Uncle Ed's letter to the Clemency Board on behalf of Paul Hill, who is on death row for shooting and killing abortionist John Britton ------------------------- Feedback Box:

(Deadline for submitting your own letter to them: approximately November 8)

(Skimmers: A few key points are highlighted in purple, red and brown.)

The Uncle Ed. Show: Ch 15 in Des Moines, Tu 9:30 PM, Sa 4 PM; Ch 2 in Waterloo, Wed 9 PM, Fri 2 PM. Uncle Ed. is actually listed in "Who's Who in the: ...Midwest", (1994, 96, 98), "...World" (96, 98), "...Media and Communications" (98) and "...America" (98) under his pen name, Dave Leach. (This is to balance the other stuff you've heard; '98 volumes not out yet.) He publishes "Prayer & Action News", whose motto is "And whatsoever ye do in word or deed, do all in the name of the Lord Jesus, giving thanks to God and the Father by him." Colossians 3:17

137 E. Leach Avenue Des Moines IA 50315

(515) 256-0637 or Alm-0-nds

Web page: www.totacc.com/user/mttu/p&a

Sunday, Aug 3, 1997 AD

Clemency Board

c/o Janet H. Keels, Coordinator Office of Executive Clemency

2601 Blairstone Road Building C Room 229

Tallahassee FL 32399-2450

RE: Paul Jennings Hill, inmate #459364, case #94-3510

ATTACHMENTS:

(1) My analysis of the Florida Supreme Court opinion for this case, showing how the Court not only glossed over Hill's concern that abortion kills innocent human beings, (prolifers are used to that), and not only glossed over its own noncompliance with a Florida Statutory Defense, but even glossed over its own noncompliance with surely the most revered, most fundamental principle of American law; and that Hill's only defense was decided by a judge, and withheld from the jury's knowledge, making it difficult to call Hill's trial a "trial by jury".

(2) An analysis of the logic of Hill's Defensive Action Statement, taken from Regina Dinwiddie's recent appeal brief before the U.S. Supreme Court. (Cert. denied.)

Sirs:

If you are motivated by a desire to see Paul Hill punished, then the reason you should rescue him from execution is that he believes execution will further his purpose. Many of Hill's admirers compare him with John Brown, and speculate whether his execution will have the same energizing effect, of plunging America into a civil war over abortion, as John Brown's execution had in plunging America into a civil war over slavery.

For example, Don Spitz was quoted in Pensacola's Henry Felisone's 5/24/97 "Evangelical Mission Church" newsletter as saying "I am caught off guard [by Hill's waiver of participation in any further appeals]. ...I believe there was a two year interval between John Brown's hanging and the [Civil War]. Who knows how quickly the Lord will move in these last days?"

(If there is any doubt that John Brown's execution was a major catalyst in starting the civil war, consider that "John Brown's Body Lies a-mouldering In the Grave" was the favorite song of union soldiers from the beginning of the war, and through the two years before "Battle Hymn of the Republic" was written to the same tune! So on the other hand, if you are motivated by the desire to see America's next civil war started by the execution of a Southerner instead of a Northerner, then Paul Hill may be your man.)

But if you are not motivated, as you weigh Hill's case, by a desire to see him punished, then perhaps you may be persuaded to read and consider his reasoning.

You see, his critics, who include just about the whole world, attack his conclusions, but without addressing his reasoning. Why is that distinction important? When Einstein came up with his Theory of Relativity, a great many people condemned his apparently foolish conclusions. Mostly because they were incapable of grasping his reasoning. Only a few great scientists and mathematicians grappled with his reasoning, and found it irrefutable, and were emboldened to test his conclusions as Einstein himself proposed. The tests confirmed Einstein's radical theory, and the bizarre truths he uncovered proceeded to change the world. The point of this analogy is not to assert any particular comparison between Paul J. Hill and Albert Einstein, but rather to show that when a man reaches an unpopular, even hated, conclusion, by a process of reasoning which he challenges anyone to refute, you cannot properly condemn his conclusion without refuting his reasoning. I am saying that anyone who condemns Hill's conclusions, without addressing his reasoning, is like those who condemned Einstein's Theory of Relativity even though they couldn't add 2mc(x-y) and 2.

I assume Hill's "Should We Defend Born And Unborn Children With Force?" July, 1993, about a dozen pages long, is part of his court record. I have heard it condemned and ridiculed by all manner of people: liberals and conservatives, abortionists and prolife leaders, pagans and Christians. But I would like to challenge you to do something none of his critics, to my knowledge, has ever attempted: to not just condemn his reasoning, but to refute it. That is, to address it, point by point, until you can come up with at least one fatal flaw in it.

I have heard many critics condemn the conclusion he reached, but I have heard no one condemn the reasoning by which he established that his conclusion logically follows from premises fundamental to our American form of government, and shared by a majority of Americans.

Another way of saying this is that a great many Americans sense that Paul Hill's reasoning is correct, but it leads to such a frightening conclusion that most refuse to face it.

Many look at Hill's conclusions and answer, ("unresponsively" to Hill's points, as a lawyer would scold a witness,) "MY God would never tell anyone to break the law", or "MY God would never hurt anybody", etc, as if there is more than one God. But Hill proceeds from the premise that God's character may be more accurately deduced from the Bible than from flat simplistic statements of human opinion. I know that you are all public officials, and public officials in this generation squirm at the thought of giving any weight, in the course of setting policy, to Bible verses! "How is THAT relevant?" you demand. "We are supposed to uphold the law of the land, not religious doctrines!"

But the most famous, and arguably the most fundamental, paragraph in the law of our land, the First Amendment, tells government to stay away from a man's religion. So if the Scripture, not of just one man but of most of the nation, can be shown by reasonable, logical, and irrefutable (however unpopular -- however hated) argument to call for a particular action, can you, in good conscience, in your role as keepers of the law of the land, condemn the man who makes those arguments and takes that action?

Especially when you can't, yourselves, explain to the man where his reasoning went awry?

You can't say that's the job of the courts, because they don't think it's their job. Why, the Florida courts didn't even think it was their job to let the jury hear the only defense Hill had to present. Just like the U.S. Supreme Court didn't think it was its job to decide whether the lives it was prohibiting states from protecting were human lives; in other words, whether the abortions, to which it was granting the status of constitutional protection, were in fact murders. (See Attachment One.)

But how can you condemn a man as being wrong, if you can't explain why? Or if you haven't even studied his reasoning? It is like the judge who rules before he "hears the case"; before he hears all the evidence and arguments: it is foolish and shameful.

Proverbs 18:13. He that answereth [judgeth] a matter before he heareth [it], it [is] folly and shame unto him.

I am not asking you to disagree with anything the courts said. I am asking you to "hear" the central issues of this case -- (1) withholding Hill's 6th Amendment Right to an attorney of his own choice, (2) withholding a statutory defense from the jury, and (3) whether a trial where a man's only defense is heard by the judge and kept from the jury's knowledge can be considered a "trial by jury" -- de novo; that is, as if for the first time. Because if you address these issues, it will be for the first time. The courts only glossed over them, as attachment one shows.

The jury was forced to judge Hill's case without being allowed to "hear" Hill's defense, thus being forced to suffer the folly and shame of Proverbs 18:13. You, likewise, will never know what arguments Michael Hirsh might have raised had he been allowed to participate in the hearing whether to allow Hill to raise a Florida Statutory Defense.

But at least you know one thing the jury was never told: you know that crucial information has been withheld from you. When neither you, nor the judge, nor the jury, have heard the only defense a man has, presented by the only attorney the man has selected, it is hard to say he has had a fair trial.

