“Fundamental Error” in Jury Instructions Awards Marissa Alexander New Trial

The phone call was everything she had hoped for. After completing more than a year of a twenty-year sentence, Marissa Alexander’s attorney made the phone call that let his client know that an appellate court judge had ordered a new trial for the the Florida woman who fired what she and her family labeled a warning shot in the direction of her husband, Rico Gray; a man she believed was threatening her life. Mr. Gray’s two children were also in the general vicinity where and when the shots were fired.

In an interview with CNN, one of her lawyers said “Marissa was ecstatic and obviously she’s incredibly thankful and wants to get back with her family,”
In an article posted here last week it was demonstrated how the mother of three from Jacksonville was convicted in a failed “stand your ground” defense and began serving her mandatory minimum sentence that fell under Florida’s 10-20-life law which was instituted in 1999. The section of the law that applied to Marissa’s case states that if someone fires a gun they’re to receive a mandatory 20 year sentence if convicted of charges connected to the crime.

In full, the 10-20-Life statute relates to those convicted of crimes where a gun or similar destructive device was used. For displaying and pointing a gun during the commission of a crime, a conviction would be imposed of a mandatory minimum sentence of 10 years. For selected felonies, committed or attempted, the 10 year mandatory sentence is also approved if the accused even just possessed a gun during the commission of the crime. The mandatory minimum sentence is 20 years for firing the weapon during the course of the offense. And if a victim is injured or killed due to the results of the gun being fired during the time-frame in which the crime transpires, a mandatory minimum sentence of 25 years can be imposed. Lifetime sentences can also be levied under the preceding circumstance. Furthermore, the law also affords a mandatory minimum sentence of three years in prison for any individual previously convicted of a felony who even possesses a gun.

A lot of media coverage was given to her case after the George Zimmerman not guilty verdict which may have contributed to the reason the first District Court of Appeal ruled in her favor stating that Alexander merits a new trial for the reason that the trial judge handling her case did not instruct the jury properly concerning what is needed to prove and disprove self-defense.

Judge Robert Benton wrote the new ruling stating that the original instructions given established a “fundamental error” and required the defendant’s attorneys’ to prove self-defense “beyond a reasonable doubt.” However, he also made it clear in the ruling that the court was correct in blocking the “stand your ground” defense again.

One of the attorneys representing Alexander said she was thankful for the “thorough consideration” delivered by the court. She went on to say that “we are looking forward to taking the case back to trial,” Another from her team of lawyers said “She deserves a fair trial just like any other person, and the presumption of innocence has returned to her and we believe that a jury that hears the full case and has correct law will hopefully vindicate her and acquit her of all charges.”

Before the 2010 incident and subsequent guilty verdict, Alexander had never been arrested or charged with any crime. But even though it was her first offense, the judge maintained he was bound by the law’s minimum sentencing instructions to uphold a penalty of 20 years in prison once she was convicted of the allegations. Alexander was convicted of three counts of aggravated assault with a deadly weapon. She has maintained from the beginning that the shot fired was a warning shot and not ever meant to cause any injury.

She had previously declined a plea deal of three years in prison believing that the original jury would acquit her once her story was told. It took that jury 13 minutes to convict her.

Last week, a trial judge issued an order to bring Alexander back to the Duval County jail from the state prison where she was serving her sentence in Marion County, Florida.


In the state of Florida, in most cases, being convicted of any charge relating to a firearm will be punished by severe mandatory minimum sentences under Florida’s 10-20-Life gun statute.

If you, a friend or family member is facing charges relating to a firearms offense it is crucial that you secure a knowledgeable criminal defense attorney who has experience in these types of prosecutions.

Mr. Cohen is a board certified criminal trial lawyer rated AV by Martindale Hubbel (pre-eminent) and a “Super Lawyer” recognized as being in the top 5% of his specialized field (criminal trial law) among Florida lawyers. He is considered a specialist by the Florida Bar in his field. Mr. Cohen has tried scores of cases over his 35 year career and is a member of the Florida and New York Bars. He practices in Fort Lauderdale, West Palm Beach and Miami, among other counties. He is also admitted to practice in the United States Court of Appeals for the Eleventh and Second Circuit.

Mr. Cohen’s practice has recently expanded and he is now a partner in the prestigious law firm of McLaughlin & Stern, LLP. Through this partnership, Mr. Cohen can now lead your defense in the New York Metropolitan area in addition to the Broward, Dade, or Palm Beach County areas as well as all other jurisdictions throughout the state of Florida
Mr. Cohen is also listed in the 2013 edition of “Best Lawyers in America