George Zimmerman’s 10-20-Life Problem

To many people, there is no middle ground: George Zimmerman will either be convicted of Second Degree Murder or he will be found Not Guilty.

But the reality is much more complex, because the jury will have a number of Lesser Included Offenses to choose from.

And because of these numerous options, it is not uncommon for a jury to exercise what is known as their “pardon” or “nullification” power and return a compromise verdict that they believe is just under the circumstances. See generally Haygood v. State, 109 So. 3d 735 (Fla. 2013).

Lesser Included Offenses

In Florida, there are two types of Lesser Included Offenses:

  1. Category One Lesser Offenses (Mandatory Lessers); and
  2. Category Two Lesser Offenses (Discretionary Lessers).

While mandatory lesser offenses must be given, discretionary lesser offenses are only required if the Information alleges the essential elements of the offenses and one of the parties requests the lesser offense. See Herrington v. State, 538 So. 2d 850 (Fla. 1989).

Based on the schedule of applicable lesser offenses found in the Standard Jury Instructions for Second Degree Murder and the language found with the formal charging document filed against George Zimmerman, the likely lesser offenses applicable to George Zimmerman are:

  • Manslaughter;
  • Third Degree Felony Murder;
  • Aggravated Battery;
  • Aggravated Assault;
  • Felony Battery;
  • Culpable Negligence (Argument can be made not applicable);
  • Battery; and
  • Assault.

However, this equation is complicated by Florida’s 10-20-Life law (Florida Statute 775.087).

10-20-Life

Florida’s 10-20-Life law imposes enhanced penalties for crimes that involve a firearm.

The law has two primary enhancements:

  1. Any felony in which a firearm is used is reclassified as follows:
    1. In the case of a felony of the first degree, to a life felony;
    2. In the case of a felony of the second degree, to a felony of the first degree; and
    3. In the case of a felony of the third degree, to a felony of the second degree.
  2. For “enumerated” felonies, a Mandatory-Minimum Prison Sentences must be served (day-for-day, no gain time) if the following apply:
    1. Possession of Firearm during commission of the enumerated felony (10 year minimum prison sentence);
    2. Discharge of Firearm during commission of the enumerated felony (20 year minimum prison sentence); and
    3. Discharge of Firearm causes death or great bodily harm during commission of the enumerated felony (25 year minimum prison sentence and maximum sentence of life imprisonment).

The applicability of 10-20-Life enhancements are determined by a jury through special jury findings, which they return along with their primary verdict.

The special finding is that the defendant either:

  1. Possessed a firearm in the commission of the felony;
  2. Discharged a firearm in the commission of the felony; or
  3. Caused death or great bodily harm with a firearm in the commission of the felony.

With this as a backdrop, we can discuss the applicable penalties that would apply to each of the offenses the jury will have to choose from. (And no, the jury is not informed of the applicable penalties for each offense.)

Second Degree Murder

Second Degree Murder is classified as a First Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 16¾ years in prison, but can impose any additional combination of the following penalties:

  • Up to Life in prison.
  • Up to Life on probation.
  • Up to $10,000 in fines.

10-20-Life Firearm Enhancement

If the jury finds that a firearm was used, Second Degree Murder is reclassified to a Life Felony (although maximum penalty does not change).

However, if the jury finds that a firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year mandatory-minimum prison sentence and could sentence him up to life in prison.

If the jury found that he discharged a firearm, a 20 year mandatory-minimum sentence must be imposed.

If the jury found that he possessed a firearm, a 10 year mandatory-minimum sentence must be imposed regardless of any mitigating circumstances the judge might find (Not that Judge Nelson would find any.)

Manslaughter

Manslaughter is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 9¼ years in prison and can impose any additional combination of the following penalties:

  • Up to 15 years in prison.
  • Up to 15 years of probation.
  • Up to $10,000 in fines.

10-20-Life Firearm Enhancement

If the jury finds that a firearm was used, Manslaughter is reclassified to a First Degree Felony, which increases the maximum sentence up to 30 years in prison or 30 years of probation.

Interestingly, because Manslaughter is not an enumerated felony under the 10-20-Life statute, a judge is not required to impose any mandatory-minimum sentence.

In a minute I will literally blow your mind, because there are offenses that are “lesser” than Manslaughter, but because they are enumerated offenses, they “expose” George Zimmerman to the 25 year mandatory-minimum sentence.

Third Degree Felony Murder

Third Degree Murder is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 10? years in prison, but can impose any additional combination of the following penalties:

  • Up to 15 years in prison.
  • Up to 15 years of probation.
  • Up to $10,000 in fines.

10-20-Life Firearm Enhancement

If the jury finds that a firearm was used, Third Degree Murder is reclassified to a First Degree Felony, which increases the maximum sentence to 30 years in prison or 30 years of probation.

However, because Murder is an enumerated felony, if the jury finds that the firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison (notwithstanding the 30 year maximum sentence).

If the jury only found that he possessed or discharged the firearm, then the respective 10 or 20 year mandatory-minimum sentence must be imposed.

Aggravated Battery

Aggravated Battery is classified as a Second Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge is required to impose a minimum sentence of 21 months in prison, but can impose any additional combination of the following penalties:

  • Up to 15 years in prison.
  • Up to 15 years of probation.
  • Up to $10,000 in fines.

10-20-Life Firearm Enhancement

If the jury finds that a firearm was used, Aggravated Battery is reclassified to a First Degree Felony, which increases the maximum sentence to 30 years in prison or 30 years of probation.

However, because Aggravated Battery is an enumerated felony, if the jury finds that a firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison if she so decided.

