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Judge Cox to rule whether Stand Your Ground can be applied retroactively


A circuit court judge is likely to weigh in on whether Florida’s evolving Stand Your Ground statute can be applied retroactively as she revisits an alleged fratricide from more than three years ago.

Judge Cynthia Cox, who presides over the felony court bench in Indian River County, has granted Mark Deffendall and his attorney, Assistant Public Defender Alan Hunt, a second chance to apply Florida’s Stand Your Ground statute to his defense.

Deffendall, 43, was arrested in October 2014 after police say he shot and killed his brother, Eric, at their father’s home and airplane hangar on De Havilland Court in Vero Beach. Months after his arrest, Cox denied Mark Deffendall’s initial request to have his case dismissed under Florida’s Stand Your Ground statute.

The burden of proof at the time was on the defendant to show the act was in self-defense, and after hearing testimony from several people, including the Deffendall, his family and friends, Cox said he failed to prove his case.

The brothers had been engaging in physical fights since childhood, according to Cox’s summary of testimony from the first hearing.  Mark, sometimes the instigator, would often lose because he was smaller. He was also an aggressive drunk, but his brother was known as a scrapper, someone not afraid to throw a punch.

The two had stayed up drinking and partying in the hangar the night before. Mark said he couldn’t remember what they started fighting about, but claimed it began as a verbal disagreement before his brother turned violent.

Eric, he testified, grabbed him by the neck, slammed him to the floor and “pummeled” him. “Mark tried to protect himself by covering up, hitting back and getting away. [He said] it felt like it went on ‘forever’ but Mark does not know how long it went on,” Cox wrote.

“Mark was injured – he had a gash in his head, his nose and mouth were ‘busted,’’ the judge recalled. 

Mark claims he then ran into his father’s house and grabbed a gun for protection. He says he was upstairs when his brother started charging after him.  Mark shot from the top of the stairs and Eric began to retreat.

Mark was afraid his brother was going to get a gun, so he followed Eric down the stairs. He says he doesn’t remember what happened next.

Eric was found by his father, face down and unresponsive, in the living room, according to an arrest affidavit filed in the case. He was pronounced dead at the scene. 

When his father asked him what happened, Mark replied, “Eric would not give it up, he wouldn’t stop,” Detective Chris Cassinari wrote in the report. Mark did not answer when his father asked if he was the one who shot his brother. 

Police charged Mark Deffendall with first-degree murder. The case has yet to go to trial and the defendant remains in jail without bond.

Deffendall offers no explanation as to why he continued to shoot at his retreating, unarmed brother, Cox wrote in her April 2016 order. He testified that he does not remember what happened, but the court is not in a position to speculate, she said. Therefore, the defendant failed to prove that he reasonably believed shooting his brother was necessary to prevent imminent death or great bodily harm.

This month, however, despite the objection of prosecutors, Cox decided to give Deffendall a second chance to argue self-defense.  Florida lawmakers amended the Stand Your Ground statute in June 2017, reversing the burden of proof and requiring the state to demonstrate a defendant is not entitled to immunity. 

The law now requires prosecutors to prove a defendant is not in fear for his life. It also eliminates a mandate to retreat before shooting.

Cox said she was offering the hearing out of an “abundance of caution,” according to court filings. At the time, an appeals court had yet to rule on whether the new law could be applied retroactively. Cox said she would review the prior hearing transcripts, allow additional testimony and revisit the case under both legal standards.

But on May 4, just one day after Cox ordered a new hearing, the state’s Second District Court of Appeals weighed in. Their findings concurred with Cox’s decision to revisit the Deffendall case. The amended Stand Your Ground Statute can be applied retroactively to defendants awaiting trial, justices wrote.

Within a week, however, on May 11, the Third District Court of Appeals came to a different conclusion. Justices there found constitutional challenges to the application of a new law to old allegations and said motions to retroactively use the amended Stand Your Ground defense should be denied.

The move prompted prosecutors to again try to keep Deffendall from getting a new hearing. Cox, who is bound by neither court, has yet to reply. Argument is set for June 22.