Rolling The Dice, As A Prosecutor

This morning's Miami Herald brings us a story that is the perfect example of why all of us should be mindful of the power of prosecutors.

Norman Borden was charged with murder for killing two of three men in a Jeep that tried to run him down while he was walking his dog. He shot his gun five times through the windshield, then moved to the side of the vehicle and fired nine more rounds.

From the Herald: "He thought the shooting was self-defense, but a prosecutor put him on trial in the deaths, despite a new Florida law that grants wide latitude to people using deadly force to protect themselves."

In Borden's case, a prosecutor filed charges against him, even though he privately thought Borden might have been correct to open fire.

Kentucky Judge Sheila Isaac, said about the no-duty-to-retreat law in Kentucky similar to Florida's "You just don't see cases where people are prosecuted when they are defending themselves,"

Oh.......Judge Isaac, welcome to Florida.

Our guy Borden faced up to life in prison without the possibility of parole if convicted of murder and attempted murder.

"One of his would-be attackers, 21-year-old Juan Mendez, admitted in testimony at Borden's trial that the three men in the Jeep planned to 'rough him up.' A baseball bat was also found in the vehicle.

Prosecutor Craig Williams argued that Borden exceeded justified force when he continued firing after shooting the driver and stopping the Jeep. But Borden's defense argued that he did not have to retreat, citing the new law."

Now here's where it gets good, real good:

Williams said he pursued the charges because he thought a jury needed to decide the case. But he privately wondered how he would have behaved in the same situation. When Borden was acquitted, the prosecutor was almost relieved.

The assailants 'were bringing an arsenal,' Williams conceded after the trial. "It was pretty clear what the right thing to do was here."

Then I read this from the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition

Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender
(iv) possible improper motives of a complainant

Additionally, (not that I have any evidence this happened here, but it is a long-time concern of judges and defense lawyers:

(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.

As defense attorneys, we often hear prosecutors say "hey, if you're guy wants to roll the dice and go to trial......"

"Rolling the dice" is something to be carefully considered, on both sides.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com