Stand Your Ground and Self Defense

How do Florida's Stand Your Ground and self-defense laws fit into the George Zimmerman-Trayvon Martin case and what's the difference between them?

Read this account in the Miami Herald by Scott Hiassen and David Ovalle of the Quentin Wyche case, which is still ongoing. It involves two FIU football players. One, Kendall Berry, is dead. The other, Quentin Wyche, has been charged with second degree murder as a result of stabbing Berry to death. Wyche raised "Stand Your Ground" as a bar to prosecution, which required the judge to hold a factual hearing. The judge said he couldn't decide between the competing evidence presented by the state and defense, so he denied the motion. It will go to a jury trial where Wyche can still raise both stand your ground and self defense.

The Judge is Miami Circuit Court Judge Milton Hirsch, whom I know and respect. He was a long time criminal defense lawyer before becoming a judge. I asked Scott Hiassen for a copy of the opinion and he graciously emailed it to me. I have uploaded it here.

While the facts are different than those involved in the George Zimmerman - Trayvon Martin shooting, after reading a dozen or so Florida court opinions on Stand Your Ground and self-defense, I think Judge Hirsch explains them and the court procedures most clearly (minus his Shakespeare and historical references, sorry Judge Hirsch.) [More...]

Judge Hirsch found the disputed evidence was "in equipoise", meaning there was equal evidence on both sides. Thus, he couldn't say Wyche met his burden of proving immunity from criminal prosecution under Stand Your Ground by a preponderance of evidence, and the case had to go to a jury. At the jury trial, his ruling cannot be used to prevent Wyche from obtaining a jury instruction of either immunity under Stand Your Ground or traditional self-defense.

Judge Hirsch's conclusion:

The record before me is silent when it most needs to speak. There is general consensus regarding a confrontation between Wyche and Berry, general consensus that Wyche ran from that confrontation and that Berry followed. It is there that the narrative ceases.

Did Berry, or Berry and his companions, hunt Wyche down and present him with no choice but to kill or be killed? Or did Wyche arm himself and then turn upon Beny at a time when Berry had broken off the chase, or was at worst offering a reprise of the chest-pounding in which the two young men had engaged at the outset of their conflict?

The record does not tell me. I can draw no conclusion. And because I can draw no conclusion, this motion must fail. The evidence is in equipoise. The defendant has not met his burden of proof.

The opinion is 16 pages and not easily cut and pasteable because it's a faxed copy. I was able to OCR much of it, and condensed the relevant legal points here. Any typos are the result of the conversion process and not Judge Hirsch. Here's my synopsis, but I suggest reading Judge Hirsch's words.

Self defense is an affirmative defense to the crime of homicide. It has the effect of legally excusing the defendant from an act that would otherwise be a crime.

Stand your ground is not a defense, but an immunity statute, providing immunity from criminal prosecution. It is a bar to prosecution (and yes, arrest.)

A defendant charged with a crime who wants to raise Stand your Ground files a motion to dismiss claiming stand your ground immunizes him from prosecution. Here is a typical motion, filed in another case in December, 2011. Here's another filed in January, 2012.

A hearing is held before trial. The burden is on the defendant to prove by a preponderance of evidence that stand your ground immunity applies.

The judge weighs the facts. If the judge agrees the defendant has shown stand your ground immunity applies by a preponderance of evidence, the charges are dismissed. The defendant can't be prosecuted.

If the judge finds the defendant hasn't met his burden, (including if the disputed evidence is so equal on both sides the judge can't decide one way or the other) the case goes to trial to be decided by the jury. At trial, the defendant can still argue both self-defense and stand your ground immunity -- he only has to establish some evidence of his theory, which can be just his own testimony, that he acted in self-defense.

The prosecution must prove his guilt at the jury trial beyond a reasonable doubt. Which means, if the defendant raises self-defense or stand your ground at trial and gets the jury instruction, the state, which has the burden of proving guilt beyond a reasonable doubt, must disprove self-defense. If the jury has a doubt, the defendant must be acquitted.

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.

A few other quotes that may be helpful:

If the facts are as the defense claims they are, Mr. Wyche need not rely on "Stand Your Ground;" the common law would justify him. The common law justified a defendant who discharged his duty to retreat, but was pursued by his nemesis, in using force - even force calculated to cause death or serious bodily injury - to defend himself.

As applied to the facts of the case at bar, the only difference between the law as it existed prior to "Stand Your Ground" and the law as it presently exists is that a defendant can now seek a pretrial judicial determination as to the validity of his act of putative self-defense (which determination, if in his favor, brings the case against him to a permanent end) rather than having to await the decision of a jury of his peers.

If the facts are as the prosecution claims they are, Mr. Wyche cannot rely on "Stand Your Ground;" the statutory law would not immunize him. The statutory scheme entitles a defendant to stand his ground. It does not entitle him to abandon his ground, then arm himself, then hunt down his nemesis and kill him, and afterward assert a claim of immunity

The Wyche case, as I said, is factually different than the Zimmerman-Martin case. But I think its explanation of the statutes, defenses, burden of proof and court procedures is quite helpful.

I've excerpted some of the relevant statutes on self-defense, stand your ground, murder, and manslaughter here.