In Jesus' Name

Dave Leach

cc: http://www.totacc.com/user/mttu/p&a

---

ATTACHMENT ONE

Florida Supreme Court opinion of Paul Hill, with analysis ("Ed.:")

Supreme Court of Florida / PAUL JENNINGS HILL, Appellant, vs. STATE OF FLORIDA, Appellee. No. 84,838 / REVISED OPINION / THURSDAY, MARCH 6, 1997 [November 27, 1996] The Motion for Rehearing filed by Appellant, having been considered in light of the revised opinion, is hereby denied.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Paul Jennings Hill. We have jurisdiction. Art. V, ß 3(b)(1), Fla. Const.

Early on the morning of July 29, 1994, Hill went to the Ladies Center in Pensacola, Florida, where he had been protesting against abortion for six months, and waited outside. About one hour later, a pick-up truck driven by James Herman Barrett, also containing his wife June Griffith Barrett and Dr. John Bayard Britton, arrived at the Center. The Barretts volunteered at the Center on the last Friday of every month. On those days, they met Dr. Britton at the airport and escorted him to the Ladies Center, which he visited every Friday to perform legal abortions. As the truck entered the parking lot, Hill was standing in the middle of the driveway. He moved to the side, allowing the truck to pass him. As the truck drove by, it came within several feet of Hill, so that he was able to see the truck's occupants.

James Barrett parked the truck near the steps of the Center. As Barrett got out of the truck, Hill shot and killed him. Hill also shot and wounded June Barrett. He then moved closer to the truck before shooting and killing Dr. Britton. Hill was arrested shortly thereafter while walking away from the Center.

Hill was charged with two counts of first-degree premeditated murder, one count of attempted first-degree murder, and one count of shooting into an occu- pied vehicle. He pled not guilty to all counts. The Public Defender's Office was appointed as counsel. After Hill indicated that he wished to represent himself, the trial court conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1978). The trial court determined that Hill had knowingly and intelligently waived his right to counsel, and granted the Public Defender's motion to withdraw. However, the trial court also appointed the Public Defender's Office as "standby counsel" to aid Hill if he requested help and to be available to represent him in the event representation became necessary.

The State filed a motion in limine to prevent Hill from presenting a defense of necessity/justification. THE TRIAL COURT DENIED HILL'S REQUEST TO HAVE AN OUT-OF-STATE ATTORNEY ARGUE AT THE HEARING ON THE STATE'S MOTION, but renewed the offer of counsel, whereupon Hill reaffirmed his desire to represent himself. At trial, Hill repeated his desire to present the defense of justification or necessity, but the trial court did not permit it. Hill's participation otherwise throughout the trial was minimal. He was subsequently convicted on all four counts.

Ed.: Did you see how fast the Court raced by the trial court's denial of Hill's right to the attorney of his own choice? I want to explain why this is the most egregious injustice in this entire decision.

But first let me show how the only description of Hill's attorney, being that he was "out-of-state", supports an insinuation that Hill's attorney ought to have been disqualified. Here is how I imagine legally trained readers will probably react to the above. See if you agree with me:

"Oh, Hill had an attorney selected? But the Court wouldn't let him in? Wonder why? Hmmm. And I wonder why the Supreme Court passed so lightly over the denial of Hill's 6th Amendment right to the attorney of his choice? Hmmm. Must be some logical explanation. The Court must have had some good reason. Got to be a clue in here somewhere. Hmmm. The Supreme Court described Hill's attorney as "out-of-state". Why was that even mentioned, since it is routine, in cases of national interest, to involve legal specialists from out of state? Could that be a clue? The Court didn't mention a Florida attorney retained by Hill, which would normally go without saying, since out-of-state attorneys gain access to courts through associate in-state attorneys. But this is an unusual case. It's low budget, and Hill is a right wing wacko anyway. Could the Supreme Court be implying, by speaking of an out-of-state attorney but not of a Florida attorney, that there was no Florida attorney? That some crazy outsider tried to barge in without meeting the routine requirements? Either that, or this was an appealable issue [fundamental injustice meriting a new trial] by the trial court, but Hill's attorneys on appeal failed to raise the issue. That's got to be it, because I can't imagine any other logical explanation (unless I stop giving the Supreme Court the benefit of the doubt)."

I think this is what is insinuated by the Supreme Court's gloss over this important issue. But there was a Florida attorney, and all other standard legal requirements were met, and this extremely appealable issue was raised before the Supreme Court of Florida. In fact, not only were the basic requirements met, and not only was the issue properly preserved at trial and well argued on appeal, but THAT WAS THE ISSUE OVER WHICH THE JUSTICES GRILLED THE PROSECUTORS MOST HEATEDLY. More than one justice joined in, demanding of the prosecutors why they could say Hill was qualified to defend himself WITHOUT an attorney, under Florida law, on a capital case, after they had gotten attorney Michael Hirsh knocked out of the hearing on the grounds that Florida law is considered "too complicated" for an outside attorney to be able to master it! There is only one word for the Supreme Court's gloss over so fundamental an issue, insinuating that the fault must have been Hill's, after the issue had been so well preserved at trial and raised on appeal: COVERUP. But in light of the heated questioning on the part of the justices, it appears there were additional facets of this lump of coal: sellout, shame, and prejudice: utter determination to kill Paul Hill, regardless of the merits of his case.

Now, you may wonder, why am I getting excited over an issue so legally technical that it passes way over the heads of most Americans? Do I really think that is the most egregious violation of God's laws in the entire case?

Certainly not! The most egregious violation of God's laws in this case was that through the U.S. Supreme Court's ineptitude in 1973, and the weak-kneed hand-wringing of everybody else since then, John Britton wasn't arrested and put out of the murder business years ago!

And it's not that I even personally care that much about the issue. I don't share the mind set that makes attorneys so integral to due process that no one besides an attorney is allowed to speak on behalf of a defendant. In fact, I once even submitted a brief to the U.S. Supreme Court, in my own case, that argued that I should have been allowed to have a non-attorney assist me orally at trial, because that was the original intent of the 6th Amendment: the definition of "counsel", when the 6th Amendment was being drafted, was not just the graduates of England's 7-year law schools, but also (1) people who had studied law by being apprentices; (2) people who were familiar with law from working around courts; (3) people who just put out a shingle because they thought they would like to try it; and (4) "private attorneys", meaning a friend or relative of the defendant, who is volunteering on just this one case, as opposed to someone who makes a career out of helping on many cases. (I found most of this historical information in a book commissioned by the American Bar Association for the Survey of the Legal Profession. The author was Roscoe Pound, Dean Emeritus of the Harvard Law School. The title is "The Lawyer from Antiquity to Modern Times". West Publishing, 1953. And also Ricker's Petition, 60 N.H. 207, 220 (1890).

But the reason the Court's denial of Hill's 6th amendment right to the attorney of his choice is an even more egregious injustice, in this case, than a violation of God's laws, is that the "6th Amendment right to counsel" is arguably the most sacred principle of American justice today, in the minds of judges and attorneys. (The very first issue before any court is who will be the attorney, and if there isn't one, the judge has to make sure the defendant knows just how much of a blessing he is foregoing. A little later, this very case reiterates such efforts undertaken by the trial judge to make sure Hill understood how hamstrung Hill would be without an attorney. Why, what legal principle can you set forth which is more the status of Scripture to legal thought today, than the 6th Amendment Right to Counsel, and the Proverb that goes with it, "He who represents himself has a fool for a lawyer"? Why, they think this proverb even applies when they find themselves as defendants! Lawyers even think they have to get other lawyers to defend themselves! They don't think you can defend yourself, ever, even if you are a lawyer!)

There is a reason I am belaboring the "sacredness" of the 6th Amendment Right to Counsel of your own choice to judges and attorneys. The point of this is that when judges don't even obey the legal principle most sacred to them, what WILL they obey? If a defendant can't argue successfully on the merits of the legal principle most sacred to a court, what argument can any defendant raise, ever? There is no longer any rule of law! There is only chaos! There are only arbitrary rulings!

