Murder suspect argues killings were legal under new 'stand your ground' law
By Nancy L. Othón
South Florida Sun-Sentinel
Posted April 12 2007
Palm Beach County Circuit Judge William Berger was asked Wednesday to do something that apparently no other Florida judge has done: dismiss murder charges against a man based on a relatively new law that allows the use of deadly force if someone's life is threatened.
Berger didn't rule on whether Norman Borden, 44, should go free, but asked attorneys whether he has the authority to come up with a pretrial procedure and burden-of-proof standard for which neither the Florida Supreme Court nor the Legislature has provided guidance.
Borden is charged with two counts of murder and one count of attempted murder in the Oct. 8 deaths of Christopher Araujo, 19, and Saul Trejo, 21. Juan Mendez, 20, survived the shooting.
Borden claims he shot the men because he feared they were about to run him down in a Jeep as he finished a walk with his dogs.
Public Defender Carey Haughwout argued during Wednesday's hearing that Borden is immune from criminal prosecution because he was protecting himself against three men who were about to inflict harm on him. It's thought to be the first time that Florida's "stand your ground" law has been used in an attempt to get murder charges dismissed since it went into effect in 2005.
When the law changed, Haughwout told Berger, it eliminated the duty to retreat and provided immunity for people who use force if they reasonably believe it's necessary to prevent death or bodily harm. There is no Florida case law on the topic, so Berger's standard of proof in his decision should be the greater weight of the evidence, as it is in at least one other state, Haughwout argued.
The greater weight of the evidence, a less-stringent standard than reasonable doubt, is used in civil cases.
Assistant State Attorney Craig Williams said the question should be one for a jury to decide.
Haughwout countered that it would have made no sense for legislators to include language about immunity if they intended for juries to decide the issue.
Borden told detectives that at least one of the men he shot had threatened his dogs when he took them for a walk about 2:30 a.m. The parties exchanged words, and Mendez threatened to beat up Borden while hanging out of the Jeep's door, according to the motion. Borden showed Mendez and Araujo that he was armed and kicked the door of the Jeep before the men drove away.
Araujo and Mendez returned minutes later with Trejo, a documented member of the gang Sur 13, according to court documents.
Borden, who was still outside, told authorities the Jeep headed directly at him and he was in fear for his life when he began shooting. The Jeep struck Borden "ever so slightly" and hit a fence, and Borden continued to fire his gun as long as there was "extensive movement in the vehicle and the danger appeared ongoing," according to the motion to dismiss.
"He was where he had a right to be and he had no duty to retreat," Haughwout said.
Even Mendez admits that Borden could have thought he was going to be hit by the Jeep, Haughwout said.
Berger gave attorneys until April 27 to present written arguments on the standard-of-proof issue and set an evidentiary hearing for May 14.