On the issue of bond, in case I don't get back to it soon, here's Judge Hirsch's decision in Wyche after holding an "Arthur Hearing" finding Wyche was entitled to bond. Again, it's a good explanation of the procedure.

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    Thanks Jeralyn, this is great (5.00 / 9) (#1)
    by andgarden on Thu Apr 12, 2012 at 07:29:23 PM EST

    Better than great (5.00 / 2) (#2)
    by Rojas on Thu Apr 12, 2012 at 08:00:03 PM EST
    Classic TalkLeft....

    Zimmerman did not Stand His Ground, (none / 0) (#88)
    by Gary LK on Mon Apr 16, 2012 at 02:28:09 PM EST
    Zimmerman was flat on his back.  If his head was pounded into the ground, his life was in immediate danger.  Old fashioned self defense, legal in all states.
       There must be hospital records,paramedics records, police statements and there should be photos.
    Whatever happened before is not important.  A game of hide n go seek gone bad, not nice words said, walk around, look around, skittles, even who was the first aggressor. Once lethal force was used, self defense or death was the choice.
       I have not read anything that does not place Martin on top of Zimmerman as the shot went off.
       It is important to know what happened before making a decision on right or wrong. Some, but very few seem to care. Those in elected offices will do what they need to stay in office.  Throw Zimmerman to the lynch mod, no problem for them.
       Many people are in effect asking for autopsy results on Zimmerman based on a picture of a 12 y/o Martin and not interested in any facts.

    Great summary, but one point is omitted (5.00 / 1) (#9)
    by Peter G on Thu Apr 12, 2012 at 09:57:48 PM EST
    It seems that SYG can trigger an interlocutory (pretrial) appeal process, that could significantly delay any case where the "immunity" is asserted.  See discussion yesterday initiated by KeysDan.

    Peter, I haven't gotten to appeals (none / 0) (#19)
    by Jeralyn on Fri Apr 13, 2012 at 12:20:33 AM EST
    yet, I'm still trying to understand and explain what happens in the trial court. But I'll take a look and contribute if it's not too complicated for me. You are the appeals guru around here!

    That's a hell of a law (none / 0) (#3)
    by valency on Thu Apr 12, 2012 at 08:19:25 PM EST
    I wasn't aware that "Stand Your Ground" didn't just create a new defense, but a whole new pretrial procedure -- one in which you can claim immunity on a "preponderance of evidence" standard, and the prosecution has to prove you wrong. That's a hell of a law. A hell of a hell of a law.

    backwards (5.00 / 2) (#5)
    by jpe on Thu Apr 12, 2012 at 08:33:37 PM EST
    The prosecution has to prove you wrong at trial (presumption of innocence).  In the pretrial hearing, the defendant has to prove self-defense by preponderance of evidence.  The idea is that if the defense can prove the latter, then there's no way in bell the prosecution can prevail on the former.

    More than that...it is also (5.00 / 1) (#34)
    by ruffian on Fri Apr 13, 2012 at 10:11:30 AM EST
    a pre-arrest procedure, in which the police have to prove you are not immune to prosecution before you can be arrested. Or so some of them interpret it.

    I many times think the 'victims rights' movement goes too far in infringing the rights of the accused, but in SYG cases, if the police have decided that the shooter is immune to prosecution, the only recourse the families of the victims have is to make a public outcry that gets the attention of someone above the local police.


    Right (5.00 / 3) (#44)
    by ScottW714 on Fri Apr 13, 2012 at 12:00:35 PM EST
    A judge declaring you are immune from a murder prosecution is insane, especially when the preponderance of the evidence might be the word of the shooter.

    1965 Mississippi called, and it is green with envy.


    Considering the lack of evidence we seen so far... (1.00 / 0) (#43)
    by redwolf on Fri Apr 13, 2012 at 11:48:58 AM EST
    the cops may not have had anything at all to arrest him for.  On the other hand public outcry has a long history of forcing the arrest and trial of people the authorities where protecting.

    I pretty obviously am not a lawyer (none / 0) (#45)
    by ruffian on Fri Apr 13, 2012 at 12:07:24 PM EST
    and I am trying to follow the probable cause arguments here, but it seems to me that if an unarmed man is lying dead and the guy with the gun that shot him is standing there saying in effect that he 'had to kill him', the police have probable cause for an arrest. The guy can tell his story to a judge and/or a jury, and if he convinces them, fine.  

    I am in no way advocating that anyone the crowd pushes to arrest should be arrested - if there was no evidence that Zimmerman had killed him, I would say of course not, there is no probable cause.  But the self-defense argument should be made in court unless it is so clearly obvious that the police can make the call. For example, if Trayvon had a gun or knife drawn too., I would be convinced on the face of it that there was self defense involved and there should be no arrest.


    That would be true in most places (none / 0) (#46)
    by jbindc on Fri Apr 13, 2012 at 12:17:39 PM EST
    But that's not the way the law is written in Florida.

