Richard Hornsby is a criminal trial lawyer in Orlando, Florida.
Having been served with a Notice to Appear (frequently referred to as a written arrest), Corey Lewandowski has embarked on the first stage of a multi-step journey through Florida’s criminal justice system. Importantly for him, there are several steps along this journey that could result in dismissal of his charges prior to trial.
In Florida, prosecutors can treat a Notice to Appear as the formal charging document and prosecute a defendant solely based upon the allegations in the Notice to Appear. More commonly though, the prosecutor will review all criminal charges initiated by Notice to Appear and make a decision on whether they agree that formal charges should be pursued prior to the defendant’s arraignment date. If the prosecution agrees that formal charges should be pursued, they will file a formal charging document that replaces the Notice to Appear as the formal charging document. If they decide against filing formal charges they will file a document titled a No Information, which serves as the prosecutor’s notice of dismissal.
This makes the time before Mr. Lewandowski’s May 4th arraignment critically important. Typically, a defense attorney will gather exculpatory evidence and witness affidavits and submit this information to the prosecutor along with a memorandum letter explaining why formal charges should not be pursued – either due to evidentiary hurdles, the existence of affirmative defenses, or the inability to prove the case beyond a reasonable doubt.
In Mr. Lewandowski’s case, the video clearly shows he grabbed Michelle Fields, despite his initial denial of having done so. But the threshold legal question is not whether he grabbed Ms. Fields, but whether he grabbed her intentionally – as opposed to instinctively. As people touch other people every day without permission, but such every day touching is rarely criminal.
It is highly probably that the prosecutor may find that although Mr. Lewandowski grabbed Ms. Fields, there is significant reasonable doubt as to whether he did so intentionally. This is because the prosecutor may find that as Donald Trump’s campaign manager, it was Mr. Lewandowski’s job to maintain a safe space for Mr. Trump as he exited the press conferences. Given that the video appears to show Mr. Lewandowski had been pushed away from Mr. Trump by the mass of people surrounding Mr. Trump as they exited the press conference, the prosecutor may be of the mind that Mr. Lewandowski was doing his job by trying to reestablish a safe buffer around Mr. Trump as they exited the private property owned by Mr. Trump. In many respects, Mr. Lewandowski’s actions were little different than how a bodyguard might attempt to protect a celebrity from paparazzi as they move through crowded areas. If the prosecutor reaches this conclusion, it is very likely that the charges will be dismissed at or before the arraignment.
In a similar vein, even if the prosecutor concludes that Mr. Lewandowski intentionally grabbed Ms. Fields, they may find that he is immune from prosecution under a section of Florida’s stand your ground law. This section, usually referred to as Defense of Others, provides that “a person is justified in using [force] against another when and to the extent that the person reasonably believes that such conduct is necessary to defend  another against the  imminent use of unlawful force.”
While reasonable minds may disagree on whether Ms. Fields’ actions could be perceived as an imminent use of unlawful force, there have been reports that at least one Secret Service agent told Michelle Fields to stop touching Mr. Trump before Mr. Lewandowski intervened. If true, it would be incumbent upon Mr. Lewandowski’s defense attorney to provide the State Attorney an affidavit from this Secret Service agent corroborating this claim. Such an affidavit, combined with the reported attempt of a protestor to approach Mr. Trump at his Dayton, Ohio, rally the next day, would serve as a significant hurdle for the prosecution to consider when making a decision to charge Mr. Lewandowski. More importantly, such an affidavit would provide the State Attorney ample legal cover to dismiss the case prior to arraignment.
Significantly, even if the prosecution elected to pursue formal charges, Mr. Lewandowski could still raise his ‘Defense of Others’ defense at a pretrial hearing prior to trial, where he would have to convince a judge by a preponderance of the evidence that his actions were a reasonable attempt to protect Mr. Trump. If he persuades the judge that he was reasonably defending Mr. Trump, the judge could dismiss the case prior to trial. If the judge is not persuaded that he was reasonably defending Mr. Trump, the judge would hold the case over for trial and it would then be up to a jury to decide whether the Defense of Others defense was meritorious (or even if his actions were intentional in the first place).
Notwithstanding the evidentiary and legal considerations the prosecutor must make in deciding whether to pursue the charges, there are also the practical ones that must be considered. Such as whether this case, with all the publicity it would bring, would be a prudent use of the criminal justice system’s finite resources. Often times, a State Attorney will find that while certain cases meet the technical definition of a crime, they do not justify the use of scarce resources within the criminal justice system. And given the Trump camp’s clear message that Mr. Lewandowski will fight his charges to the end, the prosecutor may very well decide that it is in the best interest of all parties not to pursue formal charges and dismiss the case before the arraignment.
Likewise, prosecutors are elected partisan officials in Florida. So there may be nothing more enticing to an elected State Attorney from the Democratic Party than prosecuting the campaign manager for the Republican Party’s presidential nominee during the general election campaign for allegedly unapologetically battering a woman.
[image via screengrab]