• UPDATE: George Zimmerman was found Not Guilty.
• Click here to jump to section that explains whether Not Guilty verdict makes him immune from Civil Lawsuit.

Today George Zimmerman waived his right to a pretrial Immunity Hearing. Which begs the questions:

1. Why did he waive the right to the pretrial Immunity Hearing; and
2. Can he still raise Immunity at trial.

Why did George Zimmerman Waive Immunity Hearing?

The simple answer is because he knew he would lose. The more complicated answer is that a variety of factors made the risks outweigh the reward.

Likelihood of Winning Motion to Dismiss

Every defense attorney knows Judge Nelson is a law and order judge. So when it comes to issues of suppression, dismissal, or admissibility of evidence, she is not going to rule in a defendant’s favor unless there is Black Letter Law supporting the defendant’s position.

And when immunity from prosecution is raised in a pretrial Motion to Dismiss, “the defendant bears the burden of proof on the issue of whether immunity attaches to his actions” and the presiding judge “weighs and decides factual disputes as to the defendant’s use of force to determine whether to dismiss the case based on the immunity.” Darling v. State, 81 So. 3d 574 (Fla. 3d DCA 2012)

But most importantly, on appeal, a judge’s “findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence.” Id. Translated, this means that if Judge Nelson denied his Motion to Dismiss, George Zimmerman would have ZERO chance of the decision being overturned on appeal because Judge Nelson’s findings of facts and determinations of credibility would be presumed correct.

So given the disputed issues in the case, the questions surrounding George Zimmerman’s credibility, and the racial undertones should the case be dismissed without a trial, George Zimmerman (or more candidly Mark O’Mara) rightfully concluded that Judge Nelson would never dismiss a Second Degree Murder case of this nature.

Everything to Gain, Nothing to Lose?

Knowing that it is unlikely George Zimmerman would win an Immunity Hearing, the analysis then turns to what he has to gain versus what he has to lose.

If he wins the hearing, he stands to walk out the courtroom a free man.

But if he loses the hearing, he has completely revealed his entire defense strategy to the State, undermined any tactical advantage he possessed going into the jury trial, and, more importantly, exposed himself to further cross-examination by the State and impeachment with varying inconsistent statements in the subsequent jury trial.

This is important, because even though Judge Nelson would obviously know about George Zimmerman’s credibility issues; a jury would not. And the less ammunition the State has to impeach or contradict George Zimmerman with at trial, the better chance he has at convincing the jury of his version of events.

So at the end of the day, it boiled down to a simple cost-benefit analysis. Why exercise a “right” with theoretical value, but no practical value.

Frankly, these type of cost-benefit decisions are made by criminal defendants every day.

• Defendants choose not to testify because they are afraid of how they will be perceived on the stand;
• Defendants enter into negotiated pleas even though they know they are innocent because they are afraid of a jury not believing them;
• Defendants elect to have “bench” trials instead of jury trials because they think a judge would be more likely to believe them than a jury;
• And in a case like this, a defendant has made a decision that a jury is more likely to believe him than a judge.

Secondary Factor: Civil Lawsuit

A secondary factor which I believe weighed on George Zimmerman’s mind (and Benjamin Crump’s mind) is Florida Statute 776.032, which states that a person whose self defense is found to be lawful “is immune from criminal prosecution and civil action for the use of such self defense.”

And under the doctrine of Collateral Estoppel, once a judge determines an issue, that issue is binding on the parties and their privies in subsequent cases. Cook v. State, 921 So. 2d 631 (Fla. 2d DCA 2005); See also Florida Statute 772.114. Translated, this means that whatever decision Judge Nelson made would be binding in any civil suit.

Further, if a defendant successfully obtains immunity, he is entitled to “reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred  in defense of any civil action brought by a plaintiff.” Meaning that Trayvon Martin’s parents could theoretically get stuck paying George Zimmerman money.

And while it has not been determined conclusively by the courts as to whether a criminal judge’s finding of immunity (or lack thereof) is binding in a subsequent civil lawsuit, the clear intent of the legislature is that it should be.

So I suspect that if George Zimmerman would have asserted and won his Stand Your Ground motion, he would raise that ruling as a defense to the civil suit. Likewise, had George Zimmerman lost his Stand Your Ground Motion, Benjamin Crump would have argued that George Zimmerman was barred from claiming immunity in a civil trial.

Finally, and it should go without saying, but should the jury find George Zimmerman guilty, he would be precluded from denying his guilt in a civil trial pursuant to Florida Statute 772.14. City of Orlando v. Pineiro, 66 So. 3d 1064, 1074 (Fla. 5th DCA 2011) (It is proper to admit evidence of the person’s conviction in criminal offense for determination in underlying civil case.)

What is unclear however, is what effect a Not Guilty verdict would have. Before the Stand Your Ground law was introduced, it was clear that it had no bearing on a civil suit due to the different standards of proof.

However, current case law is ambiguous as to whether a Not Guilty verdict under the current case law is the same thing as a finding of Immunity by a judge. My gut feeling, as will be explained below, is that a jury verdict of Not Guilty would not act as a bar to a civil suit.

Can George Zimmerman Raise Immunity in the Criminal Trial?

The answer is simple, no. But he can raise self defense. Make sense?

