. Stand Your Ground laws, all they do is promote a message to our community that violent behavior is the answer, is the preferred method of reacting with a life or death situation.

John Kavanagh: Stand Your Ground laws subject citizens to almost a type of double jeopardy. Even after they prove they met the requirements for self-defense they can still be convicted if a prosecutor says, “I think you could have run away in that situation.” Today people are facing Glocks, 9-millimeter Glocks with 15 rounds. It's rare you can safely run away.

Ted Simons: With that in mind how many instances are out there in which Stand Your Ground changed the nature of a case?

John Kavanagh: Probably very little in terms of the encounter. But it does stop people from being bankrupted by overzealous prosecutors who decide that maybe because the political pressure like in the Zimmerman case, that they are going to prosecute this person claiming they could have run away.

Ted Simons: This sounds like politics as opposed to on the ground activity.

John Kavanagh: This is a protection from politics. When you have a Stand Your Ground law you don't have to worry about a prosecutor succumbing to the mob screaming for blood because they claim that they didn't like the shooting.

Ted Simons: Sounds like we're moving into the realm of what the prosecutor's office can and should do in these situations as opposed to what the person should do in these situations.

Martin Quezada: Well, again, to assume that all prosecutors are acting in this unfavorable fashion I think is a little far-fetched.

John Kavanagh: I didn't assume that.

Martin Quezada: Prosecutors are going to prosecute criminals. They are going to prosecute crimes brought before the state. What this does is -- you hit the nail on the head. It's a political message. A political message to individuals that guns are the answer, violence is the answer, and shooting your way out of a situation is the preferred method.

Ted Simons: Do you want to see Arizona's Stand Your Ground law removed completely or can it be modified? Can the duties of the individual be changed in some respects?

Martin Quezada: At the least our law needs to be revisited and studied and evaluated. There are methods we could do to make it better. And part of that review should be to look at other ways we can improve this law.

Ted Simons: Wise idea to revisit?

John Kavanagh: It's always good to review but we have been doing that since the Zimmerman case. Everything I have seen says it's a good law. I might add this all came from England. In England they don't need Stand Your Ground laws. In England that's part of the jury's overall deliberation in terms of whether this was reasonable or not. That's the way it is here. Even though we have Stand Your Ground laws, if a jury says we think that person could easily have run, they are going to say there was no immediate threat and they will convict the person.

Ted Simons: It has to get to the jury in the first place.

John Kavanagh: Right. I want to clarify -- I think only a few rogue prosecutors would succumb to the mob's request that the person should be prosecuted and subject somebody unnecessarily to unjust prosecution, but you need a law like this for those few instances to protect decent people who defended themselves against unlawful aggression.

Martin Quezada: Actually, those prosecutors that are acting outside of the norm, there's an appeals process in our judicial system to handle those situations. So again, Stand Your Ground laws not necessary.

Ted Simons: Gentlemen, good to have you both here. Thanks for joining us.

Martin Quezada: Thank you.

Exculpatory Evidence

  |   Video
  • The Arizona Supreme Court issued new rules last week that require attorneys to reveal evidence that could prove the innocence of a criminal defendant. Executive Director of the Arizona Prosecuting Attorneys’ Advisory Council Elizabeth Ortiz, and Keith Swisher, a defense attorney, discuss the issue.
  • Elizabeth Ortiz - Executive Director, Arizona Prosecuting Attorneys’ Advisory Council
  • Keith Swisher - Defense Attorney
Category: Law   |   Keywords: law, arizona supreme court,

View Transcript
Ted Simons: The Arizona Supreme Court issued new rules requiring prosecutors to reveal evidence that could prove the innocence of a criminal defendant. The rules say prosecutors must take steps to have a conviction overturned if they find clear and convincing evidence that a defendant is not guilty. Here to discuss what the Supreme Court enacted is Elizabeth Ortiz, executive director of the Arizona Prosecuting Attorneys Advisory Council, and Keith Swisher, an attorney and professor at the Arizona Summit Law School. Good to have you here. Your thoughts on what the Arizona Supreme Court enacted?

Elizabeth Ortiz: Well, the rule itself has very little impact on what prosecutors will do day in and day out. We have historically disclosed exculpatory evidence. While we had some comments regarding the particular aspects of this rule, we supported the principle of the rule and we continue to support the principle of the rule. It will not impact day in and day out what prosecutors have done and will do.

Ted Simons: Your thoughts.

Keith Swisher: I'm happy to hear Elizabeth say that because some of the comments didn’t suggest the principle was supported, but I'm glad it's still supported. The rule will, in instances where a person may have been wrongfully convicted, make sure that evidence is disclosed, will require prosecutors to look into it, and if the evidence as you mentioned rises to the level of clear and convincing, then take steps to set aside the conviction. A wrongful conviction is perhaps one of the gravest tragedies in the criminal justice system because not only do you have the convicted defendant behind bars but you also have the truly guilty party out there. Typically these are violent crimes, committing further crimes against the public.

Ted Simons: My impression is that most prosecutors look at this and say this rule, the entire scope, not necessary.

Elizabeth Ortiz: That is exactly it. That was our initial reaction, the proposed rule change wasn't necessary because we're already disclosing exculpatory evidence. We had some concerns because it appeared it was targeting prosecutors for, we believe, no appropriate reason. Also we have some procedural issues such as it required reporting to a public defender's office where not all counties have public defenders. There are some problems along those lines, but we always did support the rule in principle and continue to.

Ted Simons: Was this necessary? Again, I'm hearing from some on the prosecutorial side that this is a solution in search of a problem.