    Yup - that is why I think it is (none / 0) (#48)
    by ruffian on Fri Apr 13, 2012 at 12:21:02 PM EST
    a terrible law.

    the Iowa version (none / 0) (#63)
    by desmoinesdem on Fri Apr 13, 2012 at 02:55:23 PM EST
    of this law, which has been passed by one chamber of the legislature, includes language barring people from being detained/arrested (not just charged) in this kind of scenario. How could the police ever properly investigate a case like this?

    Mahalo, Jeralyn. (none / 0) (#4)
    by Donald from Hawaii on Thu Apr 12, 2012 at 08:24:02 PM EST
    This was most informative.

    Equipoise is Weaselspeak (none / 0) (#6)
    by Michael Masinter on Thu Apr 12, 2012 at 09:07:36 PM EST
    In a preponderance of the evidence case (SYG immunity hearings), evidence is never in equipoise (a word only we lawyers use) save when a judge wants to punt.  

    Civil juries try cases every day; we don't need Allen charges to bring them to a verdict.  Credibility matters; either the defense has tipped the scales, however slightly, in its favor and prevails under the preponderance of the evidence standard, or it hasn't and it loses.

    Equipoise is just a fancy word for punting the question to a jury.  In a rational world a jury should decide the question, but the idiots who masquerade as Florida's legislature, backed by ALEC and the NRA, assigned that question to a judge.  So I don't fault Judge Hirsch; the SYG law is the problem.  Self defense should be an affirmative defense, not a claim of immunity.    

    Yes, but (5.00 / 2) (#13)
    by gyrfalcon on Thu Apr 12, 2012 at 11:20:33 PM EST
    I think I would like judges to "punt" and send it to the jury when evidence is even somewhat equivocal, wouldn't you?

    I'm absolutely a non-lawyer so I may be way off base, but if I'm reading Jeralyn's post right, the SYG law, at least in its Florida iteration, is far less obnoxious than it seems on the surface.

    All it does is insert an extra pre-trial hearing before a judge to evaluate the evidence so that people who were genuinely and without question defending themselves don't have to go through a trial.  That actually does sound perfectly reasonable to me, especially if judges are prone to "punt" when there's at least some evidence on the other side.

    I've heard but do not know of my own knowledge that these SYG pretrial hearings in FL fail most of the time, which is as it should be, if true.  If that's the case, this one will most likely fail, too.

    FWIW, I'm hearing some rumblings from TV legal analysts that O'Mara may not even try to go the SYG route here.


    I'm inclined to agree... (5.00 / 1) (#35)
    by kdog on Fri Apr 13, 2012 at 10:11:58 AM EST
    based on Jeralyn's enlightening breakdown, well said G-falc.

    As long as SYB isn't being used nefariously, as in to sweep a murder under the rug to keep the murder rate down, or as a get out of a murder rap free card for somebody connected or because the victim was an unsavory character.  But that's a problem with all laws I guess, flawed human beings abusing the spirit and/or the letter of laws.

    It is nice to see a law meant to protect the innocent wrongfully accused, in spirit if not always in practice.  Instead of say more criminalization or more mandatory minimums.


    I would feel better about it if I thought (5.00 / 0) (#39)
    by ruffian on Fri Apr 13, 2012 at 10:38:58 AM EST
    the spirit of it was to protect the wrongfully accused. But given the sponsors of this legislation, I think the spirit of it is more to do away with the potentially wrongfully accused.

    I hear ya... (5.00 / 1) (#42)
    by kdog on Fri Apr 13, 2012 at 11:02:26 AM EST
    the NRA has been using their lobbying power all over.  Do they know dead men don't buy guns?  They're possibly killin' potential customers! ;)

    I think irony may be lost on them (5.00 / 1) (#69)
    by ruffian on Fri Apr 13, 2012 at 03:54:59 PM EST
    The Problem (5.00 / 0) (#47)
    by ScottW714 on Fri Apr 13, 2012 at 12:18:10 PM EST
    A judge can decided is someone is immune from prosecution which goes against all that I have learned about the judicial system.

    And it's seems very odd to me that you of all people who be on the side of a law that gives a judge this kind of power.

    "As long as SYB isn't being used nefariously", funny, that goes in the same bucket as 'so long as cops don't abuse their power...'

    And now with the NRA getting into it and the unmasking of the people behind it, there is no way this is meant for betterment of the law or it's citizens.  It's mean to let the lunatic gun happy clowns to get a pass when they screw up and someone ends up dead.

    I would also add, that in this case, the police didn't even bother with it, they just let GZ go.  So obviously the law isn't even necessary when the cops already possess the power.  had this not gone viral, GZ would be at home, never having had seen a judge.


    I'd be against a judge... (5.00 / 1) (#49)
    by kdog on Fri Apr 13, 2012 at 12:33:04 PM EST
    having the power to declare guilt and send somebody to a cage, I'm cool with a judge having the power to bar a prosecution if he/she is satisfied by the evidence that it was clearly self-defense.  Could be a valuable tool to reign in prosecutorial power.  I have no doubt people who killed/assaulted in self-defense are rotting in prison as we type...SYG-type laws might help prevent that.  I'm a big let the guilty go free to prevent convicting innocents guy.

    As you said, prosecutors already have all the discretion they need in choosing not to charge someone.  SYG is a tool for the accused if and when the prosecution does not excercise proper discretion.