It is serious enough when courts say "You can't quote the Bible in here. Anything God may have to say on this subject is irrelevant to this case. This is not a court of God's laws: we are authorized only to enforce the Laws of the Land." Which forces the defendant to respond, "OK, well then if we can't defend ourselves with an appeal to God's commandments, we will try to defend ourselves with an appeal to your own rules and rulings. Instead of speaking God's language, we will try to make our case speaking your language."

But when courts ignore the rules and principles which they themselves worship and adore the most, there is no longer any language we can speak. There is no longer any possibility of presenting a case. There is no longer anything resembling "due process", "justice", "rule of law", or "lawful".

This is more egregious than ignoring God's laws, because it is ignoring ALL laws! God's laws, the laws of other men, and even one's own laws! The words that continue spewing forth may resemble human speech, but they become more and more like the sounds of a parrot, containing phrases and ideas which once meant something to some other intelligent being, but with no intelligence behind them capable of providing a reliable foundation for any legal argument.

A little later this decision refers to Hill as "lawless", and decries the judicial chaos that will result if actions like his are permitted. But this decision does far more to foment judicial chaos than anything Hill ever thought of.

The jury recommended a sentence of death on both counts of murder by a vote of 12-0. The trial court's sentencing order found that the following murders: (1) the defendant was PREVIOUSLY CONVICTED of another capital felony or of a felony involving the use or threat of violence to the person, as evidenced by the CONTEMPORANEOUS CONVICTIONS;

Ed.: This language implies to the uninitiated that previous convictions were taken into account in giving Hill a harsher sentence. But elsewhere this opinion says Hill had no prior record! I think the preceding is their strange way of saying that since the prosecutor was calling Hill's single action several crimes, then when Hill was "convicted" of the first of those crimes, just seconds before being convicted, in the minds of the jurors, of the second and third of those crimes, then that first of those "contemporaneous convictions" was the "prior conviction" which was an "aggravator" justifying harsher sentencing for the "later" convictions. That is my best guess; I have actually never seen language or logic like this before.

and (2) the murder had been committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

Ed.: No "pretense of moral or legal justification"??? Hill's dozen-pages "Should We Defend Born And Unborn Children With Force?" published in July, 1993, doesn't constitute any "pretense of moral or legal justification"? Even though it had been published and its availability widely known for a full year prior to his action, during which time no one even attempted to refute its reasoning?

Now let me make a distinction before you holler at me. Yes, I know Hill's critics, who include just about the whole world, have always attacked his conclusions. But without addressing his reasoning. Why is that distinction important? When Einstein came up with his theory of relativity, a great many people condemned his foolish conclusions. Mostly because they were incapable of grasping his reasoning. Only a few great scientists and mathematicians grappled with his reasoning, and found it irrefutable, and were emboldened to test the conclusions as Einstein himself had proposed. The tests confirmed Einstein's radical theory, and the bizarre truths he uncovered proceeded to change the world.

The point of this analogy is not to assert any particular comparison between Paul J. Hill and Albert Einstein, but rather to show that when a man reaches an unpopular, even hated, conclusion, by a process of reasoning which he challenges anyone to refute, you cannot properly condemn his conclusion without refuting his reasoning. I am saying that condemning Hill's conclusions, without addressing his reasoning, is like condemning Einstein's Theory of Relativity without even knowing how to add 2mc(x-y) and 2.

So we must wonder, with Hill's treatise so widely available, and his much shorter "Defensive Action Statement" widely known and signed by prolife radicals around the country, whose conclusions were similarly vilified while its reasoning was never addressed, to my knowledge, how could the court say Hill had no pretense of moral or legal justification"??? Well, I don't know. Could it be they didn't allow Hill's position statements to be entered into evidence?

This second aggravator was proven with evidence establishing that Hill had stated previously that abortionists should be executed, had purchased a shotgun and ammunition two days before the murders and practiced at a firing range on two separate occasions during those two days, had modified the shotgun, had arrived at the Center one hour before the victims, and had proudly stood looking over the bodies after he shot them. With respect to Dr. Britton's murder, the trial court found a third aggravator of especially heinous, atrocious, or cruel, established by the agony Dr. Britton had to endure in having time to anticipate and contemplate his own imminent death while he watched Hill reload his gun and approach the Barretts' vehicle.

In statutory mitigation, the trial court found that Hill had no significant history of prior criminal activity. Finding that the aggravating circumstances outweighed the mitigating circumstances presented, the trial court sentenced Hill to death on each of the two murder convictions.

Hill first contends that the trial court's inquiry did not meet the dictates of both Faretta and Florida Rule of Criminal Procedure 3.111(d) because he was not apprised of the difficulty and complexity involved in mounting the defense of justification. Specifically, Hill argues that the trial court did not inform him that BECAUSE HE WAS IN JAIL, HE WOULD NOT BE ABLE TO RESEARCH, INVESTIGATE, AND OBTAIN WITNESSES, THEREBY MAKING IT IMPOSSIBLE FOR HIM TO ESTABLISH THE FACTUAL PREDICATE FOR HIS COMPLEX DEFENSE. Nor, Hill asserts, was he sufficiently educated and experienced in the law to understand how difficult it would be to present this defense.

Ed.: Pretty ironic. Jails violate laws by not providing prisoners access to law libraries. And yet this violation of law is treated here as just the way life is, which anyone trained in law should know!

In Faretta, the United States Supreme Court held that an accused has the right to self-representation so long as the right to the assistance of counsel is knowingly and intelligently waived. To achieve a valid waiver, a defendant must be made aware of the dangers and disadvantages of self-representation, so that the defendant "knows what he [or she] is doing and . . . [the] choice is made with eyes open." Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). In Faretta, the Court was satisfied that the defendant in that case had knowingly and intelligently waived the right to counsel. The record showed that the defendant "was literate, competent, and understanding, and that he was voluntarily exercising his informed free will." Id. The trial judge had admonished the defendant that it was a mistake not to accept the assistance of counsel, and that he would be required to follow the rules of procedure. Id. at 835-36. In finding that the defendant's waiver was valid, the Court explicitly noted that a defendant's technical legal knowledge is irrelevant to the determination of whether he or she has made a valid waiver of the right to counsel. Id. at 836.

Rule 3.111(d)(2) precludes a trial court from finding a valid waiver "until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make an intelligent and understanding waiver." Paragraph (d)(3) requires a trial court to reject a defendant's waiver "if it appears that the defendant is unable to make an intelligent and understanding choice because of a mental condition, age, education, experience, the nature or complexity of the case, or other factors."

In this case, the trial judge conducted an exhaustive inquiry before concluding that Hill's waiver was valid. He made sure that Hill knew the State would seek the death penalty. He made sure that Hill understood he would be in jail and therefore unable to prepare as well as counsel could on his behalf. The judge further explained that the legal system has its own terms of art and procedure that would be unfamiliar to a layperson. More importantly, he made sure that Hill would not expect any special help simply because he was representing himself and that Hill knew he would be treated the same as an attorney. We conclude that Hill was adequately warned of the dangers and disadvantages of self-representation as required by Faretta.

Ed.: Yeah, great judge. Too bad the judge's compassion for Hill's 6th Amendment rights didn't extend to allowing Hill to choose his own attorney -- instead of the attorney chosen by the judge -- as supposedly required by that same Faretta case!

That case says "[The 6th Amendment] speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant--not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.... An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense." Faretta v. Brown, 422 U.S. 806, 820-821 (1974)

The case is concerned with a man who wanted to represent himself but was forced by a judge to be represented by a lawyer chosen by the judge; but you can see this reasoning applies even more to Hill's case, where Hill wanted to be represented by Michael Hirsh, a young, aggressive, high profile attorney trained at Pat Robertson's CBN University law school, but who wore out his welcome there by publishing a thesis in support of the "justifiable homicide" defense, the very defense Hill tried to raise! You can see how the Faretta reasoning applies where Hill wanted Hirsh to represent him, but the judge wouldn't let Hirsh in his court room, and instead offered Hill one of the judge's buddies!

