March 6, 2013

George Zimmerman opts out of "stand your ground" hearing.

Why? His lawyer claims there's too much time pressure preparing for the jury trial, but there must be a better reason.
University of Florida law professor Bob Dekle [thinks it's likely] that [Zimmerman's lawyer] O'Mara doesn't want to go through a bench mini-trial and possibly tip off the prosecution about its strategy should the "stand your ground" plea fail.
"If you're not 100 percent sure you're going to win the 'stand your ground' hearing, you just end up telling the state what your defense is and you've got nothing with which to surprise the state at trial," says Professor Dekle. "What you want to do at trial is catch the state with their britches down."

Several new developments suggest that Zimmerman's defense attorneys are having some success finding information that could raise doubts among jurors about the state's version of events. For one, the defense has been digging furiously, with the judge's permission, into Trayvon's social media history, which may present a more complex, edgier picture of the youth.

Also on Tuesday, a key witness for the prosecution was caught in a second apparent lie amid probing by the defense. A woman who says she was on the phone with Trayvon as Zimmerman pursued him originally gave her age as 16, though she was really 18. And she also said she missed Trayvon's funeral because of a hospital stay, which wasn't true.
And here's Jeralynn Merritt, noting that at the "stand your ground" hearing, Zimmerman would have the burden of proof (by a preponderance of the evidence), but at the trial, the prosecution has the burden of proof beyond a reasonable doubt. Even though the defendant could lose at the "stand your ground" hearing and still go on to win at trial because of these different burdens, you can see why you might avoid the pre-trial hearing unless you were quite sure you'd win. And:
O'Mara can still file a motion to dismiss based on ["stand your ground"] immunity... at the close of the state's evidence and renew it at the close of his case, before it goes to the jury. The judge would determine the motion based on the evidence presented at trial. If denied, O'Mara can still argue self-defense, including self-defense based on the immunity/stand your ground statute, to the jury....

If the jury rejects self-defense, including that based on the immunity statute, Zimmerman can argue on appeal that the court erred in not dismissing the case based on the immunity statute before it went to the jury....
Much more at that second link.

45 comments:

Matthew Sablan said...

"Also on Tuesday, a key witness for the prosecution was caught in a second apparent lie amid probing by the defense."

-- Well, I'm sure we can trust her about the other things though.

SGT Ted said...

I don't see how Zimmerman can possibly get a fair trial anywhere, seeing as how he was the target of a racist black lawyer and the Medias psychological propaganda campaign to paint him as a racist kook who was hunting blacks in his neighborhood.

bagoh20 said...

Last week when I was in Chicago, it was the anniversary of this shooting, and there were people with bull horns in the street protesting against Zimmerman using his head as bait to lure Trayvon into a trap.

Matthew Sablan said...

I think at this point, I'd skip the stand your ground hearing too. If you lose, you risk jurors not understanding the difference between the two and assuming that means something different than what it does. And, given how the judge and prosecutors have been, let's say, over zealous, in this case, you're better off holding off on that and going with the trial. If, assuming, everything in these links is correct. It sounds like bet hedging, and I do that often.

tim in vermont said...

The election is over, so the need to pump up black turnout in Florida is also gone. Who knows? Maybe he can eventually get a fair trial. As it is, it has been little more than a show trial.

Dante said...

Zimmerman using his head as bait to lure Trayvon into a trap

What?

Ann Althouse said...

" If you lose, you risk jurors not understanding the difference..."

The jurors wouldn't be at that hearing. It's more a problem of revealing things to the prosecutors that will make their task at trial easier.

Matthew Sablan said...

To clarify, I was thinking more if the jurors were following the case before they got called in to do their thing, it might color their understanding of what was going on, not so much that they'd physically be at the hearing.

Hagar said...

I don't see that "stand your ground" has much to do with this as it happened; it was just simple self defense as a last resort to avoid being killed.

This trial now is just about politicians and officials maneuvering to avoid losing face, it has nothing to do with either law or "justice."

rhhardin said...

So you have to win an obvious case by trickery today.

bagoh20 said...

