LIONEL PODCAST: Zimmerman’s Charged. A Fool for a Client, Idiots for Lawyers!

In the annals of lousy lawyers, in the pantheon of pathetic, ladies and gentlemen, I give you Zeus. These clowns have got to be the most insane clown posse since . . . well, you get the picture. It’s hard to find a starting point as to where the awfulness begins and has begun.

This just in. George Zimmerman’s charged with second degree murder. This’ll be tough, kids. Manslaughter’s tough enough, but second?! Can you say plea bargain?

How Does Florida’s Stand Your Ground Law Works. The following is a great piece on the subject of the most unique pretrial immunity hearing that commences the Stand Your Ground “two step.”

Florida’s Stand Your Ground law provides potential immunity from prosecution for an accused who can establish (by appropriate legal procedures) that his or her actions fell within the purview of the statute. To understand how “Stand Your Ground” immunity works, one has to understand the nature of a self-defense claim and how a such a claim is typically raised in a criminal proceeding.

Self-defense is a type of affirmative defense that operates to avoid (or cancel) the legal effect of a violent act (such as a homicide), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death or great bodily harm.  In effect, the defendant says: “Yes, I killed.  But I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were justifiable.” Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial.  The jury is the “fact-finder.” They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.

Here again, Florida’s Stand Your Ground Law makes another significant change from the common law. Under Section 776.032, Florida Statutes, a person who uses force as permitted in Section 776.012 or Section 776.013 “is immune from criminal prosecution and civil action” for the use of such force (with certain limited exceptions pertaining to law enforcement officers).  Note the word “immune.” This means that, if the accused can factually establish pre-trial that his or her use of deadly force occurred under the circumstances in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter.  In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case.

The procedures for asserting prosecutorial immunity under the Stand Your Ground Law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision.  The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a true immunity and not merely an affirmative defense.  The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes.  Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches.  The trial court may not deny a motion for immunity simply because factual disputes exist.

With regard to the Trayvon Martin case, the notion that Florida’s Stand Your Ground law prohibits the prosecution of George Zimmerman is fundamentally false.  Although, if prosecuted, George Zimmerman may attempt to later assert immunity, this does not prevent a prosecution from being initiated.

NOTE: In Gray v. State, 13 So. 2d 114 (Fla. 5th DCA 2009), the Fifth District Court of Appeal of Florida (governing Sanford, Florida, the site of the Trayvon Martin shooting) adopted the procedures outlined above in Petersen, holding that the right to immunity from criminal prosecution afforded by Section 776.032 is to be determined by the trial court after an evidentiary proceeding in which the criminal defendant has the burden of proof by a preponderance of the evidence.  Id. at 114.

Thus, under the procedures outlined in Petersen, prosecutorial immunity does not attach under the Florida’s Stand Your Ground law by way of mere factual assertion.  The issue is raised pre-trial through the filing of a Motion for Declaration of Immunity.  To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case.  The defense presents the evidence, shows that he or she meets the statutory prerequisites, and requests that the court grant the motion and appropriate relief.  If the Motion is granted, the defense then files a Motion to Dismiss the case, as there are no longer any justiciable issues for a jury to resolve.

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