Apparently there may be a Stand Your Ground immunity hearing ... if Zimmerman's attorney asks for it. That will be before the trial. The following from Jeralyn Merritt, a FL criminal defense attorney posting on talkleft:
Stand Your Ground and Self Defense
By Jeralyn,
Posted on Thu Apr 12, 2012 at 06:47:25 PM EST
How do Florida's Stand Your Ground and self-defense laws fit into the George Zimmerman-Trayvon Martin case and what's the difference between them?
.......
. Here's my synopsis, but I suggest reading Judge Hirsch's words.
Self defense is an affirmative defense to the crime of homicide. It has the effect of legally excusing the defendant from an act that would otherwise be a crime.
Stand your ground is not a defense, but an immunity statute, providing immunity from criminal prosecution. It is a bar to prosecution (and yes, arrest.)
A defendant charged with a crime who wants to raise Stand your Ground files a motion to dismiss claiming stand your ground immunizes him from prosecution. Here is a typical motion, filed in another case in December, 2011. Here's another filed in January, 2012.
A hearing is held before trial. The burden is on the defendant to prove by a preponderance of evidence that stand your ground immunity applies.
The judge weighs the facts. If the judge agrees the defendant has shown stand your ground immunity applies by a preponderance of evidence, the charges are dismissed. The defendant can't be prosecuted.
If the judge finds the defendant hasn't met his burden, (including if the disputed evidence is so equal on both sides the judge can't decide one way or the other) the case goes to trial to be decided by the jury. At trial, the defendant can still argue both self-defense and stand your ground immunity -- he only has to establish some evidence of his theory, which can be just his own testimony, that he acted in self-defense.
The prosecution must prove his guilt at the jury trial beyond a reasonable doubt. Which means, if the defendant raises self-defense or stand your ground at trial and gets the jury instruction, the state, which has the burden of proving guilt beyond a reasonable doubt, must disprove self-defense. If the jury has a doubt, the defendant must be acquitted.
If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's ruling has no preclusive effect....
Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.
To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.
.....
I've excerpted some of the relevant statutes on self-defense, stand your ground, murder, and manslaughter here.
talkleft.com
More:
I believe ( none / 0) ( #119)
by Jeralyn on Mon Apr 23, 2012 at 01:14:29 AM EST
you are mixing up the statutes. Initiating a confrontation is not the test. Under the aggressor statute, in the dubious event it applies, the test is whether Zimmerman provoked the use of force by Martin. Not whether he pursued or confronted him verbally. Even if he followed Trayvon, and even if he confronted him and demanded to know what he was doing in the neighborhood, those actions don't make him an aggressor because they aren't acts that provoke the use of force. If Martin responded to being followed and verbally confronted (but not physically threatened) with a punch or head banging, Zimmerman will not be considered to have provoked that use of force. In addition, whether he's the aggressor or not, Zimmerman is entitled to use deadly force if he reasonably feared Trayvon was about to cause him serous bodily injury or that his life was in jeopardy. The only additional requirement imposed under the aggressor statute is that if he's found to be the aggressor, he also has to show he had no opportunity to extricate himself without using deadly force. If his nose was broken and his head bleeding from being hit, and he was on the bottom, it's unlikely anyone would find he could extricate himself. The state's best argument is that Trayvon's punch was not serious enough to put him in such fear. That would defeat not only his self-defense claim under standard self-defense, under SYG and under the aggressor statute. I believe the state is grasping at straws with its argument that profiling and confronting makes one an aggressor. I'm not even sure it will make that argument. I suspect it is using the profiling and confronting more for the purpose of proving second degree murder, as evidence of his ill-will towards Martin, which was rooted in his unjust perception Martin was a criminal, than it is to show he was the aggressor. 776.041 Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who: (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) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
talkleft.com
On the issue of bond, in case I don't get back to it soon, here's Judge Hirsch's decision in Wyche after holding an "Arthur Hearing" finding Wyche was entitled to bond. Again, it's a good explanation of the procedure.
talkleft.com |