To win you have to hide the truth long enough to get it's boots on and get halfway around the world.

cubanbob said...

Unfortunately I see a race riot occurring if Zimmerman is acquitted.

Fprawl said...

I was going to say, wow, what a delicate and precise path Omara has to navigate, but that's not true. This trial is all about Jury demographics. Black vs. White, gun owner vs. gun hater.
The best he can do is a series of hung juries, as best i can see, if Fl requires a unanimous verdict on this charge.
That is, unless the judge is a fan of self-immolation and adjudicates not guilty by Stand Your Ground.

Ignorance is Bliss said...

Hagar said...

I don't see that "stand your ground" has much to do with this as it happened; it was just simple self defense as a last resort to avoid being killed.

Stand your ground has nothing to do with it, except that the Stand Your Ground law includes provisions that apply to any killing in self defense scenario. In this case, the Stand Your Ground hearing could prevent him from having to go to trial at all.

bagoh20 said...

Dante, The evidence shows that Zimmerman told that poor child: "I'll bet you a case of Skittles that you can't knock me out."

Adam said...

If the risk is showing your cards to the state, why not just have the hearing and subpoena all of the state's witnesses, don't call any of your witnesses, ask the state's witnesses whatever you want, and rest. You'll probably lose that hearing, but now you've got a treasure trove of prior testimony from which to potentially impeach the state's witnesses at trial and your preparation was minimal. It's like a free shot at the state's case. That said, I think Matthew Sablan in the comments above has a good point. The jurors won't be at that hearing, but this case has had so much media saturation that any potential jurors will almost certainly have heard that Zimmerman lost that hearing and might be confused or prejudiced.

edutcher said...

No dog in this particular aspect, but the evidence favors Zimmerman.

And, yes, if Choomie had a son, he'd have been a lot like Trayvon.

Bruce Hayden said...

I don't see that "stand your ground" has much to do with this as it happened; it was just simple self defense as a last resort to avoid being killed.

As was pointed out, the "stand your ground" title has nothing to do with the hearing, per se, but rather, with the package of laws that were passed at the same time. In this case, what we are talking about is a pre-trial self-defense hearing. It was designed to keep people in obvious sel-defense shootings from having to stay in jail until their trials.

Zimmerman is out of jail, on bail, last I knew. The one thing that this sort of hearing might do for him would be to immunize him from civil suit by the Martin family. State is going to have a pretty hard time proving 2nd Degree Murder here, but they are may have an easier time in a civil suit (remember OJ Simpson?).

Gabriel Hanna said...

@bagoh20:To win you have to hide the truth long enough to get it's boots on and get halfway around the world.

Thread winnar.

Kirk Parker said...

Hagar,

"I don't see that 'stand your ground' has much to do with this as it happened; it was just simple self defense as a last resort to avoid being killed."

What's not to see? SYG is designed to give someone a quicker way out of legal jeopardy in precisely this situation.

Methadras said...

Ann Althouse said...

" If you lose, you risk jurors not understanding the difference..."

The jurors wouldn't be at that hearing. It's more a problem of revealing things to the prosecutors that will make their task at trial easier.


I don't understand that tactic at all. Is there some surprise that the prosecution won't know about? The whole point of a SYG hearing is that if it is SYG, you are done, you go home, right? If you lose, then you go to trial anyway. I would opt for the chances of that happening than not having that second vehicle of exoneration at all.

SJ said...

I've heard rumors that the Prosecution has been dragging its feet in sharing evidence with the Defense.

If that is true, then I suspect that the Defense team thinks putting Zimmerman on the witness stand at a pre-trial hearing is a bad idea.

Methadras said...
This comment has been removed by the author.
Levi Starks said...

Stand your ground?

If Zimmerman was on his back having his head bashed into a sidewalk I'd say he was way past standing his ground.

Maybe he could have a hearing on malicious prosecution.

robinintn said...

Trayvon Martin is just a poor mistunderstood complex, edgy youth.

Bruce Hayden said...

The whole point of a SYG hearing is that if it is SYG, you are done, you go home, right?

