Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Will jury, or judge, decide George Zimmerman's fate?
Orlando Sentinal ^ | June 10, 2012 | Jeff Weiner

Posted on 06/11/2012 8:37:12 AM PDT by Aunt Polgara

The nation's fixation on the shooting death of 17-year-old Trayvon Martin has led many to question whether an impartial jury could be found for the trial of his killer, George Zimmerman.

But it's possible a judge, not a jury, will decide Zimmerman's fate. He says he fired in self-defense, and many expect his lawyers will eventually ask for an immunity hearing under Florida's controversial "stand your ground" law.

Often described as a "minitrial" in which the burden of proof is on the defense and the judge serves as jury, such hearings are unlike other criminal-justice proceedings.

The lawyers' roles are reversed, the burden of proof is low, and the stakes couldn't be higher.

"If the judge dismisses the case, it's game over," says Eric Schwartzreich, a Fort Lauderdale attorney who has represented multiple "stand your ground" defendants since the law was passed in 2005.

Since the Trayvon Martin shooting, the law has been the subject of renewed debate. A task force created by Gov. Rick Scott to re-examine "stand your ground" will hold its first public meeting this week.

The law allows civilians to use deadly force anywhere they're legally allowed to be, so long as they are not committing a crime and have a reasonable fear of death or serious injury.

Even if immunity from prosecution isn't granted, the hearings can have value for defense lawyers, Schwartzreich said. They can test their theories, their witnesses — and often, their client — in a courtroom.

(Excerpt) Read more at articles.orlandosentinel.com ...


TOPICS: Crime/Corruption; News/Current Events
KEYWORDS: banglist; georgezimmerman; trayvon; trayvonmartin; zimmerman
Navigation: use the links below to view more comments.
first 1-5051-57 next last

1 posted on 06/11/2012 8:37:24 AM PDT by Aunt Polgara
[ Post Reply | Private Reply | View Replies]

To: Aunt Polgara

SYG does not apply in this case. Nobody who understands that law believes it does.


2 posted on 06/11/2012 8:41:25 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Aunt Polgara

Perhaps anothewr reason why the thogocracy will have a contract deliver on George while in custody?


3 posted on 06/11/2012 8:42:02 AM PDT by MHGinTN (Being deceived can be cured.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Aunt Polgara

Perhaps anothewr reason why the thogocracy will have a contract delivered on George while in custody?


4 posted on 06/11/2012 8:42:20 AM PDT by MHGinTN (Being deceived can be cured.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Aunt Polgara

Unfortunately this judge is no way going to even consider letting George walk on Stand Your Ground.

He will put on a charade as if he is considering it, but he will in no way do so, and for all the wrong reasons.

I hope/pray to be proven wrong!! Please Lord may I be wrong


5 posted on 06/11/2012 8:43:03 AM PDT by Friendofgeorge (SARAH PALIN 2012 OR BUST)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Aunt Polgara
Zimmerman should demand a jury trial and his lawyer should point out in clear terms just how dangerous it could be for a person to serve on that jury (because of public anger) and should,therefore,demand that the jurors be allowed to be anonymous.They sometimes do that in Mafia trials because the defendant might “reach out” to one or more jurors (offering them “silver or lead”) but in *this* case it's the *public* that the jurors might fear,not the defendant.
6 posted on 06/11/2012 8:43:24 AM PDT by Gay State Conservative (Bill Ayers Was *Not* "Just Some Guy In The Neighborhood")
[ Post Reply | Private Reply | To 1 | View Replies]

To: cuban leaf

Why not?


7 posted on 06/11/2012 8:43:51 AM PDT by Jack Hydrazine (It's the end of the world as we know it and I feel fine!)
[ Post Reply | Private Reply | To 2 | View Replies]

To: cuban leaf

HORSE HOCKEY! However I believe the judge will decide against George, but only for political unethical reasons.

The legal Scholars I listen to believe George has a great case for stand your ground!


