Skip to comments.If George Zimmerman Loses a Pretrial Motion to Dismiss, He Can Still Be Acquitted
Posted on 04/12/2012 9:52:21 AM PDT by 2ndDivisionVet
Judging from a sidebar in today's New York Times, there is some confusion about how Florida's self-defense law applies to George Zimmerman's case. The law, as amended in 2005, states that someone who justifiably uses force in self-defense "is immune from criminal prosecution." Under a 2010 decision by the Florida Supreme Court, that means Zimmerman has a right to a pretrial hearing where he can get the second-degree murder charge against him dismissed if he can show, by "a preponderance of the evidence," that he reasonably believed deadly force was necessary to prevent Trayvon Martin from killing or seriously injuring him. In other words, he has to convince a judge it is more likely than not that his use of force was lawful. But if he loses that motion, he can still argue at trial that he acted in self-defense, and the prosecution has to prove beyond a reasonable doubt that he did not.
By contrast, the Times leaves the impression that Zimmerman has no hope of acquittal if his motion to dismiss is denied:
The case will almost certainly include a pretrial hearing to determine whether the states Stand Your Ground law, which grants broad protections to people who claim to have killed in self-defense, applies; if the judge finds that Mr. Zimmerman acted appropriately, the case will end there. If the judge decides that the protections of the law do not apply, the case will go forward.
At trial, however, the question of self-defense can be brought up again and possibly will, said Robert Weisberg, a criminal law expert at Stanford Law School. That could lead to a fallback position for the jury if allowed by the judge of a lesser verdict of manslaughter should the jury decide that Mr. Zimmerman sincerely but unreasonably believed that he was appropriately using lethal force to defend himself, which is known as "imperfect self-defense."
Manslaughter, which carries a maximum sentence of 15 years, does seem like a more appropriate charge than second-degree murder, which carries a potential life sentence and requires "a depraved mind regardless of human life." If Zimmerman broke the law, it was probably because he overreacted in the heat of the moment, so the murder charge seems like a stretch. But contrary to the implication of the Times article, a manslaughter conviction is not the best that Zimmerman can hope for if his case goes to trial. The jury could conclude there is reasonable doubt as to whether he acted in self-defense, in which case he would be acquitted. That standard is not some weird quirk of Florida law. As Northern Kentucky University law professor Michael J.Z. Mannheimer points out, "this is true in virtually every State."
Furthermore, the Times conflates two different aspects of Florida's self-defense law. If Zimmerman's account of his fight with Martin is true, he had no opportunity to safely retreat, so the right to "stand your ground" (the "broad protections" mentioned by the Times) would not apply. In this case the unusual aspect of Florida's law is not the self-defense argument Zimmerman is making but the fact that he gets to present it before trial, along with evidence to support his version of the shooting.
In mandating that procedure, the Florida Supreme Court noted the legislative intent expressed in the preamble to the 2005 law: "The Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution." The court explained that the "immunity" promised by the law was meant to provide extra protection for people who use force in self-defense:
While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.
But to reiterate, that defense is still available even if Zimmerman does not have enough evidence in his favor to avoid a trial.
Addendum: On the issue of second-degree murder vs. manslaughter, Florida's standard jury instruction for the former crime requires that the act leading to the victim's death "is done from ill will, hatred, spite, or an evil intent," which does not seem to fit the publicly known facts of the shooting, although it might make sense if it can be shown that Zimmerman shot Martin out of anger rather than fear. As Mo points out in the comments, Martin's mother, Sybrina Fulton, today described the shooting this way: "I believe it was an accident. I believe it just got out of control, and he couldn't turn the clock back." That does not sound like second-degree murder.
No way will a Sanford judge rule to acquit...that judge would be the next person lynched.
First he needs to get the trial moved out that area and then he may have a chance.
I highly doubt he will be convicted of second degree murder. If his lawyers are any good, however, they will try to move the case out of Sanford.
Oops, I see he gets to that point.
Uses the wrong standard of proof though. At trial, the state must prove (the burden at trial goes to the state) that Zimmerman did NOT act in self defense. At trial, the presumptions run strongly in Zimmerman's favor - more strongly that at the pretrial hearing.
Those in charge in Tallahassee have decided,rightly or wrongly,that the only important issue here is to avoid Rodney King II.As a result a trial *will* take place and every effort will be made to get a conviction.The only thing that can save Zimmerman,in state *and* Federal court,is at least one juror in each trial he’s subjected to.
Move the case to Los Angeles!
Once the procecution lays out their case we will have an idea on if this is just political or if there is a real case to be made against Zimmermann.
I decided long ago not to jump to conclusions about that aspect even though A Sharpton and Jesse make it look like another hoax, Hoax/scams are their trademark.