Ever since George Zimmerman was arrested, the terms “Self Defense”, “Stand Your Ground,” and “Immunity” have been used interchangeably.

However, they are each discreet terms in a broad statutory scheme.

• Self Defense is technically defined as the “Justifiable Use of Force.” It is a finding a judge must make before granting immunity from prosecution or a jury must make before returning a verdict of Not Guilty.
• Stand Your Ground is a doctrine which holds that one need not attempt to retreat before utilizing deadly force in self defense.
• Immunity is a protection a judge grants a defendant from being prosecuted based on lawful self defense.

Enacted in 2005, the Florida Legislature enacted Ch.2005-27, § 5, at 202, Laws of Fla. which has been unofficially called the “Stand Your Ground Law.”

Among other things, the law:

1. Removed the requirement that a person first attempt to retreat before resorting to deadly force to defend themselves; and
2. Afforded immunity from prosecution or a civil lawsuit to a person found to be lawfully defending themselves.

The Immunity Hearing

What the legislature did not provide was the mechanism for granting immunity from prosecution. However, in 2010 the Florida Supreme Court issued Dennis v. State, 51 So. 3d 456 (Fla.  2010), which laid out the procedure for invoking immunity.

First, the Florida Supreme Court stated that the Stand Your Ground law “contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial.” Id. at 462.

In making this point, the FSC pointed out the purpose of the statute was to “grant defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”

Second, the Florida Supreme Court adopted the decision in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008) as the proper procedure to raise a claim of immunity; which held “that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”

Thus, any belief by Mark O’Mara that immunity from prosecution could be granted by Judge Nelson during the trial or after a conviction is misplaced. As the Florida Supreme Court has made clear, the request for immunity from prosecution must be made before the trial. As the whole point of granting immunity is to allow a defendant to avoid the stress of a trial in the first place.

Self Defense at Trial

However, even though a person must raise their entitlement to immunity from prosecution before trial. They are not prohibited from raising their self defense argument at trial. See Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“A defendant whose motion to dismiss was denied is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.”)

And the self defense instructions that are submitted to the jury contain the updated instructions that allow a person to stand their ground when utilizing deadly force, rather than the old instructions that required an attempt to retreat first.

Likewise, the failure to hold a pretrial immunity hearing will not result in reversal if a jury rejects a defendant’s self defense argument and finds a defendant guilty. And this is exactly how Dennis v. State, 51 So. 3d 456 (Fla.  2010) (mentioned above) reached the Florida Supreme Court. It is also why any claim that Immunity could be raise after trial would be erroneous.

And even though the Florida Supreme Court held that a judge should hold a pretrial immunity hearing, it nevertheless upheld the defendant’s conviction in Dennis because the jury rejected the self defense argument (which implicitly finds that the State had disproved self-defense). The court essentially found that there was no reason to believe a judge would have found differently than the jury.

Defense has Lower Burden at Trial

Another wrinkle to the Stand Your Ground law is the standard of proof the defense must meet at trial. In a pretrial immunity hearing, they have to convince a judge by a preponderance of the evidence that self defense was lawful.

However, at trial the burden is on the State to prove their case beyond a reasonable doubt and, if the defense raises an affirmative defense, disprove the affirmative defense beyond a reasonable doubt.

The way this works is that “when a defendant claims self-defense, he bears the initial burden of presenting a prima facie (a bare minimum) case of self-defense. Once he meets that minimum threshold, the burden shifts to the State to prove that the defendant did not act in self-defense beyond a reasonable doubt.” Stieh v. State, 67 So. 3d 275, 278 (Fla. 2d DCA 2011).

This scheme is significantly more favorable to a defendant in terms of argument.

Because it is much easier to argue to a jury that “the State cannot exclude the reasonable possibility that the shooting was in self defense” as opposed to convincing a jury by a preponderance of the evidence that George Zimmerman acted appropriately.

And it is this dichotomy in burdens that I think makes George Zimmerman’s decision to forego the immunity hearing a smart choice.

Judge Nelson Could Still Dismiss Case During Trial

One final thing to consider, is that once George Zimmerman puts on “some evidence of self defense,” the State must put on evidence to rebut this self defense claim. “If the State fails to rebut the claim, the trial court is duty-bound to grant a judgment of acquittal in favor of the defendant.” State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998).

But how does the State rebut this claim to prevent the judge from granting a judgment of acquittal? Why “through rebuttal witnesses or by inference in its case-in-chief.” Jenkins v. State, 942 So.2d 910, 914 (Fla. 2d DCA 2006).

Translation, not happening George.

In the wake of the Boston Bombings, the last thing anyone would want to be associated with, much less accused of is possessing or discharging a bomb.

And unfortunately for a young girl named Kiera Wilmot of Lakeland, Florida, she has found herself in just such a tragic situation.

For those unfamiliar with Ms. Wilmot’s plight, she is an honors student at Bartow High School in Polk County, Florida who conducted a science experiment one might see on MythBusters.

But because her “chemistry experiment” was not school sanctioned, she was instead arrested and charged with Possession of a Destructive Device (i.e. a bomb) and Possession of a Destructive Device on School Property, both are third degree felonies.

Her school is also trying to expel her!

