Post trial immunity hearings are a terrible idea

March 11, 2013

Monday, March 11, 2013

Good morning:

I write today to clear up some remaining uncertainty regarding the timing for a motion for immunity and the immunity hearing.

The motion for immunity is similar to a motion to suppress evidence because, if the motion is granted, the case is over.

Hearings on potentially outcome-determinative motions, such as a motion to suppress evidence, are always held before trial because, if the moving party wins (i.e., the defendant), the case is dismissed and there is no trial. If the defendant loses, the case proceeds to trial, unless he pleads guilty.

For example, let us suppose that a police officer arrested a defendant without probable cause and discovered a rock of crack cocaine in a pocket in the defendant’s jacket during the search incident to the arrest. The defendant is charged with possession of cocaine and pleads not guilty at the arraignment.

The defendant moves to suppress the rock before trial on the ground that the arrest and subsequent search were unlawful because the officer arrested him without probable cause. But for the unlawful arrest, the rock would not have been discovered. Thus, the rock is a “fruit of the poisonous tree” and must be suppressed pursuant to the exclusionary rule. That is, evidence seized unlawfully from a defendant by police cannot be used against the defendant at trial.

Without the cocaine, the prosecution would be unable to prove that the defendant possessed cocaine. Therefore, it would have to dismiss the case and the court would have to grant the motion.

An immunity hearing is similar. If the defendant prevails, the court must grant immunity from criminal prosecution and civil suit. Therefore, the outcome is similar to the motion to suppress. The prosecution cannot proceed and the court must dismiss the case.

While it is theoretically possible to merge a hearing on a motion to suppress evidence into a trial, there is little sense to do so because the issues and attorney strategies are different.

For example, the direct and cross examination of the arresting officer for purposes of the suppression motion will be focused on whether the officer had probable cause to arrest, whereas, the legality of the arrest and subsequent search is not an issue for purposes of the trial. It’s just something that happened and no longer relevant to the ultimate issue the jury must decide. That is, whether the defendant is guilty or not guilty.

I have provided the simplest example of a motion to suppress evidence. They can be far more complicated and last more than one day, such as might be the case when multiple locations are searched, some with search warrants and some without. It makes no sense to waste the juror’s time and risk confusing them with irrelevant evidence and issues.

In the federal and state courts in which I practiced, the courts set deadlines within which to file motions to suppress. Failure to comply with a deadline typically meant the motion was waived, unless you had a good reason for not filing the motion, such as newly discovered evidence that you did not know prior to the deadline.

Federal and state judges hate to summon people for jury duty for cases that can be potentially resolved by outcome-determinative motions prior to trial. They hate even more having to waste jury time with evidence that is irrelevant to the issues the jury must decide.

Although constitutional rights are at stake during hearings on motions to suppress evidence, the courts can and do hold that those rights are waived by failing to assert them in timely fashion.

Just as notice and an opportunity to be heard are important to due process of law, so too is finality. Legal issues that can be decided should be decided. I cannot think of a good reason not to decide the issue of immunity before trial and to deem it waived, if it is not.

I have already written about the potential for constitutional error requiring reversal of a conviction and remand for a new trial here and here, if an immunity hearing is merged into a trial and will not revisit that issue today.

However, I will comment regarding the idea that an immunity hearing could be conducted after trial.

If a jury returns a guilty verdict, the case is over. Since the defendant’s guilt has been proven beyond a reasonable doubt, the jury necessarily must have decided that the prosecution proved absence of self-defense beyond a reasonable doubt. The verdict precludes a finding that the defendant proved self-defense by a preponderance of the evidence. Therefore, the immunity motion must be denied.

If the jury acquits the defendant, however, either judge or jury could theoretically decide that the defendant had met his burden of proving by a preponderance of the evidence that he acted in self-defense.

The problem in this situation, however, is that the jury may have acquitted a defendant who did not testify or offer any evidence, which a defendant has a right to do.

Should he now be permitted to put on a case to prove that he acted in self-defense?

Does he have a right to have the jury decide that issue or must the judge decide the issue.

What happens if the defendant testifies and the judge or jury decides they do not believe the defendant and now want to find him guilty?

I do not see any easy answers to these questions.

There is no doubt that the legislature intended that the issue of immunity should be raised and decided before trial and I can think of no good reason to do otherwise.

If I were the judge, I would hold a hearing as soon as possible to consider whether the immunity hearing can be merged with the trial or considered after trial, and if after trial, whether the judge or the jury should decide whether to grant immunity.

These are extremely important issues that should be considered and resolved before trial to avoid a lot of grief later.

If no action is taken, we can only sit back and watch a slow-motion train wreck.

Finally, I want everyone to know that I firmly believe that the defense does not want to have an immunity hearing because they have no defense and the defendant would be crucified on cross examination exposing him to be the liar that he is. They obviously do not want to admit this, so they allowed the court to strike the hearing without formally and publicly waiving it. I doubt that we will hear more from the defense about this issue, since they want it to disappear.

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

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No immunity hearing in Zimmerman case

March 5, 2013

Tuesday, March 5, 2013

At today’s hearing, Judge Nelson asked Mark O’Mara if he still needed the two weeks she had set aside in April for the defendant’s immunity hearing.

He responded, “No.”

Does this mean that the defendant will be waiving his right to an immunity hearing?

I believe the answer is, “Yes.”

Although O’Mara has previously suggested that the immunity hearing and the trial be combined, I do not believe that makes any sense for the following reasons.

The purpose of the immunity hearing is to determine whether there is any need for a trial. If the judge grants the defendant’s motion for immunity, there is no trial and no jurors need be summoned to come to court. No time has to be reserved for the trial.

There is no reason to have an immunity hearing, unless it takes place before the trial.

The defense goes first in the immunity hearing and has the burden of proving by a preponderance of the evidence that the defendant acted in self-defense, As a practical matter, this means the defendant must testify.

The defense has no burden of proof in the trial. The defendant and the prosecution must go first and the defendant is presumed innocent.

Combining the two hearings would, in effect, deny the presumption of innocence to the defendant and that would be a major constitutional error requiring reversal.

Judge Nelson and BDLR certainly know that.

The judge is not going to go through 2-3 weeks of jury selection if that is not necessary.

Therefore, MOM has in effect waived the immunity hearing.

BOTTOM LINE: The defense cannot risk putting the defendant on the stand at an immunity hearing because of the tsunami of extremely negative publicity that would result from the evisceration of the defendant on cross by the prosecution.

O’Mara does not want to admit that his client is not credible and I can understand why because the physical and forensic evidence refutes everything he says and he has given so many contradictory and inconsistent statements about what happened that with only eight exceptions, no one will believe anything he says.

The eight exceptions are:

1. I got in my truck.

2. I followed him in my truck.

3. He ran.

4. I got out of my truck.

5. Fucking coons (or if you prefer, fucking punks).

6. These assholes, they always get away.

7. Tell the officer (that was dispatched to the neighborhood) to call me on my cell phone when he gets here so that I can tell him where to find me.

8. I shot him (Trayvon Martin).

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