8 posted on 06/11/2012 8:46:10 AM PDT by Friendofgeorge (SARAH PALIN 2012 OR BUST)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Friendofgeorge
Unfortunately this judge is no way going to even consider letting George walk on Stand Your Ground.

It would take enormous courage...courage that,IMO,99% of Americans lack (me included)...for a judge to dismiss the charges.Even though a judge might be inclined to do so ordinarily,it won't happen *here*.

9 posted on 06/11/2012 8:47:04 AM PDT by Gay State Conservative (Bill Ayers Was *Not* "Just Some Guy In The Neighborhood")
[ Post Reply | Private Reply | To 5 | View Replies]

To: Gay State Conservative

The scary part about a jury in a political case is that quite often the outcome is determined after jury selection, even before the evidence is heard.


10 posted on 06/11/2012 8:48:46 AM PDT by Friendofgeorge (SARAH PALIN 2012 OR BUST)
[ Post Reply | Private Reply | To 6 | View Replies]

To: Aunt Polgara
Wonder how many of the president's “sons” have been murdered in Detroit, Chicago, New Orleans and LA since this incident?

Black “leaders” and the media don't give a crap about Trayvon or any other young black being murdered. They and the president have the same policy...shame and punish white American. They're doing it culturally and economically.

11 posted on 06/11/2012 8:51:21 AM PDT by ryan71
[ Post Reply | Private Reply | To 1 | View Replies]

To: cuban leaf

The only people who bring it up are those who want to repeal it. It hasn’t been claimed nor has it been even suggested by anyone other than those who would have it destroyed. The Left doesn’t like it so the MSM trumpets their cause like obedient servants...............


12 posted on 06/11/2012 8:53:55 AM PDT by Red Badger (Think logically. Act normally.................)
[ Post Reply | Private Reply | To 2 | View Replies]

To: cuban leaf
SYG does not apply in this case. Nobody who understands that law believes it does.

The SYG law, in addition to "stand your ground," created the opportunity to have a self-defense hearing ahead of the trial, rather than forcing the crime victim to go through the agony and expense of a trial in order to prove self-defense. This is what they're talking about - they're using SYG as shorthand, in effect.

13 posted on 06/11/2012 8:54:26 AM PDT by mvpel (Michael Pelletier)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Friendofgeorge
The scary part about a jury in a political case is that quite often the outcome is determined after jury selection, even before the evidence is heard.

Jury selection will determine the outcome.The prosecution will want a jury that has a collective IQ equal to,or below,that of the infamous OJ jury.The defense will want just the opposite.If either side strikes out during jury selection the other side will win.If both sides do their job well a hung jury is the only conceivable outcome.

14 posted on 06/11/2012 8:59:27 AM PDT by Gay State Conservative (Bill Ayers Was *Not* "Just Some Guy In The Neighborhood")
[ Post Reply | Private Reply | To 10 | View Replies]

To: Aunt Polgara

In this case it wouldn’t help. A dismissal on SYG would most likely result in Zimmerman facing Federal Civil Rights charges. Unless the hearing is postponed to 2013, and Romney wins the election.


15 posted on 06/11/2012 9:24:00 AM PDT by I Shall Endure
[ Post Reply | Private Reply | To 1 | View Replies]

To: mvpel

Thanks for pointing this out.

Such a hearing is applicable to any claim of self-defense, not just one based specifically on the SYG law.


16 posted on 06/11/2012 9:29:24 AM PDT by Sherman Logan
[ Post Reply | Private Reply | To 13 | View Replies]

To: cuban leaf

Glad to know that.
I can pin you down and proceed to bash your brains out.

I require you to lay there and take it.
Don’t hurt me.......


17 posted on 06/11/2012 9:30:37 AM PDT by LFOD (Formerly - Iraq, Afgahnistan - back home in Dixie.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Aunt Polgara

If the judge rules it was self-defense, can the State appeal this decision, or is it game over?


