February 19, 2013

Robert Zimmerman Jr. doesn’t know what he’s talking about.

“Stand Your Ground is not a factor in this defense,” said the brother of George Zimmerman, killer of Trayvon Martin, on Friday on HBO’s “Real Time with Bill Maher.” That should come as a surprise to Zimmerman’s lawyer Mark O’Mara, who was in a Sanford, Fla., courtroom the day before unsuccessfully seeking a delay in the April start of a “Stand Your Ground” (SYG) hearing. But the older Zimmerman brother’s inaccurate assertions about SYG didn’t end there. The more he talked, the more he drifted away from the truth of that insane law. It’s not called a “license to kill” for nothing — and it might be his brother’s get-out-of-jail-free card.

Zimmerman said this on “Real Time.”

“Stand your ground” is not a factor in this defense. “Stand your ground” did a couple different, I don’t want to get overly legal, but it kind of prevented people from being dragged through civil court when they are found criminally innocent of a crime. Now, what happened there and why it’s not a factor is because stand your ground removes the duty to retreat, a presumed duty to retreat sometimes, if someone comes in here with a gun why are we not just running out the door? Why would someone take out a gun and shoot him? And then you get into the slippery slope of is it homicide or not? You’re not presumed able to be in a retreatable position when someone is sitting on top of you, slamming your head into the concrete repeatedly after they’ve broken your nose. There is no ability or capacity one has….

To understand how wrong Zimmerman is you need to know what Florida’s statute actually says.

Florida statute 776.013(3) says: (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.

Florida statute 776.032(1) says: A person who uses force as permitted in…s. 776.013…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 used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

SYG greatly expands the Castle Doctrine. That’s the longstanding legal right to defend yourself in your home or place of work without a duty to retreat before using deadly force. In 2005, Florida expanded that zone of protection to wherever you have a legal right to be. It also granted immunity from prosecution.

The law does not just prevent “people from being dragged through civil court when they are found criminally innocent of a crime,” as Zimmerman asserted. It can also keep someone who uses deadly force from being further prosecuted. And, according to Kendall Coffey, a former U.S. attorney for the Southern District of Florida, its practical effect is to prevent arrest in the first place. This, plus Sanford police believing they didn’t have enough evidence to charge him, was perhaps the primary reason why George Zimmerman was allowed to leave the Sanford Police Department hours after killing Trayvon. And it very well may be what allows him to avoid his second-degree murder trial.

Last June, I outlined how, despite the risks, Zimmerman could walk thanks to SYG. As the law makes clear someone can “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.” The key being “reasonably believes.” Zimmerman’s words and injuries will carry great weight in a he-said-he-said where one of the individuals is dead.

Now, here’s how you know Robert Zimmerman is clueless about the SYG law. Section 776.041 might hold the key to his brother’s freedom.

Florida statute 776.041(2) says:  Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(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,….

Detective Chris Serino’s March 13 request to arrest Zimmerman for manslaughter noted that “[t]he encounter between George Zimmerman and Trayvon Martin was ultimately avoidable by Zimmerman if Zimmerman had remained in his vehicle and awaited the arrival of law enforcement, or conversely if he had identified himself to Martin as a concerned citizen and initiated dialog (sic) in an effort to dispel each party’s concern.” This would make Zimmerman the one who “initially provokes the use of force against himself.” Thus, not covered by SYG.

George Zimmerman (Reuters)
George Zimmerman (Reuters)

But, remember, Zimmerman says Trayvon cold-cocked him with a punch in the face. He also said the unarmed 17-year-old “grabbed my head and slammed it into the concrete sidewalk several times.” He added in his written statement hours after killing Trayvon,  “My head felt like it was going to explode,” “the suspect covered my mouth and nose and stopped my breathing” and “I felt the suspect reach for my non-exposed firearm and say, ‘Your [sic] gonna die tonight m———–.’”

Under this insane law, if he is found credible by the judge, Zimmerman’s “reasonable belief” that his life was in danger might be enough to allow him to escape prosecution. This determination would be made by Judge Debra Nelson, who took the case after Judge Kenneth Lester was removed from the case last August. Zimmerman attorney O’Mara went judge shopping after Lester’s scathing July 5 order revoking Zimmerman’s bond and increasing restrictions on his movement. Lester was concerned Zimmerman was preparing to flee the country after discovering that the defendant and his wife were hiding money derived from donations from supporters and  a second passport.

In his motion to disqualify Lester, O’Mara said he believed “the Court has created a reasonable fear in Mr. Zimmerman that this court is biased against him and because of this prejudice he cannot receive a fair and impartial trial or hearing by this Court.” And O’Mara was most concerned about Lester’s impact on an impending SYG hearing.

After all, this Court would preside over and is the trier of fact in any immunity proceeding under Florida statute 776.032. In that proceeding, the Defendant has the burden to convince the Court by preponderance of the evidence that he is entitled to the protections of the statute. . . . Those protections are significant. If the Defendant prevails at that hearing, he is immune from criminal prosecution and civil action. Mr. Zimmerman fears that the Court has already decided that he is not worthy of belief regardless of the type of proceeding or the corroborative evidence that would support his testimony.

For Robert Zimmerman to say SYG is not a factor in his brother’s case against the second-degree murder charge shows how little he knows about the law and his brother’s defense.

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Jonathan Capehart is a member of the Post editorial board and writes about politics and social issues for the PostPartisan blog.