But as explained below, not only did she not commit a felony, she did not commit any crime.

Her arrest was wrongful and her expulsion unwarranted (although a suspension might have been appropriate).

The “Chemistry Experiment”

The chemistry experiment is unofficially called the “Works Bomb”  or “Drano Bomb“, after the toilet bowl cleaners that contain the main ingredient, hydrochloric acid, of the experiment

The experiment works by mixing aluminum foil with the toilet bowl cleaner. The hydrochloric acid strips the coating of the aluminum foil away, exposing the aluminum.

At this point the Hydrochloric acid reacts rapidly with aluminum and produces Aluminum Chloride (soluble) and Hydrogen gas.

This rapid production of gas pressurizes the bottle until it bursts, creating a very loud bang. The stronger the bottle, the louder the bang. Importantly, absent the container, the chemical reaction does very little.’

The chemical formula for the reaction is: 6HCl(aq) + 2Al(s) –> 2AlCl3(aq) + 3H2(g).

Not All Bombs are Bombs

Ms. Wilmot was arrested for Possession or Discharge of a Destructive Device in violation of Florida Statute 790.161(1) and with Possession of a Destructive Device on School Property in violation of Florida Statute 790.115.

A Destructive Device, for purposes of Chapter 790, is defined in Florida Statute 790.001(4).

However, Florida Statute 790.001(4)(a) provides a safe harbor provision, which states that a “Destructive Device” does not include: “A device which is not designed, redesigned, used, or intended for use as a weapon.”

What this Safe Harbor provision means is that something is not a “bomb” just because it is called a bomb. Moreover, and as explained in more detail below, just because a device “explodes,” it is not transformed into a destructive device (i.e. bomb) because it exploded.

Otherwise, the mere possession of a firecracker would constitute the felony offense of Possession of a Destructive Device.

Rather, before anyone can be prosecuted for Possession of Destructive Device, the State must have some evidence that the device was designed, redesigned, used, or intended to be used, as a weapon.

Absent any such evidence, not only can a person not be prosecuted for the crime, they should not even be arrested for the crime (I hope Ms. Wilmot’s attorney is thinking of a wrongful arrest suit.

Not all Explosive Devices are “Destructive Devices”

While I believe Ms. Wilmot should never have been arrested because of the Safe Harbor provision found in Florida Statute 790.001(4)(a), even if the Safe Harbor provision did not exist (or apply) I believe her “chemistry experiment” still was not a felony under Florida law.

The reason is that while all destructive devices are explosive devices, not all explosive devices are destructive devices.

This is because the “key characteristic in the definition of both ‘firearm” and ‘destructive device’ appears to be ‘explosive,’” the specific definition of which is found in Florida Statute 790.001(5). See Stacey v. State, 660 So. 2d 1083 (Fla. 5th DCA 1995) (Sharp dissenting, reversed on other grounds.)

Judge Sharp goes on to point out that for a device to be a Destructive Device, it must employ an explosion caused by combustion or oxidation upon application of heat, flame or shock. But if the device simply “explodes” due to the buildup of air, the device does not fall under the definition of a destructive device.

As explained earlier, the “Works Bonb” and the “Drano Bomb” are caused not by heat, but by “the rapid production of gas, which pressurizes the plastic bottle until it bursts, creating a very loud bang.”

It follows, based on Judge Sharp’s opinion, that Ms. Wilmot’s device does not meet the legal definition of a Destructive Device because the chemical reaction that caused the explosion does not result from the application of heat, flame, or shock; rather it results from the gas pressure causing the plastic bottle to burst.

Did She Commit Any Crime?

As I indicated above, I do not think Ms. Wilmot’s conduct constituted any crime.

If either of my arguments are incorrect regarding the applicability of charging her with Possession of Destructive Device, then the question begs; did she commit any crime? If so, what crime would that be?

As best as I can determine, the only crime that might be applicable is Criminal Mischief. Criminal Mischief occurs when a person willfully and maliciously injures or damages another person’s property.

While it is unclear if Ms. Wilmot damaged any property, it seems abundantly clear that her conduct was not malicious, which has been described as an offense committed out of “ill will or hatred toward the owner of the property.” Sanchez v. State, 909 So. 2d 981, 985 (Fla. 5th DCA 2005).

Consequently, a person cannot be convicted of criminal mischief if they did not maliciously destroy another person’s property. JG v. State, 655 So. 2d 1284 (Fla. 4th DCA 1995).

Free Kiera Wilmot

The most recent news reports indicate that a diversion resolution is in the works, which is a shame, because Kiera Wilmot should never have been arrested, much less charged with a felony.

So I encourage anyone who might read this to contact the Polk County School Board, the Polk County State Attorney, and The Lakeland Ledger, and advise them to Free Kiera Wilmot.

So George Zimmerman wants a reasonable bond?

This in itself is not surprising, most every client I have ever represented wanted a reasonable bond.

However, few of my clients ever had a quarter million dollar defense fund, and most importantly few of my clients have ever been caught blatantly misleading a judge about the nature of their assets. (Although I am sure many a defendant before George Zimmerman has lied about their actual assets.)

Does George Zimmerman deserve a bond, in my humble opinion, before his misleading of the court, yes and he deserved a bond much lower than what it was set at. The evidence against him is severely underwhelming. And I believe that the $150,000 bond initially imposed was four times what would have been imposed in a less newsworthy case.