18 posted on 06/11/2012 9:31:00 AM PDT by Sherman Logan
[ Post Reply | Private Reply | To 1 | View Replies]

To: Jack Hydrazine

“why not?”

Zimmermans case is straightforward self-defense. Florida’s SYG law has nothing to do with what happened, and using it makes a simple case complicated.


19 posted on 06/11/2012 9:43:25 AM PDT by Jim Noble
[ Post Reply | Private Reply | To 7 | View Replies]

To: Aunt Polgara
Will jury, or judge, decide George Zimmerman's fate?

Neither.

The unwashed mob, the MSM, the White Hut, the hags on "The View", and the race industry have already decided for us.

They know what's best for you. Don't forget your place, cracker.

20 posted on 06/11/2012 10:00:06 AM PDT by Old Sarge (RIP FReeper Skyraider (1930-2011) - You Are Missed)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Aunt Polgara

Will the judge who decides this be the same one who revoked Zimmerman’s bond in order to placate Crump, or will there be a judge who hasn’t already tipped his hand?


21 posted on 06/11/2012 10:01:06 AM PDT by Verginius Rufus
[ Post Reply | Private Reply | To 1 | View Replies]

To: cuban leaf
SYG does not apply in this case. Nobody who understands that law believes it does.

You're saying that SYG isn't NECESSARY to defend Zimmerman's actions if his story is correct, but would it not still apply in the sense that it could short circuit a full trial and also provide a civil liability shield (if FLA's SYG has that feature)?

22 posted on 06/11/2012 10:05:48 AM PDT by Still Thinking (Freedom is NOT a loophole!)
[ Post Reply | Private Reply | To 2 | View Replies]

To: LFOD

Glad to know that.
I can pin you down and proceed to bash your brains out.

I require you to lay there and take it.
Don’t hurt me.......


The reason it doesn’t apply is because it requires that you have the option to leave, but the law says you don’t have to.

In Zimmerman’s case he did not have that option. He was being held down and beaten. That means that simple (and very old) self defense standards applied. He would have been every bit as much within his right do defend himself BEFORE the SYG law was passed for the simple reason that it does not apply in this case.


23 posted on 06/11/2012 10:06:29 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 17 | View Replies]

To: Still Thinking

You’re saying that SYG isn’t NECESSARY to defend Zimmerman’s actions if his story is correct, but would it not still apply in the sense that it could short circuit a full trial and also provide a civil liability shield (if FLA’s SYG has that feature)?


That I don’t know. But I’m so black and white on how I interpret the law that since Zimmerman did not have the option to flee, and SYG’s whole premise is that you do not have to flee if you have the option, that I don’t see its relevance here. The question being asked by the charges is did he commit 2nd degree murder or was it self defense. SYG would only apply if the two men were not already physically engaged.

I also believe that SYG could only be used as a defense if the two men were already engaged physically. The whole SYG thing gets messy at that point because, assuming words alone are not legally considered enough of a threat, when does SYG permit a man with a gun to shoot a man without a gun?


24 posted on 06/11/2012 10:12:05 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 22 | View Replies]

To: cuban leaf

Your ignorance, so clearly displayed is embarrassing. Any attempt to explain the law would obviously be futile. Did you even read the article? Its not a bad summary of an SYG IMMUNITY hearing.

Just in case you’re actually interested in facts see FL Stats. 776.032 then check FindLaw for the appellate case Peterson vs. State of Florida which established the SYG trial procedures later affirmed by the FL S.Ct.

Too taxing? Google “How to boil water”, master that then get back to me and we’ll proceed with tougher concepts. Sheesh!


25 posted on 06/11/2012 10:18:25 AM PDT by Tunehead54 (Nothing funny here ;-)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Tunehead54

—Your ignorance, so clearly displayed is embarrassing.—

Yeah. I don’t live in Florida, but I’ve read the law, read the law’s author’s interpretation of the law and why It does not apply here, and read plenty of other articles about the practical application and its purpose as well as existing “self defense” legal protection.

