Has Zimmerman Waived His Right to a Pre-Trial "Stand-Your-Ground" Hearing? Learn the Truth.

George ZimmermanImage by DonkeyHotey

Since Tuesday’s court hearing on the George Zimmerman case various news organizations and websites have gone into hysterics claiming that Zimmerman has “waived” his right to a pre-trial “Stand-Your-Ground” hearing, and speculating about the implications for such a “bizarre” decision by his lawyer, Mark O’Hara.  Mostly they conclude that it must mean Zimmerman’s legal defense is in serious trouble.  (You can enjoy the theatrics for yourself by simply Googling “George Zimmerman waives hearing”.)

The only problem is that they’re completely wrong.  The pre-trial hearing under discussion has nothing to do with “Stand-Your-Ground”, which is governed by Florida statute §776.031.  It’s actually a hearing on whether Zimmerman is entitled to self defense-based immunity, which is governed by §776.032.  But what is most astounding is that their initial premise, the waiving of Mr. Zimmerman’s rights, didn’t even happen.  There was no waiver—none, nilch, zip.

The flurry of news reports has also prompted a great deal of internet discussion about Florida’s self defense immunity law.  As is not uncommon with internet communications a lot of what is being said is incorrect.  In an effort to help further a more accurate discussion I’ve prepared the following description of Florida’s immunity law, how it’s applied, and the real-world implications for Zimmerman.

The Florida statute that governs immunity in the self defense context is entitled “Immunity from criminal prosecution and civil action for justifiable use of force” and adopted by the state in 2006. Part 1 of the statute provides that a person who engages in legitimate self defense is immune from criminal prosecution.  The reason for such an immunity law is to prevent the all too common situation where a person who lawfully acted in self defense is nevertheless made to suffer the enormous economic and personal costs of a lengthy and pointless trial—often including a devastating loss of income, savings, home, employment, and more.  In such nightmare scenarios even when the exonerated defendant “wins” his criminal trial it is at the cost of losing everything else.

Unfortunately the self defense immunity statute doesn’t say how it is to be implemented.  What is the legal test of qualification? Who applies it?  When?  It fell to the courts to come up with the necessary procedures to answer these questions..  The story of how they did so involves three key court cases:  the appellate decisions of Peterson v. State, 983 So.2d 27 (FL Ct. App.  2008) (Peterson) and Dennis v. State, 17 So.3d 305 (FL Ct. App.  2009) (Dennis I), and the result of an appeal of Dennis I heard by the Florida Supreme Court, in Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010) (Dennis II).

The story really starts with Peterson.  The defendant, Zak Peterson, was charged with attempted first-degree murder for shooting his brother.  Prior to trial he had asked the court to dismiss the charge on the grounds that he was immune from prosecution under §776.032(1).

The judge noted that no rule or procedure had yet been enacted to provide guidance on how to decide such a claim.  So, absent any direction, he decided to conduct a pre-trial hearing where he would make the call himself.  After reading the various depositions and legal arguments, the judge decided that immunity had not been established, and denied the defendant’s request.  The defendant appealed this decision.

On appeal the defendant argued simply that he was entitled to immunity as a matter of law.  The State prosecutors argued that immunity should be denied if there are any facts that dispute the defendant’s self defense claim, no matter how tenuous.  In addition, the State argued that the courts should treat §776.032(1) as simply providing an additional affirmative defense at trial, rather than as providing a means to preclude a trial altogether.

The appellate court made three key decisions:

(1) Florida meant for §776.032 to provide a means to request immunity before trial so that a qualified defendant could avoid the trial altogether.

(2) Immunity should not be denied just because a factual dispute exists.  Instead, the court must decide whether by a “preponderance of evidence” (meaning, “more likely than not”) the defendant was lawfully acting in self defense.  If so, immunity applies.

(3) Should the request for immunity be denied at pretrial, the defendant can request immunity again at trial.

(FYI, this Florida appellate court found excellent guidance for these findings from Colorado, which had struggled with similar self defense immunity procedures.  Of particular help was the Colorado Supreme Court’s analysis in People v. Guenther, 740 P.2d 971 (CO Supreme Court  1987) .)

The following year a different Florida appellate court came to a contradictory conclusion in Dennis I.   Clarence Dennis had been charged with attempted first-degree murder. The lower trial court denied him pre-trial immunity because there was some evidence that contradicted his self defense claim — essentially, the position that lost in Peterson.   Ultimately, Dennis was convicted at trial of the lesser-included charge of felony battery and sentenced to 6 months in prison.

He appealed his conviction.  In a one paragraph decision the appellate court in Dennis I ruled that the lower court’s procedure was appropriate.

With appellate courts from two different districts coming to such contradictory conclusions, the matter caught the eye of Florida’s Supreme Court.  In 2010 it heard the appeal of Dennis I, publishing its own decision that entirely adopted the Peterson approach in Dennis II.

So, what is the Florida’s procedure for self defense immunity as it applies to Zimmerman (or any other defendant seeking self defense immunity)?  First, Zimmerman can make a pre-trial motion for immunity.  At the hearing to decide this motion Zimmerman must show that a preponderance of the evidence supports his claim that his use of force was legally justified.  If the court agrees, the criminal charges are immediately dismissed.

But what happens if Zimmerman loses at the pre-trial hearing?

He will proceed to trial where he is free to make the motion again.  Typically, such motions would be made immediately following the closing of the prosecutor’s case, and again after the defense finishes.  But although at pretrial Zimmerman will have to prove his case by a preponderance of the evidence, at trial the prosecution will have to prove beyond a reasonable doubt that the defendant’s use of force was not in legitimate self defense.

