George Zimmerman: Written Order vs. Oral Ruling at Bail Hearing
At the hearing to revoke bond on June 1, 2012, Judge Kenneth Lester said he would issue a written order. Yesterday, he issued his order, which you can read here.
Interestingly, he writes for the first time that the state's evidence is "strong." The state chose not to present evidence on the facts of the case at the April 20 bond hearing, relying instead on its affidavit. The only testimony at the hearing on the facts of the case came from the state investigator, called by the defense, who acknowledged weaknesses in the state's case. The state's affidavit of probable cause, which as has been endlessly discussed, was a one-sided portrayal with factual inaccuracies and no mention defendant's claim of self-defense. It didn't contain evidence of the elements of second degree murder. [More...]
Bail hearings in Florida in cases charging life felonies are called Arthur hearings. Florida statutes,rules and case law provide that the accused has a right to bail unless the state establishes at the hearing that "the proof of guilt is evident and the presumption great." If the state fails to meet its burden, the judge must set bail. If the state meets is burden, the judge still has discretion (as opposed to the duty) to grant bail.
Judge Lester seems to be making a finding now that he didn't make at the April 20 hearing -- that the state met its burden under the Arthur standard of establishing that the proof of guilt is evident and the presumption great. Judge Lester writes:
While the Court would have been authorized under State v. Arthur, 390 So 2d 717 (Fla. 1980), to keep the defendant in custody without granting a bond, the Court exercised its discretion and set what was believed to be a reasonable bond.
Judge Lester made no such finding in April (you can watch the video of closing arguments and his ruling here), and the State never presented evidence other than its affidavit to meet that burden. The state said at the hearing it was not going to present evidence and try the case at the bond hearing. Judge Lester never said the state met its burden, he said the defendant's motion for bond was well-taken. He also never issued a written order after the April 20 bond hearing finding the state met its burden or detailing any other findings. Yesterday's order, on his June 1 ruling revoking bond is the first written order addressing his findings at the April hearing.
Since a judge only has discretion under the pre-trial release statute to deny bond in a life felony case when the state has met its burden, and Judge Lester now says he granted bail in April as a matter of discretion, he is saying for the first time that the state met its burden in April. How can he say that now when he didn't say it then?
Here's a summary of the law on bail and life felonies:
Where the evidentiary standard concerning proof of guilt is not met, however, an accused is entitled to bail as a matter of right in the same manner as in other cases. Thus, in these cases, the following determinations must be made: whether the offense is one which will invoke the limitation upon pre-trial release; if so, whether the standard concerning proof of guilt has been properly met; and if not, whether pre-trial bail should be granted in the discretion of the court.
Judge Lester's order yesterday also shows the importance of the state being honest and not deceiving the court in its probable cause affidavit. The affidavit can be considered at the Arthur hearing as evidence to support a finding the proof of guilt is evident and the presumption is great on a life felony, which makes bond discretionary as opposed to a matter of right.
Case law in Florida since the 1950's has held that the state is unlikely to be able to meet such a burden in homicide cases where self-defense is raised. An accused's version of the manner by which a homicide occurred (such as self-defense) is generally accepted for the purpose of determining whether the proof of his guilt was evident or the presumption great. See, Florida Criminal Practice and Procedure 3.5 and cases like State ex Rel. Freeman v. Kelly, 86 So.2d 166 (1956), which cites an earlier case holding:
"Defendant's version of the homicide can not be ignored where there is an absence of other evidence legally sufficient to contradict his explanation. Appellant and deceased were the only witnesses to the homicide and the tenor of appellant's evidence is that she shot in self-defense."
In Perry v. State, the court ruled:
[W]here the state's evidence, although not insufficient to convict for a capital or life offense, is arguably impeached in substantial respects by other evidence or is rendered doubtful by substantial contradictions and discrepancies in the state's case, the proof is not stronger than beyond a reasonable doubt and, accordingly, the accused is entitled to pretrial bail as a matter of right for such offense.
The affidavit the state submitted, which was relied on by Judge Lester on April 20, failed to alert the court that the state had physical evidence and witness statements supporting Defendant's claim of self-defense. It didn't even apprise the court self-defense was an issue. Had it advised the court in its affidavit of these things, even stating its belief was that the self-defense evidence was not compelling enough to defeat probable cause, the state of facts would be in dispute and there could be no finding the proof of guilt was evident and the presumption strong -- unless there was evidence that defendant's claim was completely incredible. The state presented no such evidence in April. So there was no basis for denying pre-trial release and the Court had to grant it, it was not discretionary.