Regarding the SYG immunity hearing, I’m very ignorant, I admit. But I’m not embarrassed. It’s not my job to know. What I am trying to deal with is the law as written and the meaning of English words and how they apply to this case.

Your superiority complex could be dialed down a bit though. Adults don’t talk that way. At least, not at first utterance. Get to know me. See if I may not be who you perceive me to be after reading only a few of my posts. IOW, be slow to anger. ;-)


26 posted on 06/11/2012 10:25:08 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 25 | View Replies]

To: Tunehead54

BTW, these two contradictory parts of the article are comical. First this:


If the burden is so low, why aren’t more cases tossed? Attorneys say the law is unevenly applied, and some judges prefer to let a jury decide the case.

“There are some judges that don’t want to stick their foot out there and say the buck stops here,” Cobbin said.


Followed by this heading:

Credibility is key

The REAL key is hidden in the first quote from the article and applies to this case specifically: What judge is going to risk his, and his family’s life and limb giving Zimmerman immunity even if he DOES righteously deserve it? :-P


27 posted on 06/11/2012 10:34:16 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 25 | View Replies]

To: Tunehead54; cuban leaf
Now, now, children. Quit bickering. :-)

Stand Your Ground is just one provision of the FL self-defense law. Since GZ was pinned to the ground, that part of the law obviously doesn't apply to him.

There are two other parts of that law that are critical to GZ.

1)FL’s self defense law gives GZ the option of asking for an immunity hearing before a judge in which he only needs to prevail by a preponderance of the evidence (not proof beyond a reasonable doubt). If GZ wins at the hearing, he doesn't have to go through a full blown trial.

2)If GZ wins the immunity hearing it makes him (and his condo assoc., etc.) immune from civil suits brought by TM’s family. If he is found not guilty after a trial, Trayvon’s family could still go after him in a civil suit.

If he loses the immunity hearing, he can still claim self-defense at a trial.

The downside to asking for an immunity hearing is that each side will have insight into the trial strategy of the other and witness statements will be set in stone.

Do I think Judge Lester has the guts to free George in an immunity hearing? I would have said possibly yes, but after his hissy fit at the second bond hearing, I have changed my mind. I believe that he violated George's due process rights by allowing the prosecution to file a motion to revoke bail at a hearing that was scheduled for media access to the discovery and not allowing MOM to have time to prepare for the motion or to get GZ to the hearing. IM(never to be)HO, it was unconscionable for the judge to force MOM to defend against the motion on the fly.

Do I think that people with an agenda are using the SYG meme to attack citizens’ rights to self-defense? Absolutely yes!

28 posted on 06/11/2012 11:28:58 AM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 26 | View Replies]

To: Verginius Rufus

>>Will the judge who decides this be the same one who revoked Zimmerman’s bond in order to placate Crump, or will there be a judge who hasn’t already tipped his hand?<<

Generally, it would be the same judge unless MOM files to have him removed from the case, which would probably be a risky thing to do in case the judge refuses, or if the new judge is worse. The first judge on the case seemed to me to be too inexperienced for a case like this.

At least Judge Lester seems to have a generally good working relationship with O’Mara even though I think he really, really blew it with revoking GZ’s bond, especially considering that the motion by the prosecution deceptively edited Shellie Zimmerman’s testimony as shown here: http://www.youtube.com/watch?v=MpzBX9Q56Ws


29 posted on 06/11/2012 11:37:03 AM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 21 | View Replies]

To: Sherman Logan

>>If the judge rules it was self-defense, can the State appeal this decision, or is it game over?<<

I believe it is game over at the state level, but who knows what the feds might do... probably depends on who the attorney general is when the time comes.


30 posted on 06/11/2012 11:39:12 AM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 18 | View Replies]

To: Sherman Logan

Regardless of which way the “Dennis hearing” goes, the case can be appealed. A “Dennis hearing” is the term used for a Florida self-defense claim, when the defendant asserts he is immune from prosecution under Florida statute 776.032. The judge must take evidence and weigh it, and decide if the evidence supports a conclusion that “more likely than not” it was self defense.