But the Florida Supreme Court succeeded in forgetting Faretta while the judge made Hill choose between Hill's attorney and the judge's attorney, and only remembered Faretta while the judge let Hill choose between the judge's attorney and no attorney at all.

The trial judge also inquired into Hill's age, education, and experience, as well as his physical and mental condition.[1] As to the nature and complexity of the case, there is nothing particularly complex about the defense of justification or necessity that would lead us to conclude that Hill was unable to make a fully intelligent and understanding choice to waive counsel under rule 3.111(d). In any event, the prosecutor specifically explained to Hill that he might be thwarted in his efforts to present a defense if he could not properly lay a foundation.

Ed.: Something to think about. I thought the right to be tried by a jury is one of those handful of basic rights that makes America the Land of the Free. But when you have only one defense, and the judge doesn't allow you to present it to the jury; in other words, if you aren't allowed to defend yourself before the jury, how can the judge say you ever had a trial by jury? If the judge is the only one that hears your defense, and decides whether it is persuasive or not, then your trial was by judge, wasn't it? Not by jury. But let me tell you, prolifers in courts run into this same obstacle all the time. Virtually every time prolifers are arrested, the contested issue is not whether they were sitting at such and such a place, or whether they did such and such. It is whether the "offense" they committed was relatively minor compared with the murder of unborn babies which they prevented; which requires medical and other evidence of the humanity of the unborn, and which legally falls under the "necessity" or "justification" defense. Jesus laid out the defense in Mark 3:1-7, and it is not only a Biblical defense, but a good, common sense defense which persuades juries. In fact, when juries used to be allowed to hear the defense, they were persuaded so often, that that was the reason judges subsequently stopped allowing juries to hear the defense!

Don't believe me? Check it out: Cincinnati Law Review, U.Cin.L.Rev. 501 (1979), footnote on page 502: "After the court ruled that it would allow the [necessity] defense to go to the jury, the Women for Women Clinic dropped the prosecution. If the defense is permitted, evidence is introduced that life begins at conception. This evidence is rarely contradicted by the prosecution, which is merely proving the elements of criminal trespass." [Watch your step! Sidestepping Zone! The abortionists' advocates were "merely proving the elements of criminal trespass" because they knew that's as far as they COULD prove! They KNEW they had no evidence that life begins later than conception!] "Rather than risk such a precedent, many clinics prefer to dismiss. In fact, defense counsel have admitted that their intent is to bring the abortion issue back before the United States Supreme Court to consider the very question of when life begins, an issue on which the Court refused to rule in Roe..."

Nor does the fact that this is a death penalty case make it so complex that a defendant cannot make an intelligent choice to represent him or herself. It was sufficient that the judge made sure that Hill knew the State would be seeking the death penalty. E.g., Hamblen v. State, 527 So. 2d 800 (Fla. 1988); Muhammad v. State, 494 So. 2d 359 (Fla. 1986); Goode v. State, 365 So. 2d 381 (Fla.), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979).

In sum, we conclude that the inquiry in this case complied with both Faretta and rule 3.111(d). We emphasize that a defendant does not need to possess the technical legal knowledge of an attorney before being permitted to proceed pro se. As the Supreme Court stated in Godinez v. Moran, 509 U.S. 389, 399, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Thus, the judge was not required to give Hill a lesson on how to try a lawsuit before finding that Hill was making a knowing waiver of his right to counsel. It was enough for Hill to be alerted generally to the difficulties of navigating the legal system, and in this case the inquiry went beyond the minimum requirements to warn Hill of the particular difficulty of laying a predicate for a defense.[2]

We next address Hill's argument that the trial court erred in granting the State's motion in limine.[3] Both the motion and the State's memorandum in support thereof sought to preclude Hill from presenting ANY EVIDENCE CONCERNING ABORTION AND HIS VIEWS ON THE SUBJECT AS SUPPORT FOR THE COMMON LAW DEFENSE OF NECESSITY OR JUSTIFICATION.

Ed.: Significant, that the Court characterizes the subject of the hearing as a "common law defense of necessity", rather than acknowledging Hill was raising Florida's STATUTORY DEFENSE of "justifiable homicide". More about this later.

Meanwhile, let's look at the snub of "any evidence concerning abortion and his views on the subject", a phrasing which suggests the Court properly resisted Hill's plan to turn the courtroom into a soap box. You see, "Justifiable Homicide" is similar to the Necessity Defense, in which you have to go through a "Comparison of Harms" between the "harm" that you are causing and the harm you are preventing. Back in the Operation Rescue days, the harm caused was killing a little grass, (trespassing), while the harm prevented was killing dozens of babies (abortion). In Hill's case, the harm caused was killing one man who was about to kill at least 30 babies in one day; the harm prevented was the killing of the 30 babies.

The court is calling what Hill wanted to present "abortion and his views on the subject", implying to the uninitiated that Hill just wanted to use the court room as some kind of soap box to say a bunch of religious things that weren't relevant to the case. But, in fact, information about when life begins is a legal requirement for presenting the Necessity Defense in prolife trials; it is hardly irrelevant or unsophisticated, but is actually a legal strategy that works so well it frightens abortionists into dropping their prosecutions, as I cited in my previous note -- that is, when the defense isn't censored.

Hill's memorandum in opposition did not directly address the State's argument but instead argued that Hill was entitled to present this evidence to establish the statutory defense found in section 776.012, Florida Statutes (1993), entitled "Use of force in defense of person." That statute states in relevant part: [A person] is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.

Ed.: Hmmm. Sounds like this defense applies to Hill pretty well, doesn't it?

Hill certainly believed 30 babies were going to be murdered on that one day alone; in fact, the estimate, "30", is generally accepted by all parties. As for calling the deaths "murder", that classification is insisted upon by all the leading Republican presidential candidates, and a majority of Congressmen: so if you call that thinking "unreasonable", you have to call an awful lot of highly respected people unreasonable!

Since that classification was also insisted upon by presidents Reagan and Bush, who appointed most of the current U.S. Supreme Court, (Reagan was especially serious about it, condemning abortion in a formal proclamation: Federal Register Vol. 53, No. 11, 1/19/88), then if the Florida Supreme Court is brave enough to say Hill's concurrence with that classification is "unreasonable", what are they saying about the mental capacities of those who appointed and confirmed the current U.S. Supreme Court?

As for Paul's belief that the only way to prevent those particular 30 murders was by the use of deadly force by himself, well, I think that is another point which all parties will have to concede, however little they may like to. Political action, or preaching, might POSSIBLY save 30 other babies a generation later. And Hill does not want people to stop trying to save them, too. But Hill has expressed heartbreak for the babies in danger that day.

Hill has heard the callous objection that saving those 30 people from being murdered was not worthwhile because they might be murdered later by someone else. That is like saying, when you see a news headline about someone saving someone else's life, that the reporter should print a retraction if the saved person turns out to die later. That is like saying, when you see a news headline about some doctor who finds a way to let AIDS or cancer patients live another year, that the doctor should be ashamed of himself for wasting all that time on people who were going to die anyway. That is like saying that you aren't a hero just because you save someone's life, unless you can also make them live forever!

Hill's answer is that even if the babies he saved were murdered later, he is still glad he could delay their murders for even just one day. But it is likely most of the babies Hill saved that day are healthy toddlers now. Operation Rescue has calculated that a significant percentage of mothers, delayed by a relatively ho-hum blockade of the doors, do not return for an abortion. And that is even for early term abortions, where a delay might push the maturity of the baby past the point where it could be killed by the local early term abortionist, but at least a hardened mother could still drive to another state to a late term abortionist. But many of John Britton's customers were about to give birth.

