It now appears that a trial—if one actually occurs—will not take place earlier than the first months of 2013.  What is happening now is the usual legal wrangling and argument that sets the stage for a trial.  But in keeping with the unusual nature of virtually everything relating to this trial, this process too is out of the ordinary.

As I mentioned in Update 14, it’s important, when considering this article and this entire case, to keep in mind the existence of two realms and their essential qualities:

(1) The Court of Public Opinion: in this court, truth and fact matter not at all. Innuendo and accusation hold sway, particularly if they define and support “the narrative.”

(2) The Court of Law: in this court, truth and fact do matter, but in the Zimmerman case, reality is so distorted as to render an actual trial a potential kangaroo court and/or circus.

WHAT’S NEW: 

ITEM 1: Judge Lester Refuses to Disqualify Himself.  In response to the defense motion, Judge Lester was uncharacteristically circumspect.  He did not engage in attacks against George Zimmerman—as he had in previous decisions—but merely wrote that the motion was “insufficient,” without explaining why (a partial PDF of the decision is available here) in any real detail.

In that motion, Mr. O’Mara wrote:

Mr. Zimmerman Has a Reasonable Fear That He Cannot Get A Fair Trial or a Fair Stand Your Ground Hearing by the Court.

On July 5, 2012 the Court filed its Order Setting Bail.  In said order, the Court makes gratuitous, disparaging remarks about Mr. Zimmerman’s character; advocates for Mr. Zimmerman to be prosecuted for additional crimes; offers a personal opinion about the evidence for said prosecution; and continues to hold over Mr. Zimmerman’s head the threat of future contempt proceedings.  In doing so, the Court has created a reasonable fear in Mr. Zimmerman that this Court is biased against him and because of the prejudice he cannot receive a fair and impartial trial or hearing by this Court.

ANALYSIS:

The state’s reply to the defense motion to disqualify ( PDF available here) is of a piece with its other filings in this case.  It uses essentially a first person, cynical, even taunting, voice and smears the character not only of Zimmerman but his counsel.  This is unusual in that legal decorum and professional practice requires attorneys to deal in law and fact rather than the kind of rhetoric one sees in a heated political race.  However, considering that the prosecution has, from the first, seemed to be playing to the court of public opinion to a greater degree than the court of law, this is not surprising.

For example, the Prosecution wrote:

As an example: among other things, Defendant asserts that he might have testified to a Grand Jury.  However, he omits mention of the fact that when presented the actual opportunity to testify (at his second bond hearing) regarding the very matters germane to his credibility, he declined to do so.

Notice how the prosecution baits and switches, referring to grand jury testimony and suddenly switching to the second bond hearing.  This is dishonest on at least two significant counts: it was the decision of the prosecution not to take the case to a grand jury, hence Zimmerman was denied that potential opportunity to testify. He can scarcely be held accountable for an opportunity he never had. Saying that he might have testified is inoffensive and cannot reasonably be falsified.  Secondly, the prosecution well knows that Zimmerman has an absolute constitutional right not to testify.  The prosecution also knows that it is unethical, even grounds for a mistrial, should he try to present Zimmerman’s decision not to testify to a jury.  Even mentioning such a thing is forbidden, a fact known to every first year law student, yet de la Rionda writes as though Zimmerman’s decision not to testify—a decision almost surely based on the advice of his attorney—is evidence of wrong doing.

The prosecution reply might also reasonably be read as shamelessly pandering to the prejudices of Judge Lester and a stirring defense of his prerogatives.

There is no question that the assertions of Mr. O’Mara in the motion are factual.  Judge Lester did all that O’Mara asserts in his motion.  Again, this is unusual.  Judges normally go out of their way to avoid even the appearance of bias.  One matter also brought up in the motion is the Judge’s assertion that Zimmerman planned to flee, but this plan was thwarted.  As O’Mara noted, there is no evidence whatsoever of such a plan—Zimmerman’s close and continual cooperation with the police and the courts is well-known–or of any thwarting of a plan that did not exist.  It is difficult to imagine where the judge got such an idea other than unreasoning prejudice.

Motions to disqualify are always a tricky matter.  Any defense attorney would be foolish to file such a motion without good cause, because if the judge refuses to remove himself, it is highly likely he will not be well disposed to the defense attorney and the defendant from that point forward.  Even if the judge thereafter gives the appearance of scrupulous fairness and even-handedness, he may harbor resentment and bias toward the defense and defendant and it will be difficult or impossible to prove it.

Mr. O’Mara has not indicated whether the decision will be appealed, though he has said that unspecified events have complicated the case for the defense and will require more preparation time, likely pushing any trial back to the beginning of 2013.