Purpose of the hearing isn't to show stand-your-ground, but rather, self-defense. They were just enacted in the same legislation, and that is the root of the confusion.

Stand-your-ground, per se, is most likely irrelevant to the defense, which is that Martin surprised and attacked Zimmerman w/o warning. Stand-your-ground is about not requiring retreat, and Zimmerman was apparently not given any chance to retreat, since the attack was a surprise.

Bruce Hayden said...

If the risk is showing your cards to the state, why not just have the hearing and subpoena all of the state's witnesses, don't call any of your witnesses, ask the state's witnesses whatever you want, and rest.

Why bother? Why not just depose the state's witnesses?

Hagar said...

"Stand your ground" implies that you have choice, i.e,, that you could flee or otherwise avoid the confrontation.

Zimmerman was flat on the ground under his assailant with his head being pounded into the sidewalk.

We have now seen the photographs and heard the full tapes in the police's possession, which absolutely back up his story.

The only thing that could undermine his claim to self-defense is if the prosecution could show that he started the final physical altercation, and this they have failed to do.

Trayvon Martin, on he other hand, could possibly have mounted a
"stand your ground" defense if he had been the survivor, but since he was not, that is moot.

bgates said...

a key witness for the prosecution was caught in a second apparent lie amid probing by the defense. A woman who says she was on the phone with Trayvon as Zimmerman pursued him originally gave her age as 16, though she was really 18. And she also said she missed Trayvon's funeral because of a hospital stay, which wasn't true.

The difference between a lie and an apparent lie is an apparent lie helps an Enemy of the State.

Pogo said...

Our beloved Dictator Obama should just send a drone and take out Zimmerman, his parents, and Roger Ailes.

It's just a late-term abortion, or reducing at-risk behavior, or a tax not a penalty, or cutting health care spending, or some such.

But's it's all legal Constitutional and stuff because shut up you racists.

rhhardin said...

Our beloved Dictator Obama should just send a drone and take out Zimmerman, his parents, and Roger Ailes.

The check and balance to war powers is that he gets impeached and removed.

traditionalguy said...

Please just have an indictment and a trial of the evidence. Put it on TV and sell commercials for two months. Then and only then will an informed opinion become possible.

Our Great Debate 2 years ago was limited to whether he should just go home and never be bothered based on his version of events or whether he had at a minimum to go through a pre-trial hearing for killing another in a confrontation that he seems to have provoked.

The Martins as parents had every right to expect such a hearing and not just get "forgetaboutit,your son is worthless" for an answer.

Zimmerman will enjoy his life and make money from a book after all is said and done. He has the PR to make him the Victim Du Jour for the right wing. They will buy his book whether he does any jail time or is exonerated, which he likely will be unless he does a Wayne Williams melt down on the stand.

Trayvon will neither testify nor ever enjoy this life again.

mikeyes said...

Stand your ground implies that you were in danger of your life not due to an action that you took. According to the accounts, Zimmerman approached Martin after being told by the 911 operator to stay away from Martin and that this also was the policy of the neighborhood watch.

Zimmerman is/was a Florida concealed carry permit holder which means that he had to go through a course on the law and responsibilities of concealed carry before he got the permit. If you read the concealed carry web sites threads on this shooting you will find a difference of opinion among very conservative and totally Second Amendment friendly people as to the wisdom of being armed and confronting a potentially dangerous person.

Read Ayoob, Pincus, and others on this, they all recommend the tennis shoe defense: run away from danger and only use lethal force in a chaotic emergency situation not of your own making. And if you are in a lethal situation, be prepared for the consequences.

I suspect that a stand your ground hearing might bring these issues up either by testimony from his instructor or a copy of the syllabus from the course or they might find a credible resource such as Massad Ayoob or Ron Pincus to articulate these principles.

If Zimmerman has stated that he confronted Martin, then he would have to justify why knowing that he had lethal means available to him.

I have a concealed carry permit and carry all the time. It is my privilege and right to do so, but with it comes responsibility and the need for a lot of common sense. This is what they would go after in such a hearing.