Sounds like the defense fits Hill to a "T", doesn't it? I wonder how the court talked its way out of allowing Hill to present the defense to the jury?

While section 776.012 is not identical to the defense of necessity, see Linnehan v. State, 454 So. 2d 625 (Fla. 2d DCA 1984), ("[D]efendants must have reasonably believed that their action was necessary to avoid an imminent threatened harm, that there are no other adequate means except those which were employed to avoid the threatened harm, and that a direct causal relationship may be reasonably anticipated between the action taken and the avoidance of the harm.") Id. at 626 (quoting United States v. Cassidy, 616 F.2d 101, 102 (4th Cir. 1979)). we find the case law cited by the State relevant to our analysis here, as both the necessity defense and section 776.012 contemplate that a defendant may act to prevent some "harm," even if the defendant's act otherwise would be unlawful. Linnehan, 454 So. 2d at 626; ß 776.012.

The State cites no Florida appellate court that has ruled on the subject of whether the defense of necessity or justification, whether it be common law or statutory, is available to a defendant whose crime was committed in opposition to abortion. However, the law outside this state, of which there is a significant body, is virtually unanimous on the subject.[5]

Ed.: Wha-? What does THAT have to do with whether FLORIDA'S law, which is somewhat unique to Florida, applies to Hill's case? Other states don't have jurisdiction over Florida! That's what they would have told Hill, if Hill had said anything about looking for precedents in other states! I was kind of hoping this Court would explain to us how the above law doesn't apply to Hill's case, but it looks like they just veered sharply away from the subject. I smell an excuse cooking.

In every appellate court found to have considered the issue, the defendants were precluded as a matter of law from asserting necessity or justification as a defense to trespass violations committed in protest of abortion. For example, in City of Wichita v. Tilson, 855 P.2d 911 (Kan.), cert. denied, 510 U.S. 976, 114 S. Ct. 468, 126 L. Ed. 2d 420 (1993), one of the more recent cases on the subject, the Kansas Supreme Court opined:

Regardless of what name is attached to the defense (and for the sake of simplicity we will refer to it as the necessity defense) one thing is clear: The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent MUST BE A LEGAL HARM or evil AS OPPOSED TO A MORAL OR ETHICAL BELIEF of the individual defendant.

Ed.: Uh oh. Look where this is going. The justices are trying to talk their way out of a very specific Florida law which specifically justifies Hill's actions, if he could show his was a "reasonable belief", that his action was the only way to stop a greater harm. So the justices turn to a court case all the way to Kansas, which has no jurisdiction or standing whatsoever in Florida, virtually irrelevant to the discussion, which happens to define the Necessity Defense as a "legal harm or evil as opposed to a moral or ethical belief of the individual defendant".

But this Court had to do some scrounging, besides the trip out of state, to make its case, because the phrases from Kansas do not represent national consensus. A Missouri case sorted through America's legal literature and concluded the comparison of harms (or, is killing babies a greater harm than killing grass?) was NOT to be made by airy legalese, but by "accepted norms of society", City of St. Louis v. Klocker, 637 S.W.2d 74 Mo.App. 1982. Missouri state law terms it, not the ivory towered ruminations of trained, beyond-human-reach legal minds, but "ordinary standards of intelligence and morality". Missouri RSMo #563.026 1978. Also Oregon RS 161.200[1]b. An Arkansas court called it "ordinary standards of reasonableness". Pursley v. State, 730 S.W.2d 250, 251 Ark. App. 1987.

The courts have invoked several different rationales in rejecting application of the defense. The majority of courts reason that because abortion is a lawful, constitutionally protected act, it is not a legally recognized harm which can justify illegal conduct.

Ed.: Can you believe this?! This discussion started with a Florida STATUTORY DEFENSE. That is, not some "common law" defense which hasn't been heard of since Robin Hood raised it before the Sheriff of Nottingham, but a defense "codified" in Florida state law! That is, a defense they "HAD" to let Hill present to the jury, as Michael Hirsh, looking back on this decision, pointed out in a brief interview recently; "and yet they didn't even ADDRESS it"!

So now, only a few paragraphs later, they have already completely forgotten the specific Florida law with which it is their duty to comply, and are now philosophizing, from scratch, about their personal concept of what the common law "Necessity Defense", a related but distinct defense, ought to mean. And they hit on the light bulb of an idea that if something is legal, how can it be harmful?

Springing to mind, as examples of evils which are harmful yet legal, are fornication, infidelity, pollution, pornography, lies, racism, and emotional abuse. But actually the Court didn't quite say that. The Court said "if it's constitutionally protected, how can a court recognize it as harmful?"

But even with this clarification, there are many examples of constitutionally protected activities which are legally recognized as harmful.

FIGHTING WORDS. There is a legal concept called "fighting words". I think this includes words like "nigger". Or to actions like throwing lard into a Mosque. Or burning a cross. The speaking of the words, themselves, can never be prosecuted; they are protected as "free speech". But when others respond with violence, then their violence is prosecuted less, if at all, than if there had been no fighting words. And if the person who had uttered the fighting words responds to the violence by killing his attacker, he cannot claim "self defense", since those constitutionally protected "fighting words" were what "started it". "Fighting words" also apply when a "rabble rouser" incites a crowd to take violent action against third parties. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). (Fighting words are "directed to inciting or producing imminent lawless action" and are "likely to incite or produce such action.") The words spoken to the crowd cannot be prosecuted, since they are "constitutionally protected". But if they lead to violence within 24 hours, then the person who spoke the words can be prosecuted for the violence of the crowd. Thus the words are "constitutionally protected", while at the same time "legally recognizable as a harm", and under the right circumstances, police can arrest the man for his words, which otherwise would have been unlawful.

In other words, "fighting words" are "constitutionally protected", yet at the same time legally recognizable as a "harm", a "harm" which can justify taking action which would, without the harm caused by the constitutionally protected words, be illegal.

SPEECH. Speech is constitutionally protected, isn't it? Does that mean it is never harmful?! Does that mean that the harm which some speech causes never justifies taking actions which would otherwise be illegal?! Suppose you are an employer or landlord, and an employee or tenant uses profane speech around others. Let's say the speech isn't even profane; let's say the speech is profoundly insulting, but that it uses polite subtlety, so that people are enraged by it even though its malicious intent cannot be documented without tedious analysis. That speech is protected by the Constitution, isn't it? (At least according to the Supreme Court.) You can't prosecute the jerk for polite speech, can you? But you can immediately fire or evict him, even though that would otherwise be illegal, without lots of notice.

In other words, speech is "constitutionally protected", yet at the same time legally recognizable as a "harm", a "harm" which can justify taking action which would, without it, be illegal.

So no, even if abortion were legitimately constitutionally protected, which it is not, it would not follow that "it is not a legally recognized harm which can justify [otherwise] illegal conduct."

Id. at 914-916. We agree with Tilson and other cases holding that, AS A MATTER OF LAW, legal abortion is not a recognized harm and cannot be used to invoke the necessity defense.

Ed.: "As a matter of law"?! The "comparison of harms" is supposed to be weighed as a matter of "fact". Who is impressed by whether grass has a higher legal standing than a baby? The Comparison of Harms demands which harm is in fact the greater. Which is another reason it is wrong for judges to rule on the Comparison of Harms, a fact inquiry, when juries are supposed to be the unchallenged "judges of the facts".

You ask, "how do we know that the 'harm' of abortion is to be treated as a matter for fact-finding rather than as a matter of law?"

Because that's how Roe treated it. Roe treated the question of when life begins as a question more competently answered by doctors and preachers than by themselves. Had the issue been perceived by the Court as a matter of law, the Court would have considered itself MORE competent than doctors and preachers to decide when life begins. The Court was admitting that "when life begins" is a fact issue, not a law issue. And that the Court didn't really have a clue about the facts.