If the jury only found that he possessed or discharged the firearm, then the respective 10 or 20 year mandatory-minimum sentence must be imposed.

Aggravated Assault

Aggravated Assault is classified as a Third Degree Felony. Under Florida’s sentencing guidelines, and absent mitigating circumstances, a judge can impose any combination of the following penalties:

  • Up to 5 years in prison.
  • Up to 5 years of probation.
  • Up to $5,000 in fines.

10-20-Life Firearm Enhancement

If the jury finds that a firearm was used, Aggravated Battery is reclassified to a Second Degree Felony, which increases the maximum sentence to 15 years in prison or 15 years of probation.

However, because Aggravated Assault is an enumerated felony, if the jury finds that the firearm was used to kill Trayvon Martin, the judge would be required to impose a 25 year minimum-mandatory prison sentence and could sentence him to life in prison.

If the jury found the firearm was discharged, the respective 20 year mandatory-minimum sentence must be imposed.

If the jury found he possessed the firearm, a 3 year mandatory-minimum sentence applies. (This is a specific exception from the 10-20-Life schedule.)

Culpable Negligence, Battery, and Assault

Culpable Negligence, Battery, and Assault are either First or Second Degree misdemeanors.

A First Degree Misdemeanor is punishable by a maximum of 1 year jail, 1 year probation, and/or $1,000 fine.

A Second Degree Misdemeanor is punishable by a maximum of 60 days jail, six months probation, and/or $500 fine.

10-20-Life Firearm Enhancement

The 10-20-Life law does not apply to misdemeanors. As a result, no reclassification or mandatory-minimum sentences are applicable.

Not Guilty or Bust

It is entirely possible the jury could convict him of a lesser offense and not find he possessed, discharged, or caused death with a firearm. In such case the mandatory-minimum would not apply.

Realistically though, George Zimmerman must hope he is acquitted out right. Because absent a Manslaughter conviction, Judge Nelson would be statutorily required to impose the 25 year mandatory-minimum prison sentence under Florida’s 10-20-Life for any felony but Manslaughter or Felony Battery.

Don’t Believe Every Tweet You Read

Because of some erroneous Tweeting going on in the Twitterverse, I keep receiving the following two recurring questions regarding George Zimmerman’s case:

  1. Is Aggravated Manslaughter of a Child an available lesser offense; and
  2. Does the 10-20-Life firearms enhancement still apply to a Manslaughter charge.

The answer to both of these questions is nope.

Aggravated Manslaughter of a Child

The standard jury instruction for Manslaughter can be found on the Florida Supreme Court’s website under Jury Instruction 7.7.

The instruction contains a number of instructions that are applicable, depending on what is alleged in the formal charging document (called an Information).

As you will see, to prove the crime of Aggravated Manslaughter of a Child, the State must prove the following elements beyond a reasonable doubt:

  1. The victim is dead.
  2. The death of the victim was caused by the culpable negligence of the defendant.
  3. The victim was was a child whose death was caused by the neglect of the defendant, a caregiver.

A “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

A review of the Information in George Zimmerman’s case shows he is charged with a single count of Second Degree Murder. The Information alleges he committed this act as follows:

By an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design …. kill Trayvon Martin by shooting [him].

The information does not allege that he committed the offense of Second Degree Murder in a culpably negligent way, that he was a caregiver of Trayvon Martin, or that he neglected Trayvon Martin as his caregiver.

Because neither of these elements were alleged, Aggravated Manslaughter of a Child (and its enhanced penalties) is not available as a lesser offense in George Zimmerman’s case. See Griffis v. State, 848 So. 2d 422, 427 (Fla. 1st DCA 2003) (“The information [charging second degree murder] did not allege either neglect or culpable negligence, and section 827.03(3) [Aggravated Manslaughter of a Child] is not a proper lesser offense.”)

Full Disclosure: The reason I’m even aware of this issue, and why I am so sure of it, is because I had it come up in a First Degree Murder trial before Judge Nelson. She upheld my objection and would not allow Aggravated Manslaughter of a Child to be considered as a lesser offense.

Unfortunately though, I got a hung jury and the State filed an Amended Information before the second trial that cured the charging deficiency. (Orlando Sentinel: Prosecutors file new charge against suspected killer Jason Lenz.)

Manslaughter by Culpable Negligence

As a side note, traditional manslaughter can be alleged in one of three different ways:

  1. Manslaughter by Intentional Act (Voluntary Manslaughter);
  2. Manslaughter by Procurement (Voluntary Manslaughter); and
  3. Manslaughter by Culpable Negligence (Involuntary Manslaughter).

And while traditional Manslaughter is a Category One lesser included offense for Second Degree Murder (meaning it must be given as a lesser offense if requested), there is case law that suggests only Manslaughter by Act (Voluntary Manslaughter) can be given to the jury to consider as a lesser offense.

Specifically, because the State did not allege (in the alternative) that the death was by culpable negligence, the State should be unable to have Manslaughter by Culpable Negligence (Involuntary Manslaughter) given as a lesser included offense. See Ayala v. State, 879 So. 2d 1, 2 (Fla. 2d DCA 2004) (“It is fundamental error to instruct the jury on a variety of manslaughter that had not been included within the information.”)

What this means is that, should the defense object, they might be able to convince the judge only to have the jury instructed on Manslaughter by Act. If the judge overruled this request and also instructed on Manslaughter by Culpable Negligence, it would set up another excellent appellate issue.

Why would the Defense object to Manslaughter by Culpable Negligence, possibly because they know that if the jury is likely to convict George Zimmerman on any theory, it would be on a theory of culpable negligence.

