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Michael Drejka's stand-your-ground defense will go to a jury, not a judge

Michael Drejka, right, here attending an April court hearing, will not seek a stand-your-ground immunity hearing in his defense against second-degree murder charges for the shooting death of a man at a Clearwater convenience store. [SCOTT KEELER | Times]
Published May 31

The defense team for Clearwater parking lot shooter Michael Drejka has decided against pursuing a stand-your-ground immunity hearing, one of his lawyers said this week. That means a jury will decide whether Drejka shot 28-year-old Markeis McGlockton in self-defense.

The move sidesteps the opportunity to seek immunity from prosecution that's provided in Florida's stand-your-ground law. Skipping the immunity hearing is a strategy used by attorneys for George Zimmerman in winning his acquittal for the shooting of 17-year-old Trayvon Martin.

Attorney John Trevena said in an interview this week that he and Drejka's other three lawyers made the call after a judge ruled last month that the jury in the case can hear about a prior confrontation involving Drejka. A man said Drejka threatened to shoot him in the same parking lot where McGlockton was killed.

PREVIOUS COVERAGE: Past gun threat allowed in trial of Clearwater parking lot shooter

The testimony from the man and two witnesses "shows that, in an extremely similar situation, Defendant (Drejka) threatened to use deadly force in a situation where he was not at risk of imminent death or great bodily harm," Pinellas-Pasco Circuit Judge Joseph Bulone wrote in a court document.

"Arguably, this suggests that Defendant shot the victim (McGlockton) not because he believed it was necessary to prevent imminent death or great bodily harm, but because he was upset about the victim parking in a handicapped parking space."

Trevena said the judge's ruling tipped their decision, as did an unfriendly environment toward his client caused by what he said is misleading information presented by prosecutors.

HOW IT STARTED: No arrest in fatal shooting during argument over handicap parking space

SHOOTER CHARGED: Shooter charged with manslaughter in Clearwater stand your ground case

TIMELINE: The Markeis McGlockton case, from shooting to stand your ground furor to shooter's arrest

"They're trying to make it about a parking space when it has nothing to do with a parking space," Trevena said. "It's about a man getting shoved to the ground violently while next to the car."

"We believe that the jury is the best entity collectively to decide that issue."

The chain of events that led to the July 19 shooting started when Drejka confronted McGlockton's girlfriend, who had parked without a permit at the Circle A Food Store on Sunset Point Road in a handicap-reserved parking space.

McGlockton, who was inside the store, caught wind of the argument, went outside and pushed Drejka to the ground. Drejka then shot him.

Pinellas County Sheriff Bob Gualtieri cited stand your ground in his decision at first not to arrest Drejka, sparking a national debate about the law.

State lawmakers passed stand your ground in 2005, dramatically altering Florida's traditional self-defense law by removing the duty to retreat before resorting to deadly force. Before, that was limited to your house. Stand your ground opened it up to any location, as long as you're there legally and aren't committing a crime.

The pre-trial immunity hearing is triggered when the defense files a motion to dismiss the case, arguing that the person on trial should not be prosecuted because the use of force was justified.

Both sides would participate in something like a miniature trial, with witness testimony and evidence. The judge would decide whether to throw out the charge against the defendant — in Drejka's case, manslaughter — or deny the request. If he denies the motion, the case would go to trial before a jury.

In the Zimmerman case, lawyers considered a couple factors before deciding to take it straight to trial, said Zimmerman's lead attorney, Mark O'Mara of Orlando.

O'Mara didn't want to show his cards to the state at a hearing and give prosecutors a free shot at questioning Zimmerman, he said. He also figured it was unlikely the judge would quash the second-degree murder case amid pressure from community organizers who said the mixed-race Zimmerman targeted the teen because he was black. Zimmerman's acquittal in 2013 sparked the creation of the Black Lives Matter movement.

"The judges are not immune to those type of pressures. Neither is the system as a whole," O'Mara said.

The defense strategy adds to the list of similarities between the Drejka and Zimmerman cases: Both victims were black and unarmed, both shooters remained free before they were charged by prosecutors later and both men initiated confrontations — Drejka by approaching McGlockton's girlfriend and Zimmerman by following Martin on the teen's walk home from a convenience store.

IMMUNITY HEARING ANALYSIS: Think you know stand your ground? The recent Clearwater case tells us you're probably wrong.

But a key difference in the cases, O'Mara said, is the evidence of prior acts, known as Williams rule evidence for the 1959 Florida Supreme Court case from which it arose. Zimmerman didn't have any. Drejka has one.

"One prior act can devastate a defense case," O'Mara said. "I wouldn't go anywhere near a self-defense immunity hearing with a guy who has even one Williams rule."

Even in front of a jury, he said, that will be difficult to overcome.

"Troublemakers don't get the benefit of this statute," he said.

Another difference between the cases is in who has the burden of proving a stand-your-ground defense. Zimmerman's case was tried years before a change to the law that shifts the burden from the defense to the state. The Drejka case comes afterward, meaning prosecutors would have to disprove his stand-your-ground claim if he went for the immunity hearing.

Practically, though, this doesn't make much difference, O'Mara said. It could still hurt the defense to tip even some of its hand.

Generally, the only time a stand your ground hearing comes in handy is with a slam-dunk defense, said Bob Dekle, a professor emeritus at the University of Florida and former prosecutor.

But, Dekle pointed out, the opportunity for immunity isn't the crux of the law anyway. The heart of stand your ground is that it removes the duty to retreat. Immunity hearing or not, it's part of the law jurors will use to decide the merit of Drejka's self-defense claim.

"The immunity aspect of it, the only thing that it does is makes prosecutors antsy about filing charges. It makes police officers antsy about making arrests," Dekle said.

"But the, 'You don't have a duty to retreat aspect'? The jury is going to hear that no matter what."

Contact Kathryn Varn at kvarn@tampabay.com or (727) 893-8913. Follow @kathrynvarn.

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