Has Zimmerman Waived His Right to a Pre-Trial "Stand-Your-Gr

[Andrew Branca]

I realize the George Zimmerman/Trayvon Martin case is in Florida, and this (obviously) is a ---------forum, but I've seen a tsunami of headlines by the mainstream media this past week about how George Zimmerman has allegedly waived his right to a pre-trial "Stand-Your-Ground" hearing, and speculation on their part that this is yet "another" sign of how desperately week his self defense case is.

As usual, the mainstream media have it completely wrong, on every count.

First, Zimmerman didn't waive anything, he simply let a tentatively assigned date for the hearing go, so the court knew it could use that date for other purposes. He's still free to make a motion for the pre-trial hearing at a later date (subject, as always, to the judge's discretion, but Judge Nelson in the video I've seen certainly seems favorably inclined to such a motion). The actual trial isn't scheduled to begin until June 10. (In the same video one case see the prosecution flailing desperately to have the record reflect some kind of "waiver" by Zimmerman on the issue, but the judge clearly shuts that down.)

Second, the prosecution doesn't seem to really know what it's talking about. Although they refer to the pre-trial hearing as a "Stand-Your-Ground" hearing, there is no such thing under Florida law. Instead, the pre-trial hearing is to ascertain whether Zimmerman qualifies under Florida's self-defense immunity statute. If he does, the charges against him would be immediately dismissed (and, incidentally, he would be immunized against civil claims, as well). When the prosecution can't keep its statutes and pre-trial hearings straight, it doesn't exactly make me think they've got the upper hand on the defense.

Third, there are good strategic reasons why the defense might wish to delay the pre-trial hearing or even to wait until the actual trial to make a motion for self defense immunity, so any such delay or even a "waiver" of the pre-trial hearing does not mean the defense is necessarily weak. For example, it's pretty common knowledge that the prosecution has been "slow-rolling" the defense on discovery matters, and when that's the case it's usually in the best interests of the defense to delay as long as possible, so that they can collect as much discovery as possible, before the "shooting" part of the legal battle begins.

Anyway, I was just completely astonished at how badly the mainstream media had read this thing (although I know I shouldn't have been, it's not like they get much else right, and they want Zimmerman to be found guilty so bad they can taste it), and I thought it might be worthwhile to throw in some informed two-cents, for those who are interested.

For those interested in the legal details backing up everything I've stated above, feel free to take a look at my blog entry on it, which includes all relevant cases and statutes, and even some video of the judge smacking down the prosecution. I'd be happy to provide a link to that blog post, but I'm not sure if doing so would violate any of the forum's rules (guidance on that would be appreciated). If anyone would like the link, just drop me a PM.

Andrew

 

[04ctd]

eh, this gun forum is hacked every other day by the Chinese, so not sure rules matter.

you presented some good thinking points.

I agree with your perceiving that waiting and going in, on the "shooting part of the legal battle" court date is better than providing data/facts now, and having them lose thier impact over time.

I don't think the media has much intelligence anymore. and you can't which media outlet is true or lies, or has some other hidden agenda.

 

[Andrew Branca]

eh, this gun forum is hacked every other day by the Chinese, so not sure rules matter.

Well, I'm erring on the side of caution. I was instantly banned by another NC forum, I suspect because I had a single link in my post (the link back to my more detailed blog post).

And I try to be such a gregarious fellow.

you presented some good thinking points.

Thanks, much appreciated.

. . . or has some other hidden agenda.

This.

 

[PANZER22]

I will get flamed for my opinion on this, but it is only just an opinion and of no real consequence............................Zimmerman was directed to stop following and allow police to take care of the incident...He chose to continue and the end result was a fatality.....To me, this makes those of us that use our possession of firearms wisely look bad.....I really don't care what they do with him as long as the end result does not reflect badly on responsible gun owners.

 

[Andrew Branca]

Zimmerman was directed to stop following and allow police to take care of the incident...He chose to continue and the end result was a fatality.....

No flaming from me, just legal reason.