However, I also have little sympathy for the way George Zimmerman allowed the court to be misled regarding his true finances. Killing someone, no matter what the circumstances, should never be a reason to come into a financial windfall and then lie about it.

But more importantly, if the financial windfall is for purposes of defending yourself, it should only be used for that reason; not hid so that you can maximize the amount you get to keep when all is said and done.

So with that said, here are a few things to consider about today’s bond hearing:

The Integrity of the Judicial System

As Mark O’Mara points out, Article 1, Section 14 of the Florida Constitution provides that:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

As you can see, in Florida there is a presumption that a person is entitled to bond and only under three limited circumstances can a judge deny a person bond.

So dispensing with irrational argument for the moment, which would be pure hyperbole and speculation, there is no evidence that George Zimmerman poses a threat to the community or that he will not appear at trial.

To the contrary, the evidence seems to suggest that certain segments of the community pose a threat to George and that he has gone out of his way to cooperate with law enforcement. (In a million years, I would never believe  a person who thought they were guilty would willingly scream help for police so they could get voice samples).

So that leaves us with assuring the integrity of the judicial system; the most troubling issue Judge Lester must grapple with today.

Interestingly, Wells Fargo v. Reeves (Fla. 1st DCA June 13, 2012) is a mortgage foreclosure appeal that recently discussed a similar scenario where the integrity of the judicial system was at issue. (And although this opinion speaks in terms of dismissal of a foreclosure suit as a sanction, the corollary sanction in George Zimmerman’s case would be a denial of bond.) In this decision, the First DCA said:

Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. Rather the requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

To support dismissal for fraud on the court, the party alleging fraudulent behavior must prove such by clear and convincing evidence. Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.

However, the power to dismiss a case for fraud upon the court is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. A court certainly possesses the authority to protect judicial integrity in the litigation process.  The authority to dismiss actions for fraud or collusion should be used cautiously and sparingly, and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.

While ultimately the Court reversed the dismissal of the foreclosure action, it seemed to do more on the possibility of good faith defenses that were ignored by the trial court, rather than explicit findings of fraud.

However in George Zimmerman’s case, the judge explicitly made findings of fraud. And so even if George Zimmerman admits his failure to come clean at the initial bond hearing was “wrong” and he “accepts responsibility” (does he have a choice), I believe Judge Lester would be well within his rights to deny George Zimmerman a bond based upon he and his wife’s collusion.

The Trust Fund Defendant

A lot has been made by Mark O’Mara about the defense trust fund, which George Zimmerman supposedly has no control over.

While I don’t doubt that the intent is for Mark to spend the donated money on George Zimmerman’s defense (and by definition his lawyers’ fees), make no mistake at all – that money is George Zimmerman’s. George Zimmerman has complete control, authority, and final say as to where any of that money is spent. If there is any doubt as to the truth of this conclusion, one need look no further than Florida Bar Rule 5-1.1, Rules Regulating Trust Accounts.

On a side note, I have heard of trust-fund babies, but never trust-fund defendants – just saying.

Might Mark O’Mara Secretly Hope Lester Denies Bond

First, Mark O’Mara is one of the most professional and ethical attorneys I am acquainted with, so I discuss this more for hypothetical sake than anything.

With that said, we also know that Mark O’Mara originally was going to represent George Zimmerman Pro Bono, even though he claimed to normally charge in the $400/hour range. He was also going to ask to have Zimemrman declared indigent for costs, in which case the state would pick up the defense costs (due process costs).

But then he found out about that George Zimmerman had in the neighborhood of $250,000 stashed away in his defense fund. While that is less than what the accused acquitted baby killer had available, it is still more than 99% of criminal defendants will ever have available to defend themselves.

Needless to say, Mark O’Mara was probably pretty relieved about his decision to take on the case pro bono, but also pretty happy. Because I don’t care how much you claim to charge an hour (you listening Foghorn Leghorn?), the truth is that clients that can actually afford such an hourly amount are few and far between. More often than not, a criminal lawyer agrees to a flat fee that is paid regardless of how many hours are put into a case.

However, if Judge Lester now set an extremely high bond, say two million dollars, it will likely put Mark O’Mara back in the pro bono category and the State back on the hook for George Zimmerman’s defense costs. Why?

In Florida, and most states, when a person is granted bond, they can satisfy the bond in one of two ways:

1. Post a Cash Bond for the Full Amount; or
2. Post a Surety Bond through a bondsman.

Obviously, if the bond is set at more than what George Zimmerman defense fund has, he would have to post a surety bond. However, the posting of a surety bond comes with a hitch: the defendant must pay the bondsman 10% of the bond value. This is known as a Bail-Bond Premium.

Therefore, if Judge Lester sets bond at the two million dollar mark, 10% of the bond premium will be $200K. While not a bad day’s work for a bondsman, it’s a real bad day for the person paying the premium unless the money was never yours in the first place (or at least earned).

So you can bet your bottom dollar that George Zimmerman is not going to hesitate using his donated money to get his butt out of jail as quickly as he can; and there is nothing Mark O’Mara can do or say to stop him from using the defense fund money to pay the Bail-Bond premium.