31 posted on 06/11/2012 11:41:38 AM PDT by Cboldt
[ Post Reply | Private Reply | To 18 | View Replies]

To: Aunt Polgara

Thanks Auntie Pol. :-)

You and I are in agreement regarding your opinions. I did not know about the nuances you mentioned regarding the immunity hearing.

As I mentioned before, I’m not all that familiar with how it works and applies. The civil suit angle is very interesting.


32 posted on 06/11/2012 11:44:21 AM PDT by cuban leaf (Were doomed! Details at eleven.)
[ Post Reply | Private Reply | To 28 | View Replies]

To: Aunt Polgara
-- The downside to asking for an immunity hearing is that each side will have insight into the trial strategy of the other and witness statements will be set in stone. --

I think that downside works in the general sense, especially when the evidence is equivocal or defendant really didn't act in self defense. In this case, the evidence is so strongly in Zimmerman's favor - or better said, the evidence against his account is from unreliable witnesses (DeeDee and Sybrina) whose accounts are contradicted by on-scene eyewitnesses.

I don't see much in the way of harm to trial strategy. Zimmerman is going to tell the same story he told SPD. Twice if Judge Lester can't figure out or won't say which witnesses are more credible/reliable.

33 posted on 06/11/2012 11:49:30 AM PDT by Cboldt
[ Post Reply | Private Reply | To 28 | View Replies]

To: Cboldt
>>Regardless of which way the “Dennis hearing” goes, the case can be appealed.<<

Thanks, Cboldt, for your expert opinion. Doesn't sound right to me, but I do believe you. In a trial, once you are found “not guilty,” it's over. Should be the same with the Dennis hearing, don't you think?

If the Dennis hearing is appealed, would they postpone the trial until it is over? GZ could be an old man by the time this is all over.

34 posted on 06/11/2012 11:50:42 AM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 31 | View Replies]

To: Aunt Polgara
So then in a sense SYG is a trial before the trial.

Having revoked bail for Zimmerman I doubt that Judge Lester will assign much weight to anything he says, even though he took a lie detector test when he gave his statement to the police and passed it.

Let's see if the judge assigns any weight to the prosecution's witnesses who themselves have serious credibility problems at this point. Sybrina and DeeDee will collapse under cross-examination.

Let's see how much weight he assigns to the witnesses that back up that forensic evidence and favor Zimmerman. Actually this evidence, together with his statement that night, is enough to acquit him without him having to take the witness stand in front of a judge that has already prejudged his credibility.

To date the prosecution has no evidence to back up their case, except that the defendant misled the judge at his bailbond hearing -- and that is no evidence at all.

35 posted on 06/11/2012 11:52:05 AM PDT by Uncle Chip
[ Post Reply | Private Reply | To 1 | View Replies]

To: cuban leaf

Since you politely responded I’ll elaborate but in bullet point fashion as time is short.

Your post: “SYG does not apply in this case. Nobody who understands that law believes it does.”

No ifs, and or buts. Sorry but you invited a hit with that unsupported and imperious two line pronouncement.

SYG is actually an extension of pre-1995 self-defense law designed to assist a person forced to defend themselves against imminent death or serious bodily harm.

Re applicability: The law simply states that if you are lawfully in a place and face death or serious harm you may meet force with force which has always been true under common law but it changed the treatment of the defense.

The SYG law creates an IMMUNITY from arrest, prosecution or civil liability IF you establish that your actions were valid self-defense.

The immunity from arrest can be overcome by police determining probable cause that your right to self defense
was inapplicable because of other unlawful activity.

The SYG hearing for dismissal of charges was actually a creation of the courts simply trying to meet the immunity from prosecution provision of the law. If I’m immune from arrest or prosecution why are you taking me to trial?