If they don’t have the option to reach a “compromise verdict,” they would be left with no choice but to return a Not Guilty verdict.

Florida’s 10-20-Life Law

Florida’s 10-20-Life is codified in Florida Statute 775.087. The statute enumerates all of the offenses that 10-20-Life applies to.

Under Florida’s 10-20-Life law, a person who uses a Firearm to commit Second Degree Murder must be sentenced to a minimum-mandatory prison sentence of 25 years.

However, Manslaughter is not an enumerated offense under Florida Statute 775.087. As a result, there is no minimum-mandatory firearm enhancement that would apply to George Zimmerman if he were convicted of Manslaughter. See Murray v. State, 491 So. 2d 1120, 1123 (Fla. 1986) (“We find no authority allowing application of a mandatory minimum sentence to the conviction for manslaughter.”)

So there you have it, contrary to what Attorney Natalie Jackson and others may have tweeted, Aggravated Manslaughter of a Child is unavailable as a lesser included offense and 10-20-Life does not apply to a traditional Manslaughter charge.

George Zimmerman’s Self Defense Jury Instructions

For more than a year, supporters of both sides have engaged in endless debate about the wisdom of Florida’s Stand Your Ground law and whether George Zimmerman was lawfully defending himself against Trayvon Martin.

And since the trial is near, I have taken the opportunity to provide a model of the Self Defense Instructions that will actually be read to George Zimmerman’s jury. The model instruction is taken directly from Florida’s Standard Jury Instruction 3.6(f) “Justifiable Use of Deadly Force”.

It is my belief that if supporters for each side know how the jury will actually be instructed, the discourse will be more focused, reasoned, and constructive.

Finally, I expect the both the State and the Defense to request additional, special instructions regarding their respective theories.

For example, one of the most important issues in the trial will be whether George Zimmerman was engaging in an “unlawful” act when he either:

  1. Ignored the Non-Emergency Dispatch Operator; or
  2. Approached Trayvon Martin and spoke to him.

If I am the defense team, I request a special jury instruction that it was neither “unlawful” to ignore the Non-Emergency Dispatch Operator, nor unlawful to approach Trayvon Martin and speak with him. See Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001) (Words alone do not constitute provocation.)

If I am the State, I not only vigorously oppose any such request, I request an instruction that it was unlawful to ignore the 911 operator. (I would note though, that there is no law that supports such an instruction.)

But for now, the model jury instruction.

Justifiable Use of Deadly Force

An issue in this case is whether George Zimmerman acted in self-defense. It is a defense to the offense with which George Zimmerman is charged if the death of Trayvon Martin resulted from the justifiable use of deadly force. “Deadly force” means force likely to cause death or great bodily harm.

When Deadly Force is Justified

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.

When Deadly Force is Not Justified

The use of deadly force is not justifiable if you find George Zimmerman initially provoked the use of force against himself, by force or the threat of force, unless:

  1. The force asserted toward George Zimmerman was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on Trayvon Martin; or
  2. In good faith, George Zimmerman withdrew from physical contact with Trayvon Martin and clearly indicated to Trayvon Martin that he wanted to withdraw and stop the use of deadly force, but Trayvon Martin continued or resumed the use of force.

Judging Circumstances of Deadly Force

In deciding whether George Zimmerman 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 George Zimmerman 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. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

No Duty to Retreat

If George Zimmerman was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

Reputation of Victim

If you find that Trayvon Martin had a reputation of being a violent and dangerous person and that his reputation was known to George Zimmerman, you may consider this fact in determining whether the actions of George Zimmerman were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of George Zimmerman and Trayvon Martin.

Final Considerations

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.

However, if from the evidence you are convinced that George Zimmerman was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

Authenticating Trayvon Martin’s Digital Records

Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. – Florida Statute 90.901

A major issue in the George Zimmerman case is whether Trayvon Martin’s cellular phone and social media records (collectively digital records) will be admissible in court.

And as a threshold matter, Judge Nelson has indicated skepticism that these records can even be authenticated – i.e. that it can be proven they are what they purport to be.

Likely, this skepticism is based on the belief that Trayvon Martin would be the only person who could authenticate them. However, this belief is mistaken.

Authenticating Digital Evidence

In Florida, “[e]vidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication (i.e. certified records).” Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012).

Text Messages

In Symonette, the detective obtained a search warrant and took pictures of text messages on the defendant’s phone and the person who had sent the messages to the defendant testified to having done so.

As a result, even though the defendant (the owner of the phone) did not personally authenticate them, the circumstances of how the pictures were obtained (through a law enforcement officer’s search of the phone) combined with the sender of the messages testimony was sufficient extrinsic evidence to support their admissibility.

In George Zimmerman’s case, given that Trayvon Martin’s phone was lawfully obtained by law enforcement and properly searched, any “authentication” objection should fail so long as the defense is able to secure testimony from the second party to the text messages on Trayvon Martin’s phone (i.e. W8).

But what if W8 feigns ignorance or lack of memory of the texts?

Second Party’s Lack of Memory

In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), the defendant was charged with a series of domestic violence related charges against his ex-wife. The State sought to introduce a series of text messages and images found on the defendant’s phone that were between the ex-wife and her then boyfriend (don’t ask, I don’t know why she used his phone).

The ex-wife testified that she only recognized two images and one text. As a result, the trial court only found those three items authenticated and admissible and excluded the remainder.

The appellate court reversed and states “the images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits.” Id. citing U.S. v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985) (holding that authentication of evidence merely requires a finding that the evidence is what it purports to be).