If the state wants bail rejected on June 29, it seems to me it has to file a written motion for pre-trial detention under the pre-trial detention rule, 3.132, and both produce non-hearsay evidence in support of the charges and prove there are no conditions that would reasonable assure Zimmerman's appearance at trial or the safety of the community. If it doesn't do that, then the court is still proceeding under the pre-trial release rule, 3.131, which requires the state to produce far more evidence, hearsay or otherwise, than it did in April, to establish Zimmerman is guilty of the charged offense. Its burden is to establish that proof of guilt is evident and the presumption great, which is a standard higher than proof beyond a reasonable doubt. As the Court stated in Castro:
We suspect that some of the position articulated by Mr. Castro grows out of the differences between Rules 3.131(a) and 3.132©, Florida Rules of Criminal Procedure, and the fact that the trial court apparently decided to hold a hearing to set bond, and a pretrial detention hearing at the same time. Rule 3.131(a) specifically addresses pretrial release and repeats the constitutional requirements requiring bail and its denial.
Ordinarily, of course, the accused seeks the benefit of this rule. Rule 3.132, on the other hand, is based on section 907.041, Florida Statutes, and is concerned with pretrial detention. Obviously, Rule 3.132 is generally put into play by the State. Subparagraph © of the latter rule authorizes the receipt of hearsay evidence at a hearing on pretrial detention, but indicates that, "A final order of pretrial detention shall not be based exclusively on hearsay evidence." That language, however, is not found within Rule 3.131. We note that what the trial judge finally ruled on was apparently the motion to set bond. The finding that he made concerning the evident nature of the proof of guilt and the strength of the presumption invokes only Rule 3.131, and not Rule 3.132.
Mr. Castro argues essentially that the rule applicable to pretrial detention should also apply to pretrial release. Arthur says otherwise, and the rules are distinct. We decline to stir the two rules together. Each rule has a separate purpose and procedure, and they should not be mixed.
In Juste v. State, the court ruled:
As the state did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, the trial court should have determined the proper conditions of pretrial release at the hearing on the motion to set bond. See Kelly v. State, 939 So. 2d 1150 (Fla. 5th DCA 2006); Ho v. State, 929 So. 2d 1155 (Fla. 5th DCA 2006); Nguyen v. State, 925 So. 2d 435 (Fla. 5th DCA 2006).
One more: Stallings v. Ryan:
An accused is entitled to pretrial release unless charged with a capital, life felony, or an offense punishable by life imprisonment. However, on an application for bond, the trial court must find that the proof of guilt is evident or the presumption great. Elderbroom v. Knowles, 621 So. 2d 518, 520 (Fla. 4th DCA 1993). The burden is on the State to meet this standard. Id. The State is held to a degree of proof greater than that required to establish guilt beyond a reasonable doubt. Id.
Further, where the State's evidence is sufficient to convict for a capital or life offense but is arguably impeached in substantial respects by other evidence or is replete with substantial contradictions and discrepancies, the proof does not meet the standard. State v. Perry, 605 So. 2d 94, 97 (Fla. 3d DCA 1992). Accordingly, the accused in such a case would be entitled to pretrial bail as a matter of right for such offense. Id.
Put another way, as the Court did in the 2011 case of Ginsberg v. Ryan, in ruling on bail release following an order of revocation:
However, a court is required to consider the requirements of section 907.041 and Florida Rules of Criminal Procedure 3.131 and 3.132 before denying a request for pretrial release. Specifically, the State must file a motion seeking pretrial detention within twenty-four hours of the defendant's arrest. § 907.041(4)(e), (g); Fla. R. Crim. P. 3.132©. The motion must set "forth with particularity the grounds and the essential facts on which pretrial detention is sought and [must certify] that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion." Fla. R. Crim. P. 3.132(a).
If "the State indicates to the court that it does not intend to file a motion for pretrial detention, . . . or files a motion that is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1)"
So it seems to me Zimmerman is still entitled to release on bond. And Judge Lester's order yesterday contains a revisionist view of what he ruled on April 20.
If Judge Lester doesn't grant bond on June 29, the defense can challenge his ruling by seeking a writ of habeas corpus. I think he'd be reversed. But in the meantime, Zimmerman will be jailed, and his ability to meet with his lawyers and prepare a defense will be severely curtailed. This seems overly drastic and unfair, since he didn’t falsely testify to anything, and he had a right to remain silent at his bond hearing.
Judge Lester should have issued a written order specifying why he granted bond after the April 20 hearing. Yesterday's order seems to re-write his oral ruling at that hearing.
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