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.
Not entirely. The actual recordings of Zimmerman's 911 calls are available.
Only if you can get a Korean jury...
If the DA has her way, he'll get a North Korean jury right there in Florida, eager to please the Dear Leader in D.C.
That comment alone should see Zimmerman released due to prejudicial prosecution.
As you state, she has as much duty to find Zimmerman not-guilty, as she does to find him guilty.
Frankly I want Zimmerman to get justice, whatever is proven. If he’s found guilty legitimately, I will be glad to see it. Same goes for him being found not-guilty.
How about, “...justice for Zimmerman”, you wanker b-—h?
The 90 year old war veteran husband was beaten and his jaw broken. He was shot in the face numerous times with a BB gun and sent to the hospital in critical condition.
The 85 year old partially blind wife was RAPED and then BEATEN TO DEATH.
Can you just imagine the pain, the humiliation, the horror that dear old lady experienced being gang raped by that pack of feral animals?
(the autopsy states she was raped. Dont think all of these animals didnt all participate)
And can you imagine the pain, the horror of that dear old husband having to witness this?
Theres a lot more involved here than a home invasion and robbery.
WHERE ARE THE CHARGES OF A RACIAL HATE CRIME??
90 year old husbands jaw broken and shot in face with a BB gun numerous times?
85 wife year old semi blind wife RAPED and BEATEN to death??
Why does it take a foreign press to enlighten America as to this henious crime?
Where is the outrage?
Have they caught the rest of the gang of feral blacks who raped, tortured and murdered this elderly woman? Are they even looking? Not a word about it in the media.
You can always make a bad law worse.
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.
I agree, and the Sharpton/Jackson/black panther mob could use that to push for "stronger" hate crime laws, at least in some states.
And doing so would be crazy, but that's how we got "hate crime" laws in the first place.
Any prison sentence is likely to be a death sentence for George Zimmerman.
Very good post, but I question that part. I suspect the gov and AG were afraid that a grand jury might decide there were no grounds to indict, and were afraid of the mob reaction. So they appointed a special prosecutor to make sure there was a quick indictment to quiet things down (for now).
This is the "hate crime" photo from Zimmerman's web site:
You could be absolutely right. We have, after all, had our share of race riots in Florida. I lived through them in Miami, and it was ugly, and cost us taxpayers a fortune to rebuild their destruction.
And they could have been thinking about the segregationist history of Sanford fueling the media frenzy.
Maybe not, depending on how well Zimmerman’s defense goes. Sometimes, racially charged situations are defused by an airing of the facts and good will.
Probable cause is a lesser standard than the preponderance of the evidence standard that usually applies as to civil liability for ordinary money damages. Only a conviction of George Zimmerman will be of conclusive benefit in a civil case for damages.
I have a question, in order to claim "stand your ground" in the pretrial hearing, would Zimmerman have to take the stand? That sounds pretty risky to me.
And there is another witness who claims he saw Zimmerman strike Trayvon first.
I hadn't heard that. Do you have a source?
If I remember correctly, after OJ was acquitted, he got sued under the lesser standard of "preponderance of the evidence" and had to pay out a big chunk of money.
Sorry- had some stuff to do.
Yes, he would have to testify at the SYG hearing, and be cross-examined. The purpose of the law was to change the existing duty of a victim to flee when threatened. So a law abiding citizen now has the right to stand their ground and defend themselves if they believe their life is endangered, without fear of prosecution. It has worked successfully in many cases, and been rejected in some. Recently a fellow and his brother were ejected by a bar- reentered, started a fight with the bouncer, who attempted to eject them again, and the one man stabbed him to death. His knife was illegally concealed, and SYG was rejected because he created the situation that made him fearful for his life. So I think he is going to stand trial for manslaughter.
I heard the gentleman eyewitness on a local news show. They didn’t give any information about him, at his request, but he talked by telephone, I assume. He said the police had been honoring his wish not to be named before trial, but with all the misinformation being put out on the news, he had to come forward. Sounded like a reasonable, mature person. I’ll dig around and see if I can find a link to it, if you are interested.
If you look at the partial police report, it shows they interviewed 20+ people as “witnesses” at the scene- but no names or other identifying information. So who knows what else is out there?
Wrong witness- I went looking for the kid walking the dog witness- and see he has changed his story 3 times since I first heard it. First he saw the fight start with the man in red hitting the other one. Then he didn’t see the fight start, just saw the man in red on the ground with the other guy on top of him. Now he says it was the guy in red on top. The only thing that stayed the same is he chased his dog at that point and only heard a shot and saw nothing.