Item 2:  Alteration of Bond Conditions.  A recent report indicates Zimmerman intends to petition the court to allow him to live outside of Seminole County as he awaits trial.

His lawyer, Mark O’Mara, said one main concern is money. He said Seminole County is the most dangerous place for Zimmerman to live, and the cost of round-the-clock security is draining the defense fund.

‘We’re preparing to file a motion to modify George’s bond to allow him to move out of Seminole County,’ said O’Mara.

If the money continues to go out faster than it comes in, the next step will be to declare him indigent.

‘It has around $40,000 to $50,000 in it — not as much coming in, and it’s draining off due to things like providing security,’ he said.

ANALYSIS:

As I’ve noted in past updates, the lives of George and Shellie Zimmerman are not only on hold, but in a state of chaos.  Neither can work, they will never again be able to live in their home, and death threats continue to be a genuine issue.  With no means of support other than donations, they also have no means to mount a defense to the unconscionable charges lodged against them.

On one hand, Judge Lester has claimed—without any evidence presented in court–Zimmerman intended to flee but was somehow thwarted.  It is therefore unlikely he will grant any request for Zimmerman to live elsewhere.  However, such a request, considering the bizarre nature of the case, and the expense and continuing danger to Zimmerman’s very life, is surely reasonable and the means to ensure Zimmerman’s appearance are easily available.

All of this is overshadowed by Judge Lester’s decision to remain on the case and the possibility of an appeal of that decision.  Should Judge Lester deny Zimmerman’s request, that might provide additional evidence of bias against Zimmerman, perhaps even as an attempt to make it difficult or impossible for him to defend himself.

Item 3: “Stand Your Ground” Hearing. As I’ve noted before, this case is not, at its heart, a stand your ground case.  Once attacked, flat on his back on the ground, straddled by and being brutally beaten by Trayvon Martin, Zimmerman could not retreat or escape.  There was no “ground” to “stand,” and the field of battle—so to speak—was decided entirely by Martin.  However, Florida law does provide an important immunity for Zimmerman.  I reproduce the sections of the law that relates to this specific case: 

776.012Use of force in defense of person.—

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

776.013Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

776.032Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Mr. O’Mara has announced that there will be a “stand your ground” hearing (no date has been set).  He wrote: 

Now that the State has released the majority of their discovery, the defense asserts that there is clear support for a strong claim of self-defense. Consistent with this claim of self-defense, there will be a ‘Stand Your Ground’ hearing.

In the case against George Zimmerman, a ‘Stand Your Ground’ hearing will essentially be a mini-trial. Most of the arguments, witnesses, experts, and evidence that the defense would muster in a criminal trial will be presented in the “Stand Your Ground” hearing.

There are significant differences between a ‘Stand Your Ground’ hearing and a trial. In a ‘Stand Your Ground’ hearing, there is no jury; the decision is made by the judge alone. In a criminal trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt, but in a ‘Stand Your Ground’ hearing, the burden is on the defense to prove that the evidence fits the conditions of the ‘Stand Your Ground’ law. If the Court rules in favor of the defendant in a ‘Stand Your Ground’ hearing, not only are criminal charges dismissed, the defendant is also immune from civil actions related to the shooting. The primary focus of a ‘Stand Your Ground’ hearing is whether George Zimmerman reasonably believed that his use of his weapon was necessary to prevent great bodily harm to himself at the hands of Trayvon Martin.

Preparing for the ‘Stand Your Ground’ hearing will require the same time and resources that would be necessary to prepare for a trial. It will take time to collect and submit reciprocal discovery, depose witnesses and experts, and identify evidence to be submitted during the hearing. We anticipate this will still take several months. Mr. O’Mara, again, urges everyone to be patient during this process and to reserve judgment until the evidence is presented in the ‘Stand Your Ground’ hearing.

ANALYSIS:

The primary issues at such a hearing will be:

(1) Did Zimmerman reasonably believe that deadly force was necessary to prevent imminent death or great bodily harm to himself?  776.012 (1)

(2) Was Zimmerman engaged in an unlawful activity?  Was he attacked in a place he had a right to be?  776.013(3)

As Mr. O’Mara notes, the majority of evidence in this case is known, as are the answers to these two essential questions.  Zimmerman did reasonably believe the use of deadly force was necessary under the circumstances.  Considering his position as the neighborhood watch captain, his right to be where he was, looking out for his neighborhood, might well be stronger than that of a mere resident, and of course he was not engaged in unlawful activity.  Remember at the first bond hearing on April 20, 2012, the special prosecutor’s investigator—Dale Gilbreath—admitted that the prosecution had no evidence to contradict Zimmerman’s account.