Here's how the Court said it:

"Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Roe v. Wade, 410 U.S. 113, 159 (1973)

Several state supreme courts have, like this one, ASSUMED the Supreme Court made abortion harmless as a matter of law, but the above statement is the closest the Court comes to discussing harm: and the Court did NOT say abortion is harmless. Furthermore the Court did NOT say that whether or not abortion is harmful, or is the taking of "life", or is murder, can even be treated as a matter of law. The Court said nearly the opposite.

The Court said it takes no position on whether abortion is harmful, or is the taking of "life", or is murder, because whether abortion is harmful or not is not something you can settle as a matter of law, but is a matter for fact-finders rather than for courts! Roe gave doctors and preachers as examples of fact-finders; but the usual group to receive that title from courts is juries. But of course the Florida Supreme Court wouldn't let Paul Hill's jury even learn this issue existed, much less decide it.

Roe essentially took the arguable position that not all human beings are "persons"; but rather "persons" are those human beings whom the Constitution, as interpreted by them, recognizes as having rights: and that whether or not unborn babies are human beings, from now on they are not "persons". In other words, Roe explicitly distinguished between what it was forcing the states to do as a matter of law, and whether abortion is murder as a matter of fact. Roe said it didn't have to worry about whether abortion is murder as a matter of fact. This was a very clear, emphatic, explicit statement that the harmfulness of abortion is a fact issue which was going to be left utterly undecided. I wonder how the Roe justices feel, after having admitted their own incompetence to determine whether abortion is in fact harmful, as they read opinion after opinion from state supreme courts confidently asserting THEIR OWN competence to declare the harmlessness of abortion!

See Roe v. Wade, 410 U.S. 113, 91 S. Ct. 705, 35 L. Ed. 2d 147 (1973); ß 390.001, Fla. Stat. (1993).

Ed.: Now it is really strange that this Court cites Roe again, as if Roe agrees with this Court. "As a matter of law, abortion is not a recognized harm." Hmmm. This is supposedly the conclusion of Roe. Hmmm. This opinion didn't bother to cite which page of Roe outlines such a conclusion. So you must forgive me if I can't find it.

It is certainly true that Roe, which has the force of law, failed to recognize abortion as "a harm". But that is not the same as saying Roe positively affirmed that abortion is not a harm. And in fact, Roe did not positively affirm that abortion is not a harm.

Roe v. Wade adamantly refused to find that abortion is not "a harm." It literally declared its incompetence to tackle so difficult an issue. It said if even the preachers and doctors can't agree when life begins, who is the Supreme Court to decide? Again, here's how the Court said it:

"Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Roe v. Wade, 410 U.S. 113, 159 (1973)

The truth is quite the opposite of what this Florida opinion states. In truth, it is not a stretch to say the harmfulness of abortion is utterly uncontested in American law.

For the same reason, abortion also cannot constitute "harm" under section 776.012.[6]

Ed.: So, end of story, huh? That's how you squirm your way out of "[A person] is justified in the use of deadly force...if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony." I would sure like to see the Court explain, phrase by phrase, how it can get "if something is legal, it can't be harmful", and "what the defendant reasonably believes is harmful is irrelevant; what matters is what we believe, as a matter of law, is harmful" out of that!

As a practical matter, permitting a defendant to vindicate his or her criminal activity in such a manner would be an invitation for lawlessness.

Ed.: Let's talk for a minute about who is lawless. Paul Hill invoked a perfectly legitimate Florida law, which fit his case to a T. He published a several- page Bible study for a year prior to his action, showing how his action has the support of God's laws. (You may not agree with his conclusions, but until you are able to refute his reasoning, how can you condemn his conclusions?)

The Florida courts came along, and in violation of its own most adored rules, didn't allow Hill to be represented by the attorney of his choice, but made him choose between the judge's buddy and himself; THEN they take this Florida law, treat it as if it were not some law to be examined phrase by phrase, and obeyed, but rather to be used as a starting point for philosophical discussion, and lo and behold, guess what? Why, it doesn't fit Hill's case after all! And then they are able to say it is Hill who is lawless!

As the court explained in Commonwealth v. Wall, 539 A.2d 1325 (Pa. Super. Ct.), appeal denied, 555 A.2d 114 (Pa. 1988), when faced with a similar argument:

To accept appellant's argument would be tantamount to judicially sanctioning vigilantism. If every person were to act upon his or her personal beliefs in this manner, and we were to sanction the act, the result would be utter chaos. In a society of laws and not of individuals, we cannot allow each individual to determine, based upon his or her personal beliefs, whether another person may exercise her constitutional rights and then allow that individual to assert the defense of justification to escape criminal liability. We recognize that, despite our proscription, some individuals, because of firmly held and honestly believed convictions, will feel compelled to break the law. If they choose to do so, however, they must be prepared to face the consequences. Thus, such private attempts to circumvent the law with the aim to deprive a pregnant woman of her right to obtain an abortion will not be tolerated by this Court.

Ed.: The Hard Line. Obey the law, right or wrong. Sounds like America was meant to behave, if we were talking about a situation where there is consensus on what the law is, and where courts observe the laws enacted by our legislatures. But when courts pervert laws given them by legislatures to obey, replace them with their own rules, and then don't even obey their own rules, must the rest of America applaud?

It is remarkable that the Court even acknowledges that the "law" it upholds is so controversial that "firmly held and honestly believed convictions" can, and not only can, but WILL INEVITABLY, be the cause for people to break it!

You know, America's judiciary didn't have to start this fight. Before the Roe court stepped in, and every other court followed, the state-by-state battle was much less divisive. The Court should have heeded Proverbs 26:17 "He that passeth by, [and] meddleth with strife [belonging] not to him, [is like] one that taketh a dog by the ears."

The courts jumped in this fight despite the lack of conviction among the justices about the central issue! Roe v. Wade had the effrontery to rule that even though they couldn't decide whether unborn babies were human beings, states couldn't keep doctors from killing them! The one issue: whether unborn babies are human beings, the one issue that does matter, the one issue which divides America, was dismissed by the Court as a side issue which didn't matter! And the Court has refused, since then, to revisit the issue!

And now the Florida Supreme Court says the fact of whether life begins before or after abortion, or to put it another way, whether abortion is murder, is irrelevant. (Earlier it said: "The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant." And then later, "AS A MATTER OF LAW, legal abortion is not a recognized harm" and "We recognize that...firmly held and honestly believed convictions, will [cause some to] feel compelled to break the law.") Are you listening? I said, this Court says that whether abortion is in fact murder is irrelevant! Whether John Britton was actually planning to murder 30 young human beings for money was irrelevant! What matters is the law! The Court's position is actually that Britton might very well have been a mass murderer, on his way, that morning, to murder another school bus load of innocents! BUT THAT DOESN'T MATTER! THE LAW IS THE LAW AND NO ONE BUT A JUDGE CAN TAKE THE LAW INTO HIS OWN HANDS! That is literally this court's position.

That isn't the law! But suppose it were. Then this Court is calling Hill lawless because he wants to stop the murders which the Court is determined to protect! And this Court is calling upon all Americans to condemn Hill for trying to stop the murders which the Court is "just doing its job" to protect!

Quite frankly the courts are responsible for incredible legal chaos in America today, and no one should be shocked, surprised, or indignant at the news that a few people are doing their best to take some control over our wavering, chaotic, irrational law.

Then this court condemns Hill's "private attempts to circumvent the law with the aim to deprive a pregnant woman of her right to obtain an abortion" which it promises "will not be tolerated by this Court." I have to wonder how long judicial attempts to circumvent the law, with the aim to deprive Christians of their right to obey God, will be tolerated by Americans.