He is 13- and going on all these media programs- and certainly getting pressured unreasonably. I just saw his picture and realized he is black- so even more pressure. Doubt he will be a credible witness.
The OJ civil case generated some monetary recovery, but it was mostly about getting a civil court money damages judgment and then using collection efforts on that judgment to make OJ's life miserable. That succeeded in that the collection pressures and OJ's volatile personality led him to the kind of shady dealings that eventually put him in prison in Nevada for armed robbery and kidnapping.
The Treyvon Martin case has various potential money damages payoffs for the Martin family and their lawyers in suits against Zimmerman, against the homeowners association, and against local government officials and entities. I suspect though that the criminal case will ultimately collapse at or before trial, making any recovery for civil damages problematic at best, perhaps only for minimal value as a nuisance claims that insurers want to settle.
Even that still leaves the Martin family and their lawyers with the chance to monetize the publicity through book, merchandise, and movie and TV deals. The greatest benefit for the lawyers though is the publicity that brings in a gold rush of new clients and cases. They will find that a fleeting benefit though unless they manage the moment effectively and bring in new lawyers and staff.
Technically, he will be claiming immunity from prosecution under Florida Statute 776.032, which makes it illegal to arrest, detain, charge, or prosecute a person who has lawfully used deadly force in self defense. That question of "duty to retreat" doesn't appear in either Corey's version of events (which is the same version the mob uses), or in Zimmerman's version of events.
He does not have to take the stand. The defense has police reports of his statements after the incident, as well as eyewitnesses. It argues that this evidence results in justified use of deadly force. The state (Corey) will attempt to rebut the eyewitnesses using DeeDee's phone call. Good luck with that.
-- I hadn't heard that [there is another witness who claims he saw Zimmerman strike Trayvon first.] --
Neither had I. I think it was Zimmerman's father who said there was an eyewitness who saw the altercation from the start, but Robert Zimmerman, Sr. didn't give any more detail, that I can recall.
Now my tin foil hat theory: If he's found guilty, he'll never see the inside of a prison. They'll say they sent him to prison, but change his identity and send him off somewhere in a "witness protection" scenario.
That's an inversion. Easier to lay out the standard in the prosecution terms, all across.
beyond a reasonable doubt was NOT in self defense = guilty
The state has the burden of production and persuasion at trial. In the pretrial hearing, the defendant has the burden of production and persuasion, to a standard of "more likely than not" it WAS reasonable use of deadly force in self defense.
I implore the authorities to look at this case in a black and white manner, (bad) pun intended.
Despite what Sharpton X may say this isn’t about race or gun laws.
Corey's theory of the case comes straight from DeeDee. That's her strongest card. On the other hand, the recorded calls, the on scene eye and earwitnesses, the injuries to Zimmerman, the timeline, the AGREED point that Martin had successfully eluded Zimmerman (combined with the location of the fight) - all of that cuts in favor of Zimmerman.
This is a purely political prosecution. Corey's affidavit in support of the charge is contradicted by reliable evidence.
If Corey had stronger evidence, she would have hinted at it in the affidavit.
The affidavit explicitly states it is merely laying out the evidence giving a reason to believe.
The evidence for the reason to believe is flimsy; i.e., a time line consistent with Zimmerman’s story, involving a strained interpretation of the statement of the dispatcher (after Zimmerman had already left his vehicle) to the effect “we don’t need you to do that,” and of Zimmerman’s use of, I think, two vulgar words in the course of a four minute conversation, ending with the mother of the deceased identifying her son’t voice.
If might be possible for Zimmerman to have the case dismissed on the basis of the preponderance of the evidence merely by producing the police report. But, if it were possible. affidavits from the two eye-witnesses seeing Martin on top of him should do the trick.
The clip I heard of DeeDee seems to support Z, not Trayvon. She said that Trayvon asked Z why Z was following him and Z replied with "what are you doing here?" (Now I don't believe that she accurately relayed the actual words used, but that's another matter.)
If that's the case, it doesn't pass the smell test for Z to slug Trayvon at that point. Much more likely that Trayvon would have slugged Z in response to the question.
He does not have to take the stand. The defense has police reports of his statements after the incident, as well as eyewitnesses. (Cboldt post 72)
There seems to be some disagreement on whether George would have to testify. Maybe it would be a calculated risk on the part of the defense for him to testify. I certainly do appreciate the time and effort you both have put into this to rely on facts, not rumors or media distortions.
Cboldt might be correct, his official statement might be substituted for personal testimony. I don't recall that being done, but that doesn't mean it is prohibited.