On the other hand, if the judge denies bail, finding that the integrity of the judicial system cannot be assured, then Mark O’Mara can continue to bill his $400/hour (I wonder if George Zimmerman ever negotiated a contract before he told Mark about the defense fund) and the state of Florida will avoid spending a ton of money on George Zimmerman’s defense while Mark O’Mara spends countless days deposing witnesses that Ben Crump has already gotten a hold of.

Sticks and stones
May break my bones
But words will never hurt me

As many commentators have opined, including myself, Angela Corey’s probable cause affidavit to support a charge of Second Degree Murder is not only a stretch, but extremely lacking in objective facts.

Boiled down to its essential elements, the probable cause affidavit reads:

1. “Trayvon Martin was on his way back to a townhouse where he was living when he was profiled by George Zimmerman.”
2. Zimmerman called the non-emergency police number and pursued Martin.
3. When the dispatcher realized Zimmerman was pursing Martin, he instructed Zimmerman “not to do that and an officer would meet him.”
4. “Martin attempted to run home, but was followed by Zimmerman.”
5. “Zimmerman confronted Martin and a struggle ensued.”
6. “Martin died from a gunshot wound.”

As was highlighted by Zimmerman’s attorney, Mark O’Mara, the prosecution engaged in selective word use when drafting their probable cause affidavit.

Where followed would have been appropriate, they used “pursued.” Where approached could have been used, they used “confronted.”

Which begs the question; why? Why did Angela Corey elect to use such specific language in the probable cause affidavit?

The answer is quite simple, in order to survive the inevitable Motion to Dismiss based upon Self Defense that will be filed by George Zimmerman’s attorney, she must convince the judge that Zimmerman was the “First Aggressor.”

The First Aggressor Rule

The First Aggressor Rule is a rather simple common law rule that says “a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself, is guilty of an unlawful homicide and cannot claim that he acted in self-defense.” Wharton’s Criminal Law, Sec. 136 Provocation by Defendant. See also Wallace v. United States, 162 US 466 (1896).

Florida has codified the First Aggressor Rule into Florida Statute 776.041(2) (Use of force by aggressor), which states: “The justification [to use self defense] is not available to a person who initially provokes the use of force against himself or herself.”

So if George Zimmerman is to be the aggressor, and thus forfeit his right to self defense, it must be shown that he “provoked” Trayvon Martin to attack him in someway.

This begs the question though, what would constitute sufficient provocation by George Zimmerman such that he would forfeit right to self-defense?

Sufficient Provocation

According to Wharton’s Criminal Law treatise, an encounter is provoked, thereby branding the defendant as an aggressor and stripping him of his right to self-defense, where the defendant:

• Assaulted the deceased;
• Unlawfully arrested the deceased;
• Fires the first shot in a standoff;
• Leaves a fight, only to return with a weapon; and
• Is caught sleeping with the deceased’s wife.

Insufficient Provocation

On the other hand, Wharton’s Criminal Law states that a defendant does not become an aggressor where the defendant:

• Demands an explanation of offensive words or conduct;
• Discusses settlement of a claim;
• Discusses a sensitive subject;
• Hurls inappropriate language and insulting epithets;
• Engages in an inconsiderate act;
• Travels near a neighbor who has previously threatened him;
• Arms himself to repel an anticipated attack, while going about normal business;
• Provides an opportunity for conflict, but does not cause it; and
• Arms himself with the intent to cause a conflict with the deceased, but does not perform an act manifesting his subjective intent to cause the conflict.

This line of reasoning was followed in Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001), which held that hurling racial slurs at another person does not constitute provocation, rather the defendant’s provocation must be done “by force or the threat of force.”

Legally, who was the Aggressor?

With examples of sufficient and insufficient provocation as a backdrop, the question turns to what evidence does the State have that George Zimmerman legally provoked the altercation between he and Trayvon Martin?

Noticeably absent from the Probable Cause affidavit was any evidence of who provoked the fight; but we do know that George Zimmerman claims that it was Trayvon Martin who not only followed him back to his car, but who also threw the first punch. If that is true, or goes un-rebutted by the State, then Trayvon Martin was clearly the first aggressor as a matter of law.

And while we have not had an opportunity to review George Zimmerman’s statement in its entirety, based upon what we do know, there does not appear to be any evidence that would contradict his account of Trayvon Martin throwing the first punch.

Thus there would seem to be no evidence that George Zimmerman legally provoked the fight. And if he did not legally provoke the fight, then he cannot be considered the First Aggressor.

Assuming George was the First Aggressor

Although it is my opinion that there is no evidence to support the conclusion that George Zimmerman was the aggressor as a matter of law. Let’s assume for the minute that Trayvon Martin was lawfully defending himself because he was provoked by George Zimmerman’s “pursuing” of him; the questions then need to be asked:

1. Did George Zimmerman forfeit his right to self defense entirely; and
2. Could Trayvon Martin respond with disproportional force to the initial “confrontation.”

The answer to both of these question is No. George Zimmerman did not forfeit his right to defend himself entirely and Trayvon Martin could not resort to Deadly Force simply because he was being “pursued” or was subsequently “confronted” by George Zimmerman.