Probably most Americans would miss the red flags in the characterization of Hill as "lawless". But it should be obvious that Hill is not a common criminal who is violent for sinful motives. At worst, Hill is deluded in his understanding of Scripture. At best, his Scripture study has unearthed a few of God's laws which he is able to reconcile with most of man's laws, including Florida's statutory defense of "justifiable homicide", but not with a handful of maverick rulings, such as Roe v. Wade. He found what courts call a "conflict of laws". Courts worry about conflicts of laws when they are between one human jurisdiction and another, or one legal principle and another. Hill worries about conflicts of laws when they are between God's laws and man's laws.

(This is Uncle Ed.'s final comment on this case. The full text of the Florida Supreme Court's opinion continues, followed by Attachment Two.)

Id. at 1329-30 (footnote omitted). Thus, we find no error in the trial court's granting the motion in limine.

Hill's other guilt phase arguments may be summarily rejected. There was no error in admitting the statement volunteered by Hill at the time of his arrest that "at least there will be no more babies killed there today," because the statement was not the result of custodial interrogation. Moreover, there was no objection to its admission at the trial. Likewise, there was no objection to matters occurring in voir dire and closing argument of which he now complains, and such perceived errors, even if they existed, were not fundamental in nature. There was also no objection to giving the standard jury instruction on excusable homicide and justifiable use of deadly force. In any event, the instruction was required in order to fully instruct on the crimes comprising homicide. See State v. Smith, 573 So. 2d 306 (Fla. 1990). The judge did not err in failing to instruct the jury on Hill's right not to testify because Hill specifically asked that such an instruction not be given. The argument that the jury was permitted to see certain exhibits not in evidence is not supported by the record.

Finally, we discuss Hill's contention that he was unfairly limited in his defense during the penalty phase. After the State concluded its penalty phase case, Hill rested without testifying or presenting other evidence. The prosecutor then gave his closing argument. Thereafter, Hill began to address the jury by saying, "You have a responsibility to protect your neighbor's life and to use force if necessary to do so." At this point, the State objected on the grounds that the argument was irrelevant and did not go to any of the evidence admitted at trial. At the bench, the trial judge instructed Hill that closing arguments, whether at the guilt or penalty phase, must be relevant to the issues presented during that particular stage. The judge reminded Hill that he had agreed to abide by the court's rulings. Ultimately, the judge overruled the State's objection, reasoning that it likely had been made in anticipation of an attempt by Hill to raise the defense of justification or necessity. Thus, the judge stated:

THE COURT: Quite honestly, at this point for the record I will take and overrule the objection. And I will give you the benefit of allowing you to make your point and argue your case, because it is very important, Mr. Hill.

MR. HILL: Yes, sir.

THE COURT: I will give you wide latitude to argue your case.

Hill then concluded his argument by saying:

You have a responsibility to protect your neighbor's life and to use force if necessary to do so. In an effort to suppress this truth, you may mix my blood with the blood of the unborn and those who have fought to defend the press. However, truth and righteousness will prevail. And may God help you to protect the unborn as you would want to be protected.

Clearly, Hill was not prevented from presenting his case during the penalty phase.[7] He elected not to put on any evidence, and the only objection made to his closing argument was overruled. Moreover, there is no question that the jury was aware that he killed his victims in order to prevent them any evidence, and the only [Ed: must have lost something here while downloading]

Hill does not specifically contest any of the aggravating circumstances found by the trial judge, although he inferentially suggests that the murders did not meet the criteria for being cold, calculated, and premeditated because they were committed with the pretense of moral justification. However, in Dougan v. State, 595 So. 2d 1 (Fla.), cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992), we upheld the same aggravating circumstance in the face of a dissenting opinion which argued that a murder had been committed with a pretense of moral justification in order "to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection." Id. at 7. We stated:

While Dougan may have deluded himself into thinking this murder justified, there are certain rules by which every civilized society must live. One of these rules must be that no one may take the life of another indiscriminately, regardless of what that person may perceive as a justification.

Id. at 6. In this case, the trial judge properly rejected the proposition that by killing persons in order to prevent them from performing legal abortions, Hill acted under a pretense of moral justification. Moreover, even if it could be said that the finding of this aggravating circumstance was in error, the error would be harmless beyond a reasonable doubt.

Finally, we conclude that the evidence fully supports Hill's conviction and that the death penalty ordered in his case does not suffer from a lack of proportionality.

Accordingly, we affirm the convictions and sentences of death. It is so ordered.

KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

ANSTEAD, J., concurring in part, dissenting in part. I concur with the majority's resolution of all of Hill's claims of error as to his guilt and penalty phase proceedings save one: that the trial court did not err in finding a statutory aggravator that requires proof beyond a reasonable doubt that Hill was not acting with a "pretense" of moral justification.

In section 921.141, Florida Statutes (1995), the legislature has set out guidelines which the trial courts of our state must consider in determining whether death or life imprisonment is the appropriate penalty once a defendant is convicted of capital murder. Some of the matters set out in the statute may be considered in aggravation while others may be considered in mitigation. An aggravator must be established by proof beyond a reasonable doubt. Obviously, the finding of one or more of the aggravators or mitigators is critical to any penalty analysis.

In this scheme, the legislature has provided that one of the factors that could be considered in aggravation is that: "the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification." ß 921.141(5)(i)(emphasis added). The trial court found this aggravator proven beyond a reasonable doubt. This constitutes clear error. While there is abundant evidence in the record to support a finding that the murders here were "committed in a cold, calculated and premeditated manner," it is undisputed that Hill acted under a pretense of moral justification, i.e., his moral opposition to abortion, thereby precluding the application of this aggravator.[8]

Amicus [Ed: a brief written by a concerned 3rd party to the case] condemns the killing of Dr. Britton and Mr. Barrett. But whether shooting Dr. Britton and his escort was the right thing to do is not the question before this Court. The legal question before this Court is whether Mr. Hill's deep and abiding beliefs that human life begins at conception, which beliefs are rooted solidly in the mainline religious and philosophical traditions of our country and our state, and which beliefs were the basis for Mr. Hill's acts, gave his actions at minimum a "pretense" of moral or legal justification.

In Holly v. Auld, 450 So. 2d 217 (Fla. 1984), this Court explained that while extrinsic aids and rules of statutory construction and interpretation are available to courts where statutes are ambiguously worded, "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Id. at 219 (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157 (1931)). We further explained that courts are "without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." Holly v. Auld, 450 So. 2d at 219 (quoting American Bankers Life Assurance Co. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (alteration in original). Accordingly, where a statute is clear and unambiguous, a court must enforce the law according to its terms and is precluded from construing the statute differently. See, e.g., State v. Egan, 287 So. 2d 1 (Fla. 1973); Van Pelt v. Hilliard, 75 Fla. 792, 798-99, 78 So. 693, 694-95 (1918). That is our obligation here.

In Banda v. State, 536 So. 2d 221 (Fla. 1988), cert. denied, 489 U.S. 1087, 109 S. Ct. 1548, 103 L. Ed. 2d 852 (1989), we noted that the word "pretense" means "'something alleged or believed on slight grounds: an unwarranted assumption.'" Id. at 225 n.2 (quoting Webster's Third New International Dictionary 1797 (1981)). Thus, we interpreted the section 921.141(5)(i) "pretense" clause in a manner consistent with its plain meaning.[9] We also concluded that a defendant's own unrebutted statements may support the existence of a "pretense of moral or legal justification" unless, of course, those statements are "wholly irreconcilable with the facts of the murder." Id. at 224-25. Consistent with our opinions on this issue, one legal commentator has stated:

The pretense clause means that even if one kills a victim in a cold and calculated manner, and if the killer thinks he is morally or legally justified in doing so, the aggravating factor should not apply. The killer need not actually be morally or legally justified; the statute only requires that he have some pretense of justification. Indeed, paragraph (5)(i) could not logically require actual legal or moral justification as there is no actual legal or moral justification for a cold and calculated killing. Thus it makes no sense to maintain that the clause calls for this interpretation.