    Nothing in the law limits the accused (none / 0) (#50)
    by oculus on Fri Apr 13, 2012 at 12:35:52 PM EST
    to filing the motion only in cases in which, in the opinion of the accused, the prosecutor abused its discretion in filing the case.  

    And if there is no grounds... (5.00 / 1) (#53)
    by kdog on Fri Apr 13, 2012 at 12:46:53 PM EST
    to claim SYG, the judge will not bar the prosecution.

    Again, in theory. In practice, judges will certainly make mistakes, being human.  Or worse, push an agenda, being human.  

    I just think it nice to see the defense get a new tool for a change, instead of perpetually stacking the deck for the prosecution.  Perhaps unfortunately, the NRA was very much behind this so the only accused who got a bone were accused murderers.  Maybe next time drug defendants will get one! ;)


    Did you see the news about arrest of (none / 0) (#55)
    by oculus on Fri Apr 13, 2012 at 12:49:12 PM EST
    French souvenir importers of miniature Eiffel towers?

    Link: (none / 0) (#56)
    by oculus on Fri Apr 13, 2012 at 12:53:27 PM EST
    Correct me if I'm wrong (none / 0) (#84)
    by Rojas on Sat Apr 14, 2012 at 10:36:54 AM EST
    I don't believe one has to show their NRA membership card in order to invoke the statutory provisions of this law....

    Judges DO have that power (none / 0) (#51)
    by jbindc on Fri Apr 13, 2012 at 12:41:04 PM EST
    They are called "bench trials" (no jury) and they happen every day all over the country.

    Of course, as to misdemeanor or felony (5.00 / 1) (#52)
    by oculus on Fri Apr 13, 2012 at 12:45:36 PM EST
    charges, at least in CA, court trial only possible if prosecution and defendant waives jury.  

    Bench Trials (5.00 / 1) (#57)
    by ScottW714 on Fri Apr 13, 2012 at 02:15:09 PM EST
    And how man of those are for murder charges ?  Think GZ is gonna ask for a bench trial.  I get your point, but it doesn't really play with murder.  

    There is a reason people choose a jury over a judge.  And in those rare cases, the judge cannot declare one is immune from prosecution, which is far different than judging guilt IMO.  the end result may be the same, but even a shame trial is a trial.

    That is not reality and as soon as someone pays off a judge or judge decides cousin willie was standing his ground when he beat his wife to death, will anyone realize just how crazy it is to let someone decide a person can be immune from prosecution.

    Is there any other place in the US beyond Florida and Alabama (who copied the law verbatim) where a judge can declare you are immune from being prosecuted for murder ?

    And what happens if a piece of evidence surfaces, that proves it was murder or the judge was paid off, does that decree mean the person can never be tried for murder.

    My problem isn't with the a judge, say dismissing a case, but a proclamation that someone is immune to prosecution seems crazy and too much for me.  And I am all about letting judges have more discretion, just not the ability to declare someone immune from a murder charge.


    anecdote here...the only jury I was ever picked (5.00 / 1) (#70)
    by ruffian on Fri Apr 13, 2012 at 04:02:08 PM EST
    for was a murder trial...the defendant must have gotten a look at the twelve of us and not liked what he saw, because the morning we were supposed to start he notified the judge he wanted a bench trial instead.

    This was in Orange Co. Cal in the mid-80s. The guy was accused of bringing his drug ring partner up in a private airplane and pushing him out to his death. A lot of the evidence was the testimony of a third member of the ring who was also present and had done a deal in exchange for his testimony.  Most of the voir dire was questions about how much we would trust the testimony of an admitted bad guy. The judge found the defendant guilty eventually.

    So I think a lot of  the decision just depends on the kind of evidence that will be presented.


    Bench trials - More (none / 0) (#58)
    by jbindc on Fri Apr 13, 2012 at 02:31:43 PM EST
    Bench trials for murder:

    #1, #2,  #3 and One for rape (although defendant is also a suspect for murder in another case).  

    Just for starters and with about 2 minutes of Googling.

    It's not common, but it does happen, and no GZ will not ask for it. He stands a much better shot with a jury.

    I agree the law is stupid.  But it's hard to criticize the police for following the law - isn't it?

    Is there any other place in the US beyond Florida and Alabama (who copied the law verbatim) where a judge can declare you are immune from being prosecuted for murder ?

    North Carolina, Oklahoma (modified)

    And what happens if a piece of evidence surfaces, that proves it was murder or the judge was paid off, does that decree mean the person can never be tried for murder.

    Yes - that's what "immunity" means.

    My problem isn't with the a judge, say dismissing a case, but a proclamation that someone is immune to prosecution seems crazy and too much for me.  And I am all about letting judges have more discretion, just not the ability to declare someone immune from a murder charge.

    I know you are talking about in these specific types of cases (first prosecutiuons), but your statement doesn't really say that.  Judges declare people "immune" from prosecution all the time - ever hear of "double jeopardy"? Can't prosecute someone for the same crime if a case was dismissed with prejudice, even if new evidence surfaces.