Disproportionate Force Exception

Codified in Florida Statute 776.041(2)(a), the “Disproportionate Force” exception qualifies “The First Aggressor Rule” and provides limited circumstances by which an initial aggressor’s right to self defense is restored.

The exception holds that even if a defendant “initially provokes the use of force against himself” if the response is disproportionate to the initial provocation, then the defendant’s right to self defense is restored.

More importantly, he can resort to deadly force if he has no means of escape and reasonably believes that deadly force is necessary to defend himself against the disproportionate reaction by the other party.

In George Zimmerman’s case, it seems pretty clear that he found himself on his back and was having his head hit against a hard surface. We also know, based upon the funeral director’s statements, that Trayvon Martin did not have any noticeable injuries.

Thus the safe conclusion would be that Trayvon Martin had George Zimmerman in a compromising position that, in my opinion, would have been disproportionate to any perceived or real provocation made by George Zimmerman.

And if George Zimmerman did find himself on his back, was having his head hit against a hard surface, and felt his only choice was to use his weapon to defend himself against Trayvon Martin’s disproportionate response, then his use of deadly force to defend himself would have been excusable homicide.

As a result, the charge of Second Degree Murder would be subject to dismissal under Florida’s self-defense law.

In the wake of Trayvon Martin’s death, Florida’s Stand Your Ground Law has come under fire from anti-gun activists, the media, and Trayvon Martin’s family and supporters.

In response, Republican politicians (and George Zimmerman’s attorney) have defended the law by stating that the Trayvon Martin case is not a Stand Your Ground case.

Well, I agree, this is Not a Stand Your Ground case… Sort of.

In order to understand why this is not a Stand Your Ground case, you need to understand the state of Self Defense law in Florida prior to the passage of the Stand Your Ground Act and the State of Florida Self Defense law now.

Self Defense in Florida Then

Prior to the passing of the Stand Your Ground Law, a person could only use deadly force if it was reasonably necessary to prevent death or great bodily harm to him or herself.

The instructions for making this determination is found in Florida’s jury instruction on deadly force, which states:

In deciding whether a defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real, that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.

Additionally, the ability to use deadly force was further tempered by two long standing legal principles:

1. Retreat to the Wall: “Before taking a life, a combatant must ‘retreat to the wall’ using all means in his power to avoid” the need to use deadly force unless retreating would be futile Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997).
2. Castle Doctrine: If a person is attacked in his own home or premises (i.e. his Castle), he has no duty to retreat and had the lawful right to stand his ground and meet force with force, even deadly force, if it was necessary to prevent death or great bodily harm. State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

As a result, under the old self-defense law, even if a person reasonably believed they needed to use deadly force, if it could not be shown they either (1) used all means necessary to retreat or (2) were in their home or premises; they could be found guilty of the charged homicide (whether it be murder or manslaughter).

The Provocation Exception

One final exception to the use of deadly force is found in Florida Statute 776.041, which states that a person can not justify the use of deadly force if they initially provoked the altercation.

But for every exception, there is yet another exception. So under 776.041, even if a person provokes a fight against themselves, they can still use deadly force if the person they provoked responds with disproportionate force. Meaning a person starts a fist fight and the other person pulls out a knife.

This statute remains unchanged under Florida’s current Stand Your Ground law and, as explained below, will likely play a major role in the outcome of George Zimmerman’s case.

Arrest First, Ask Questions Later

Importantly, under the old law, self-defense was not something that law enforcement were expected to give much thought to if someone was killed. In such cases the old adage applied: arrest first, ask questions later.

If there was even the slightest doubt as to the defendant’s story, a law enforcement officer could arrest someone without any fear of civil repercussion in the form of a false arrest suit. (Not that have I ever heard of a law enforcement officer being sued for arresting someone who killed another person.)

Let the Jury Figure it Out

And while prosecutors are not supposed to charge people with crimes that they do not believe can be proven beyond a reasonable doubt, the reality is that prosecutors routinely bend to public pressure and charged people with manslaughter even though the facts supported self-defense.

This is because, no matter how compelling the self-defense claim, the determination of whether a person was defending themselves was always a question for the jury to decide. A judge could not dismiss a case, no matter how much he believed the defendant.

Thus charging someone with manslaughter (and sometimes murder) was a politically expedient way for a prosecutor to pass the buck and look tough on crime. As another old legal saying goes, let the jury figure it out.

Unfortunately, this devastated defendant’s families emotionally and financially, resulted in numerous pleas of convenience to avoid the possibility of being found guilty and sentenced to prison, and made many people believe that criminals had more rights than the average law abiding citizen.

Self Defense in Florida Now

In response to what many perceived as a situation that benefited criminals over law abiding citizens, the Florida Legislature passed the Stand Your Ground Act in 2005.

This act amended Florida Statute 776.012 and created two new statutes, Florida Statute 776.013 and Florida Statute 776.032.

Florida Statute 776.012

This amendment removed the requirement that a person first attempt to “retreat to the wall” if they reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm.

Florida Statute 776.013

This statutory enactment codified the Castle Doctrine and created a presumption that a person’s use of deadly force within their home was reasonable.

This is important because under the old law, even though a person was not required to retreat to the wall if they were in their home, they were still required to prove that their use of deadly force was reasonable.