Keith Swisher: I did see that, Ted. It is necessary to provide guidance to prosecutors in these very important circumstances. Perhaps the best argument I saw against the rule was as Elizabeth articulated, we do this already. So then I can't really see the argument as to why having a rule in place to give guidance to new and more seasoned prosecutors in these egregious situations would be a bad thing. I think it's a good new step for the state to have adopted it.

Ted Simons: Why not require steps, though, to be taken, to require steps to be taken if a wrongful conviction is evident?

Elizabeth Ortiz: There are already steps in place and have been in place for many, many years that prosecutors have been following. We have rule 15.1, our disclosure requirement that essentially tells prosecutors turn over everything you have. Prosecutors do and I myself am a career prosecutor. I was with Maricopa County attorney's office for years working in the trenches before I came to APAC to train and lead. I still carry a case load. This is what prosecutors have done and will continue to do. We follow rule 15.1. We follow case law. We follow the ethical rules.

Ted Simons: And yet there have been some high profile cases where it seems as though there was reluctance, there may have been an actual hindrance to this evidence by prosecutors. First of all, is that valid? Secondly, if valid, how come?

Keith Swisher: It's definitely occurred, Ted. I want to preface this statement by echoing Elizabeth's comments that most prosecutors are great. It's not an issue about every prosecutor. The problem is one person in prison innocent is too many. A rule like this helps to prompt the prosecutor's office to create structures to filter in the good evidence and the bad evidence and to more promptly get the innocent person released and the guilty person behind bars.

Ted Simons: Is there a reason -- again, we have heard, seen high profile cases where there's evidence that could have been shown that a convicted person was not guilty. We read about it in the paper, hear about it now and then here and there, enough to where the Supreme Court's chief justice said prosecutors do have a special duty, a special requirement. They represent all of us, and thus they should be held to a higher standard. Why not a higher standard?

Elizabeth Ortiz: We are held to a higher standard. When I train prosecutors I tell them, you're held to a higher standard. If you don't like that, with all due respect you've picked a wrong part of the legal profession this. This rule has never been about prosecutors trying to walk away from being held to that standard. For us it came down to whether or not it was necessary. Have there been a few isolated instances? Yes, there absolutely have. But I agree with Keith that they are very far and few between. What frustrates me is when those very far and few in between instances are sometimes used as a broad brush of what's going on. Prosecutors, we have -- that's our worst nightmare to convict an innocent person. Not only is a person who didn't commit the crime being punished, I have a victim, a victim whose hand I often held, who knew that I worked day and night to have someone held accountable and the wrong person. Finally, I'm a member of the community. When the wrong person is being punished that means a very potentially dangerous person is out there where my own family lives.

Ted Simons: But is there, again, the perception is when these instances, few and far between, when they occur there's not an emphasis, an urgency to either address that situation or in some ways address the person who is responsible for that situation.

Ted Simons: That, simply with all due respect, has not my experience there are many examples that don't necessarily make into the papers because the facts are not particularly interesting or sexy, if you will. For example, in Yavapai County recently they realized that some drug cases that they had charged, that due to the particular drug being mutated it did not fit within the very narrow statutory definition of that crime. They realized it and affirmatively went back and had those convictions undone. It's those types of things that happen every day in prosecutor offices but they don't make the headlines.

Ted Simons: Yet the Supreme Court chief justice wrote that prosecutors, special duty, ministers of justice. She referred to they are not advocates who seek convictions at all cost. Just that reference suggests that that is out there, correct?

Keith Swisher: Absolutely. In fact one thing we based the rule on was prosecutors' unique role in our criminal justice system. It’s a critically important role as a minister of justice, whose purpose is not solely to convict. Justice doesn't just stop at conviction if it turns out we have the wrong person, right? So perhaps you lock a person up but it's the rare instance where you throw away the keys and not be willing to objectively reexamine the evidence. I would like to note, too, that there are instances where good prosecutors as Elizabeth noted do the right thing and it's not highlighted in the media. That's unfortunate. That would be a good correction when that does happen. On the other hand there are times when people, as the example in the drug case, Ray Crone, the Hall matter, et cetera, that a person shouldn't be convicted either legally or factually. When that happens, then there should be rules in place to prompt the prosecutors to take quick and effective action. Victims were mentioned a second ago and I would like to highlight a couple things with respect to victims. The only comment from victims directly in favor was a very influential victim who had been a victim of a violent sexual assault and had wrongfully identified the perpetrator. Once the real perpetrator was found she had to not only have gone through that violent offense but also made amends with the person whom she had helped to wrongfully convict. She filed a comment, she's also author of a "New York Times" bestselling book, in favor of this rule. The other good thing it does with respect to victims, we are now the 9th state to adopt this rule. For the first time it actually includes a notification gestures towards our victims notice laws that says if you're about to seek to set aside the conviction you would give notice to the victims. That might happen anyway, but the rules specifically require it now.

Ted Simons: As far as -- can prosecutors, can you order law enforcement -- say the requirements are in place, and there is someone claiming X, Y, and Z. What happens next? Are you able to take those steps? Can you order law enforcement to take these steps for more investigation? The logistics of something like this?

Elizabeth Ortiz: The logistics are I don't have the authority to order law enforcement. I can certainly work in conjunction with them and refer matters to them. What they and how they investigate is their discretion. Obviously, if circumstances are requiring it, prosecutors can go to court and seek court orders against any number of parties, but I can't actually order law enforcement.

Ted Simons: Bottom line, you don't have too much disagreement with what went on although you don't think it's necessary.

Elizabeth Ortiz: That is true.

Ted Simons: All right. We'll stop it there. Good to have you both here. Thanks for joining us.

Keith Swisher: Thank you.