Even if he is acquitted, he is likely to be bankrupted just from mounting a decent defense, coupled with most likely being out of work for heaven knows how long between being arrested and actually being able to go back to work. Such serious financial problems have ended more than one marriage, often creating additional and on-going financial problems what with child support and/or alimony or other costs associated with divorce and splitting up a family.
Sadly, Mr. Zimmerman will indeed face a high legal bill, even if the pending charge is dismissed at the pretrial evidentiary hearing on the defense's expected motion for immunity under F
la. Stat. § 776.032 and the Florida Supreme Court's interpretation of the immunity statute in
Dennis v. State, 51 So.3d 456 (Fla. 2010), which held that “the plain language of section 776.032 grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.”
Id. at 462. Procedurally, “where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.”
Id. at 458. This decision followed the 25-year-old precedent in
People v. Guenther, 740 P.2d 971 (Colo. 1987), which held 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.”
Dennis, 51 So.3d at 459 (
citing Guenther, 740 P.2d at 976).
In
Dennis, the Florida Supreme Court specifically approved of the reasoning of the earlier decision of Florida’s 1st District Court of Appeals in
Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which “h[e]ld that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist.”
Id. at 29. Moreover, if the court denies a motion to dismiss under the immunity statute, the defendant “is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.”
Id. The court found that “The wording selected by our Legislature makes clear that it intended to establish a true immunity and not merely an affirmative defense. In particular, in the preamble to the substantive legislation, the session law notes, ‘[T]he Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.’ Ch.2005-27, at 200, Laws of Fla.”
Id.
Unlike a trial, the burden of proof in an immunity hearing under Fla. Stat. § 776.032 is a preponderance of evidence. “[T]he trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”
Peterson, 983 So.2d at 29;
see also Gray v. State, 13 So.3d 114, 115 (Fla. 5th DCA 2009) (on motion for certification) (agreeing with
Peterson);
State v. Gallo, 76 So.3d 407, 409 n. 2 (Fla. 2d DCA 2011) (same) (collecting cases). At trial, however, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense.
The only upside Mr. Zimmerman has to facing prosecution now is that if the charges are dismissed based on the motion for immunity, or if he is acquitted at trial, jeopardy will attach and he will be forever free from future criminal prosecution. Moreover, if he wins the motion for immunity, he will also be immune from a civil lawsuit and would be entitled to collect attorney's fees from anyone who improperly sues him in violation of the immunity statute. If Mr. Zimmerman prevails against the pending criminal charge, he will likely get paid interviews, a book deal, and will likely sue a litany of individuals who have defamed (e.g., the peacock) or threatened physical harm to him (e.g., the Black Panthers) over the last couple of months, the proceeds of which he will be able to use to pay his legal bills from the criminal case.
Not to mention the distinct possibility of the guy being at personal risk of vigilantes for the rest of his life no matter how the trial turns out. Send him to jail and the race based gangs will do their best to kill him. Acquit him and the race based criminal gangs on the outside may well do their best to "get justice" in the case.
While the optimist in me would like to believe that once the truth is revealed in a court of law, the irrational anger in some quarters will subsize, I fear an incendiary reaction is more likely.
That is a pretty high price to pay and I hope there is some substantial evidence to counter his claims of self-defense seeing as how it now looks like he is going to be subjected to those costs regardless. There are any number of persons who need to be arrested and charged with crimes ranging from inciting violence to making threats of violence as to the second list of costs that may be incurred by Zimmerman.
For the direct financial problems, it is clear to me that so-called limits on prosecution don't do much to really protect when it is needed most. I think what is needed is a statute providing for compensation of legal fees and other incurred costs of anyone who is acquitted of charges related to illegal use of force after claiming self-defense.
This may finally be the case that brings nationwide exposure to Washington's unique, 35-year-old self-defense prosecution reimbursement law,
Wa. Rev. Code § 9A.16.110. If duplicated in Florida and other states that have "immunity from prosecution" statutes, the Washington reimbursement statute would need to be modified to also apply to criminal cases in which charges are dismissed at the pretrial immunity hearing. I would also suggest adding interest at the judgment rate, as the Washington statute has been construed to not provide interests on these awards.
State v. Lee, 96 Wash.App. 336, 345, 979 P.2d 458, 463 (Wash. App. Div. 2, 1999). As Seattle Gun Rights Examiner
Dave Workman noted last year when there were efforts to repeal Washington’s reimbursement statute: “The statute is not simply an avenue for compensation. It is also a deterrent to overzealous anti-self-defense prosecutors who might be compelled – if the law were repealed – to push cases against people simply to make them 'an example.' Under the current law, if a prosecutor pursues such a case and loses, not only are the taxpayers out the cost of the prosecution, they’re also out the cost of the defense.”