Michael K said...

Like OJ, this is all about jury selection. When the DA moved the trial to downtown LA, OJ was home free. Read Roger L Simon's description of OJ's behavior at the trial some time.

If there are more blacks than whites on that jury, Zimmerman is in big trouble. The evidence won't matter.

His best chance is a hung jury, THEN a SYG hearing.

Synova said...

I think that "stand your ground" would be a harder standard than "self defense" in any case

Levi Starks said...

I keep hearing about the 911 operator said this, or that,
Since when does someone on the other end of a phone have any legal authority to tell a citizen who is in his own neighborhood what he can or cannot do? Even if George did in fact follow, and confront Trayvon he was within his rights. It does not logically follow that he earned a beatdown.
Do 911 operators bear any criminal, or civil liability when people follow their instructions and someone dies as a result?
If the confrontation had gone the other way, and George the victim, I can guarantee we wouldn't know the name of either of them.

Hagar said...

Zimmerman went up the path to see if he could tell which house Trayvon Martin had gone into, gave up on that, and was returning to the truck when Martin assaulted him.
Fits with his story, and no evidence to the contrary.

Rick said...

Not knowing Florida criminal procedure, I ask:
Can the judge reserve his ruling on the defense motion made at the close of the government case and then again after the close of the defense case, until after the jury returns its verdict? My experience is that judge's like issues to go to the jury, especially after a lengthy trial. After a jury verdict in favor of a plaintiff, some judges have the guts to render a JNOV. If the jury rules in favor of the defense, the judge does not need to go out on a limb.

Methadras said...

Bruce Hayden said...

Purpose of the hearing isn't to show stand-your-ground, but rather, self-defense. They were just enacted in the same legislation, and that is the root of the confusion.

Stand-your-ground, per se, is most likely irrelevant to the defense, which is that Martin surprised and attacked Zimmerman w/o warning. Stand-your-ground is about not requiring retreat, and Zimmerman was apparently not given any chance to retreat, since the attack was a surprise.


I'll have to go back and read how stand your ground works, but thanks for the info. If it indeed was a matter of self-defense rather than stand your ground, then I can understand the tactic.

jr565 said...

Levi Starks wrote:
I keep hearing about the 911 operator said this, or that,
Since when does someone on the other end of a phone have any legal authority to tell a citizen who is in his own neighborhood what he can or cannot do? Even if George did in fact follow, and confront Trayvon he was within his rights. It does not logically follow that he earned a beatdown.
Do 911 operators bear any criminal, or civil liability when people follow their instructions and someone dies as a result?
If the confrontation had gone the other way, and George the victim, I can guarantee we wouldn't know the name of either of them.

A case could be made for Zimmerman going after Martin in the first place becuase of the operator. The operator was asking questions about details, and in order to provide those he started following Trayvon who ran away. It was only then that Zimmerman was asked if he was following Trayvon and he said yes. When he was told he didn't have to do that (and he was never told You CAN"T do that) all indications are he stopped in his "pursuit".

bagoh20 said...

"Trayvon will neither testify nor ever enjoy this life again."

Punching someone in the face and pounding their head into the pavement in a clear attempt to kill them has consequences. Would you prefer it not?

Left Bank of the Charles said...

I think there is also a question of whether you want to put George Zimmerman on the witness stand.

I don't see how you could expect to win at the SYG hearing without his testimony, if you have the burden of proof by the preponderance of evidence. And anything he says can be used against him at trial.

But at the trial, you'll get to hear and cross examine all the prosecution witnesses before you have to decide to put George on the witness stand.

machine said...

Don't start none, won't be none...

William said...

Every day there are reports of far more ghastly crimes than this. And none of them generate this much outrage. That's the most disturbing aspect of this event.....There's no great moral to be gleaned from this story. A foolish kid and an officious gun holder collided. The moral I would glean is that one should not punch strangers, and others feel that the proper moral is that one should not follow teenagers on dark nights.

Eric said...

Unfortunately I see a race riot occurring if Zimmerman is acquitted.

Don't worry. We can use drones on the rioters.