Don’t bring it to Tallahassee. I don’t want that crap here. Let Miami have it.
reason to believe not in self-defense = indictment
preponderance of evidence was in self defense = dismiss
beyond a reasonable doubt was in self defense = acquit
The first standard is barely anything, hence, a good district attorney can indict a ham sandwich.
The second standard is what the police used in deciding, on the spot, not to arrest. If there is no evidence beyond what the police had, a motion to dismiss is in order.
The third standard is a tough one, and rightfully so. Even if a court does not dismiss, it cannot be presumed that the accused will be found guilty.
And, yes, I too am wondering where the element of depravity and disregard for human life came in. Maybe the special prosecutor has a thing about ham sandwiches.
I suspect the state is counting on the mob intimidating the judge sufficiently that the pre-trial motion will fail. Venue arguments are going be really interesting here. Time to dig out the litigation history on the Sam Sheppard case.
All things considered, it is quite possible that Zimmerman will be found not guilty. When that happens, having personally experienced the riots in SF and Oakland after the Rodney King case back in April of 1992, I fully expect "Holder's People" to do what they have always done when their collective rage is not placated.
They will go berserk.
the judge could also reserve ruling and allow the case to go to trial. Reject the motion and the motion reconsidered on appeal.
This step is really about preservation for appeal.
Wrong! It is not the obligation of the defense to prove anything. It is the obligation of the prosectution to prove it was a crime "beyond a reasonable doubt". The prosecution only needs to show reasonable doubt, that it might have been self defense.
Self correction” I meant to say “The defense only needs to show reasonable doubt, that it might have been self defense”.
Mr Zimmerman is caught. The AG hasn’t ruled on this yet. I doubt he will get out jail except one way.
Better punctuation to express your meaning:
The defense only needs to show reasonable doubt—that it might have been self defense.
It's worth noting that Martin was killed in an event that occurred a full three weeks (Feb 26) before it became a national news story.
Further, the event was fully reported in the local media the very next day -- by Orlando TV stations and the newspaper.
And nothing happened. No outrage, no marches, no protests.
It's also worth noting that all of the local news stories led with the eyewitness account which described Zimmerman as being on the ground having the crap beaten out of him, while screaming for help.
Recall that it took days for this eyewitness to emerge in the national stories.
Will any local jurors allow the initial absence of outrage to impact their judgment? I don't know.
But it should...
I will stick my neck out here, and state that this trial is 100% political. Unless the info we have read regarding the evidence and witnesses is proven false, it is a sham to..
Cover the DA’s butt(death threats, and political viability)
Look what the prosecutor said in public.. “justice for Trayvon”
“I prayed with Trayvon’s mother...she is sweet” HUH??
HUH? What about justice for all????
I already dislike and distrust the prosecution.
The MSM should be on trial here....they caused the whole
prosecution to happen in the first place with their lies
doctored tapes & photos. The race pimps got their ammo from
Good point, but I think you’re referring to the Jury Pool. I was referring to the judge.
"Innocent until proven guilty" may sound good in theory, but if they get a bunch of jurors who are convinced that Zimmerman is guilty of cold-blooded murder (from what they have heard on TV) and the judge is a Lance Ito clone, who knows what the verdict will be?
This thread seems to have some pretty calm legal opinions on this matter.
Since that odd “justice for Trayvon” press conference that Corey held, I’ve been wondering, why a 2nd Degree Murder charge, especially when taken with the tone of the presser.
The only non-political angle I can see is that the prosecution has something that the media hasn’t discovered yet. I’d speculate the most likely scenario is that Zimmerman volunteered a legally damaging statement without an attorney present.
Are there any other legal reasons that the prosecutor might go 2nd Degree Muder vs. a lesser charge?
Somehow the thing spun out of control between two men.
The girlfriend says she heard Trayvon ask Zimmerman something to the effect “You following me?”
To which Zimmerman replies something to the effect “What are doing around here?”
That seems to support Zimmerman’s story there was an exchange of words then he ended up on his back, perhaps with a broken nose and getting g head bounced off the concrete.
Feeling he was in a losing battle to get Trayvon to stop or end the physical conflict and that he might lose his life he took an action to save his life and yes, he shot an unarmed man.
What would everyone want to have happened ???
Should Zimmerman have accepted fate, nay, embraced it and spend the rest of his life with brain damage?
Maybe they would be comfortable in the knowledge that Trayvon prevailed in the confrontation and Zimmerman forfeited his life???
Here’s why he’s getting charged with 2nd degree murder with option for manslaughter.
They are hoping the Jury says well it wasn’t 2nd degree murder, but we have to do something...so they compromise and give him manslaughter.
If it was just manslaughter they may say not guilty, but having the option to lessen the charge they can play compromise and take the “moderate” approach.
But this is about justice for Trayvon as the exuberant and flashy smiling prosecutor proclaimed.