In other words, at pre-trial Zimmerman loses if the prosecution’s can disprove his claim of self defense if it’s merely not the most likely truth.  At trial, however, he loses only if the prosecution can disprove self defense beyond a reasonable doubt, a considerably burden for the prosecution to achieve.

So, a win at the pre-trial immunity hearing is great for Zimmerman in that he is immediately cleared of the charges and he saves the cost, hassle, and risk of going to trial.  On the other hand, a loss at the pre-trial immunity hearing is hardly devastating for the defense. They would proceed to trial exactly as they would have done directly in a jurisdiction without a self defense  immunity statute.  At trial they can again raise the issue of self defense immunity, this time asking the court to rule that the prosecution has failed to disprove self defense beyond a reasonable doubt.

Now that we understand what is meant by a pre-trial immunity hearing (rather than a pre-trial Stand-Your-Ground hearing, which doesn’t exist), and understand Florida’s procedure for determining self defense immunity from prosecution, what exactly happened in the Zimmerman case this past Tuesday?

Zimmerman explicitly did NOT waive his right to a pre-trial motion on immunity.  Rather, he has merely told the court that they would not make the tentative April 22 date for which such a hearing had been originally scheduled.  We know this to be so because the judge herself says so:

Here’s a transcript of the relevant discussion:

Prosecutor:  May I be heard regarding, I know the court briefly touched upon the stand-your-ground under chapter 776.032, and I appreciate the court clarifying that April 22, or asking the defense and then clarifying that we’re not going to have that–

[Note that even the prosecution can’t get this right.  As previously noted,  §776.032 is the immunity statute, and for which the courts have created a pre-trial hearing.  It is §776.031 that covers Stand-Your-Ground, for which there is NO pre-trial hearing.]

Judge Nelson:  Two weeks.

Prosecutor:  –two weeks, that we’re not going to have that.  If understand the defense correctly, they are waiving that, because there has been mention of roll-over to a trial, there has not been a formal motion . . .

Judge Nelson:  I didn’t ask them if they were waiving it, what I asked them was if they were going to be using that two-week period of time.

Prosecutor:  OK.  And the other reason I just wanted to make sure that the record is clear that we would be addressing it a some point if they are or they are not.

Judge Nelson:  We’ll know that when the motion is filed.  So, the two weeks are being released to other people that need the time.

If you keep watching the video you’ll see that the next speaker is Mark O’Hara, Zimmerman’s lawyer.  If he had indeed intended to waive his right to a pre-trial motion on immunity he could certainly have corrected the judge’s “misunderstanding” in real time.    That he didn’t do so is telling.

So, all the media gesticulation about the implications of Zimmerman having “waived” his right to a pre-trial hearing on immunity is meritless.

Nevertheless, it’s clear that Zimmerman has at minimum delayed any such hearing, and may in fact delay it all the way to trial (the so-called potential “roll-over” of immunity into the trial).  Looking forward, there remain a variety of possibilities for Zimmerman to continue to pursue immunity:

(1) He could make a motion for immunity at any point prior to the start of the trial.  The Judge is free, solely on her own discretion, to deny such a motion if it occurs shortly before the trial, but there’s no law prohibiting the request of such a motion.

(2) Zimmerman could wait until the prosecution has presented its case at trial.  Then he would be asking the judge, in essence, to conclude that no reasonable jury could believe, based on the prosecution’s case, that self defense had been disproved beyond a reasonable doubt.

(Incidentally, it is not necessary to have an immunity statute to make such a motion.)

(3) If that mid-trial motion is denied, the defense would present its case, and then before the case is submitted to the jury the defense would again make a motion to dismiss on the basis of immunity from prosecution, for the reasons just discussed.

(4) If that end-of-trial motion is denied, the case would go to the jury, and they would be instructed that unless they find that at least one element of self-defense has been disproved beyond a reasonable doubt they are to find the defendant not guilty of the charges.

Given all that, it’s nevertheless true that Zimmerman has decided not to take advantage of the original April 22 hearing date to pursue a pre-trial motion for immunity.  What rationale could possibly support such a decision?

Zimmerman could possibly believe that a delay puts him in a stronger position.  The discovery process for this trial has more than once resembled a pulling of nails.  Evidence is taking longer to access than it seems should be the case.  Prosecution witnesses once believed to have been telling the truth are now shown to have lied.  It may well be that Zimmerman feels things will continue to move in his favor, and that his case for immunity will be stronger the closer he gets to trial.

Of course, that’s speculation on my part.  What is NOT speculation is that Zimmerman wholly retains the right to make a pre-trial motion on immunity moving forward, and nothing that happened in court this past Tuesday has changed that in any way–no matter how many journalists claim otherwise.

IMPORTANT: This blog post does NOT constitute legal advice, nor does it purport to accurately communicate the laws or court decisions of the jurisdiction of the actual case discussed. This blog post is intended solely for ILLUSTRATIVE PURPOSES, and to provide a forum for the discussion and debate of important issues relevant to the law of self defense. If you are in immediate need of legal counsel, retain a competent attorney in your jurisdiction.

About the Author

Andrew Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States. Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy, a former Guest Instructor at the Sig Sauer Academy, an NRA Life-Benefactor Member, and an NRA Certified Instructor. He also teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and contributor to the National Review Online. Andrew has been quoted as a SME (subject-matter expert) on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other mainstream media, including nationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Symposium on self-defense law. He is also a founding member of USCCA’s Legal Advisory Board. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.

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