The nation's fixation on the shooting death of 17-year-old Trayvon Martin has led many to question whether an impartial jury could be found for the trial of his killer, George Zimmerman.
But it's possible a judge, not a jury, will decide Zimmerman's fate. He says he fired in self-defense, and many expect his lawyers will eventually ask for an immunity hearing under Florida's controversial "stand your ground" law.
Often described as a "minitrial" in which the burden of proof is on the defense and the judge serves as jury, such hearings are unlike other criminal-justice proceedings.
The lawyers' roles are reversed, the burden of proof is low, and the stakes couldn't be higher.
"If the judge dismisses the case, it's game over," says Eric Schwartzreich, a Fort Lauderdale attorney who has represented multiple "stand your ground" defendants since the law was passed in 2005.
Since the Trayvon Martin shooting, the law has been the subject of renewed debate. A task force created by Gov. Rick Scott to re-examine "stand your ground" will hold its first public meeting this week.
The law allows civilians to use deadly force anywhere they're legally allowed to be, so long as they are not committing a crime and have a reasonable fear of death or serious injury.
Even if immunity from prosecution isn't granted, the hearings can have value for defense lawyers, Schwartzreich said. They can test their theories, their witnesses — and often, their client — in a courtroom.
"You get to actually see in a courtroom how a witness will testify on the witness stand," he said.
Schwartzreich asked for immunity in two recent cases that made headlines: those of Craig Sandhaus, the man charged with stabbing downtown Orlando bar bouncer Milton Torres, and Fitzroy Salesman, a Miramar city commissioner who pulled a gun during an argument at a grocery store.
Both motions were denied. The Sandhaus case has not yet been tried, and a jury acquitted Salesman of the felony he faced. Schwartzreich credits the self-defense argument he made at the trial.
The law gives defense lawyers "two bites at the apple," Schwartzreich said. "You can ask the judge for immunity, and you can argue the 'stand your ground' law with the jury."
'Trial before the trial'
When a defense lawyer files a motion for "stand your ground" immunity, a hearing is held that resembles a trial: Witnesses are called and cross-examined, evidence is introduced, lawyers make arguments and a ruling is made.
"You basically have a trial before the trial," Jacksonville attorney Kevin Cobbin said. "Some of these things can actually be very much like trials, just without the jury."
The verdict is up to the judge. And because the burden to prove "stand your ground" is on the defense, the lawyers' traditional roles are flipped, with the defense on the offensive.
At least in theory, the defense doesn't have much to prove. In a criminal trial, the state must prove the crime "beyond a reasonable doubt." In an immunity hearing, defense lawyers need only "a preponderance of the evidence" to win the case.
The "preponderance" standard — the same used in civil cases — is a much lower bar.
"It's 50.1 percent," Schwartzreich said.
Robert Buonauro, an Orlando lawyer who recently won immunity for a client in a Seminole County case, said you only have to "tip the scale a little bit in your favor."
Still, motions for immunity are often defeated. Cobbin recently asked a judge for immunity in the case of Marissa Alexander, a woman who fired what she described as a "warning shot" into a wall to deter her abusive husband during a fight. The "stand your ground" motion was denied, and she was later convicted and sentenced to 20 years in prison.
If the burden is so low, why aren't more cases tossed? Attorneys say the law is unevenly applied, and some judges prefer to let a jury decide the case.
"There are some judges that don't want to stick their foot out there and say the buck stops here," Cobbin said.
Credibility is key
Zimmerman is being held without bond in the Seminole County Jail on a second-degree-murder charge for the Feb. 26 shooting death of Trayvon in Sanford.
Zimmerman's lawyers haven't yet asked for an immunity hearing under "stand your ground," but other attorneys say it's typical to wait until closer to trial. The defense needs to see the evidence and interview witnesses.
"You've got to prepare for it like you're getting ready for trial," Buonauro said.
There are also risks to asking for immunity: The hearing gives the state a preview of the defense's trial strategy. And if a defendant testifies to something damaging, it's likely to reappear at trial.
The outcome rests on the judge, who typically has a much greater legal understanding than a typical juror. Buonauro said most self-defense cases aren't overly complex, but the judge's experience can play a factor.
"I think where the judge's perspective comes in is their experience in being able to weigh and determine credibility," Buonauro said. And the defendant's credibility, he said, is critical.
In Zimmerman's case, a "stand your ground" claim would rest in the hands of Judge Kenneth Lester, the same judge who just threw Zimmerman back in jail after determining he misled the court about his finances.
Lawyers agree it's likely that Zimmerman would testify if there's an immunity hearing. Whether the judge would believe him remains to be seen.
"If a jury is told to weigh the credibility of witnesses, then the judge should have that same duty," Cobbin said. "The judge should definitely weight the credibility of every witness that comes forward."
jeweiner@tribune.com http://articles.orlandosentinel.com/...efense-lawyers
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Will jury, or judge, decide George Zimmerman's fate?
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