Under 776.032 (2) it is clear that the Sanford Police Department and the local prosecutor followed the law in not arresting Zimmerman because their investigation clearly concluded that there was no probable cause to believe his use of force was unlawful, and the special prosecutor has found no such cause since, yet continues to prosecute Zimmerman in contravention of Florida law.  In fact, as I, Harvard Law Professor Alan Dershowitz and others noted in Update 2, the special prosecutor failed to produce probable cause even in their charging affidavit for second degree murder.

It is probable that Zimmerman will not have to take the stand in this hearing.  His complete cooperation with the Sanford Police, including a videotaped pseudo-reenactment will make that unnecessary.  O’Mara will only need to call the investigators and officers involved, introduce their reports and all related documents, and let the evidence tell the story, a story the special prosecutor has no evidence to refute.

At the hearing, the special prosecutor will surely try to paint Zimmerman as the aggressor and argue:

776.041Use of force by aggressor.—

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) 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; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Mr. de la Rionda and supporters of the narrative have already tried to argue that Martin was somehow provoked into attacking Zimmerman because he was being “profiled” or followed simply because he was black.  However we know that Martin lost Zimmerman and if he chose, could simply have gone home, never seeing Zimmerman—who was merely trying to keep him in sight for the responding police–again.  This line of argument is dangerous to the prosecution because of 776.041 (2)(a) and (b).  Zimmerman’s testimony and injuries, as well as the statements of eyewitnesses are strong proof that he reasonably feared for his life at Martin’s hands.  In addition, his many and desperate screams for help—also heard by many witnesses—are strong proof that Zimmerman was not engaged in a fight but was the victim of an assault.

The evidence in the case is not in question, at least not to those who are considering the evidence rather than the narrative.  The primary issue will be Judge Lester.  If he is truly not biased against Zimmerman, the law is clear.  The evidence of Zimmerman’s adherence to the law will not be refuted, and Lester will have no choice but to dismiss the case and declare that Zimmerman may not be sued.  But will he?

As I’ve written, the political and social pressures of this case are, in many ways, unprecedented.  Innocents in far-flung cities have been attacked and brutally beaten supposedly as a means of securing “justice for Trayvon.”  The threat of violence, rioting and all manner of civil disorder–should believers in the narrative not receive what they believe to be justice–is very real and omnipresent.

In addition, any judge dismissing this case will find himself in the position of having to answer for the very prosecution itself and his role in furthering it, including revoking Zimmerman’s bond, the perjury charge against Shellie Zimmerman, and the destruction of their lives and meager fortune.  Understand that no judge may be compelled to publically address such questions, but anyone with a conscience would surely feel their weight.

I suspect Judge Lester—and virtually any judge—will feel enormous pressure to hold a trial as a means of letting a jury take the heat for their decision.  Judge Lester can simply argue that he felt the matter so serious it must be heard by a jury.

And therein lies another major problem: can Zimmerman receive a fair trial anywhere?  Even the President of the United States has injected himself—and race–into the case, saying that Martin looked like the son he never had.  The First Lady also sounded off on the case as have various Congressmen, pundits and nationally known race baiters, and death threats and other forms of intimidation against jurors are a certainty.  The kinds of social and political pressures felt by Judge Lester will also be present.  Who in their right mind would want to serve on this jury?

FINAL THOUGHTS:

Even if the case is dismissed at a “stand your ground” hearing, George Zimmerman’s life will be irrevocably changed.  His wife will still face a perjury charge that would never have occurred if not for this misbegotten prosecution.  Their lives will be in danger well into the future, a threat that may never truly end.

Even after the revelation of the FBI’s report essentially exonerating Zimmerman of the charge of racism, it remains likely the Holder DOJ will prosecute Zimmerman.  In fact, if the state case is dismissed or Zimmerman is acquitted at trial, I suspect a federal prosecution would be even more likely.  After all, Mr. Holder is determined to take care of “his people.” 

It remains equally probable that the longer the case drags on, the more likely it will be that the prosecution will dredge up witnesses like “Witness 9,” Ms. Christina Meza Johnson, whose “testimony” has no bearing on the Martin case, but is presented only to slander and smear Zimmerman in any way possible.  Since the momentary excitement over her utterly unsubstantiated story of racism and sexual abuse decades old, she has dropped off the radar.  No rational judge would allow such unrelated and blatantly prejudicial testimony in the first place, so her disappearance is hardly surprising.

What is unlikely indeed is that the prosecution will turn up any additional incriminating evidence.  The law does not allow the prosecution to ambush defendants at trial—through I strongly suspect the prosecution will try to do just that.  The prosecution is bound by law to turn over all of its evidence to the defense far in advance of any trial; there can be no dramatic, Perry Mason surprises.  If the prosecution does not have any effective evidence by now, it is very unlikely they’ll find it in the future.

I’ll continue to update the case as additional information becomes available.