As a result, it appears that so long as a proper predicate is laid that the phone found on Trayvon Martin was secured by law enforcement and first searched by law enforcement, the contents of it would be authenticated without the need for calling the second party to any of Trayvon Martin’s conversations.

Multimedia Records

Multimedia records (i.e. videos and pictures) are actually some of the easiest records to authenticate.

When it comes to visual evidence, such as pictures or videos of a person, the defense (or state) would only need one person to testify that the person in the video or picture is the person in question. See Bryant v. State, 810 So. 2d 532 (Fla. 1st DCA 2002) (Any witness can testify that a photograph is a fair and accurate representation of the individual, and the photographer’s testimony is not necessary to authenticate the photograph.)

Notably, under Florida’s evidentiary code, the definition of photographs includes “still photographs, X-ray films, videotapes, and motion pictures.” Florida Statute 90.951

Social Media Records

Trayvon Martin’s social media records would seem to pose a slightly different problem, because as far as I can tell, they were obtained directly from Twitter (or other social media accounts).

Assuming the records did not exist on his phone, authentication of the records would be a multi-step process.

  1. First, the defense would have to identify Trayvon Martin’s actual social media accounts (likely through his known email address, cell phone number, or ip address from last known access point.)
  2. Second, the defense would have to subpoena Trayvon Martin’s social media records.
  3. Third, once received, the defense would have to either list a Business Records custodian or file a Notice of Intent to Rely on a Business Records Certification under Florida Statute 92.605.

Notably, so long as the above procedure is properly followed, Florida Statute 92.605 specifically holds that records produced under this rule are self authenticating and non-hearsay.

Thus, the primary argument I see the defense running into is proving that the social media accounts in question were actually Trayvon Martin’s. This could be accomplished  through the process outlined in  Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012), where W8 could testify that the social media account in question was the one Trayvon Martin used.

Or, as suggested in State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), it could be done through some type of extrinsic proof. Such extrinsic proof would likely be accounts connected to his cellular phone or any other electronic devices of his that were examined by law enforcement. See also Harden v. State, 87 So. 3d 1243 (Fla. 4th DCA 2012) (Victim’s MySpace records admissible through business records certification.)

However, I would note that to date the defense has not filed a Notice of Intent to Rely on Business Records Certification, nor as far as I can tell, listed a custodian of records from a social media company.

Thus, I don’t foresee any social media evidence being introduced into his trial.

Authenticatable, but are they Admissible

Ultimately, while Judge Nelson expressed skepticism about the admissibility of Trayvon Martin’s digital records because of authenticity concerns, I suspect she was really expressing questions about how the defense will get around hearsay objections.

Hearsay testimony occurs when someone testifies to a statement that was made outside-of-court and the statement is offered to prove the truth of what was said. Florida Statute 90.801(1)(c). Importantly, hearsay testimony is inadmissible. Florida Statute 90.802.

However, the Florida Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So. 2d 906, 914-15 (Fla. 2000). When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay. Id.

In this case, the the digital evidence between W8 and Trayvon Martin may be admissible for a variety of reasons other than to prove the actual contents of the messages.

And it is for this last reason that I suspect the George Zimmerman defense team will try to get Trayvon Martin’s digital records in. While Trayvon Martin’s messages about fighting may be hearsay; the knowledge that they bestowed upon the recipient create a non-hearsay reason to admit them. i.e. to show that Trayvon Martin was a seasoned street fighter.

As an aside, if George Zimmerman’s defense team has the recipients of such messages available, I suspect that it is these witnesses whom the George Zimmerman defense team is concerned will be subject to retaliation or retribution.

Because most any person who knew Trayvon Martin would be from South Florida. Thus they would likely be ostracized within their community and subject to some form of retaliation for testifying “against” Trayvon Martin.

What Will George Zimmerman’s Jury Look Like?

In all criminal prosecutions the accused shall have a speedy and public trial by impartial jury in the county where the crime was committed.

Article 1, Section 16, Florida Constitution

For over a year, the issue of race has hung over the George Zimmerman case like a persistent thunderstorm.

And while much has been said about the implications of the verdict on race relations, the elephant in the room has always been about the racial makeup of the jury.

Because as we learned in the Rodney King trial, the race of the jury is ultimately the most important racial issue in a case that is really about race.

Seminole County Demographics

And while we do not know who will be make up the six person jury (and four alternates), we do know that it will be selected from a venire (jury pool) of 500 Seminole County residents.

  • If I am George Zimmerman, I want a jury composed of as many older, conservative, white or Hispanic, affluent, male, homeowners as possible.
  • If I am the prosecution, I want a jury composed of as many young, liberal, black, middle class, female renters (preferably mothers) as possible.

So what might that venire look like:

Age Distribution

According to United States Census Statistics, the age distribution of the Seminole County venire is likely to lean towards the George Zimmerman defense team:

Census Statistics Seminole Florida
20 to 24 years 7.3% 6.6
25 to 34 years 13.1% 12.2%
35 to 44 years 14.3% 13.2%
45 to 54 years 15.9% 14.5%
55 to 59 years 6.5% 6.3%
60 to 64 years 5.4% 5.9%
65 to 74 years 6.3% 9.0%
75 to 84 years 3.7% 5.9%
85 years and over 1.7% 2.3%

Political Identification

According to the Florida Division of Elections Statistics, the political leanings of the Seminole County venire is likely to slightly favor the George Zimmerman defense team:

In the 2012 General Election:

  • 277,376 persons voted
  • 110,567 were Republicans
  • 94,193 were Democrats
  • 72,616 were affiliated to other parties or independent.