    A revision to the law... (5.00 / 1) (#59)
    by kdog on Fri Apr 13, 2012 at 02:34:36 PM EST
    seems appropriate.  IANAL so bear with me , but instead of immunity from prosecution they should make it a dismissal of charges without prejudice, so the prosecution has the option to charge again should new evidence of criminal homicide surface.

    Kdog, The worry I have for (5.00 / 1) (#64)
    by KeysDan on Fri Apr 13, 2012 at 03:18:36 PM EST
    your idea for revision to SYG laws is that what amounts to a conditional dismissal would be unfair to the defendant.  The uncertainty of the finding and, essentially, holding a charge of homicide in abeyance brings no real relief.  There may be some truth to the old saying that it is cheaper to buy a judge than hire a lawyer, but that drawback is, for me, outweighed by the possibility of public or political clamor for vengeance in the name of justice.  The motion for immunity is not a slam dunk and it can be appealed so that does add oversight if judges abuse their discretion.

    I see your point... (none / 0) (#65)
    by kdog on Fri Apr 13, 2012 at 03:26:21 PM EST
    as long as appeals are available to all sides, that does seem sufficient as well.

    Aren't charges dismissed without prejudice by judges all the time though, for a variety of reasons?  If I'm a defendant, I would think I'd take a dismissal anyway I could get it, the threat of charges being refiled down the road pales in comparison to the threat of a unfavorable trial verdict in the present.  


    True, charges are dismissed (none / 0) (#71)
    by KeysDan on Fri Apr 13, 2012 at 04:04:50 PM EST
    without prejudice in various circumstances, but that is not the objective of the SYG laws.  It is to bring closure, where warranted,  through the new and additional procedure of immunity to prosecution where warranted in accord with circumscribed circumstances.  Rather than a revision as suggested, it might be better to jettison the law and rely on established criminal procedures.

    That's probably a good idea (none / 0) (#60)
    by jbindc on Fri Apr 13, 2012 at 02:40:34 PM EST
    For every "cousin willie" (none / 0) (#73)
    by gyrfalcon on Fri Apr 13, 2012 at 09:42:31 PM EST
    there are a thousand O.J. Simpsons and Louise Woodwards. Just sayin'.

    I'm obviously in favor of the jury system, but let's not pretend jury trials don't go wrong with regularity.


    I'm aware... (none / 0) (#54)
    by kdog on Fri Apr 13, 2012 at 12:48:34 PM EST
    I should have specified in murder cases such as this.

    I don't entirely disagree (none / 0) (#72)
    by gyrfalcon on Fri Apr 13, 2012 at 09:37:09 PM EST
    and I'm certainly not "on the side" of this law.  All I'm saying is that this particular version of the "SYG" law doesn't seem completely unreasonable-- given the already built-in flaws of our criminal justice system.

    But I would like to see some good statistics about the rate in which this is invoked in Florida and the rate it's been successful.  That info could certainly change my mind about it.

    I would say that this law is overwhelmingly a solution in search of a problem, but it has happened that people who were clearly defending themselves have been dragged through a long and costly and harrowing murder trial.  That's what the SYG advocates seized on as their justification.

    I agree that the motivation of the advocates for it mostly suck.  But sometimes bad intentions don't end up with the results the proponents are hoping for.


    Agreed. a good tabulation and evaluation (none / 0) (#86)
    by KeysDan on Sat Apr 14, 2012 at 11:32:48 AM EST
    of SYG cases in Florida are needed.  And, I agree as well on the issue of unintended consequences.  Moreover, it seems that many cases, so far, have involved weapons other than guns: such as  knives and broken beer bottles.

    The procedure for (none / 0) (#8)
    by KeysDan on Thu Apr 12, 2012 at 09:56:28 PM EST
    Stand Your Ground after an arrest seems clear (pre-trial motion before a judge for immunity from prosecution; if denied, may still be a part of the defense at trial).  But, the procedure is less clear as a bar to arrest.  The cases cited relate to post-arrest motions.  It would seem cumbersome to seek a motion for immunity prior to arrest.  It is possible for a defendant, and probably the prosecutor, to appeal a decision from a pre-trial motion to the District Court of Appeals prior to the start of a trial.  It is a curiosity as to how appeal of an immunity motion would fit into a pre-arrest.  

    I think the statute is (none / 0) (#23)
    by Jeralyn on Fri Apr 13, 2012 at 12:54:47 AM EST
    designed for pre-arrest challenges. It provides civil liability if they rush to arrest and are wrong. Hirsch explains it this way:

    The "Stand Your Ground" law, however, does not speak the language of justification; it
    purports to speak the language of immunity. It does not provide a defense to criminal charges; it
    purports to provide immunity from criminal charges. It does not provide a defense at trial; itpurports to provide a bar to trial, indeed even to arrest. This is the diacritical feature of the statutory scheme.

    ...Here we confront a novel feature of the "Stand Your Ground" law. The statute - the
    substantive law - provides that immunity attaches at, or even immediately prior to, the very moment of arrest. § 776.032, Fla. Stat. The defendant whose conduct is protected by "Stand Your Ground" should never be arrested at all, and of course none of the customary post-arrests steps in the criminal justice process should be visited upon him.