The whole narrative of Zimmerman's following of Martin triggering the fatal confrontation is, I'm afraid, a result of disinformation propagated by the mainstream media. Indeed, the evidence indicates that when the dispatcher suggested to Zimmerman that they didn't need him to follow Martin, Zimmerman responded "OK", and began returning to his truck.

In any case, if two people are both in a place where they have the right to be, merely observing/following someone can never be legally adequate provocation for the person being observed/followed to launch a deadly attack on the other (and Martin's attack upon Zimmerman--beating him to the ground, and continuing to beat him in the face and head, against a concrete sidewalk--clearly qualified as force able to cause death or grave bodily harm). Further, there is no evidence whatever that Zimmerman committed any other act that would be legally adequate provocation for Martin's deadly attack upon him. Merely observing/following someone doesn't come close to Florida's requirement that one be in fear of death or grave bodily harm, or be preventing a forcible felony (or some additional "defense of home" conditions that don't apply here), before resorting to the use of deadly force against another person:

776.012?Use of force in defense of person.?A person is justified in . . . the use of deadly force . . . if:
(1)?He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
. . .

[If anyone thinks I might have misleadingly snipped the statute, it can be read in its entirety here: http://bit.ly/XDlfaS ]

If Martin's deadly attack was not the result of legally adequate provocation, then it was an unlawful deadly attack, and Zimmerman was fully entitled under Florida law to use deadly force to defend himself.

But let's assume, for discussion's sake, that there WAS evidence of legally adequate provocation by Zimmerman, whether it was merely observing/following Martin or some other act on Zimmerman's part. Under Florida law it is true that one who provokes a fight cannot normally later rely on self defense to justify his use of force in that fight. But there is an important exception that allows the "provoker" to regain their right to use force in self defense, and it fits this case perfectly:

776.041?Use of force by aggressor.?The justification [of self defense] described in the preceding sections of this chapter is not available to a person who:
(1)?. . .
(2)?Initially provokes the use of force against himself or herself, unless:
(a)?Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b)?. . .

[If anyone thinks I might have misleadingly snipped the statute, it can be read in its entirety here: http://bit.ly/YT8Jmo ]

Martin's attack would clearly make a reasonable person believe that they were in imminent danger of death or great bodily harm, and with the younger and more fit Martin astride him and pummeling his head into a concrete sidewalk there was no reasonable means for Zimmerman to escape the beating without his use of deadly force in self defense.

In summary: (1) There is no evidence that Zimmerman did anything that would provide legally adequate justification for Martin's attack upon him; and (2) even if Zimmerman HAD done so, the intensity of Martin's attack upon him and the lack of a reasonable means of retreat provided legal justification for Zimmerman's use of deadly force in self defense.

 

[Dave29461]

You may want to put your link in the expert exchange. If you specialize in 2A law you may get consulting questions. This is a friendly forum and the Mods are good about keeping us on task. Keep it friendly and you can feel right at home, even if you are from up THERE. Right Raver?

 

[Andrew Branca]

You may want to put your link in the expert exchange. If you specialize in 2A law you may get consulting questions.

Thanks for the tip, I was not aware of an "expert exchange".

As a practical matter, though, I'm not licensed to practice law in SC (or FL, for that matter, or anyplace other than MA), so really anything I have to say/write is just my personal (non-professional) opinion and solely for entertainment purposes. Also, my real focus is not so much on Second Amendment law (although I am pretty much a 2nd Amendment absolutist, and I think Heller was merely a baby step in the right direction), but on self defense law (hence the username).

Nevertheless, I'll check out the expert exchange, as you suggest, thanks again.

Best,

Andrew

 

[LiveFreeorDie]

Zimmerman's counsel made a strategic decision not to pursue the "Stand your ground" ruling because that process requires an affirmative defense where the burden of proof falls onto Zimmerman. In the actual trial, the burden of proof rests with the prosecution who has to prove the case. Self-defense in trial is also an affirmative defense that Zimmerman will have to put forth but the apartment witness and Zimmerman's injuries are probably sufficient. The only "witness" having Zimmerman continuing to follow Martin after the police told him to cease and desist was Martin's girlfriend, who has since been caught lying under oath about attending his funeral.