Rarely is legislation the product of a single author and even the author often cannot foresee the application of his law in practice.

Perhaps of interest, the original bill provided that a court finding of valid self defense would allow for the defendant to recover attorney’s fees and costs from the charging authority (cops/state attorney) but that part got edited out.

Where you say the bill author thought the SYG inapplicable its unclear to what extent he was relying on the media distortions or even to what extent the media distorted/edited/misreported his statements. Not out of the realm of possibilities. ;-)

Judges, not all but many, regularly make their decisions based on the law, the arguments, the evidence and would be offended to be accused of caving to public opinion.

In the GZ case, with the incredible media and interest group pressure, the intent and correct application of the law may in fact become a victim.

I don’t know what happened in this case. I’ve read quite a bit and have an idea that GZ should be found to have acted in self defense.

Lastly, rarely mentioned, is that in an SYG hearing the judge is both the trier of fact and law.

Prior to SYG, if any question of fact was present (which would invariably be the case) the motion to dismiss would be denied and it was off to trial for the defendant.

Hope this helps. ;-)


36 posted on 06/11/2012 11:57:49 AM PDT by Tunehead54 (Nothing funny here ;-)
[ Post Reply | Private Reply | To 26 | View Replies]

To: Aunt Polgara
2)If GZ wins the immunity hearing it makes him (and his condo assoc., etc.) immune from civil suits brought by TM’s family. If he is found not guilty after a trial, Trayvon’s family could still go after him in a civil suit.

So then that's why the Trayvonistas and their legal community are so opposed to SYG -- it hits them in the civil litigation wallet.

37 posted on 06/11/2012 12:04:09 PM PDT by Uncle Chip
[ Post Reply | Private Reply | To 28 | View Replies]

To: Aunt Polgara

I think it is a given that if Obama is president when the state case disintegrates (if it does), then federal charges will be filed.


38 posted on 06/11/2012 12:08:08 PM PDT by Sherman Logan
[ Post Reply | Private Reply | To 30 | View Replies]

To: Jack Hydrazine; Jim Noble; Sherman Logan; mvpel
Oops - meant to include y'all in my response to Cuban Leaf - just FYI ... ;-)
39 posted on 06/11/2012 12:13:58 PM PDT by Tunehead54 (Nothing funny here ;-)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Aunt Polgara
-- In a trial, once you are found "not guilty," it's over. --

In a trial, once you are found innocent by a jury, it is only (almost) over. If found guilty, defendant has an absolute right to an appeal, period, so a finding of guilt by a jury is not automatically "the end." Defendant has a time certain within which to appeal, and after that time runs, it is over.

Generally, defendant can't argue that the jury misread the evidence, but they can cite errors of law such as unqualified experts, evidence that should have been suppressed, etc.

If it is impossible to reach the trial result on the evidence, the trial result can be overturned as "clear error." But for that to happen, there must be an absence of evidence on some critical point, and by absence, I mean to include that which can be inferred from direct evidence, as well as the direct evidence.

The reason Zimmerman can appeal an adverse finding at the Dennis hearing is an artifact of the law - immunity from trial is meaningless if he has to stand trial in order to get a right to appeal. BTW, I see you asked about the remedy for Zimmerman being jailed on account of what Lester took as Shellie's lies and Zimmerman's silence. There is no remedy, as far as I can see. The time to protest is immediately after the decision, because once June 29th rolls around and Zimmerman is freed or given bail, the issue is moot. Judges have absolute immunity, short of taking bribes to throw cases. Even if Lester's order is clear error, Zimmerman won't have money damages for being out of work, etc.

-- If the Dennis hearing is appealed, would they postpone the trial until it is over? --

Yes. An appeal would stay the trial action. The results of the Dennis hearing aren't final until after an appeal is decided, and even then, the loser at appeal might choose to petition the FL Supreme Court to hear the case. There is no right to that step, but there is a right to ask for it.

