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Some law-abiding citizens claiming self-defense go to prison without invoking 'stand your ground'

When they brought in Abdel Odeh for attempted murder, the 19-year-old shop clerk acted more like a whimpering kid than a cold-eyed killer.

In the police interview room, Odeh tried to explain that he had feared for his life when he shot a man outside the Star Seven convenience store in a blighted stretch of Lauderhill in 2008.

Odeh didn't know it, but he had a powerful new law on his side.

Three years earlier, the Legislature had expanded the definition of self-defense in Florida, a move that allowed people to "stand their ground" when faced with grave danger.

Odeh fit that profile. He had fired a gun he was legally allowed to carry, while standing where he had a right to be. When he pulled the trigger, he told police, he was afraid for his life.

But none of that mattered. In the end, Odeh went to prison even as killers with more outrageous self-defense claims walked free.

The difference for Odeh?

He never sought immunity from prosecution under the stand-your-ground law.

In a series of stories over the past four months, the Tampa Bay Times has shown that police and prosecutors, judges and juries across Florida have applied stand your ground unevenly since it became law in October 2005.

Odeh's case makes yet another point about the legal system in the wake of the new law: Not everyone with a claim takes advantage of the law in court. Some have gone to prison while serial criminals, drug dealers and feuding gang members have avoided prosecution.

That's what happened with Odeh and with others as well, the Times found.

Bryan Spellers was 23 when he pulled a handgun and shot his drunken stepfather to prevent him from beating his mother, Spellers told authorities.

Afterward, he pressed a towel to the wounded man's neck and waited for paramedics at the family's home outside Orlando. He had no criminal record, and he held a concealed weapons permit. His mother later swore that she was afraid her husband was going to kill her.

At trial, Spellers never sought immunity under stand your ground. He was convicted of aggravated battery with a firearm and handed 20 years in prison.

In Polk County, felon Terald Redding said another man grabbed a heavy stick from the bed of a truck in 2007 and hit Redding in the head. Redding pulled a knife and slit open the other man's face before stabbing him near the left armpit.

Redding's publicly appointed lawyers argued he was defending himself, but they didn't raise stand your ground. He was convicted of attempted second-degree murder and sentenced to 50 years.

Representing himself from prison, Redding, 43, successfully argued for a new trial in 2010. He invoked stand your ground and was acquitted in April.

Arguing for immunity

By using traditional self-defense arguments in cases like Odeh's, defense attorneys forfeit a crucial opportunity made available by stand your ground.

The new law grants defendants the right to an immunity hearing before a judge, who weighs evidence and then decides if charges should be dismissed.

Judges consider whether the accused had a right to be at the scene of the alleged crime, whether they were breaking any laws at the time and whether they reasonably could have been afraid for their lives. Then the judge decides based on a "preponderance of the evidence" if prosecutors can pursue charges.

A Times analysis of stand-your-ground cases statewide found that one in three of those who pressed for immunity under the law got it.

Judges have granted immunity even in unexpected cases.

In 2008, a judge granted immunity to reputed gang member Jeffrey Brown, 23, in the killing of a 15-year-old boy during a gang shootout in Tallahassee.

So why not claim stand your ground when faced with criminal charges?

The attorneys who represented Odeh, Spellers or Redding couldn't be reached to talk about their respective cases. But some lawyers argue that invoking the law isn't always the best approach, in part because the immunity hearing gives prosecutors an early look at the defendant's case.

"There are a lot of tactical reasons why an attorney might not file that pretrial motion," said Derek Byrd, president of the Florida Association of Criminal Defense Lawyers. "You really have to do a cost-benefit analysis."

Law professors and criminologists offer different explanations for why stand your ground has been applied unevenly in Florida.

Some chalk it up to the nature of the legal system. "It's just the way it works when you get lawyers litigating about what the law means," said Don Kates, a retired law professor and staunch defender of gun rights.

Others say the statute's wording is too broad, making it difficult for attorneys and judges to determine when it can be used.

