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If George Zimmerman Loses a Pretrial Motion to Dismiss, He Can Still Be Acquitted
Reason Magazine ^ | April 12, 2012 | Jacob Sullum

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 state’s 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.

TOPICS: Crime/Corruption; Extended News; Government; Politics/Elections
KEYWORDS: blackkk; florida; georgezimmerman; trayvonmartin; zimmerman
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To: sickoflibs; 2ndDivisionVet; ding_dong_daddy_from_dumas; stephenjohnbanker; DoughtyOne; ...

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..

Prevent riots

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

the MSM.

21 posted on 04/12/2012 11:06:27 AM PDT by stephenjohnbanker (God, family, country, mom, apple pie, the girl next door and a Ford F250 to pull my boat.)
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To: katana

Good point, but I think you’re referring to the Jury Pool. I was referring to the judge.

22 posted on 04/12/2012 11:11:25 AM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: Hugin
The prosecutor could try to assert "malice" by claiming he used the word "coons," or try to prove "aggressive stalking" by having the girlfriend claim that Trayvon told her he was being stalked. Since there is a gap of a minute or two before Trayvon attacked Zimmerman which doesn't seem to be recorded, the prosecutor may try to make Zimmerman prove what he was doing that period to show that he wasn't "stalking" the poor unarmed kid.

"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?

23 posted on 04/12/2012 11:14:21 AM PDT by Verginius Rufus
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To: 2ndDivisionVet

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?

24 posted on 04/12/2012 11:20:22 AM PDT by M1911A1
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To: 2ndDivisionVet

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???

25 posted on 04/12/2012 11:21:01 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Cboldt

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 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.

26 posted on 04/12/2012 11:23:10 AM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: Redmen4ever

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.

Weird lady.

27 posted on 04/12/2012 11:25:32 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: M1911A1

Don’t Talk to the Police

28 posted on 04/12/2012 11:27:37 AM PDT by 2ndDivisionVet (Ich habe keinen Konig aber Gott)
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To: Verginius Rufus

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...

29 posted on 04/12/2012 11:34:35 AM PDT by Hugin ("Most time a man'll tell you his bad intentions if you listen and let yourself hear"--Open Range)
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To: 2ndDivisionVet

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.

30 posted on 04/12/2012 11:36:07 AM PDT by M1911A1
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To: for-q-clinton
They are hoping the Jury says well it wasn’t 2nd degree murder, but we have to do they compromise and give him manslaughter.

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.

31 posted on 04/12/2012 11:36:15 AM PDT by damper99
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To: M1911A1
I think we need to remember that all the “evidence” we are relying on is partial truth, rumor and conjecture. The true evidence is not yet public. Zimmerman's lawyer just stated on local news he had not seen the prosecution's information yet. And that he made the decision not to request bond at this time because Z is in protective custody in jail, and he needs to secure a safe place he can be released to when bond is granted.

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.

32 posted on 04/12/2012 11:38:56 AM PDT by Goldwater Girl
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To: Redmen4ever
"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.

One way to force a jury acquittal is to inflate the charge to one that has no hope of being proven.

33 posted on 04/12/2012 11:45:31 AM PDT by In Maryland (Liberal logic - the ultimate oxymoron!)
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To: 2ndDivisionVet

The New Nifong

34 posted on 04/12/2012 11:48:26 AM PDT by abb ("What ISN'T in the news is often more important than what IS." Ed Biersmith, 1942 -)
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To: stephenjohnbanker

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.

35 posted on 04/12/2012 11:57:46 AM PDT by sickoflibs (Obama : "I will just make insurance companies give you health care for 'free, What Mandates??' ")
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To: Joe Brower
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.

And then there will be a whole lot more Trayvons! They're outmanned and outgunned. Fish in a barrel.

36 posted on 04/12/2012 11:58:20 AM PDT by roadcat
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To: In Maryland

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.

37 posted on 04/12/2012 11:58:26 AM PDT by M1911A1
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To: sickoflibs

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.

38 posted on 04/12/2012 12:02:02 PM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: damper99

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).

39 posted on 04/12/2012 12:05:56 PM PDT by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: 2ndDivisionVet
I unfortunately started my car in the Costco parking lot with the radio tuned to WABC -- just as Geraldo was talking to Dershowitz (UGH!!) ...

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.

40 posted on 04/12/2012 12:15:36 PM PDT by Tanniker Smith (I didn't know she was a liberal when I married her.)
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