Of those people who voted, the racial breakdown was as follows:

  • 191,611 were white
  • 28,531 were Hispanic
  • 25,240 were black
  • 5,469 were Asian
  • 872 were Native American
  • Remainder unknown or not reported

Of Republicans who voted, the racial breakdown was as follows:

  • 88% of Republican voters were white
  • 6% were Hispanic
  • 1% were black
  • 1.5% were Asian

Of Democrats who voted, the racial breakdown was as follows:

  • 54% were white
  • 23% were black
  • 15% were Hispanic
  • 2% were Asian

Finally, of the whites, blacks, and hispanics who voted:

  • 94% of blacks voted Democrat
  • 68% of hispanics voted Democrat
  • 65% of whites voted Republican

Racial Composition

According to United States Census Statistics, the racial composition of the Seminole County venire is likely to appear very favorable to the George Zimmerman defense team:

Census Statistics Seminole Florida
White persons, percent, 2011 65.8% 57.5%
Hispanic persons, percent, 2011 17.7% 22.9%
Black persons, percent, 2011 11.7% 16.5%
Asian persons, percent, 2011 3.9% 2.6%
Multiracial persons, percent, 2011 2.2% 1.8%
Native Americans, percent, 2011 0.4% 0.5%
Hawaiian/Polynesian persons, percent, 2011 0.1% 0.1%

Given these statistics, and all things being equal, we can expect that the venire will be comprised approximately:

  • 329 white persons;
  • 89 hispanic persons;
  • 59 black persons;
  • 20 Asian persons;
  • 11 multiracial persons; and
  • 3 Native American or Polynesian Persons.

Gender Distribution

According to the United States Census Statistics, the gender of the Seminole County venire may lean slightly towards the prosecution:

Census Statistics Seminole Florida
Male (18 and older) 47.8% 48.3%
Female (18 and older) 52.2% 51.7%

Given these statistics, and all things being equal, we can expect that the venire will be comprised of:

  • 239 males; and
  • 261 females.

Homeownership Rates

According to United States Census Statistics, the homeownership rate of the Seminole County venire is likely to lean toward the George Zimmerman defense team:

Census Statistics Seminole Florida
Homeownership rate, 2007-2011 71.5% 69.0%
Multi-unit housing (Apartments), percent, 2007-2011 25.3% 29.9%

Given these statistics, and all things being equal, we can expect that the venire will be comprised of:

  • 358 homeowners; and
  • 142 renters.

Personal Experience

Of the nine trials I have conducted in Seminole County, four have been in front of Judge Nelson and two of those were for First Degree Murder.

Most of my jurors were either educators, engineers, medical professionals, emergency safety personnel, or stay-at-home mothers. The majority of my juries have been white, usually leaning female, middle aged, and parents. I recall having a large amount of small business owners on my venires; but have no memory of whether they were homeowners or not (as the issues were not important to my cases).

While the tangible statistics indicate that whatever venire shows up, it will be favorable to George Zimmerman, my own personal experience corroborates what the statistics tell me I should expect.

Seminole County Conviction Rates

Finally, under normal circumstances, Seminole County is the last Central Florida County you would want to be prosecuted in; given that 93% of all felony defendants are convicted. (Angela Corey averaged a 96% conviction rate, the highest in the state.)

However, these are not normal circumstances. The issues in this case involve a White-Hispanic male, whose neighborhood has experienced a rash of burglaries, and who will be invoking the Stand Your Ground law (a law highly supported by Republicans) against a black male.

Conclusion

Putting political correctness aside for the moment, the demographics of Seminole County are ideal for George Zimmerman and his anticipated Stand Your Ground defense.

It also explains why Mark O’Mara did not think for a minute about seeking a change of venue.

Statistically speaking, George Zimmerman could not ask for a more favorable County from which to pull his potential jury.

Mark O’Mara just better hope that that Harvard Law Professor Alan Dershowitz’s opinion as to why Seminole County would be a bad place to have the trial was wrong.

Because the last thing a primarily white jury would want, is for a race riot to erupt in their county if they should acquit George Zimmerman.

Moving the Goalposts in the George Zimmerman Trial

George Zimmerman’s case is scheduled for trial on June 10, 2013.

In advance of the trial, his defense team has filed a “Motion for Evidentiary Hearing Regarding Admissibility of Expert Opinion Testimony” because the State is attempting to introduce expert testimony relating to “Speaker Identification” or voiceprint evidence, which suggests George Zimmerman made some rather startling statements in the heat of his altercation with Trayvon Martin.

Florida follows the standard for the admission of scientific evidence announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). As such, this lengthy titled motion is more generally referred to as a Motion for a Frye Hearing, which requests that the Court determine if the proposed scientific evidence complies the Frye standard.

What is the Frye Standard?

The Frye standard requires that before new or novel scientific techniques will be admissible in a trial, the court must find that the “scientific principles and methodologies” which the expert relies upon in rendering the opinion are generally accepted within the scientific community.

What is Generally Accepted within the Scientific Community?

Essentially, to be generally accepted within the scientific community, the methods and principles the expert relied upon in reaching his opinion must be generally accepted by his peers.

However, under Frye, your peers do not have to agree with the opinion you reached, only agree that the methods and principles you relied upon in reaching your conclusion are generally accepted methods and principles that are used in a particular field.

This is a critical issue in George Zimmerman’s case, because the Defense’s motion claims that numerous experts dispute the validity of rendering an opinion on “Speaker Identification” given the evidence in this case.

