George Zimmerman’s attorney announced in court yesterday that they will not seek to dismiss the case in a self-defense immunity hearing prior to trial, though they will assuredly make that argument during the trial. This means that the two-week hearing that was slated for next month will not happen, and that there is almost nothing else standing in the way of Mr. Zimmerman’s trial, currently slated for June. There are several strategic reasons Zimmerman’s defense team, led by Mark O’Mara, may have decided to forego a pretrial immunity hearing.
First, such a hearing would be exceptionally hard to win. The burden is on the Defendant to prove he is justified in such an immunity motion. The burden is to demonstrate that he was justified in using deadly force by a preponderance of the evidence, which is a lower burden than the State has at trial, but it makes it easier for the court to deny the motion. Due to the public and emotional aspects of a case, it would take extreme judicial fortitude for a judge to grant such a motion. I don’t have any reason to believe that Judge Nelson wouldn’t follow the law, but the scrutiny that would follow such a decision would make it hard for the judge to grant it if the evidence were not clear cut, and in this case it is not. It is much easier for a judge to pass the case on to a jury than to make a highly controversial decision to dismiss charges of murder on a child in a case that has been in the national spotlight. Further, a loss in such a hearing, while irrelevant to the actual guilt or innocence, would reflect poorly in the court of public opinion.
Additionally, for the defense to make their immunity case, they would almost certainly have to put Mr. Zimmerman on the stand to testify. Only Mr. Zimmerman would be able to present evidence through his testimony why he felt in fear of death or great bodily harm. That would allow the State an opportunity to cross-examine him before trial, and to be better prepared to attack his credibility and his case at trial. The Defense may avoid tipping their hand to the intricacies of their theory of the case by holding back their testimony until the trial.
It is also worth noting that the State made an important concession at court yesterday. Their star witness, known as Witness 8, gave an untrue statement to prosecutors during their investigation. The statement in question was that she apparently told them that she missed Trayvon Martin’s funeral when she was in the hospital, and that was a fabrication. There was also an indication she misrepresented her age at some point. While these false statements do not go to the ultimate issue of the case, they certainly call her credibility into question. If she is willing to lie under oath about collateral issues, how can her testimony be reliable about the man who killed her boyfriend. These inconsistencies are not fatal, but they present a substantial hurdle for the prosecutors, in a case that is already challenging.
As this case has progressed since Mr. Zimmerman’s arrest, more and more facts and details have come to light that work in his favor. The decision to forego the immunity hearing may stem from an actual desire to get the case to a jury. And the Defense may have a growing sense of confidence about the trial.