It will all depend on jury selection. Expect more riots if he's acquitted. Just sayin'

 

[Andrew Branca]

Zimmerman's counsel made a strategic decision not to pursue the "Stand your ground" ruling because that process requires an affirmative defense where the burden of proof falls onto Zimmerman. In the actual trial, the burden of proof rests with the prosecution who has to prove the case. Self-defense in trial is also an affirmative defense that Zimmerman will have to put forth but the apartment witness and Zimmerman's injuries are probably sufficient. The only "witness" having Zimmerman continuing to follow Martin after the police told him to cease and desist was Martin's girlfriend, who has since been caught lying under oath about attending his funeral.

It will all depend on jury selection. Expect more riots if he's acquitted. Just sayin'

Perhaps I can provide some additional detail on the legal framework and the difference between the pre-trial hearing and the process at trial, for those who are interested

We've all heard of the burden of proof. That's actually not one thing, but two things: the burden of production and the burden of persuasion.

The burden of production merely means producing enough evidence to make some legal issue or defense relevant to the case, and therefore admissible in court--in this case, self defense. It's an easy burden to bear, and although the defense bears the burden of production for self defense both at pre-trial and at trial, it shouldn't cause them any difficulties. Pretty much even a very small amount of evidence is sufficient, even if that small amount is contradicted by a much larger amount.

The burden of persuasion means whose responsibility is it to prove a claim is, or isn't, "true". In the pre-trial hearing, the burden of persuasion is on the defense, whereas in the trial the burden of persuasion is on the prosecution.

Finally, once the burden of proof is squared away, there is the standard of proof, which is a measure of how much evidence is required before one has met their burden of persuasion. At pre-trial, where the defense bears the burden of persuasion, the standard of proof is a preponderance of the evidence (think of it as 50.1%)--any less than that, and the defense loses. At trial, where the prosecution bears the burden of persuasion, the standard of proof is beyond a reasonable doubt, a much higher standard than a preponderance of the evidence--any less than that and the prosecution loses.

So, at the pre-trial immunity hearing, the defense has to persuade the fact-finder (in that setting, the judge deciding alone) that Zimmerman acted in self defense, by a preponderance of the evidence.

At trial, the prosecution has to persuade the fact-finder (in that setting, every one of the 12 jurors) that Zimmerman did NOT act in self defense, beyond a reasonable doubt.

Andrew

 

[11B3XCIB]

Expect more riots if he's acquitted. Just sayin'

And this is the reason I think he's going to get found guilty, regardless of what really happened.


"They" have already pushed the decision in the direction "they" want it to go: Martin's current age picture was never released (I never saw one until months after), just a several year younger photo that made him look like a 2nd grader (even though he was 6' / 160lbs) and Zimmerman's bloody-back-of-the-cruiser photo didn't come out for months. The Justice Department, the FBI, and the State of Florida were all scrounging for the slightest ounce of foul play, whether it was civil rights violations, a bad shoot, SOMETHING. Anything to prevent another LA race riot on a national scale.

 

[Midnight Raver]

You may want to put your link in the expert exchange. If you specialize in 2A law you may get consulting questions. This is a friendly forum and the Mods are good about keeping us on task. Keep it friendly and you can feel right at home, even if you are from up THERE. Right Raver?

Hey, it's not my fault I was born behind enemy lines.

:lol:

 

[armaborealis]

I think OP is spot on. Zimmerman has a competent legal team.

Expect more riots if he's acquitted. Just sayin'

All the information needed for a forum member to purchase armor, get a quality fighting rifle, and attend training is available on these boards. Combine that with $1K emergency cash and you should be able to convoy out of the riot zone with your neighbors and stay at a nice holiday inn somewhere until the National Guard crams the rioters back into Section 8.

History may not repeat itself but it often rhymes.