40 posted on 06/11/2012 12:16:33 PM PDT by Cboldt
[ Post Reply | Private Reply | To 34 | View Replies]

To: Tunehead54
-- The SYG hearing for dismissal of charges was actually a creation of the courts simply trying to meet the immunity from prosecution provision of the law. --

Courts would inevitably be asked to apply 776.032. Courts didn't create that statute. They could have created an immune from trial rule as a matter of common law, but as far as I know, they did not.

-- Prior to SYG, if any question of fact was present (which would invariably be the case) the motion to dismiss would be denied and it was off to trial for the defendant. --

Technically, prior to FL Supreme Court Dennis decision, Florida courts were mixed. Some districts applied the "if the state has any evidence at all, then no immunity" standard, others followed the logic of the Peterson case, where a judge at the immunity hearing was obliged to weigh the evidence, and give the decision to the side that won by a preponderance (more likely than not) standard.

IOW, there were FL cases where a motion for 776.032 immunity was denied on a "if any question of fact was present" basis, and the decision of the trial court was upheld on appeal.

41 posted on 06/11/2012 12:27:55 PM PDT by Cboldt
[ Post Reply | Private Reply | To 36 | View Replies]

To: Cboldt
Obviously, I wasn't clear. Must be a Monday. :-)

My question actually is, can the state appeal a Dennis Hearing?

BTW, I see you asked about the remedy for Zimmerman being jailed on account of what Lester took as Shellie's lies and Zimmerman's silence. There is no remedy, as far as I can see....Judges have absolute immunity, short of taking bribes to throw cases.

So that's why they act so imperial!

Thanks for responding to my question from the other website about remedies for GZ over Judge Lester's actions at the 2nd bond hearing.... You figured out it was me, huh? :-)...It's not just Z being out of work and in solitary confinement in jail, but losing his 15 grand bond money that seems so unjust. If Lester had given GZ his day in court over the issue, I wouldn't have a problem with it, but Lester didn't. Hopefully, Lester has come to his senses and realizes what he did (and allowed the prosecution to get away with, but that's probably a vain hope.

42 posted on 06/11/2012 12:41:29 PM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 40 | View Replies]

To: Aunt Polgara
-- My question actually is, can the state appeal a Dennis Hearing? --

Sure, but the state is bound to argue matters of law, or "clear error" against the facts in evidence.

-- It's not just Z being out of work and in solitary confinement in jail, but losing his 15 grand bond money that seems so unjust. --

I think Lester blew it, but he's human too. We'll see if he is willing to confess uncertainty. I can think of a few reasons why his decision was either outright flawed, or missing necessary justification on the record. I'm of a mind that O'Mara will NOT push any of that is his motion for bail.

Lester can "fix" the lost bail money by releasing Zimmerman on recognizance. That would really piss off the state, but there's nothing they could do about it.

Lester has Zimmerman's statements to SPD. He's reviewed it enough to be able to tell O'Mara that O'Mara will see the remarks as exculpatory. Lester may be waiting for the state to say "that's all the evidence we have," after which he'll naturally be thinking about the merits of both the self defense argument and the murder allegation.

I don't think Lester is favorably impressed with the state's case.

43 posted on 06/11/2012 12:54:28 PM PDT by Cboldt
[ Post Reply | Private Reply | To 42 | View Replies]

To: Cboldt
You're right and you're wrong. ;-) My post was not a law review article - I was just trying to clear up a blatantly false claim.

Re "court created" procedure - it was exactly that. At the trial court level defense attorneys raised the immunity provision and the trial courts had to determine how to deal with it.

The legislature could have provided under 776 "There shall/may be a pre-trial hearing ..." but did not.

Trial courts were left to work it out but the critical issue was how they treated issues of material fact.

Who knows how many pre-trial SYG motions to dismiss that were made and denied or granted but not appealed by the losing side.

The trial court in Dennis said - sorry issues of material fact and the Peterson trial court said that approach denied the meaning of immunity in the statute.