    Unlike  traditional forms of immunity, "Stand Your Ground" turns ....upon the factual merit of his claim of immunity. .... A "Stand Your Ground" claimant must - as a practical matter, although not in contemplation of law - endure arrest, pretrial procedure, discovery; and only then file and litigate his motion to dismiss. The best that can be said in an attempt to reconcile the substantive with the procedural law is that if it is determined at a 'Stand Your Ground" hearing that a defendant is immune by operation of the statute, his immunity relates back, nunc pro tunc, to the moment before his arrest.

    The last sentence suggests (none / 0) (#28)
    by Towanda on Fri Apr 13, 2012 at 08:38:17 AM EST
    to me a useful part of this law for the defense -- that immunity retroactive to cover the period prior to arrest would mean that all that Zimmerman has said in recent days, to police and to Hannity and apparently to previous lawyers and neighbors and others who could be called -- then could not come into court.  

    He seemed, according to all of these reports, at least, to be talking too much to too many for his own good, so this would be good for him, I gather.    


    If he gets immunity (5.00 / 2) (#30)
    by jbindc on Fri Apr 13, 2012 at 08:46:42 AM EST
    There would be no trial, so it wouldn't matter.

    I am imagining a civil case (none / 0) (#40)
    by Towanda on Fri Apr 13, 2012 at 10:40:36 AM EST
    coming from this, perhaps against the homeowners' association, in which he would be called as a witness.  But it may be -- I don't know this -- that immunity in this case will not extend to his testimony as a witness in a civil case.

    The law says (5.00 / 1) (#41)
    by jbindc on Fri Apr 13, 2012 at 10:44:05 AM EST
    An individual would also be immune from a civil action.

    How would it work (none / 0) (#31)
    by indy in sc on Fri Apr 13, 2012 at 08:55:42 AM EST
    at the time the police come across an incident?  Are the officers allowed/required to make a determination of whether SYG immunity applies?  

    If the officers make a determination that it applies and let the person go, can the family of the deceased appeal that decision?


    As I understand it, once the police have made that (5.00 / 1) (#36)
    by ruffian on Fri Apr 13, 2012 at 10:14:44 AM EST
    call, there is no court-based avenue of appeal for the families of the deceased - only the route of public outcry that the Martin family used.

    Seems that is exactly what happened here (5.00 / 2) (#37)
    by Peter G on Fri Apr 13, 2012 at 10:16:18 AM EST
    The family "appealed" the no-arrest decision to the court of public opinion, and prevailed.

    So says the Red Queen (none / 0) (#10)
    by Rojas on Thu Apr 12, 2012 at 10:46:22 PM EST
    Seems probable cause is lacking from your assertion...
    It's an important bit to leave out.

    Unlike many, if not most, (5.00 / 3) (#38)
    by KeysDan on Fri Apr 13, 2012 at 10:24:41 AM EST
    I was not impressed with Angela Corey's press conference.  My confidence began to be shaken when she proclaimed that the first thing she did with the parents was to pray together.  While this may have been spiritually comforting, it seemed temporally confusing.  

    It was not surprising that the case for probable cause, although scant, would be found.  The second degree murder charge is thought by some to have a political tinge, but it is not necessarily  unusual to take this tact, with manslaughter as a plea and/or jury back-up.

    However, to me, she would have been better to assume the demeanor of the new defense attorney, Mark O'Mara--solemn and professional.  I particularly liked Mr. O'Mara's reaction to concerns that Trayvon's mother may have critically mis-spoken when she suggested that this was an "accident."   ---"They went through a horrible tragedy," he said. "They lost their son. We're not going to be talking about using words against the mother of a decreased child."


    Agree entirely on both counts (none / 0) (#75)
    by gyrfalcon on Fri Apr 13, 2012 at 09:51:17 PM EST
    I would like prosecutors to be sober and solemn, not flamboyant and gleeful, I don't care what the case is.

    And O'Mara is so far impressing the heck out of me with his sanity and sensibleness.


    With respect, it seems (none / 0) (#12)
    by gyrfalcon on Thu Apr 12, 2012 at 11:13:48 PM EST
    Corey had no problem at all establishing probable cause just from reviewing the evidence on record and witnesses, not doing any new investigation.

    So why was there enough probable cause for her to proceed and a judge to accept, but not for the state's attorney?


    Do you think (5.00 / 1) (#15)
    by Rojas on Thu Apr 12, 2012 at 11:32:23 PM EST
    She established probable cause?
    I understand the Judge accepted it but I'd like to think we'd require something a little more concrete than what was presented before we take someones freedom away. In my opinion she did not establish probable cause.

    Well, yeah, as a total layman (none / 0) (#18)
    by gyrfalcon on Fri Apr 13, 2012 at 12:19:36 AM EST
    I do.  But I say again, I'm no lawyer and didn't stay at a Holiday Inn last night.

    It seems to me as much probable cause as there is in a heck of a lot of cases that go to trial.


    As a lawyer, (5.00 / 1) (#21)
    by Jeralyn on Fri Apr 13, 2012 at 12:32:01 AM EST
    who challenges affidavits for warrants all the time, I think it's p*ss-poor. And misleading. And contains material misrepresentions and omissions of fact. It doesn't even come close to stating how his actions fit the second degree murder statute.

