‘Stand your ground’ hearings are unique
ORLANDO, Fla. — 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. Zimmerman 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 “mini-trial” in which 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 Martin’s shooting in Sanford, the law has been the subject of renewed debate. A task force created by Florida Gov. Rick Scott to reexamine “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.
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 and lawyers make arguments.
“You basically have a trial before the trial,” Jacksonville attorney Kevin Cobbin said.
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.
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. No one was killed or injured.
The “stand your ground” motion was denied, and she was later convicted and sentenced to 20 years in prison.