Radio host Michael Smerconish and former U.S. attorney Kendall Coffey explain why George Zimmerman's first court appearance is only the beginning of what could become a long legal process.
By Jeff Black, msnbc.com
If George Zimmerman, the killer of Trayvon Martin, wants to claim self-defense under Florida’s “Stand Your Ground” law, he most certainly will have to testify, criminal defense attorneys in Florida told msnbc.com.
It is rare in criminal cases for defendants to be called to testify because they have a right against self-incrimination and it opens them up to sharp questions from prosecutors.
But Zimmerman, charged with second-degree murder in the fatal shooting of Martin during a scuffle in a gated Sanford, Fla., community on Feb. 26, will need to explain why he thought his life was in danger when he shot the unarmed black teenager, attorneys not involved with the case say.
Zimmerman, 28, is white and Hispanic.
Zimmerman's new attorney: Who is Mark O'Mara?
The killing of Martin, 17, has sparked protests across the nation as well as emotionally charged debate about race relations and self-defense laws. Even President Barack Obama has commented on the case, saying, "If I had a son, he would look like Trayvon."
“There is no way around it,” Derek Byrd, incoming president of the Florida Association of Criminal Defense Lawyers, told msnbc.com. “I personally believe he would have to testify. It’s not like a case where there were three other witnesses. Who else is going to say he was fearing for his safety when he shot Trayvon Martin?”
Mark O'Mara, attorney for George Zimmerman, says that the Martin family has been through a horrible tragedy, and that he won't be going after the mother of a deceased child for saying the incident was an 'accident.'
Nellie King, a Palm Beach-area defense attorney who is president of the association of defense lawyers, agreed.
“Zimmerman is the only person who can re-enact what took place that night,” King said.
Prosecutors contend George Zimmerman provoked confrontation with Trayvon Martin
Zimmerman’s testimony would likely take place at an evidentiary hearing, under which the “Stand Your Ground” law allows the defense to ask a judge for immunity from prosecution because it’s a clear case of self-defense.
Zimmerman’s attorney, Mark O’Mara, has said self-defense will be a strategy in the case.
It could be months before such a hearing takes place, however. Here are the steps in the legal process and possible strategies Zimmerman might take.
First appearance: Zimmerman appeared in court on Thursday for what amounted to a brief reading of the charge. Judge Mark E. Herr said he found probable cause to move ahead with the case with an arraignment held May 29 before Circuit Court Judge Jessica Recksiedler.
Bond hearing: O’Mara said Thursday he will submit a bond motion before the arraignment. If granted, Zimmerman would get out of jail while court proceedings continue. According to legal experts, to deny the bond motion, the state must have evidence beyond a reasonable doubt that Zimmerman is clearly guilty of the charge against him. Here the judge could set the bond at whatever amount she sees fit. If the judge sets a high bond amount, Zimmerman’s attorney can make a motion to reduce it, arguing that Zimmerman doesn't have the money and isn't a risk to flee.
Arraignment: The May 29 arraignment is a formal reading of the charge against Zimmerman. According to legal experts, arraignments in Florida often take place electronically through the filing of paperwork with attorneys, and defendants do not necessarily need to appear in court.
Discovery of evidence: Under Florida legal rules, prosecutors have 15 days after an arrest to give the defense what evidence they have against Zimmerman. As a practical matter, prosecutors make available evidence as they get it. The evidence is expected to include witness testimony from Sanford police officers and others, forensic evidence, photographs and audio recordings. An unusual feature of legal procedure in Florida, according to attorneys, is that defense attorneys can subpoena prosecution witnesses to take part in depositions. In the depositions, witnesses are asked specific questions, on the record, about what they saw and heard along with more probing questions such as how well they see and hear, how close they were to the crime and if anyone else was nearby. These types of questions can also lead to the discovery of more witnesses and information. In other states, such questioning of prosecution witnesses only takes place during a trial.
Evidentiary hearing: Under the Stand Your Ground law, as interpreted by the Florida Supreme Court, a judge can grant Zimmerman immunity from prosecution in this type of hearing. Here is where Zimmerman is expected to tell why he feared for his life when he scuffled with Martin. Those hearings are like a “mini trials,” King said, in which experts on Zimmerman’s emotional state will also likely be called to testify, as well as any other witnesses in the case. If a judge decides there is enough evidence to show Zimmerman did act in self-defense based on the preponderance of the evidence, the judge can rule that Zimmerman can’t be prosecuted, essentially dismissing the criminal case.
Motion for change of venue: Typically one of the last motions before trial begins. Zimmerman’s attorney hasn’t said if he will seek to change where the trial takes place, or if it will take place in Seminole County Court in Sanford, where Martin was killed and emotions run high. Some say since publicity in the case is so widespread, there may be nowhere to find a jury not tainted by news coverage, and Sanford may be as good a place as any other location.
Trial: It could be at least a year before a trial, with the first step the choosing a jury. Here potential jurors are expected to be asked what they know about the case from media accounts, their feelings on race relations and other factors that may influence their decision-making. Attorneys from both sides will have the opportunity to ask questions and dismiss people they don’t believe are fit for the jury. Legal observers say the fact that Zimmerman shot an unarmed teenager will be the central focus of prosecutors at trial. Prosecutors will need to contend that the block watch volunteer's shooting of Martin was rooted in hatred or ill will -- the necessary element to prove second-degree murder. The defense will argue that Zimmerman acted in self-defense and feared for his life. The jury can decide if Zimmerman is guilty of second-degree murder or the lesser charge of manslaughter.
Sentencing: In Florida, the judge will decide what sentence will be imposed if Zimmerman is found guilty.
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