Now that prosecutors have brought charges against George Zimmerman, you probably think that a jury is going to hear the facts and decide the case. Think again. Under Florida's "Stand Your Ground" law, if George Zimmerman can convince a judge that he acted justifiably, he is entitled to immunity from prosecution. That means no jury; no conviction; no jail. Think of it as a big "Get Out of Jail Free" card. It is worth repeating: Florida's "Stand Your Ground" law does not just provide an affirmative defense; it provides immunity. The distinction is extremely significant.
For instance, just last month, a Florida judge dismissed Second Degree Murder charges in the killing of Pedro Roteta, an unarmed 26 year old man. The defendant, Greyston Garcia, allegedly saw Roteta steal a radio from Garcia's truck. Unlike George Zimmerman, Greyston Garcia didn't call the police before running after Pedro Roteta. Instead, Garcia grabbed a large knife and chased Roteta for at least a block. Upon catching up with Roteta, Garcia proceeded to stab Roteta to death. After the brutal killing, Garcia took Roteta's bag of stolen radios and allegedly pawned two of them; he also hid the knife and never called 911 to report the incident. Nevertheless, thanks to Florida's "Stand Your Ground" immunity clause, Greyston Garcia never faced a jury. Instead, Garcia filed a Motion to Dismiss and testified that Roteta swung a bag of stolen radios at his head. Fearing for his life, Garcia claims that he stood his ground--and stabbed Roteta to death.
That's right: Garcia ran down and stabbed an unarmed man to death; pawned the items taken from the dead man; and hid the knife from police. Yet, Garcia never stood trial or faced a jury. How is that possible? Florida's "Stand Your Ground" immunity clause.
Under F.S. 776.032, a person is "immune from criminal prosecution and civil action," if a person justifiably uses deadly force. This is an extraordinarily important aspect of the law, because immunity provides a greater level of protection than an affirmative defense. In the case of an affirmative defense, the accused must go to trial and convince a jury that he acted justifiably. With immunity, the case will never get to a jury in the first place. In order to win immunity, the accused need only convince a judge, by a preponderance of the evidence, that the killing was justified.
In order to show that the killing was justified, the accused must prove that: 1) the defendant was not otherwise engaged in unlawful activity; 2) the defendant was at a place where he had a right to be; 3) the defendant was attacked; and 4) the defendant reasonably believed that he was about to suffer death or great bodily injury. However, if the prosecution can show that the defendant "provoked" the incident, the Defendant loses his right to claim justifiable use of force. From what is publicly known about the evidence in the case, George Zimmerman has a real chance of winning a dismissal. Here's why:
First, George Zimmerman need only convince the judge by a preponderance of the evidence. The preponderance of the evidence standard is the lowest burden in criminal law. Zimmerman need only convince the judge that it is more likely than not that he acted justifiably. When compared with the State's burden at trial, which is to convince six individual jurors that Zimmerman committed the crime beyond and to the exclusion of every reasonable doubt, it becomes obvious that Zimmerman's burden is significantly lower than that of the prosecution.
Second, the lack of eye-witnesses to the incident provides the State with very little evidence to contradict Zimmerman's claims. From what is publicly known about the evidence, the State does not have an eye-witness that can testify that Zimmerman attacked Martin; the State does not have an eye-witness that can testify that Zimmerman didn't walk back to his car; the State doesn't have an eye-witness that can testify that Zimmerman shot Martin while Martin was helpless; the State simply doesn't have an eye-witness to the shooting itself.
Admittedly, the contents of the Medical Examiner's report have not yet been made public. If the Medical Examiner's report indicates that Trayvon Martin was shot from a distance, or shot in the back, then Zimmerman's chances of winning a dismissal decrease exponentially. However, considering the State's woefully inadequate Probable Cause Affidavit, in which the State made no indication that the Medical Examiner's report contradicts Zimmerman's claims, it is unlikely that the Medical Examiner's report will do much to aid the prosecution.
Zimmerman, however, has evidence to corroborate his claims. At least one witness has stated publicly that Martin was "beating up" Zimmerman. The same witness claims that Zimmerman was calling for help. Zimmerman received care from EMT's at the scene, who treated Zimmerman for a bloody nose and for an injury to the back of his head. Video surveillance from the night in question confirms that Zimmerman suffered injuries to the back of his head. In light of Zimmerman's low burden of proof, these corroborating pieces of evidence can prove essential in winning dismissal.
Thus, when looking at the elements that Zimmerman must establish to prove he acted justifiably, it seems reasonably certain that Zimmerman can prove by a preponderance of the evidence that: 1) he was not otherwise engaged in unlawful activity; 2) he was at a place where he had a right to be; 3) he was attacked; and 4) he reasonably feared he would lose his life or suffer great bodily injury. The State has never alleged--nor could they--that Zimmerman's following of Trayvon Martin was an unlawful activity; or that it placed Zimmerman at a location where Zimmerman had no right to be. Similarly, as already stated, the State does not seem to have an eye-witness to the initial physical confrontation between Zimmerman and Martin. Therefore, it will be extremely difficult for the State to contradict Zimmerman's claim that Martin attacked him and bashed his head into the concrete, creating for Zimmerman a well-founded fear of great bodily injury.
This leaves the State with one "ace in the hole:" the claim that Zimmerman "provoked" the incident. However, the "provocation" theory is shaky, at best. F.S. 776.041 provides that the "Stand Your Ground" law is not available to a person who: "Initially provokes the use of force against himself or herself." However, there are two exceptions, both of which favor George Zimmerman.
First, even if Zimmerman "provoked" the incident, he may still justifiably use deadly force, if: "Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant." According to Zimmerman and at least one witness, Trayvon Martin was on top of Zimmerman. What is more, Zimmerman claims that Martin bashed his head on the concrete, which caused Zimmerman to fear death or great bodily harm. If the State cannot contradict this version of events, Zimmerman likely can establish that he "exhausted every reasonable means to escape," (he claims he was pinned to the ground), and he reasonably feared Martin's use of force would "likely cause death or great bodily harm."
Second, it is far from clear that following Trayvon Martin while speaking with the police constitutes "provocation." The second exception to "provocation" states that if the provocateur "In good faith...withdraws from physical contact" and communicates his desire to "withdraw from physical contact," but the other party "continues or resumes the use of force," then the provocateur may rely on the "Stand Your Ground" law. What is important to note, is that F.S. 776.041(2)(b) presumes that the "provocation" includes "physical contact." However, based on the evidence that is public thus far, there is no evidence that Zimmerman initiated "physical contact." What is more, there is no precedent in Florida law indicating that conduct short of "physical contact" provides justification for the use of force, or amounts to "provocation."
Make no mistake: George Zimmerman has a real chance of avoiding a jury. All he has to do is convince a judge, by a preponderance of the evidence, that he acted in justifiable self-defense.