Earlier this week, a prosecution witness in a Miami trial changed her testimony on the stand and said she could no longer recall who fired the first shot in a drug-deal-gone-bad that left a nine-year-old girl dead, caught in the crossfire. The witness is “testimony to” the “broken” laws of this country.

“Stand Your Ground”

TruTV is broadcasting the trial live this week. In the minds of the cable channel’s legal commentators the key issue in the case is a Florida law that gives citizens the right to “stand their ground” rather than imposes a “duty to retreat” in the face of violence. But it is clear to me that the little girl would be dead now regardless of Florida law. Pathetically, children and other innocents are caught in the crossfire of gang violence all the time.

Damon Darling’s defense is that “the other guy shot first.” But because the murder charge is for killing a child and not “the other guy” Darling cannot use a standard self-defense argument. He is invoking the “stand your ground” law only to mitigate his guilt.

The prosecution’s case is also based on the “stand your ground” law, even if somewhat tangentially. For the prosecution, the sole issue is “Who shot first?” rather than felony homicide. Was it Darling who shot first or was it his chief accuser, Leroy Larose, who pled guilty to 2nd degree murder and testified against Darling this week? Since Larose’s testimony that “the other guy shot first” could easily be undermined by defense cross-examination, the prosecution was relying on the innocent-bystander witness to convince the jury of Darling’s primary culpability in the child’s death.

The prosecution mischarged this case: both men should have been tried on first-degree felony murder.

Witness for the Prosecution

Why would anyone be willing to testify against gang-bangers on national cable TV?

Sidebar: TruTV blurred the face of the witness, but did not electronically modify her voice.

(Note that even the convicted Larose testified reluctantly and timidly. He probably knows that Darling’s friends in prison will not take kindly to his testifying for the prosecution.)

What the Witness Saw

For me, the problem is that the courts rely on eye-witness testimony all the time. But neuroscientists for years have warned us that eye-witnesses are extremely unreliable—and not just because they may be intimidated to change their testimony either by the cops or by the defendants’ gangs, as reported in the Aug. 29 issue of Science News: “What Do You See?”. (Note the image in the article: how many guns do you see?)

Sadly, even if the witness in the Darling trial had testified that she saw the man with the AK-47 fire before the man with the .44 pistol, the jury still would not have known who really fired first. Now this witness is open to public criticism for changing her testimony.

And even if she had testified, her face and voice would have been broadcast on cable TV and ended up on the Internet, where every gangbanger could see and hear her. (I understand she also has children who would have been put in jeopardy.)

It’s a tragedy that law enforcement can’t get the gangs off the streets. That’s the problem—not laws that give law-abiding citizens the right to bear legal arms and the right to defend themselves. I am not in favor of putting pistols and assault weapons in the hands of every citizen, but apparently in the anarchistic streets of Miami, law-abiding citizens have a good case to make for their right to self-defense.

Put the Blame on the Prosecution

The prosecution chose to make this a trial about a Florida law rather than about the murder of a child. The prosecution and the judge permitted TruTV to record and broadcast the trial, not the witnesses. The prosecution subpoenaed both the innocent bystander and the convict, knowing they would be at risk of reprisals. If the prosecution had charged both men with the same felony murder crime and tried them simultaneously, it would have done the witnesses a favor and neither defendant would have had the law of stand-your-ground to stand on.