But given current Florida law, it is my opinion that Judge Nelson would let in this expert testimony under Florida’s evidence code as it exists today and will exist on June 10, 2013.

Notably, the Federal courts, Canada, and the majority of States have adopted the Daubert standard, which many consider to be a more difficult standard. Florida is one of the few remaining adherents to the Frye standard.

But if Florida followed the Daubert standard, I believe Judge Nelson would view the State’s expert witness with much greater scrutiny and probably disallow the evidence.

Just in Time, Florida Adopts Daubert Standard

And wouldn’t you know it, the Republican led Florida legislature adopted the Daubert Standard this legislative session when it passed House Bill 7015. (No doubt a plot by right-wing FOX news to assist George Zimmerman.) The bill was presented to Governor Scott on May 20, 2013 and is currently awaiting his signature. Under Florida law, the Governor has until June 5th to either sign or veto the law (he is expected to sign it).

As most of you can probably guess, the Zimmerman defense team is very pleased with this favorable development, because the law would be signed before the trial starts and just in time for Judge Nelson to apply the Daubert standard.

What is the Daubert Standard?

Generally, for something to be admissible under the Daubert Standard, a judge must review the following criteria:

  1. Has the technique been generally accepted within the relevant scientific community? [The Frye Test]
  2. Has the technique been tested in actual field conditions (and not just in a laboratory)?
  3. Has the technique been subject to peer review and publication?
  4. What is the known or potential rate of error?
  5. Do standards exist for the control of the technique’s operation?

Judge as a Gatekeeper

The most important distinction of the Daubert standard is that the judge becomes a gatekeeper as to whether scientific evidence is admitted, and not just a potted plant that is required to allow in any quack opinion so long as it is rooted in the basic methodologies of a particular field.

Moving the Goalposts Mid-Trial

There is only one problem; the Frye standard would still be the current law! Why, because the effective date for House Bill 7015 is July 1, 2013! Talk about Moving the Goalposts.

And given that the Zimmerman trial, including jury selection, is scheduled to last about two months it is entirely possible that the State’s expert witnesses could be qualified and presented under the Frye standard before July 1, 2013; but the defense expert witnesses could be presented after July 1, 2013 and subjected to the more restrictive Daubert standard.

The Law on Evidence Code Changes

While the Florida Constitution requires the Florida Supreme Court to formally approve any legislative changes to the evidence code, the Florida Supreme Court’s unwritten policy is “to allow trial courts to utilize a rule of evidence during the period between its legislative enactment and its adoption by the supreme court if the trial court determines that the new rule of evidence is procedural and does not violate the prohibition against ex post facto application.” Mortimer v. State, 100 So. 3d 99, 104 (Fla. 4th DCA 2012).

Changes in laws regarding the admission of evidence are considered procedural changes, so the prohibition on ex post facto laws is not a concern. Additionally, a procedural statute is “to be applied retrospectively” and is “to be applied to pending cases. Mortimer v. State, 100 So. 3d 99, 103 (Fla. 4th DCA 2012). This means the law would be applied to Zimmerman’s case on July 1, 2013; but not one day before.

And while this is not the first time changes have been made to the evidence code, it is more than likely the first times that such an important change would go into effect in the middle of such a high profile trial and have such a disparate impact on the rules of that trial. (I have been unable to find any reported cases of similar import.)

Academic Exercise or Legal Chaos?

Ultimately, this unique set of circumstances could just be a moot academic exercise if:

  1. Governor Scot vetoes the law;
  2. The Zimmerman trial concludes before July 1, 2013;
  3. The Zimmerman trial is continued past July 1, 2013;
  4. Judge Nelson excludes the State expert under the Frye standard; or
  5. The State and Defense stipulate to apply the Daubert standard to all scientific rulings.

But if the trial proceeds forward as expected and none of the above circumstances occur, the Zimmerman trial could present one of the most unique legal quandaries one could ever encounter.

And if Zimmerman was convicted under this unique set of circumstances, it could set things up for a very interesting appeal.

Stay tuned, this could get interesting!

Extra Credit Assignment

For those of you who believe that someone can magically determine the contents of unintelligible audio recordings, I invite you to look up the case of Sabrina Aisenberg.

In the Arrest Warrant to have her parents arrested and charged with murder, “the county detectives reported conversations that no reasonably prudent listener could hear from the tapes, that the county detectives quoted conversations that do not even appear at all in the supporting transcripts of the tapes or do not appear in the manner described, and that the county detectives deliberately or with reckless disregard summarized conversations out of context.” US v. Aisenberg, 358 F. 3d 1327 (US 11th Cir. 2004).

Ultimately, the Aisenberg’s not only had their case dismissed, they successfully sued the Federal Government for malicious prosecution and received $2.9 million dollars based on the fabricated and contrived audio evidence.

Trayvon Martin: Character Evidence or Character Assassination?

George Zimmerman’s defense team recently filed a Discovery Exhibit indicating they may seek to introduce a litany of unfavorable evidence about Trayvon Martin.

Among the items the defense listed was evidence of marijuana use, text messages showing an participation in street fighting, and school disciplinary records.

The Martin Family Attorneys Reacts

As can be expected, the reaction from Trayvon Martin’s family was swift and indignant.

Natalie Jackson accused the defense (probably accurately) of attempting to taint the jury pool and claimed the proffered evidence was “irrelevant to [George Zimmerman’s] guilt or innocence.”

Ben Crump proclaimed,

The only “evidence that will be admitted at trial is the legally documented history of George Zimmerman’s propensity for violence, such as his arrest for battery on a law enforcement officer, his injunction to prevent domestic violence taken out by his ex-girlfriend, and evidence of his training as a bouncer for Data Whore Productions, Inc.”

