Did George Zimmerman Waive Stand Your Ground Defense?

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 772.14City 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.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

25 thoughts on “Did George Zimmerman Waive Stand Your Ground Defense?”

  1. Confused and hoped you could clarify. the case of State of Fl. vs Daniel Diodato. it seems he raised the immunity issue in a motion a week prior to trial. The issue of immunity was resolved after the prosecution put on its case.

    I don’t know all the details but maybe you could help me, can the Immunity portion of the statute be done concurrently with the trail. Or can MOM file a motion dismiss after the prosecution ends it case and ask the Judge to grant immunity at that point thereby saving an added separate hearing?

    Separate yet related issue, based that the as the FSC concluded;
    “grant defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”
    the fact that a, GZ has already been arrested, detained, charged, already violates the meaning of the law, b, that conducting a separate hearing is in effect also violating the meaning of the law, as Zimmerman has to present evidence, face the prosecution, which this law was intended to prevent.

    Thank for any comment, would like your permission to use your analysis in my blog.

    1. I am not the familiar with the Diodata case. So I can’t comment. But as I said, the FSC does not seem to authorize it being done during the trial. As for the substantive right being violated by his arrest, etc. The Constitution has many rights that can only be enforced by a motion bringing the violation of the right to judge’s attention. Otherwise how else could you exercise right.

      1. Thanks for your response, that is an excellent point about the Constitution. Perhaps a better question should have been whether there should be a vehicle, like a Grand Jury, available for cases, where an Affirmative Defense could be an issue. Thereby honoring the law by preventing arrest, and/or prosecution prior to arrest.

        Thanks again.

          1. I wonder what you and viewer allude to, Richard.

            In other words, I would be interested in why you think the only argument that supported Benjamin Crump–probably?–was emotional. Or what specifically you allude to.

            Personally, it feels his decision to put the HOA settlement into the case file was a slightly too rash decision, obviously triggered by the writ of certiorari. Had I been him at that point, I probably would have hesitated to do so, especially since I have a slightly choleric temperament too. …

            Considering the not so convincing argument about waiving-privilege-by-going-public argument by team Zimmerman. One of O’Mara’s recurring arguments is that the case is not comparable to any others or something similar, it hardly was comparable to other cases Crump had before. Obviously a lawyer should have the right to go public with specific narrowly defined information with the consent of his clients.

            The legal argument of the writ feels absolutely weak to this foreign observer, while the “political part” of it is slightly frightening, admittedly.

            Great articles by the way.

          2. I don’t think you or anybody else gets to make that call ,that his argument was only emotional, it makes you appear to be a name caller and it comes across as very rude and disrespectful

          3. viewer, it feels you are wrong concerning Richard Hornsby. I have huge problems with that type of easy categorization going on sometimes. It’s in fact what makes me interested in this case.

            But strictly I would still like to know what you are alluding to. Any link?

            Notice I fully support Crump and the family but I do not think that Crump is beyond critique. Although, not quite the way O’Mara/West are trying to suggest. Suspicion is not evidence. And whatever Crump told to media is irrelevant, we all arriving at conclusions based on limited knowledge sometimes.

            Concerning the infamous ABC audio file, I find it highly ironic that DeeDee in that part of the session at one point corrects Benjamin Crump. Well, that is of course exquisite evidence that he told her what to say. Not that O’Mara and West seem to notice. 😉

            Much more strange I find it when both Jeralyn Merrit and Diwatman after using respective audio enhancement tools hear what they want to hear. That’s the point were it gets puzzling to me, were I seem to enter the famous room full of mirrors.

            Can it really be that a non-native speaker can understand DeeDee’s African American vernacular better then a native speaker? I would have seriously doubted that before following this case. You should follow her link behind here. For me that is among the most puzzling statements I have read by her so far. But the problem doesn’t seem to be emotion here, but more the coloring of perception according to ideology. I could phonetically transcribe the sound pattern, it is not even close to what she wants me to hear.

            So yes, emotion, surely but also a very strange type of the coloring of perception according to ab initially accepted position. I wonder what the jury will be like.

            It makes sense to differentiate in this context between the few people that clearly try to remain objective and the ones that have taken clearly sides. Richard Hornsby for me seems to concentrate solely on the legal aspect. He surely is not in the pro-Zimmerman camp from my perspective. But you can try to convince me after all. Any link, slightly more evidence concerning what you wrote here?

    1. I have seen it, but why even consider it? The only thing admissible against Trayvon Martin would be a felony conviction, accusations and arrests are inadmissible against victims, defendants, or witnesses. So it is just a needless sideshow meant to inflame racial prejudices.

  2. I don’t know if I agree with your assessment, but that may be the case. In any event, if George Zimmerman wants to avoid the stress of a trial, he should elect an Immunity hearing. Otherwise, he is stuck with his choice.

  3. Lot of information. If what you claim is so true Zimmerman would have been a free man already. immunity
    I can’t wait for him to take the stand and tell with a straight face how that bullet ripped through Trayvon and yet he sat up and had a conversation.Bring on th ME

    1. viewer – WHY would you think GZ will take the stand? MOM nor West have said if he will or not, usually, defendants don’t take the stand if they don’t have to.

      viewer: “George Zimmerman: The Most Likely Scenario” written by a Criminal Defense Attorney, Jeralyn E. Merritt, owner of Talk Left is a good read & lays it out for you.


      Richard – THANKS for taking the time to explain to us layman all the possibilities going forward. I too enjoyed the interview you did with Trisha @ “webslueths” earlier in the year on GZ’s case.

  4. This is false rad the evidence one witness (john ) retracted said he saw arms flying heard no head smashing on cement and everything was in the grass.
    read the evidence

  5. Hello Richard:

    Most excellent article. Thanks so much!

    I think it unlikely that Crump would ever sue gz civilly, mainly because you can’t get blood from a stone. I am sure there are lots of ways of avoiding ever giving one cent to the Martins. Plus, gz has tons of attorney fees at this point, so they would have to be paid first. At $400 and $350 per hour respectively, and with the countless hours spent on this case, the first million or so would have to go to fees. Maybe there is a way gz can get money in the future, but I’m sure that is the furthest thing from his mind right now.

    1. While I have no doubt that George Zimmerman’s primary concern is this case, I equally believe that he feels entitled to the money that has been “donated” to his defense fund and probably feels an entitlement to future donations. There is just something about the way he asked for money before he was even represented and how he continues to seek money that rubs me the wrong way. As for future earnings, if he is acquitted it is probably unlimited. He will be a golden child of the radical right and the gun lobby, so he will probably be able to command top dollar in speaking fees; not to mention his “story.”

Comments are closed.