Zimmerman

WHY IT TOOK SO LONG TO ARREST GEORGE   ZIMMERMAN AND WHY IT WILL BE DIFFICULT TO CONVICT HIM

Under Florida law, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful."   This law puts police in the position of having to make a two-part analysis.  They cannot place the suspect under arrest unless they have probable cause.  This means they cannot merely believe there was a killing, but also must know that the killing was not in self-defense.  Unless there are witnesses to the shooting it cannot be suggested that it was not self-defense.  In this case the only person who could have refuted self-defense at the scene was Trayvon Martin.  

The uniqueness of Florida’s "Stand Your Ground" law certainly played a role in the delay of George Zimmerman’s arrest.  In Massachusetts, self-defense   is an affirmative defense to be raised at only at the time of trial.  Under Florida law however, this provision can act as both immunity from prosecution or in Zimmerman’s case arrest.

Recently, the Florida Supreme Court ruled that anyone claiming "Stand Your Ground" immunity in a death, battery, or assault case could request a hearing on the evidence of self-defense.  This preliminary hearing basically allows both the prosecutor and the defense attorney to present all the elements of the self-defense issue to a judge. In order to get charges dismissed, the defendant must convince the judge that a reasonable person would believe that using deadly force or the threat of using deadly force was the only way to protect his or her life.  At his hearing, Zimmerman's lawyers would only have to prove by a preponderance of evidence that he acted in self-defense.   Although at this stage the burden has uniquely shifted to the defendant, the burden is a relatively low hurdle.  We, in Massachusetts, have no such preliminary hearing.   Here, it is the obligation of the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defense. To do so however the following circumstances must be present:

1)  The  defendant had a reasonable belief that he was being attacked or about to be attacked

2) That he limit the force he uses to that which is reasonably necessary under the circumstances and

3)  That  he do all he reasonably can to avoid combat.  This is the so-called duty to retreat that makes our laws quite different than Florida.

ITS TIME TO REFORM OUR SYSTEM OF BAIL

Our justice system is based on the presumption of innocence. With the exception of individuals facing murder, probation detentions or revocation of bail based on a new offense, citizens charged but not yet convicted have the right to a bail amount that is realistic given their economic circumstances. The primary goal of the bail system is not to punish or penalize, but rather to ensure that the accused show up for their court date.  When a criminal defendant is brought into a court of law, many factors go into the decision of whether bail will be set or whether the person will be ordered to return by essentially promising to return (personal recognizance). Although Chapter 276 Section 58 of our General Laws lists the financial resources as a factor a court can take into consideration, it rarely comes into play. Occasionally the prosecutor will ask how much bail can your client make; however when there is a disagreement, the indigent are placed at an extreme disadvantage.  A great example of this occurred last week my client was charged with a serious offense in which his co-defendant’s bail was set at $5,000.  Even though both defendants were charged with the same offense, the prosecutor asked the judge to set bail at $50,000. The dollar amount was basically plucked out of air and had as much thought as if a wheel was spun and the needle landed on that number.  Admittedly, my client was already on probation but both individuals were under 22, had minor records and both had significant ties to the community.   

If our bail system utilized a practice similar to sentencing guidelines in Superior Court, we would have a more uniform and fair system that what now exits. Sentencing guidelines promote fairness and reduce disparity while preserving that degree of judicial discretion necessary to fashion the sentence appropriate for the individual offender and the specific offense. Similar to sentencing guidelines, my proposal would not only factor in a defendant's record and seriousness of crime but would also include a detailed analysis of the individual’s income or net worth. When a person requests a court appointed attorney the probation department takes a financial statement. If our system could extend that analysis when setting bail, we would have a system that is not subjected to random dollar amounts that have no rational basis as to whether a person will return to court. Why should a doctor who is charged with domestic assault & battery and who's bail set at $5,000 not even flinch, when the factory worker who committed the same offense ends up in custody for the duration of the case. Our Massachusetts Declaration of Rights, Article XXVI, declares, no magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. I would suggest any bail is excessive when the financial impact of setting that bail is not taken into consideration.

MY THEORY OF SUCCESS

The simple premise I use when going into a case is the fact that most likely each member of the jury is sitting there and thinking but for the grace of God, this could be me. This is probably the only charge in our criminal justice system that this premise works. It certainly does not work for Robbery, Drug or Domestic Violence cases. So now that we have the premise going into trial that the people who are going to hear the case and decide your fate probably have consumed 1,2,3 or more drinks and then got behind the wheel. 

The prosecutor has to prove that the amount of alcohol you consumed has diminished your ability to operate a motor vehicle safely. Sounds pretty simple but what on earth does that mean? 

I like to focus on what it doesn’t say. The instruction doesn’t say is that if you have consumed any alcohol whatsoever, you’re guilty. In other words, ITS NOT ILLEGAL TO DRINK AND DRIVE. A couple of years ago the State Police had a commercial, “you drink, you drive, you lose. Unfortunately that was not and is not the law and I routinely used that premise in my closing arguments to juries. It is no longer their slogan. 

What does it mean to be “under the influence” of alcohol? The jury instruction that a judge will read after the trial is over is as follows: 

Someone does not have to be drunk to be under the influence of alcohol. A person is under the influence of alcohol if he (she) has consumed enough alcohol to reduce his (her) ability to operate a motor vehicle safely, by decreasing his (her) alertness, judgment and ability to respond promptly. It means that a person has consumed enough alcohol to reduce his (her) mental clarity, self-control and reflexes, and thereby left him (her) with a reduced ability to drive safely. The most important part of this section of our jury instructions is what is said next. “The amount of alcohol necessary to do this may vary from person to person. “ Twice in the past 3 years I had clients admit to consuming 7 and 8 drinks respectively yet the jury acquitted both clients. 

When you factor in that the prosecutor has to prove their case Beyond a Reasonable Doubt, it becomes clearer why OUI’s are very winnable. Part of the jury instruction the court reads on Beyond Reasonable Doubt is as follows. 

“A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. The judge will also instruct the jury “I have told you that every person is presumed to be innocent until he is proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant’s guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. 

Not only is it NOT enough that the jury PROBABLY thinks my client is guilty but the words MORAL CERTAINTY are used in the instruction as well. I argue to juries in almost every trial that whenever the words moral are used in anything, you have to think we are taking about a very high standard. 

Let me review your case and give you a free analysis on what I think your cases strengths and weaknesses are. Not every case is winnable but make sure your attorney has a track record of success.