Put in simpler terms, the Martin family attorneys were accusing the defense of engaging in Character Assassination.

And while “character assassination may be tolerated in some places, it has no place in the administration of justice.” State v. Beggs, 51 So. 2d 423 (Fla. 1951)Or does it?

Character Evidence

Before we discuss the specific issues raised by both the Zimmerman defense and the Martin family attorney, we must discuss the admissibility of character evidence, since this is at the heart of the dispute.

Generally, character evidence is inadmissible. F.S. 90.404(1). But, for every rule there is an exception (or two). And in this case, the exceptions will swallow the rule.

Evidence of Violent Propensities

An exception to this rule is “where the victim’s character is an essential element in the case or where the defendant asserts that he acted in self-defense.” Munoz v. State, 45 So. 3d 954, 956 (Fla. 3d DCA 2010).

Where self defense is raised, the victim’s propensity or reputation for violence becomes an essential element of the case. As such, the victim’s character, proven through reputation testimony, sheds light on the victim’s conduct at the time of the altercation. Banks v. State, 351 So. 2d 1071 (Fla. 4th DCA 1977).

However, such evidence is limited to either:

  1. The victim’s conduct at the time of the altercation; or
  2. The reasonableness of the defendant’s fear at the time of the incident.

The first prong is proven through the introduction of Reputation Evidence of the victim. The second prong is proven through the introduction of the defendants knowledge of prior acts of violence by the victim.

Reputation Evidence

To prove a reputation for violence (and I use violence broadly), Florida permits a defendant to introduce evidence “that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind.”  Dwyer v. State, 743 So. 2d 46, 48 (Fla 5th DCA 1999)

Reputation evidence of this type is generally proven through witnesses who knew the individual (in this case Trayvon Martin’s friends or family). Such evidence is notoriously difficult to prove or even introduce.

This is because testimony as to a person’s reputation must be based on sufficiently broad knowledge of the individual and not on fleeting contact or isolated acts. Wisinski v. State, 508 So. 2d 504 (Fla. 4th DCA 1987) (The reputation testimony must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of two or three persons.)

Prior Acts of Violence

Conversely, evidence of prior acts of violence by the victim is admissible if the defendant has prior knowledge of them to demonstrate the reasonableness of the defendant’s fear at the time of the incident.

However, because the purpose of introducing this evidence is to show the defendant’s state of mind at the time he defended himself, it must be shown the defendant had prior knowledge of these acts. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts prior to killing victim.)

Evidence of Peaceful Propensities

In self defense cases, evidence of a peaceful or non-violence reputation of the victim and the defendant is admissible as follows.

Victims’s Peaceful or Non-Violent Reputation

Once the defense places a victim’s character or reputation into evidence, either by cross-examination or through reputation witnesses, the defense then opens the door for the State to introduce rebuttal evidence of the victim’s reputation for peacefulness or non-violence.

Defendant’s Peaceful or Non-Violent Reputation

Likewise, a defendant may testify that he is a peaceful or non-violent person, or use witnesses to testify to his reputation as a peaceful or non-violent person.

However, once the defendant places his character or reputation into evidence, the State may then introduce rebuttal evidence that impeaches the assertion of a reputation for peacefulness or non-violence.

Trayvon Martin’s Prior Bad Acts

Marijuana Use

Evidence of drug use is controlled by the Florida Supreme Court decision of Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989), which states that evidence of drug use is prohibited unless:

  1. It can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony;
  2. It can be shown that the witness is using drugs at or about the ti me of the testimony itself; or
  3. It is expressly shown by other relevant evidence (i.e. toxicologists or psychologists) that prior drug use affects the witness’s ability to observe, remember, and recount.

You may have noticed that I kept highlighting the word witness. The reason for this is that evidence of drug use is only admissible against a witness if it impeaches the witness’s “ability to perceive, record, recollect, narrate, or testify truthfully.”

It is not admissible solely to cast a person in a bad light (i.e. character assassination). Ruland v. State, 614 So. 2d 537, 539 (Fla. 3d DCA 1993) (Evidence of drug use offered to establish that the victim was a drug dealer or user is an impermissible attack on the character of the victim.)

And if you have been following along, you will have also realized that Trayvon Martin will not be a (testifying) witness in this case. As such, the State will argue that evidence of his drug use is therefore inadmissible.

However, evidence of Trayvon Martin’s drug use on the night of the incident will be admissible for two reasons separate from showing his bad character.

Impeachment Evidence

First, we know Witness 8 will likely testify about Trayvon Martin’s statements to her and we know an audio experts will likely testify that Trayvon Martin can be heard on the 911 calls. Such statements are hearsay, but are admissible under exceptions to the hearsay rule. (State of mind, excited utterances, etc.)

Nevertheless, when a hearsay statement has been admitted into evidence, “the credibility of the original declarant of the statement may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” Huggins v. State, 889 So. 2d 743, 755 (Fla. 2004)

What this means is that whenever a state witness testifies to something Trayvon Martin said, the testifying witness can be questioned as to whether they were aware Trayvon Martin had used drugs that night.

If they say yes, then the defense has been able to indirectly impeach Trayvon Martin. If they say no, then the defense can introduce the toxicology evidence in their case in chief to impeach Trayvon Martin.