The Peterson approach won out - a court created hearing allowing the trial judge to consider both matters of law and fact in a pre-trial motion to dismiss in SYG cases.

From Dennis (FL Sup Ct.)- its clear to me that the Peterson case (affirmed by Dennis) created the outlines of the SYG hearing.


"In this case we consider whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the "Stand Your Ground" statute.

.

We have for review the decision of the Fourth District Court of Appeal in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009), which held that the existence of disputed issues of material fact required the denial of Dennis's motions to dismiss.

The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which held that the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section 776.032. We have jurisdiction. See art. V, 3(b)(4), Fla. Const.

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.

Accordingly, we disapprove the Fourth District's reasoning in Dennis and approve the reasoning of Peterson on that issue. "


Lastly, when I said "prior to SYG" (1995) there was no SYG, no immunity, and because of the inevitable "question of material fact" there was no motion to dismiss on self defense grounds for all practical purposes.

Just standing my ground ... ;-)

44 posted on 06/11/2012 1:56:11 PM PDT by Tunehead54 (Nothing funny here ;-)
[ Post Reply | Private Reply | To 41 | View Replies]

To: Tunehead54
-- You're right and you're wrong. --

If you don't mind, cite the error(s) in my remark. Use a direct quote, and explain how it is wrong.

45 posted on 06/11/2012 2:02:25 PM PDT by Cboldt
[ Post Reply | Private Reply | To 44 | View Replies]

To: Aunt Polgara

I just recognized your screen name. How is Belgarath? ;-P


46 posted on 06/11/2012 2:35:18 PM PDT by MortMan (Americans are a people increasingly separated by our connectivity.)
[ Post Reply | Private Reply | To 42 | View Replies]

To: MortMan

Old Wolf is doing fine.

What’s funny is that if you google Aunt Polgara, I’m always one of the top listings. :-)

I just did it, and I’m the top 4 choices!


47 posted on 06/11/2012 2:43:02 PM PDT by Aunt Polgara
[ Post Reply | Private Reply | To 46 | View Replies]

To: Aunt Polgara

And Beldin? And his bride the foul mouthed wench he wrested from slavery by dint of being able to transform her into a bird?

You were the top 2 in my Google (I’m an engineer - I can’t help it! LOL)

I may just have to dig out my old Eddings books. I have the Mallorean, but have never read the Belgariad.

Very nice to meet you, my FRiend!


48 posted on 06/11/2012 2:50:57 PM PDT by MortMan (Americans are a people increasingly separated by our connectivity.)
[ Post Reply | Private Reply | To 47 | View Replies]

To: Cboldt
Your response to my post was that the SYG hearing was not a court created procedure.

As the Dennis decision makes clear (its underlined in my post), the Peterson approach denying applicability of a Florida rule of criminal procedure is now law and the Dennis trial court approach discredited.(Florida Rule of Criminal Procedure 3.190(c)(3

Peterson/Dennis makes the judge, in a pre-trial hearing, both the trier of fact and law and was necessitated by the legislature's failure to provide for an immunity hearing.

Sometimes you have to read between the lines.

And, as before, when I stated "Prior to SYG" passed in 1995, there were no trial or appellate conflicts because there was no immunity provision and any motion to dismiss would be futile because any prosecutor could raise a question of material fact and win a denial of motion to dismiss.

Have a nice day - Can't we all just get along? ;-)

49 posted on 06/11/2012 2:51:25 PM PDT by Tunehead54 (Nothing funny here ;-)
[ Post Reply | Private Reply | To 45 | View Replies]

To: Aunt Polgara

Color me stupid, but I can’t see how stand your ground applies at all in the case. You’re certainly unable to retreat when you are pinned on the ground with an assailant trying to smash your head on a curb!


50 posted on 06/11/2012 2:56:54 PM PDT by JimRed (Excising a cancer before it kills us waters the Tree of Liberty! TERM LIMITS, NOW AND FOREVER!)
[ Post Reply | Private Reply | To 1 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-57 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson