Here is O’Mara’s explanation of what he’s doing:
As to the “Stand Your Ground” portion, the Legislature expanded self-defense to include a right of not having to retreat before utilizing deadly force. While that right always existed in one’s home (the Castle Doctrine), the 2005 Legislature expanded it to any place where you are allowed to lawfully be. Under that portion of the statute, a person does not have to retreat before utilizing deadly force if that person has reasonable fear of imminent great bodily injury.
If the “Stand Your Ground” portion of the law was to be applied to the Zimmerman Case, even if George had an ability to retreat, he would not be required to do so before utilizing deadly force. In this particular case, George did not have an ability to retreat because he was on the ground with Trayvon Martin mounting him, striking blows, therefore the “Stand Your Ground” “benefit” given by the statute simply does not apply to the facts of George’s case: it is traditional self-defense. Of course, the immunity provision still does apply, and we will take full advantage of the immunity afforded by the Florida Legislature.
In August, we published an article called There Will Be A ‘Stand Your Ground’ Hearing in the George Zimmerman Case. The article was meant to show that we believe George Zimmerman’s act of self-defense was lawful and justified, and that he should have the benefits of prosecutorial and civil immunity offered by Statute 776. Since then, whenever we have referred to such a hearing, we have more appropriately referred to it as a Self-Defense Immunity Hearing. The Judge has set a court date of June 10 for the Zimmerman trial, and a Self-Defense Immunity Hearing is scheduled for April 22.
Here is what I don’t understand about this explanation of his:
Since “Stand Your Ground” is an easier standard to meet than traditional self defense, then why not take advantage of it??? and then add to it the fact that he couldn’t retreat even if he wanted too in order to exceed that standard.
Why choose the more difficult standard to meet???
What if this judge decides that there is not enough evidence to prove that Martin was on top of Zimmerman at the time of the shooting, and rules that Zimmerman did have the opportunity to retreat and didn’t??? I don’t put that past her.
He says that he’s not using the SYG portion of the law and yet he then says that he’s filing for an SYG immunity hearing. What???
I can see this judge dismissing this on a technicality saying that he filed under traditional self-defense and there is no immunity under that older portion of the law.
The legal standard of proof at an immunity hearing is "more likely than not," or preponderance of the evidence. The burden is on defendant to show that his use of force was justified.
Once Zimmerman produces his version of events, the burden falls to the prosecution to disprove is, and, this is important, the disproof must be done with EVIDENCE, not with speculation or mere accusations that defendant is not telling the truth.
If this judge can't figure out which account is more likely the correct one, the burden of proof at trial is harder for the prosecution to meet, as it must prove (again, using evidence) defendant's version is false, and must do so beyond a reasonable doubt.
As to O'Mara shunning the phrase "stand your ground," I think he is merely trying to avoid an appearance of arguing that Zimmerman was somehow exercising a right to stand his ground, which implies an ability to choose to retreat.
Mara makes no sense. If a perp simply closes off all retreat options then civil liability still exists?
Putting up resistance prior to use of deadly force pretty must states, “i want to leave”.
He is overthinking this.