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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
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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
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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
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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
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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 ;-)
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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
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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.)
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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
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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.)
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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 ;-)
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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!)
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To: Tunehead54
-- Your response to my post was that the SYG hearing was not a court created procedure. --

What specific statement of mine said or implied that?

51 posted on 06/11/2012 3:42:48 PM PDT by Cboldt
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To: JimRed
"Color me stupid, but I can’t see how stand your ground applies at all in the case. "
The SYG law changed a lot of common law based FL state law.

Before, away from your home or business you had a duty to retreat from an attack before using deadly force. If you successfully defended yourself you'd have to establish that you tried to retreat or could not.

Even under SYG you have to establish that you were in fear of death or serious bodily injury to use deadly force. You are allowed to meet force with force but it has to be relative. You cannot shoot the guy throwing marshmallows at you even if its technically an assault.

More than that though it provides for IMMUNITY from arrest, prosecution AND civil liability if you establish a valid self defense.

Thus you can avoid a trial at the whim of who knows what jury and if your charge(s) are dismissed the family/powers that be cannot sue you for damages.

Under common law you've always had the right to self defense but under case law and statutes the retreat rule was a factor, you'd almost always end up in trial as a defendant and despite your "presumption of innocence" a lot of jurors tend towards the "If he's not guilty why was he arrested?" mentality.

In short, in Florida, if you can establish self defense then the immunity provisions apply, there is no duty to retreat and you can ideally get charges dismissed (if you are arrested at all) without facing a trial.

Also in an pre-trial SYG motion you need only establish by a preponderance of the evidence (50% + 1) that self defense principles are met as opposed to the prosecution having to prove your guilt beyond a reasonable doubt. Pre-trial the burden of proof is on the defendant (preponderance), at trial its on the prosecutor (reasonable doubt).

Clear as mud? ;-)

52 posted on 06/11/2012 3:42:49 PM PDT by Tunehead54 (Nothing funny here ;-)
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To: Tunehead54; JimRed
-- Pre-trial the burden of proof is on the defendant (preponderance), at trial its on the prosecutor (reasonable doubt). --

Expanding on that a bit, for JimRed's benefit (I know you already know this), the burden is on defendant to assert self defense. This is true at the immunity hearing, and at trial. But the standard of proof differs, between an immunity hearing, and a trial.

At the immunity hearing, the standard of proof is that more likely than not, defendant's actions were justified self defense - he had a reasonable fear of serious injury or death. At trial, once he's laid out his self defense claim, the burden is on the prosecution to prove that it was NOT self defense, and it must make this proof beyond a reasonable doubt.

It's easier (takes less evidence in favor of the self defense claim) to maintain self defense at trial, than it is to obtain it at the immunity hearing.

The general progression of "standard of proof" (state's burden) as one goes from suspect, to arrested, to charged, to pre-trial hearing, to trial (assuming the case doesn't collapse along the way) is that the earlier in the life of the case, the easier it is for the state to maintain its grip on defendant. It takes less evidence to justify a police arrest than it does for the prosecutor to charge. And so on, through motion for dismissal based on immunity, through trial. The standard of proof is highest at trial, lowest at arrest.

53 posted on 06/11/2012 3:54:03 PM PDT by Cboldt
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To: Tunehead54
Clear as mud? ;-)

Your clarification is appreciated!

54 posted on 06/12/2012 9:44:34 AM PDT by JimRed (Excising a cancer before it kills us waters the Tree of Liberty! TERM LIMITS, NOW AND FOREVER!)
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To: Aunt Polgara

Romney’s being elected won’t impact a choice on a federal re-prosecution.

The civil right investigation will have long since been completed and the internal report filed, with a conclusion whether (re)prosecution under the civil right laws is warranted under the facts and relevant guidelines the event of dismissal or acquittal.

There is zero chance the AG will intervene politically to reverse the report, and all the other non-career staff will be Obama holdovers.


55 posted on 06/12/2012 10:05:26 AM PDT by only1percent
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To: Aunt Polgara; Cboldt
Dear Auntie (and Cboldt),

Belated thanks for your post - I do apologize for my curt response to cuban leaf. I think I'm on too many ping lists - forest for the trees ... ;-)

Just FYI - the immunity provisions were a major part of the 1995 SYG amendments to FL self defense law.

One thing you said that I'm not certain is correct. Even if forced to go through trial I'm pretty sure that if acquitted that the immunity from civil liability still applies.

See 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

See Section (3) then the last sentence of Section (1).

Like this:

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

The Section (1) last sentence:

As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

This also shows how the new immunity provisions affect several previous aspects to FL self defense law.

One last thing. Arguably if GZ is found to have acted legally in self-defense the "condo assoc." would not necessarily be off the civil liability hook.

Purely hypothetically, if the condo assoc. was aware of one of their resident/watch program guys accosting, threatening, badgering,etc. people at random and carrying a gun then the guy does validly defend himself and gets off I do not see the immunity provision necessarily protecting the condo assoc.

A personal injury attorney could easily argue that the condo assoc. had a duty to prevent the dangerous confrontations in their name even if the defendant got off on a valid self defense.

Pinging an expert for his opinion ... ;-)

56 posted on 06/12/2012 2:13:53 PM PDT by Tunehead54 (Nothing funny here ;-)
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To: Cboldt; Tunehead54
Thanks for expanding on Tunhead54's clarification. I've nearly reached the point of grokking" it all!
57 posted on 06/12/2012 2:42:17 PM PDT by JimRed (Excising a cancer before it kills us waters the Tree of Liberty! TERM LIMITS, NOW AND FOREVER!)
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