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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: Goldwater Girl
-- Haha! I am sure there will be a lot more differences of opinion before we see the final at of this farce. --

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.

81 posted on 04/13/2012 3:04:29 PM PDT by Cboldt
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To: Bushbacker1

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.

82 posted on 04/13/2012 6:49:06 PM PDT by TomasUSMC ( FIGHT LIKE WW2, FINISH LIKE WW2. FIGHT LIKE NAM, FINISH LIKE NAM)
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To: Cboldt

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.

83 posted on 04/13/2012 8:47:53 PM PDT by Goldwater Girl
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To: Goldwater Girl
-- Zimmerman's lawyer is pretty sharp --

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.

84 posted on 04/14/2012 2:36:58 AM PDT by Cboldt
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To: Cboldt

“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.

85 posted on 04/14/2012 12:44:41 PM PDT by Goldwater Girl
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To: Goldwater Girl
-- Interesting that the burden on the state is higher than at trial. I didn't know that. Portends well for Zimmerman. --

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.

86 posted on 04/14/2012 1:06:26 PM PDT by Cboldt
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To: Cboldt

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.

87 posted on 04/14/2012 3:25:55 PM PDT by Goldwater Girl
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To: Goldwater Girl
-- 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." --

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.

88 posted on 04/14/2012 4:34:55 PM PDT by Cboldt
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To: Joe Brower

Martial law???

89 posted on 04/17/2012 10:03:47 AM PDT by danamco (-)
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