"There will be mistakes made in the interpretation of this and any other law, and that's why we have appeals courts," said Bob Jarvis, a law professor at Nova Southeastern University. "The question is, are so many cases coming up with questionable results that the law has to be scrapped? That's a very legitimate question to ask: whether the law is so imperfect that you've got to get rid of it."

A petty argument

By most accounts, Abdel Odeh was a good guy.

In the country on a green card, he worked at least 12 hours a day, six days a week, every week, sending money back to his parents in the West Bank. He often came in on his day off, his boss said. Friends described him as dedicated, polite and responsible.

For him, the trouble started on a Monday in April 2008, when a man walked into his shop about 8 p.m. He and Odeh argued over some tobacco the man wanted to buy, and the petty disagreement escalated.

Odeh was 19, stood about 5-foot-6 and weighed 125 pounds. The other man was 31, 5-foot-10 and weighed 190 pounds.

They started throwing things, pelting each other with bubble gum, snack cakes and candy bars until the man, who identified himself to police and in court as Christopher Morgan, stalked out of the shop.

Here the stories diverge. Odeh said the man threatened to get a gun from his car and kill him. Morgan denied making threats.

Odeh told police he pressed a silent alarm, grabbed a handgun from behind the counter, walked to the shop door and looked out into the night. He said he saw Morgan walking toward his car. He said Morgan turned and lifted his shirt, like he was drawing a weapon.

Odeh leveled the pistol and shot Morgan through the side.

The wounded man was flown by helicopter to a nearby hospital. He survived, though the slug left him paralyzed below the waist.

Police didn't find a gun on Morgan or a gun in his car. They brought Odeh to the station, where the clerk insisted he acted in self-defense.

It didn't matter that Odeh's shop was in a crime-ridden neighborhood, where shootings were common, or that the clerk was broken down and crying by the end of the police interview. It didn't even matter that a witness, his co-worker, would corroborate much of his story.

Investigators told Odeh that he had a duty to retreat, that he shouldn't have followed a man who made threats. They said he should have stayed in the store, locked the door and waited for police. They arrested Odeh on a charge of attempted first-degree murder with a firearm, a crime punishable by life in prison.

The verdict

In court, Odeh never asked for immunity under stand your ground. During his trial in Broward County in 2009, his lawyer, Gerald Cunningham, relied instead on a traditional self-defense argument. The jury voted to convict.

"The person who was shot, I guess when it came down to it, was more believable, because they never found a gun in his car," Jeremy Houghton, juror No. 4, told the Times.

"The man was leaving," said Barbara Maverick, juror No. 2. The lone holdout on the panel, she ultimately sided with the other jurors. "He didn't err on the side of caution. He went out in a blaze, shooting."

The judge sentenced Odeh to 25 years in prison, the minimum penalty in Florida for attempted first-degree murder with a firearm.

Cunningham couldn't be reached to talk about Odeh's case. A Florida lawyer since 1980, he was well known in Broward County and had handled hundreds of felony, misdemeanor and traffic cases by the time he took Odeh's case.

Amjad Hamed, owner of the shop where Odeh worked, said he hired Cunningham to represent Odeh. He said he couldn't remember Cunningham mentioning stand your ground as a potential defense.

"He had very strong feelings that he would get the verdict not guilty," Hamed said.

He said when Cunningham heard the guilty verdict, "He was shocked. Everybody was shocked at that time."

Holly Johnston, a close friend of Odeh, said Odeh might not have understood his lawyer's strategy going into trial. "He didn't speak very good English. They had no translator," Johnston said. "It's the craziest thing I ever heard in my life."

Similar cases, but …

Others whose cases resembled Odeh's in key ways invoked stand your ground and fared better in court.

In 2005, Fort Myers convenience store owner Samer Hasan grabbed a gun and walked outside to confront a man he thought was looking for drugs. Hasan, 28, said Elias Nazario attacked him, so Hasan shot him dead. Nazario, 26, was unarmed. Stand your ground had passed but hadn't taken effect yet. Even so, Hasan's attorney pressed it, and a judge acquitted him of a manslaughter charge.

Where Odeh followed Morgan to the door of his shop, others went further and avoided prison. In Fort Myers in 2009, Demarro Battle, then 21, argued with Omar Bonilla at a party, walked to his car, got a gun, returned to the party and killed Bonilla, 27. Police arrested Battle on a second-degree murder charge, but a prosecutor threw the case out, noting that Battle had "no duty to retreat."

In 2008, in a rough part of West Palm Beach, 19-year-old Tony Hayward shot a man he thought was reaching for a gun. Hayward was delivering newspapers with his father when he killed Jyron Miles, 22, outside a neighborhood grocery. Hayward previously had been jailed on suspicion of committing a shooting, but he told police he fired on this day because he feared for his life. Investigators found no gun on or near Miles' body.

Though the case seemed similar to Odeh's, Hayward's publicly appointed attorney tackled the trial differently. Unlike Odeh's attorney, Hayward's hammered on the new law in arguments before the jury. Hayward's first trial ended in a hung jury; his second, in acquittal.

A twist in the case

From prison, Odeh appealed his conviction and was denied. It looked like, having entered custody at 19, he wouldn't go free until he was 44. But then something happened that called everything into question, shredding the credibility of the state's key witness against him.

Morgan, the man Odeh shot, sued Odeh and his shop for damages. Under questioning in the civil case, he admitted that he wasn't who he said he was.

Morgan's real name was Raphic Chisholm, and he had lied about his identity to police and in court, committing multiple acts of perjury, because he was an undocumented immigrant from Jamaica.

At no point during Odeh's criminal trial did police, prosecutors or Odeh's defense lawyer verify the victim's identity.

In May, Odeh's appeals attorney, Jason Forman of Fort Lauderdale, fired off a letter to the Broward County State Attorney's Office, using the perjured testimony as leverage.

Soon after, Forman and the state cut a new deal for Odeh. They had a judge set aside the previous conviction, find him guilty of a lesser charge and reduce his sentence to eight years. The assistant state attorney who prosecuted Odeh declined to talk about the case.

When Odeh gets out, federal immigration agents will be waiting. Because he isn't a U.S. citizen and has been convicted of a felony, he will most likely get deported.

Forman said he didn't know why Odeh's first lawyer never raised stand your ground at trial. "In this case," he said, "I would have done that."

Uneven outcome

Odeh was three months into his prison term when another case played out that closely resembled his. This one, too, ended differently.

In Citrus County, Shane Huse, 33, confronted Oscar Delbono, then 53, over complaints Delbono had made about Huse's pit bulls. In 11 years, Huse had been arrested 10 times in Florida. He recently had brandished a handgun and grumbled to a neighbor that he would make Delbono pay.

But on this day, after flailing his arms, Huse turned to walk away.

His 5-year-old son looked on as Delbono drew a .45-caliber pistol and shot Huse through the neck and chest. Huse died where he fell. His killer dialed 911 and told a dispatcher that he had fired because he thought Huse "was going for something."

"I feared for my life," said Delbono, who had no criminal history in Florida.

Weighing the case for the prosecution, the State Attorney's Office offered the shooter a pass. "I do not feel there is sufficient evidence to charge Oscar Delbono with a criminal violation of Florida law," Assistant State Attorney Pete Magrino wrote in a memo closing out the case. "Although it might have been wiser for Delbono to remain inside his trailer and call the sheriff's office he certainly need not be kept hostage in his own home."

Times staff writers Kris Hundley and Connie Humburg and researcher Natalie Watson contributed to this report. Michael LaForgia can be reached at mlaforgia@tampabay.com or (727) 892-2944.

Some law-abiding citizens claiming self-defense go to prison without invoking 'stand your ground' 10/06/12 [Last modified: Sunday, February 17, 2013 2:18pm]

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