Corroboration of Defendant’s Belief

Second, evidence of drug use on the day of the incident is admissible to corroborate George Zimmerman’s opinion that Trayvon Martin was acting like he was on drugs prior to the altercation. Arias v. State, 20 So. 3d 980, 984 (Fla. 3d DCA 2009) (Toxicology findings relevant and admissible not as character evidence, but to confirm defendant’s perception that victim was in fact intoxicated.)

Prior Incidents of Fighting

To be honest, I grappled (pun intended) with how the defense could legally introduce evidence that Trayvon Martin had previously engaged in semi-organized street fighting.

Since George Zimmerman was unaware of this behavior, it would be inadmissible to show his state of mind. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts he killed victim.)

However, part of Florida’s standard jury instruction 3.6(f), Justifiable Use of Deadly Force, instructs the jury that when they “consider the issue of self-defense, they may take into account the relative physical abilities and capacities of the defendant and the victim.”

It is because of this instruction, that (as Ben Crump pointed out) George Zimmerman’s “training as a bouncer for Data Whore Productions, Inc.” should be relevant. Likewise, it is for this same reason that Trayvon Martin’s participation in semi-organized street fighting is relevant. Otherwise, the jury would be unable to take into account the “relative physical abilities and capacities of the defendant and the victim.”

In the same regard, the State or its witnesses will likely posit that Trayvon Martin was a small, unskilled, teenager who lacked the physical ability or capacity to overpower George Zimmerman. Thus evidence of Trayvon Martin’s participation in street fighting either rebuts this assertion or impeaches any assertion by friends or family members that he was not skilled or strong enough to have overcome George Zimmerman.

This reasoning is consistent with the holding in Arias v. State, which held that the toxicology evidence was admissible because it was relevant evidence, notwithstanding that it could also be classified as inadmissible character evidence.

Moreover, the Florida Supreme Court has indicated in dicta that specialized training (such as Martial Arts) is relevant evidence notwithstanding its also evidence of bad character traits. Trease v. State, 768 So. 2d 1050 (Fla. 2000) (FN5. Evidence of proficiency in the martial arts and how to use a knife was relevant evidence against defendant in murder case.)

Finally, it appears Florida is one the few remaining states to exclude evidence of a victim’s prior violent acts absent evidence that the defendant had knowledge of the prior acts.

Rather, the majority of the states are moving “toward admitting some form of this evidence [because evidence of the victim’s propensity for violence] has substantial probative value and will help the jury identify the first aggressor when the circumstances of the altercation are in dispute” regardless of whether the defendant has prior knowledge. Commonwealth v. Adjutant, 443 Mass. 649, 659 (Mass. 2005),

In abandoning the minority position that Florida clings to, the Massachusetts Supreme Court reasoned:

Admission of evidence showing the victim’s prior violent acts on the first aggressor issue reflects the principle that ‘in criminal cases there is to be greater latitude in admitting exculpatory evidence than in determining whether prejudicial potentialities in proof offered to show guilt should result in its exclusion.’

‘Where the victim’s propensity for violence is in question . . . the danger of prejudice to the defendant lies in refusing to admit such evidence.’

So if I am Mark O’Mara or Don West, and Judge Nelson refuses to allow the evidence of Trayvon Martin’s prior acts of fighting into evidence, I argue that Florida should adopt the majority rule; and not to do so violates due process.

While Nelson would still deny it at this point, the issue would be preserved for appeal.

School Disciplinary Reords

At the onset, I would agree that Trayvon Martin’s disciplinary records or the reason for his suspension is completely irrelevant. However, if Trayvon Martin’s family members or friends attempt to mislead the jury as to why Trayvon Martin was staying in Seminole County or portray him as a good child that never got into trouble, the evidence may become very relevant.

This is because if a witness offers misleading testimony or makes a specific factual assertion about his character, the opposing party can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA  1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)

Zimmerman’s Prior Bad Acts or Crimes

While the general rule is that evidence of the defendant’s prior bad acts or bad character is inadmissible. There are two exceptions to this rule.

Williams Rules Evidence

The State can introduce evidence of prior bad acts to show motive, intent, absence of mistake, etc., but only if they have filed what is known as a Williams Rule Notice at least ten days prior to trial. (To date, no Williams Rule Notice has been filed.) Usually, Williams Rule evidence is only admissible to show fingerprint type evidence (i.e. the defendant used the same disguise in prior crimes, he said the exact same statements, etc.)

Absent a Williams Rule Notice, if the Defendant testifies, the only manner that his character can be attacked is through impeachment with prior convictions for prior felonies or crimes of dishonesty.

However, contrary to what Ben Crump believes, “prior arrests which do not result in convictions are an improper subject for impeachment or cross-examination.” Baker v. State (Fla. 4th DCA 2012); citing Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.”)

Likewise, allegations in a civil injunction, even if granted, are inadmissible to prove a violent character.

Impeachment

If a defendant offers misleading testimony or makes a specific factual assertion about his character, the State can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA  1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)

In this regard, the fact he is alleged to have struck his girlfriend or shoved the officer in prior incidents could be admissible if he testified that he has never struck someone unprovoked (or something similar). If he were to be foolish enough to testify as such, then he could be cross-examined on the allegations against him in the dismissed Orange County criminal case and the ex-girlfriend’s injunction.

However, such evidence is not considered “substantive” evidence (meaning it is admissible in and of itself for some relevant reason). Rather, such evidence is solely impeachment evidence that cannot be brought up unless George Zimmerman opens the door to it.

Admissible or Assassination?

So now that you know the law that most likely applies to the evidence in question, what do you think? Admissible Character Evidence or inadmissible Character Assassination?

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.

Poor George wants a Bond

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.

Legally, Who Was the First Aggressor?

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.