Although if I were Zimmerman's attorney, I would not want to rely on what the prosecution and police SAY I said to them as my sole explanation to the judge. Especially after reading their interpretation of the 911 call in their probable cause affidavit.
Guess we will have to wait and see.
FWIW, I was answering whether it was mandatory for Zimmerman to take the stand in his own defense, in order to complete a motion for grant of immunity. It is mandatory that defendant produce the evidence and argument to support a motion to grant immunity under 776.032, but I don't see how it can be mandatory that the defendant be subjected to examination and cross examination in order to provide that evidence.
Under odumbi, if your white, you are incarcerated until proven guilty.
Someone needs to talk on TV about 13 percent making up 44 percent of criminals, 400,000 attacks on whites and 14,000 attacks on white women every stinking year by blacks. Someone.
Sure- that makes sense. Zimmerman’s lawyer is pretty sharp- once he is able to meet with him and see the witness statements, and the available evidence, he will advise him as to the best course of action.
Appreciate the civility in this discussion. I do hate the flame wars.
Yes, he is.
If you haven't, you should investigate the contents of an Arthur hearing. That's the bond hearing set for April 20.
The state has to prove its case at an Arthur hearing, or else defendant MUST be given bond. The standard of proof the state must meet is "proof evident or presumption [of guilt] great."
Corey will have to substantiate the charging affidavit with evidence. The evidence may be in the form of witness affidavits, but the evidence has to be stronger than the probable cause that is used to hold Zimmerman a the present moment.
“investigate the contents of an Arthur hearing.”
I did, thanks. Interesting that the burden on the state is higher than at trial. I didn’t know that. Portends well for Zimmerman.
His new lawyer did say he wasn’t going to request bond until he had secured a safe place for him to go. No small feat.
It didn't dawn on me that the state had to put on some sort of "proof of the case" at an Arthur hearing. This is a substantive affair that demands a view of the state's evidence for all elements of the charged offense.
As for the burden of proof, I too see the "higher that beyond a reasonable doubt" remarks, but think that is misleading. The court will view the state's evidence in the best light, unimpeached, etc. Although defense can point out contradictions within the state's own evidence, putting any contention in doubt due to the contradictions. Which version, your honor, does the state choose to be presumed true?
Also, the rules of evidence don't apply as they would at trial. For example, inadmissible hearsay testimony can be part of the state's proof in an Arthur hearing. The defendant can challenge the credibility of the evidence, but it can't have it discarded entirely, as it might be able to do at trial.
One other point - the judge's decision is appealable.
FWIW- hubby is the lawyer in the family- he says the burden on prosecution at an Arthur hearing is “proof evident, presumption of guilt great” which is higher than trial “beyond a reasonable doubt.”
The state’s case has quite a few holes- if the defense has the time and money to muster adequate rebuttal. I think the boy’s mother allegation that the voice crying for help is her son shouldn’t be permitted without some kind of independent proof. Or maybe the witness who SAW Zimmerman being assaulted and crying for help is enough.
I am hopeful...sort of. Mainly because we don’t know what all the evidence is that they based their charges. But I do have faith in the system working.
It's higher, but the two standards are in the alternative, and the state's evidence is put on via affidavit with no opportunity for cross examination. If the state puts up crap evidence (low credibility), the defense has to argue/explain why that evidence is not helpful to the state.
-- The state's case has quite a few holes --
That's an understatement. The depraved mind, for murder, for one thing. I don;t know what the state is going to offer for evidence to prove that, and if there is an absence of depraved mind, the charge is gone.
Same with all of the evidence that supports self defense - that goes to undercut the charge of murder; but it'll be up to defense to produce that evidence and argue how it undercuts the state's charge.
On voice crying, if the state can use Trayvon's mother, then the defense can use Zimmerman's father, brother, and friend - all of whom are willing to testify under oath that the voice is George's. Now, with a tie, turn to the third party eyewitness who saw George on the bottom, screaming for help.
-- I am hopeful...sort of. Mainly because we don't know what all the evidence is that they based their charges. --
I think we've seen it all. If they had more, it would appear in the information and supporting affidavit. The state's core witness is DeeDee (g.f. who called Trayvon), with mom bringing up a secondary role in establishing that Trayvon was yelling for help.
-- But I do have faith in the system working. --
I don't. The prosecutor shows that the system is rigged. In Bush v. Gore, I saw that even the highest court in the state can pull "rigged" with a straight face. Once a case turns front page news, the system becomes outcome driven, not fact and law driven. The players will deny that - but watch what they do, not what they say.