Jonathan Kennedy, Florida's "Cold, Calculated and Premeditated" Aggravating Circumstance in Death Penalty Cases, 17 Stetson L. Rev. 47, 101 (1987). Further, we have not hesitated to find this statutory aggravator not proven in other cases where we found that the defendant had acted under some "pretense" of moral or legal justification. See, e.g., Christian v. State, 550 So. 2d 450 (Fla. 1989); Ross v. State, 474 So.2d 1170 (Fla. 1985); Cannady v. State, 427 So. 2d 723 (Fla. 1983); Blair v. State, 406 So.2d 1103 (Fla. 1981).[10]

We must remember that the issue before us is not whether we tolerate or condone murder. That we do not approve of Hill's conduct is firmly established by our unanimous affirmance of his conviction for two capital murders, as well as our affirmance of the trial court's order on Hill's motion in limine and our rejection of his claimed necessity defense. As the majority correctly explains, Hill's religious belief that abortion is evil is not legally cognizable as a "necessity" defense under the common law or section 776.012. Nor is it an actual justification for Hill's blatant criminal conduct.

The only issue under discussion is whether a discrete aggravating circumstance specifically defined by the legislature has been established by proof beyond a reasonable doubt. The legislature obviously meant something when it imposed the "without pretense" condition as a qualification for invocation of the aggravating factor set out in section 921.141(5)(i). If there was not "a pretense of moral . . . justification" here, it is doubtful whether these words could ever have any real meaning or application. Inexcusable though his conduct may be, it is undisputed that Hill acted under a pretense of moral justification; and a pretense is all section 921.141(5)(i) requires in order to preclude the application of this particular aggravator. For that reason, I cannot agree that this aggravator was properly invoked in this case.

An Appeal from the Circuit Court in and for Escambia County, Frank Bell, Judge - Case No. 94-3510-J

Michael R. Hirsh, New Haven, Kentucky; and Roger J. Frechette, New Haven, Connecticut, for Appellant

Robert A. Butterworth, Attorney General and Richard B. Martell, Chief, Capital Appeals, Tallahassee, Florida, for Appellee

Thomas A. Horkan, Jr., General Counsel, Tallahassee, Florida, for The Florida Catholic Conference, Amicus Curiae James Joseph Lynch, Jr., Sacramento, California, for the Friends of Paul Jennings Hill, Amicus Curiae

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ATTACHMENT TWO

From Dinwiddie v. U.S., appeal brief by Regina Dinwiddie of Kansas City, U.S. Supreme Court case number 96-5615. Cert. denied. Published cases below: U.S. v. Dinwiddie, 76 Fed. 3rd 913. (8th Cir. 1996), U.S. v. Dinwiddie, 885 F.Supp. 1286 (W.D.Mo. 1995) (March 21, 1995), U.S. v. Dinwiddie, 885 F.Supp. 1299 (W.D.Mo. 1995) (April 12, 1995).

Background: Regina Dinwiddie signed Paul Hill's Defensive Action Statement. That signature was presented as evidence that her statements to the local Kansas City abortionist should be construed as threats that Dinwiddie would take his life. Dinwiddie argued that if a statement can be proved true, then commitment to truth should be enough to account for why she backed the statement, without searching for more sinister motives not found in her own words. Here is her analysis of the logic of the statement:

Let's examine the Defensive Action Statement a sentence at a time:

We, the undersigned, declare the justice of taking all godly action necessary to defend innocent human life including the use of force.

That isn't controversial, unless there is trepidation over unarticulated mandates lying buried under "godly." But "godly" is only used generically.

We proclaim that whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child.

Here is the controversy. And yet, for those who believe the Holy Bible's statements that life begins at conception, the sentence is logical. In fact, it is illogical to reject the sentence while at the same time embracing the belief that life begins at conception.

Prolife leaders have viciously denounced the Statement's implications, but have never, so far as Petitioner knows, denounced its logic. It is virtually unchallenged that if life begins at conception, then whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child.

[Ed: Neutral and pro-abortion news commentators have recognized this logic, and actually expressed bemusement with those who take the illogical position that abortion is murder but lethal force against an abortionist is murder. Prolifers who denounce abortion as murder have tried to condemn lethal force against abortionists by distinguishing between defense of life which is permitted by law as opposed to defense of life which is prohibited by law. Such criticism is always poorly developed, lest it deal with such equally politically incorrect conclusions as that it was wrong to protect Jews in Germany, or slaves in America. Another "solution" is to denounce all use of lethal force whatsoever, other than that by police, turning the heroes who intervene in armed robberies into villains. Some even denounce lethal force in your own self defense, while others say self defense is still OK, but if your neighbor is under assault beside you, you ought not help him! In short, it has proven impossible to assail the logic of Hill's statement, by any reasoning which does not equally assail universally accepted conventions of society. Prolifers minimize attention to these inconsistences by limiting their "analysis" to "sound bites" -- the one-liners they feed news reporters who ask them to clarify why they do not stand with Paul Hill.]

We assert that if Michael Griffin did in fact kill David Gunn, his use of lethal force was justifiable provided it was carried out for the purpose of defending the lives of unborn children.

The question remaining, in the inquiry whether the Statement is logical, is whether its premise is sound: whether life indeed begins at conception. To assert the defense that the truth cannot be prosecutable as a threat, it is relevant to establish the fact that the premise is true. To assert the defense that Petitioner's commitment to her best understanding of the Truth accounts for her signing the Statement, without having to fabricate fanatical zealotry, or personal attraction to the actions defended by the Statement, to account for it, it is relevant to show that the Statement's truth appears evident from the information available to petitioner.

It is sufficient for both purposes simply to note that the premise, besides having the support of God's Law, is frequently affirmed positively, and has yet to be challenged, in American law.

The premise that life begins at conception is shared by (1) leading presidential candidates, (2) a majority of Congressmen (in their campaign promises if not in their votes,) (3) the many doctors who have presented "offer of proof" testimony in "Rescue" trials, (4) roughly 100,000 Christians who have been arrested and have argued, through their attorneys, the "Necessity Defense" which is predicated on the premise that life begins at conception, so therefore almost any action which can prevent the murder of the unborn is justified, (5) annual proclamations of a number of governors, (6) former presidents, and (7) even the defiant state laws of Nebraska 28-325 R.R.S. 1943, Missouri: #1.205, R.S.Mo.1986, and Louisiana: LSA-R.S. 40:1299.35.0, and Public Law 5761 of 1/14/88.

In opposition to this powerful national consensus stands nothing. Even the Roe v. Wade court refused to find that abortion is not "a harm." It literally declared its incompetence to tackle so difficult an issue. Roe v. Wade, 410 U.S. 113, 159 (1973) The harmfulness of abortion is utterly uncontested in American law.

Far from being the premise of some fanatical zealot, the premise that life begins at conception is a mainstream premise which is positively affirmed by the Holy Bible and numerous human authorities, and positively repudiated by nobody. From this premise inexorably follows the deduction that "whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child."

Therefore, the fact that the Defensive Action Statement is irrefutable should sufficiently account for Petitioner's willingness to sign it, without inferring by her admission of the truth that she likes the truth, or has any intention of personally carrying out the actions which the Statement defends.

 

There is one more sentence of the Statement, which the Court did not quote:

"Therefore, he ought to be acquitted of the charges against him."

This final sentence shows the same thing Petitioner tried to explain to the Court: the statement is not appealing to the violent to solve this problem, but to the courts. It shows the Statement does not call for armed rebellion, but for The Court to address the key issues. The prosecution of Petitioner for this statement violates her First Amendment Right "to petition the Government for a redress of grievances."

Such prosecution also constitutes suppression of the truth. The defense in the John Peter Zenger trial supra, see footnote 58, pointed out "...the suppression of evidence ought always to be taken for the strongest evidence."

 

"...the suppression of evidence ought always to be taken for the strongest evidence."

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