Sixteen months after a Lilburn retiree shot a 22-year-old Colombian immigrant in his driveway, the trial that could provide one of the stiffest challenges yet to Georgia’s controversial “stand your ground” law is no closer to happening.
Charged with malice murder in the Jan. 2013 fatal shooting of Rodrigo Diaz Ortiz that captured national attention, Phillip Sailors has yet to be indicted.
Gwinnett County District Attorney Danny Porter did not respond to requests for comment on the case, but the lawyer representing the victim’s family said she is confident an indictment is forthcoming.
“The lengthy period of time between charges and an indictment is not unheard of. (The Ortiz) family has 100 percent confidence in the district attorney’s office,” said attorney Christine Koehler, who last month filed a civil complaint on behalf of the Ortiz family alleging negligence. The suit, filed in Gwinnett County Superior Court, seeks damages from Sailors nearing $150,000 to cover funeral expenses and medical costs.
Three passengers in Ortiz’s car, including his girlfriend, told police the Vietnam vet emerged from his house and shot their unarmed friend in the head without provocation. Sailors’ lawyer said his client, fearful of alleged criminal activity in his neighborhood, thought he was about to be robbed and fired his .22 revolver in self-defense.
Defense attorney Mike Puglise wouldn’t say whether he’ll mount a stand your ground defense if Sailors is indicted, but did say his client “perceived a threat.”
Puglise said that Sailors fired at Ortiz only after the young man accelerated his red Mitsubishi 3000GT toward him.
“He thought he was going to get run down,” Puglise said.
But the responding officers said the car was at the end of the driveway when they arrived on the scene.
And while it looks like a potentially “uphill battle for the defense,” said University of Georgia law professor Ron Carlson, stand your ground has been invoked even without the presence of an immediate physical threat.
“If you can get the jury to put themselves in the shoes of a shooter, you might find them sympathizing [with Sailors],” Carlson said.
Georgia is among nearly two dozen states to broaden self-defense laws in recent years, eliminating a “duty to retreat” by citizens who have a “reasonable belief” they are about to “suffer death or great bodily injury” while preventing the commission of a forcible felony.
Earlier this month, a federal judge dismissed a lawsuit brought by Jesse Jackson’s Rainbow PUSH challenging Georgia’s version of the law because the state was never served the complaint. The suit argued that the law was too vague and arbitrary.
The statute was relatively obscure until it was used in the defense of George Zimmerman, a Florida neighborhood watch volunteer who was acquitted on second-degree murder and manslaughter charges in the Feb. 2012 shooting death of unarmed teenager Trayvon Martin. Zimmerman’s lawyers argued that Martin initiated a physical altercation with their client.
Meanwhile, in the Sailors case, the actions of the Lilburn Police Department could play as big a role as a potential stand your ground defense.
Koehler said officers may have complicated the prosecution by seizing evidence from the crime scene on Hillcrest Road without a warrant, though she doesn’t think it jeopardizes a potential indictment.
But Puglise indicated their behavior may play a pivotal role in his defense, assuming one is warranted.
“There were certainly problems in the handling of evidence in this case,” he said.
City of Lilburn spokeswoman Nikki Perry said police “will not comment further on the Sailors case, because it has been turned over to the District Attorney’s Office.”
Koehler also alleged that Ortiz’s friends were subjected to harsh treatment after the shooting. Each of the three passengers were handcuffed after the shooting while Sailors was not. They were kept overnight in a holding cell even though no charges were brought against them.
“They were treated like hardened criminals,” she said.
Puglise says Sailors is not a hardened criminal either.
“If anything, the shooting should be looked at as negligent, not criminal,” said Puglise, noting the civil suit filed by Koehler “lacks words like malice and intent.”
Ortiz did nothing wrong but “pull into the wrong driveway,” Koelher said, adding he thought Sailors was the grandfather of the young woman they were supposed to pick up.
“He was a student at Gwinnett Tech. He worked at his brother’s shipping company. He came [to the U.S.] legally,” she said. “He followed the rules.”
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