    Alan Dershowitz calls it irresponsible and unethical.

    This affidavit does nothing more than establish that Zimmerman killed Trayvon, which he's always acknowledged. It doesn't come close to making the case a crime was committed, let alone second degree murder, or even that the shooting wasn't justified.

    It's so bad it's embarrassing.


    Some legal experts pontificate (none / 0) (#61)
    by jbindc on Fri Apr 13, 2012 at 02:46:04 PM EST
    Second degree murder will be pretty hard to prove.

    Offers other potential reasons for the charge - i.e. keeps him jail and safe until bond hearing.

    On another note - another myth dispelled (Zimmerman was 250 pounds and outweighed Martin by 100 pounds):

    The jail released his booking information, which lists him as 5 feet 8 inches tall and 185 pounds. He has a tattoo on his left arm of the comedy and tragedy theatrical masks and another on his chest that has the name "Christina" inside a cross.

    But his weight six weeks ago (5.00 / 1) (#66)
    by Towanda on Fri Apr 13, 2012 at 03:30:23 PM EST
    is the question, as I had read that, understandably, he had lost weight (and sleep) since the shooting, while hiding out or on the run or wherever he has been since.

    Plus, that he did weigh 250 pounds at some point does not seem to be a myth, as I recall that was in records as well.

    Did Sanford police actually weigh him on the night of the shooting or just guess at his weight that was put on the records then (the links previously posted here)?  


    Make that almost eight weeks ago now (none / 0) (#67)
    by Towanda on Fri Apr 13, 2012 at 03:31:44 PM EST
    as I add it up -- 46 days since the shooting.

    Both you and Jeralyn can be correct (5.00 / 3) (#29)
    by Towanda on Fri Apr 13, 2012 at 08:41:46 AM EST
    of course:  That this is a poor case for probable cause, and that many poor cases have gone to trial (I certainly have seen those in my city as well).

    In what manner has a judge "accepted" (none / 0) (#16)
    by oculus on Fri Apr 13, 2012 at 12:06:36 AM EST
    the prosecutor's evaluation of probable cause?

    Answer: arrest warrant. (none / 0) (#17)
    by oculus on Fri Apr 13, 2012 at 12:15:23 AM EST
    Here's Alan Dershowitz's critique:  link

    (Although, seems irresponsible for a Harvard Law professor to be so publicly opininiated re a pending criminal case.)


    Seems irresponsible (none / 0) (#27)
    by Rojas on Fri Apr 13, 2012 at 07:19:39 AM EST
    To remain silent.
    I didn't see him expressing opinion on a pending case. His criticism was limited to the affidavit and the lack of ethics of the person who filed it.  

    It seems irresponsible (none / 0) (#32)
    by lentinel on Fri Apr 13, 2012 at 09:08:07 AM EST
    because it is irresponsible. (imho)

    Oops (5.00 / 1) (#33)
    by lentinel on Fri Apr 13, 2012 at 09:17:38 AM EST
    On the other hand, maybe it isn't irresponsible.

    I don't know.

    After thinking about what Dershowitz said, I find I can't disagree with anything he said - especially the part about the political motivation of the special prosecutor.

    But maybe, a Harvard professor should not be predicting the outcome of a trial that has yet to take place.

    I am squarely on both sides of this.


    Dershowitz is (none / 0) (#74)
    by gyrfalcon on Fri Apr 13, 2012 at 09:49:19 PM EST
    an unpredictable loudmouth, but I don't understand why a law professor shouldn't comment on legal cases.

    I agree (none / 0) (#81)
    by lentinel on Sat Apr 14, 2012 at 04:53:23 AM EST
    about Dershowitz. He really lost me when he endorsed pulling out the fingernails of terror "suspects" to extract information.

    But, as I said, in this instance, I have to agree with what he said.

    I suppose, given his lofty status, one could argue that he is polluting the potential jury pool....

    I like Laurence Tribe. He doesn't seem to have an agenda.

    But Dershowitz always turns me off, even if, as in this instance, I agree with what he said.


    A slight correction... (none / 0) (#82)
    by lentinel on Sat Apr 14, 2012 at 04:55:14 AM EST
    Ol' Dersh might have just proposed putting pins under the fingernails of potential sources of information - rather than pulling out the nails entirely.

    Rojas (none / 0) (#14)
    by Jeralyn on Thu Apr 12, 2012 at 11:21:24 PM EST
    cpinvas comment was so wrong on the law I deleted it. How he arrived at it I have no idea, but I've warned over and over I will delete comments that misrepresent the law or facts.

    It seems judge Hirsch admits (none / 0) (#11)
    by andgarden on Thu Apr 12, 2012 at 11:12:54 PM EST
    to ignoring dicta from the Florida Supreme Court indicating that the SYG immunity motion was filed out of time and therefore waived.

    Perhaps the prosecutor can save that for a crossappeal (per Peter's comment)?

    re dicta, even from a higher court: (none / 0) (#20)
    by oculus on Fri Apr 13, 2012 at 12:21:26 AM EST
    Judge Hirsch may ignore with impunity.  