The only thing missing from her news conference was ladies tossing rose petals and a chorus of trumpets.
Don’t Talk to the Police
Given that the 911 tape has Zimmerman saying he could no longer see Martin (”he ran away”), and that he was heading to the community mailboxes to meet the police, the whole idea that he hunted down and killed Martin simply doesn’t hold water. Moreover there is only one witness who saw what happened, and he says Martin was on top of Zimmerman beating him. It’s a travesty that charges were ever brought. The governor and AG clearly bypassed the normal system to get an indictment to placate the lynch mob. It’s disgusting.
If anyone cares to donate to zimmerman’s defense, they can do so at...
Agreed. It seems that Mr. Zimmerman either ignored or did not have knowledge of this most excellent advice, and decided to “do the right thing, since I am innocent, had no choice but to shoot, and what harm could come of the truth?” and talked a whole bunch.
He consented to voice stress test. According to his former attorneys, he contacted the media and the prosecutor on his own. This does not bode well for his defense.
Zimmerman will be convicted of one or the other. The jurors will be afraid of getting a bounty put on their heads. Throwing Zimmerman under the bus will be an easy choice for the jurors, as they will understand it's a political trial and not worth the sacrifice to pretend otherwise.
Welcome the the USSA, Comrades. You're getting a preview of the future.
Potentially important evidence would be toxicology reports indicating drug or alcohol presence in either person, gunshot residue, fingerprints on the weapon, Zimmerman's medical records, and the ME’s report.
Charging second degree murder seems a stretch to all the talking heads, which is proof to me that there is a lot of evidence we are not privy to. But as the process unfolds, we will finally get the whole truth. Meanwhile, we should all be cautious about jumping to conclusions or rushing to judgment.
One way to force a jury acquittal is to inflate the charge to one that has no hope of being proven.
The New Nifong
Like I said, now that he is charged we will know the evidence on both sides and it should be easy to tell if there was a real case or not.
If it doesnt make to trial because all the charges are dropped, or alternatively he makes a plea, I will know how to come to a fast conclusion.
And then there will be a whole lot more Trayvons! They're outmanned and outgunned. Fish in a barrel.
Inflating the charge hoping for acquittal would be pretty darn cagey, and given the tone of the press conference, if that’s really the goal the Corey has big brass ones.
She not only looked and sounded like she was a member of the Trayvon fan club, she was positively smug.
She’s either a consummate showman or she’s got something we don’t know about that is making her supremely confident.
I just can’t see any advantage to the murder charge and holding that press conference with just the information we have via the press.
Either George Zimmerman gets the death penalty,
or the appeasement of the mobocracy ends with riots.
They’ve already started on the appeasement route.
There are only two outcomes possible.
All it will take is one juror to hold out and do the right thing. I think there will be at least 1 American who will (I hope).
But, oddly, both of them seemed to believe that the Murder charge was politically motivated (barring some piece of evidence that the prosecutor has that we haven't heard nor seen yet). And Dershowitz added that whatever you thought of the Stand your Ground law, it's still the law the case has to be argued under. You can't (he says) argue the case under what you think the law should be.
Surprising enough that I listened to the rest of the segment before switching over to Mike Gallagher or Dennis Miller or somebody.
She should have said, Justice for Trayvon and Zimmerman. And she certainly had enough time to get her public statement right before going on camera.
It's not just Zimmerman on trial of course. It's the "stand your ground" law (I'll bet Fla. changes it in the legislature), and many will claim that we need new "hate crime" laws in Fla., other states, and at the federal level.
I think we have too many thought crime laws already.
Silly, that particular Mob opposes the death penalty.
But they do like to see those who they identify as racists (ie Republicans) going to jail.
I wasn't thinking of trusting a jury, once I see both sides present their cases I will be my own jury.
Leftists, ie communists, don’t see non-communists as even human, or as worthy of life at all,
so their opposition to the death penalty probably wouldn’t extend to us.
Since blacks are already covered by the federal ‘hate’ crime it is hard to make that argument.
Convicting him of a hate crime will be very difficult unless they have a witness that can show specific evidence that race was his motive, based on his observed statements.
Also a good point. I'm just not sure a change of venue would improve rather than damage the man's chances in this case.
In the Casey Anthony trial they imported the jury from here in Pinellas County and still held the trial in Orlando.
I like that approach because the charging district has to handle the expenses of security instead of pawning it off on some supposedly “unaffected(clueless)” community.
Still a change of venue is likely as even the judge could be a target when Mr. Zimmerman brings a pre-trial motion to dismiss which is guaranteed to be held. Trust me. ;-)
She looks like she got her makeup tips from a John Waters’ film.
Yes, and I hope they remember to keep their mouths shut. Because if other jurors find out they’re leaning to acquit they’ll be thrown off the jury...ala OJ.