Under the new law, a person is presumed to have reasonably used deadly force (if done in their home) and it would fall to the prosecutor to develop evidence that overcame this presumption. This is known as a statutorily created rebuttable presumption and is very common, only it is usually a defendant who is required to overcome the statutorily created presumption (think DUI over .08 or possession of recently stolen property).

The statute also further eroded the requirement to retreat by stating that a person could use deadly force any place they were lawfully allowed to be so long as they reasonably believed it was necessary to prevent death or great bodily harm.

This section is important in the Zimmerman case, because even though the statute removed the requirement for George Zimmerman to first attempt to retreat before using deadly force, it neither created a presumption of reasonableness, nor did it remove the requirement that he prove the use of deadly force was reasonable under the circumstances.

Florida Statute 776.032

This statutory enactment created what is known as “criminal prosecution immunity.” And stated that a person who lawfully defended themselves is “immune” from prosecution from arrest, detention, or prosecution.

As the procedure for making the determination of whether a person was “immune” from criminal prosecution was not defined by the legislature, the Florida Supreme Court cleared up the issue in Dennis v. State, 51 So. 3d 456 (Fla. 2010) and ruled:

A defendant may raise the question of statutory immunity [from criminal prosecution prior to trial] and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

The result of this statute and the Florida Supreme Court’s ruling is that a defendant can now raise self defense at two stages in the criminal prosecution.

First, a defendant can file a motion to dismiss asking the court to find that they are entitled to dismissal by using the procedure outlined in by the Florida Supreme Court. If the court denies the motion, the defendant is still allowed to raise the issue with the jury.

In my opinion, this added a much needed and reasonable layer of protection against prosecutorial over reaching.

Finally, the statute goes on to state that a law enforcement agency cannot arrest a person unless it determines that there is probable cause that the force used was unlawful.

It is this section that is probably the most vexing issue in Trayvon Martin’s death and likely the one that most needs to be addressed by the Florida legislature.

Is This a Stand Your Ground Case

To determine if this is a Stand Your Ground case, we must work backwards and analyze the applicable statutes.

Did George Zimmerman Provoke the Fight?

As I explained previously, Florida Statute 776.041, states that a person cannot raise self defense if they provoked the fight.

And that begs the question, what would be considered provoking the fight? Most people (including myself) focus on the facts that George Zimmerman:

1. Disobeyed the 911 Dispatcher, left his car, and followed Trayvon Martin; and
2. Brought his firearm with him, although lawfully concealed.

But neither of these acts are unlawful, nor would they be considered legally provocative acts.

So unless George Zimmerman told police that he went up either waiving his gun around or went up and started a fight with Trayvon Martin, his acts of getting out of his car with his firearm concealed and following Trayvon would not make him the aggressor. Thus 776.041 would not apply.

Was George Zimmerman Allowed to Stand his Ground?

If George Zimmerman was not legally the aggressor, we would then turn to Florida Statute 776.013(3).

And because George Zimmerman was not breaking the law when he followed Trayvon Martin and was lawfully present in the gated community (since he lived there) he was not required to attempt to retreat if Trayvon Martin either confronted him or physically attacked him.

Thus George Zimmerman was entitled to Stand his Ground.

BUT, even under the old law, George Zimmerman would have been entitled to stand his ground and use non-deadly force (i.e. fisticuffs) without first attempting to retreat. See Morris v. State, 715 So. 2d 1177 (Fla. 4th DCA 1998) (There is no duty to avoid danger before using non-deadly force.)

As a result, under both Florida’s old and current self defense law, George Zimmerman could stand his ground and defend himself with his fists IF Trayvon Martin attacked him first.

But Was Deadly Force Reasonable

Which leads us to the most vexing question in this entire case: what were the exact circumstances that led to George Zimmerman using deadly force.

Because even under Florida’s current Stand Your Ground law, George Zimmerman’s use of deadly force is not entitled to a presumption of reasonableness.

The reason we cannot answer this question is we do not know what happened in the moments before Trayvon Martin and George Zimmerman physically engaged one another.

If George Zimmerman went up and grabbed Trayvon or went up waiving his gun around, but Trayvon instead defended himself, which resulted in George Zimmerman shooting him – then his use of Deadly Force was unreasonable.

But we do know that George Zimmerman has a (self reported) broken nose, a cut on the back of his head, and grass stains on his back.

These facts beg the questions:

1. Did Trayvon Martin attack George Zimmerman first, pin him to the ground defenseless, and beat him?; or
2. Did George Zimmerman verbally ask Trayvon Martin to identify himself, but instead Trayvon Martin jumped George Zimmerman, pinned him to the ground in a defenseless manner, and beat him?

If either of these scenarios are supported by the physical evidence and George Zimmerman’s explanation; then George Zimmerman’s use of his gun was likely reasonable – and therefore lawful.

Moreover, even under Florida’s old law, George Zimmerman would have been allowed to stand his ground and INITIALLY use non-deadly force.

An under both the old law and the new law, if the situation escalated such that George Zimmerman reasonably had to resort to his weapon to stop Trayvon Martin from beating him badly; then the use of his firearm to stop Trayvon Martin would be lawful.

The Only Difference

The only difference is that even if law enforcement believed George Zimmerman, under the old law they would have arrested him first and asked questions later.