    He says there is a (none / 0) (#22)
    by Jeralyn on Fri Apr 13, 2012 at 12:49:04 AM EST
    rule that allows him to address the motion any time before trial. He addresses both rules, Fla. R. Crim. P. 3.190(c)(3) and 3.190(b). And from the motion I linked to, a case is cited saying:

    A motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of Fla. R. Crim. P. 3.190(c)(4)b but instead should be treated as a motion filed pursuant to [Fla. R.Crim. P. 3.190(b).

    Really technical. I'm sure O'Mara knows the time limits for filing the motion. And as Hirsch points out, it would be meaningless to require someone to file it before having time to digest the discovery:

    it is frankly inconceivable that a "Stand Your Ground" motion has ever been or will ever be filed at arraignment, or within the 15-day period customarily granted at arraignment for the filing of motions directed to the sufficiency of the charging document.

    Another very useful exposition (none / 0) (#24)
    by scribe on Fri Apr 13, 2012 at 05:05:28 AM EST
    was in this post over at Volokh.
    Two weeks ago.  The last two weeks of media sturm und drang have been just so much pot-stirring.

    Worth a read.

    And thanks, TL, for doing the independent research in your post.  That both yours and the post at Volokh are roughly congruent shows and each confirms the other.

    a lot more light than heat....

    Re "strum und drang,". haven't ever (none / 0) (#25)
    by oculus on Fri Apr 13, 2012 at 05:24:29 AM EST
    seen this phrase used in this context.  Excellent

    "sturm" (5.00 / 1) (#26)
    by oculus on Fri Apr 13, 2012 at 05:27:44 AM EST
    Thank you (none / 0) (#76)
    by gyrfalcon on Fri Apr 13, 2012 at 09:52:56 PM EST
    "strum und drang" sounds like some kind of wildly discordant guitar riff.

    or maybe a slide guitar chord? (5.00 / 1) (#87)
    by DFLer on Sat Apr 14, 2012 at 01:05:07 PM EST
    stand your ground (none / 0) (#62)
    by desmoinesdem on Fri Apr 13, 2012 at 02:53:47 PM EST
    has been passed by the GOP-controlled Iowa House. It's dead in the Iowa Senate for now. County prosecutors in Iowa strongly oppose this law.

    Last month I talked to an assistant prosecutor for Polk County who explained that in his experience, when there is a violent altercation both parties feel justified 90 percent of the time. His biggest concern about stand your ground is how it would affect situations where there is "incremental escalation" ending with one person dead or seriously injured. In those cases both sides could credibly claim at every stage that they were justified in escalating because they felt threatened. For instance, a fender bender leads to angry words being exchanged, leading to one person clenching fists, leading to the other person grabbing a tire iron, leading to the other person grabbing a gun, and suddenly you have two angry, armed people, both feeling potentially under threat, able to respond with deadly force. His office would not be able to prosecute.

    Current Iowa law includes a "duty to retreat" provision that stand your ground would eliminate.

    The lead sponsor of "stand your ground" in Iowa disputes that it would lead to more tragedies like Trayvon Martin's killing and says he will reintroduce the bill next year.

    True, but in those cases (none / 0) (#77)
    by gyrfalcon on Fri Apr 13, 2012 at 09:57:04 PM EST
    even the SYG legislation (FL version, at least) envisions the judge denying the motion and sending it to trial, no?

    And honestly, it's not at all clear to me that the SYG law "lead to" Martin's shooting.  Maybe Zimmerman felt free to shoot him because of it, but generally people who do that kind of thing aren't thinking calculated thoughts about what the law does or doesn't say.

    To me, the key issue in this whole thing is the gun laws that allows wannabe cops with no trainint to prowl the neighborhood looking for potential perps with a gun in their pocket, with the assent, if perhaps not the full encouragement, of the police.


    If Corey doesn't have more up her sleeve (none / 0) (#68)
    by sarcastic unnamed one on Fri Apr 13, 2012 at 03:38:16 PM EST
    than what she's revealed so far, I can't imagine her getting a conviction (ianal).

    It's unlikely she doesn't (none / 0) (#78)
    by gyrfalcon on Fri Apr 13, 2012 at 09:58:40 PM EST
    From everything I've heard for years and years on the TeeBee, smart prosecutors, which this gal apparently really is, reveal publicly only what they're absolutely required to reveal as necessary to move along each step of the process.

    convicted in the press (none / 0) (#79)
    by diogenes on Fri Apr 13, 2012 at 11:32:32 PM EST
    The front page banners of the NY Daily News and NY Post are still using those old middle school pictures of Trayvon Martin juxtaposed next to Zimmerman.

    The trial will be in Florida (none / 0) (#80)
    by shoephone on Sat Apr 14, 2012 at 12:00:54 AM EST
    How many Floridians read either the New York Post or New York Daily News?

    Just as I thought.


    How many look at Drudge or similar? He's posts (none / 0) (#83)
    by Angel on Sat Apr 14, 2012 at 08:18:23 AM EST
    those links sometimes. Lots of ways for them to see this information, whether or not they are influenced by it is another question.

    No, ... they have to (none / 0) (#85)
    by Yman on Sat Apr 14, 2012 at 10:49:59 AM EST
    ... and it has to be laminated, too.