NEW YORK, April 4 (Reuters) - To mix metaphors, Stand Your Ground is no Slam Dunk.
The controversial 2005 Florida law grants immunity to people
who use deadly force in self defense. In the days since George
Zimmerman shot and killed 17-year old Trayvon Martin, critics
and supporters both seem to have assumed that if Zimmerman is
charged, he could easily seek and win immunity from prosecution
under Stand Your Ground.
But don't be so sure. Interviews with nearly a dozen veteran
defense lawyers who have experience litigating Stand Your Ground
cases suggest winning immunity could be quite difficult.
"Judges do not readily grant these (immunity) motions
because they know they can pass it on to the jury," said Carey
Haughwout, the public defender for Palm Beach County.
So far, Zimmerman has not charged with any wrongdoing. A
special prosecutor, Angela Corey, is still investigating the
incendiary case, which carries heavy racial overtones and has
stirred a national outcry.
But if charges are filed and Zimmerman does choose to seek
immunity, he will face challenges at almost every stage, lawyers
The first hurdle will be a special evidentiary hearing in
front of a judge, where Zimmerman will have the opportunity to
argue that he deserves immunity. But to convince the judge,
Zimmerman will have to present a "preponderance of evidence"
that he acted in self defense, which under the law means he has
to show he had "reasonable belief" that such force was
necessary. That is a high bar, and difficult to prove, criminal
defense attorneys said.
In cases where the facts are in dispute -- and even if they
don't seem to be -- the judge is likely to deny the Stand Your
Ground immunity motion, said Ralph Behr, a Florida criminal
defense attorney who has filed eight motions for immunity, all
of which have been denied. More typically, a judge will choose
to have the case go to trial, where the defendant must take his
or her chance with a jury, just like other criminal defendants,
"Most judges, I think, are comfortable letting the
adverserial system play out before a jury rather than make
decisions themselves," said Behr.
Maggie Jo Hilliard, an attorney in Atlantic Beach, Florida,
thought she had made a good argument for immunity in the case of
18-year-old Rashad Martinez. The former juvenile inmate had been
charged with murdering another former inmate, 19-year-old
Tremayne Lovett, and in a motion for immunity under Stand Your
Ground, Hilliard cited previous incidents in which Lovett beat
up Martinez. She also presented a eyewitness to a confrontation
preceding the shooting who believed that Lovett was carrying a
But a judge denied Hilliard's immunity motion in 2010, and
after a trial, Martinez was convicted in sentenced to life in
prison in February. "I can say I disagree with the jury but it
does me no good. I have to trust in the system of justice that
we have," said Hilliard.
The Stand Your Ground evidentiary hearings have other risks,
as well. Some defense lawyers don't file such motions on the
grounds that the hearings give the prosecution an advance
preview of the defense's case.
"You're basically conducting a mini trial," said Christopher
Frey, a defense attorney in New Port Richey, Florida. "You're
putting your cards on the table before you pick a jury."
Before Florida passed the Stand Your Ground in 2005, people
were allowed to protect themselves while in their homes and were
not required to retreat. The law extended that right to
individuals who are attacked in "any other place where he or she
has a right to be." While there is no comprehensive data on how
many times judges have denied such immunity motions, a review of
newspaper accounts and public records by the Tampa Bay Times
published last month showed judges have granted immunity just
nine times since 2005.
Stand Your Ground does confer some procedural advantages to
defendants that aren't available in most criminal cases.
Typically, defendants accused of a crime have just one shot to
avoid a trial through a motion to dismiss. If there are factual
disputes between the government and the defendant, a judge is
required to deny the motion without a hearing and allow the case
to proceed to trial before a jury. But with the Stand Your
Ground law, a defendant has the right to the evidentiary
hearing, where the judge has to make factual determinations.
The guarantee of that hearing has made Stand Your Ground
popular with defense lawyers. They say the hearings help
protect innocent defendants from the ordeal of a trial, but more
importantly, give defendants two opportunities to avoid
"You get two bites at the apple," said Florida criminal
defense attorney James Felman.
But the "preponderance of evidence" standard defendants must
clear puts the burden on the defendant. After losing an immunity
motion for for one his clients who had been charged with
aggravated assault, Orlando defense attorney Mark Horwitz argued
to a Florida appeals court that burden should be on the
prosecution to prove that the defendant did not act in self
defense. The court disagreed.
"Placing the burden on the defendant defeats the purpose of
the statute," he said.
(Reporting by Andrew Longstreth)
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