George Zimmerman will seek a stand your ground hearing in his case in an effort to have the murder charges against him dismissed.
In Florida, pursuant to Statute 776.032 a defendant may assert immunity from prosecution and attempt to prove that through an evidentiary hearing. In a stand your ground hearing there is no jury but only a judge who listens to testimony and evidence presented as a Defendant bears the burden of proving by a preponderance of the evidence (State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010) that his case falls within the conditions of the stand your ground law.
Initially, the first glaring difference between a hearing of this nature and a criminal trial is that the defendant, not the State, must prove his case. If Zimmerman can show the facts in his case fit the requirements of a stand your ground defense, the judge will dismiss the case from both further criminal prosecution and any civil litigation that would ensue.
Essentially if Zimmerman is successful in asserting the stand your ground defense at this hearing, the Trayvon Martin family would be left without a remedy to right what they assert has wronged them. If Zimmerman fails to meet his burden in the judge's opinion, the case will continue its clear course to a jury of his peers.
Practically speaking, this hearing will be another cog as this machine moves toward trial. I submit that unless the facts are very clearly overwhelming in the favor of Zimmerman, this judge will deny this motion and allow this case to go to a jury for their rendering of a verdict after consideration of all relevant and material evidence.
However, if I were Zimmerman's attorney, I would focus on a number of factors to Zimmerman's benefit, namely the injuries to his face and back of his head. The assertion would be that at least at some point Zimmerman was losing the fight and feared for his life and thus utilized the stand your ground exertion of force. It would be worth bringing up that the gunshot wound was inflicted at very close range, indicating the fight was active when the bullet left the gun. Another potentially beneficial fact for Zimmerman's defense would be no markings on the ground from a bullet (assuming the bullet exited Martin) indicating that Zimmerman was on top of Martin. If the gun was fired up, Zimmerman was likely on the ground.
There is mention that the screaming voice on a 911 call recording was not Martin's, per his father. Couldn't Zimmerman argue that it was his voice and the pleas were from one who was in great distress? Regardless of what evidence Zimmerman's legal team chooses to put forth, they have a tall task ahead of them.
All in all, Zimmerman's attorney has to argue this motion if it is in good faith or he would be ineffective. I would be shocked to see a case of this magnitude get dismissed after an evidentiary hearing. This case will culminate in another major trial in the Orlando area and ultimately I believe a jury will acquit Zimmerman of second degree murder.
As to whether Zimmerman is guilty, I don't know that we will ever know that. This seems to be that may not so much be won by Zimmerman's defense team, but rather failed to be proven beyond a reasonable doubt by the State of Florida.
Jason Mayberry is an attorney located in Clearwater, Florida practicing throughout the Tampa Bay area. The practice focuses on Federal and State criminal defense, personal injury and medical malpractice, and family law. Thank you for reading our blog and if you have questions or are in need of an attorney, please do not hesitate to call us at 727-771-3847 or visit us on the web at www.pinellas-dui-attorney.com.