But under the new law, Florida Statute 776.032, law enforcement cannot arrest George Zimmerman unless they determine that the deadly force he used was unlawful under the facts of the case.

And we know that the Sanford Police Department declined to arrest George Zimmerman; therefore they have concluded that his use of deadly force was lawful.

So if any change needs to be made to Florida’s Stand Your Ground Law, maybe it’s that we need to return to Arrest First, Ask Questions Later when it comes to deadly force in self defense situations.

What do you think?

Well, its been a while since my last meaningful blog post. I was actually enjoying my retirement from the circus that is Casey Anthony and Foghorn Leghorn. But the volume of inquiries as to whether Zenaida Gonzalez’s case has any merit and whether Judge Munyon should dismiss the case has pushed me to reply.

My position is that the case has no merit and it should be dismissed. The primary reason I believe it has no merit is that Zenaida Gonzalez has failed to show that she is the actual person that Casey Anthony referred to; meaning that she is actually “Zenaida Fernandez Gonzalez.”

The other reason I believe the case should be dismissed is that Casey Anthony, or any witness or defendant in a criminal investigation, is entitled to Absolute Immunity from civil law suits for any statements made during a criminal investigation.

Just Another Keyser Söze

A key element of a defamation claim is that the person suing for defamation, was actually the  person being defamed.

So in the defamation case, Zenaida Gonzalez must prove by “clear and convincing” evidence that she was the person Casey Anthony was referring to when Casey claimed “Zenaida Fernandez Gonzalez” kidnapped Caylee.

“Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the question in issue.

In this case, it seems highly unlikely that Zenaida Gonzalez could prove, without hesitation, that Casey Anthony was speaking of her, and not some fictional person, when she told law enforcement that “Zenaida Fernandez Gonzalez” was the person who kidnapped her child. Moreover, when pressed, Casey Anthony never described any person who remotely resembled Zenaida Gonzalez.

Which leaves us with the only piece of connecting information, which is that Casey Anthony apparently visited Sawgrass Apartments, the same apartment complex that  Zenaida Gonzalez had visited previously.

But this begs the question, even if Casey Anthony did see Zenaida Gonzalez’s name, she did not use that name and instead used the specific name Zenaida Fernandez Gonzalez. And without any other concrete information to link Casey to Zenaida Gonzalez, it seems clear that Zenaida Fernandez Gonzalez is just another Keyser Söze.

The greatest trick the She-Devil ever pulled was convincing the jury she was Not Guilty.

Absolute Immunity versus Qualified Immunity

But even if Casey Anthony was actually claiming that Zenaida Gonzalez is the one who kidnapped Caylee, it is my belief that she is still entitled to dismissal of the case based upon the doctrine of Absolute Immunity.

This is because Casey Anthony’s statements were made to investigators during an ongoing criminal investigation; not to initiate a new investigation. And statements made to investigators during an ongoing criminal investigation are privileged and a person cannot be sued for their statements to law enforcement officers during an ongoing criminal investigation – no matter how scandalous or false they are.

Doctrine of Absolute Immunity

The doctrine states “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior … so long as the act has some relation to the proceeding.” Moreover, “The falsity or maliciousness of the alleged statements is irrelevant to this analysis.” Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA 2010)

“Absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the legal proceedings. Participants in legal proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id.

Doctrine of Qualified Immunity

However, I am not sure Judge Munyon will revisit the issue of whether Casey Anthony is entitled to Absolute Immunity because the prior judge, Judge Rodriguez, ruled that Casey Anthony was only entitled to qualified immunity, which is a question for the jury to decide, not a judge.

The doctrine of qualified immunity holds that “statements made by a private individual to an investigating officer or a prosecutor prior to the filing of a criminal charges are privileged only if it is proven the statements are false and made with actual malice.” Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992).

But there are No Damages?

A final issue that has been brought up is whether Zenaida Gonzalez’s case will be dismissed if she is unable to prove actual monetary damages.

The answer is no; even if a person cannot prove actual money damages due to defamatory statements, they are still entitled to have the jury make a determination of whether they are entitled to nominal damages. See Myers v. Russo, 3 So. 3d 411 (Fla. 2d DCA 2009).

Extra Credit

One other thing that might interest some of you, is how Jose Baez’s opening statement can be used against Casey Anthony in her civil trial.

The answer is that since Jose Baez was Casey Anthony’s “agent” and he gave very specific statements that could only have come from Casey Anthony, and not from inferences based on other witnesses statements, the opening statement is admissible against Casey Anthony, as if she has uttered it herself, as an “Admission by a Party Opponent.”

The leading case on this issue is United States v. McKeon, 738 F. 2d 26 (US 2nd Cir. 1984), which held that a criminal defendant’s attorney’s opening in one trial could be introduced against the same defendant in the retrial if the defendant adopted a defense that was incompatible with the original opening. This same rule has been applied to prosecutor’s opening statements. And has been applied to using criminal opening statements in subsequently related civil law suits. (See The Use of an Admission by Party-Opponent to Hoist A Prosecutor By His Own Words.)

The underlying  principle behind this rule is that no party ought be able to evade the truth by changing their statements merely because it may suit their theory of the case it stands at that time.