George Zimmerman waives right to pretrial immunity hearing

Zimmerman appears in court for hearing; Judge rules on several motions

Author: Tony Pipitone, Investigative Reporter, tpipitone@clickorlando.com
Published On: Apr 29 2013 04:03:18 PM EDT   Updated On: Apr 30 2013 05:36:19 PM EDT
SANFORD, Fla. -

George Zimmerman said under oath on Tuesday that he waives pretrial immunity hearing freely, voluntarily, without promise or threats, as he was questioned by Judge Debra S. Nelson about the issue.

Nelson told Zimmerman's attorney, Mark O'Mara that she had wanted to question Zimmerman to make sure he can't later claim ineffective assistance. O'Mara attempted to get the judge to allow him to submit an affidavit instead of questioning Zimmerman in court, but Nelson rejected it.

Nelson asked, "Mr. Zimmerman do you freely waive your right to a pre-trial immunity hearing?" Zimmerman responded, "yes." Zimmerman responded yes to all of Nelson's questions about waiving a pretrial immunity hearing freely, voluntarily, without promise or threats.

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Prosecutors had wanted Nelson to “conduct a full inquiry” of Zimmerman to make sure he understood he would not have the haring ahead of his second-degree murder trial in June.

Zimmerman’s attorneys had been coy on the matter, announcing they would not use the two weeks that were set aside for the hearing in April, suggesting they may ask the judge to conduct the hearing during the trial, but didn't commit to a waiver of a pretrial hearing nor a process merged into the trial.

O'Mara told Nelson there was nothing in the law that required the immunity hearing to occur before Zimmerman's trial and could be requested after prosecutors presented their case.

Local 6 legal analyst Luis Calderon said it's necessary to get Zimmerman's consent that he knows he has to raise the motion for pretrial hearing before the trial begins.

"You want to make sure they're aware of that fact and that it's a strategic decision on the part of the defense to go ahead and do it in this manner," Calderon said, continuing that Zimmerman can still seek self-defense immunity during as part of the jury trial.

The Martin family attorney saw Zimmerman's decision as something different.

"This was a victory for all the protesters who ought that George Zimmerman should be arrested," said Martin family attorney Natalie Jackson. "He gave up that right he will proceed to trial, that means everyone who ought he should have been arrested and should proceed to trial ha been vindicated by this judgement today."

O'Mara said he had another view.

"That's an absurd position, that's apples and oranges, the reality is we made a tactical decision how to handle this case ... that's when he's going to get acquitted," he said.

[SEE BELOW: Tony Pipitone live-tweets from inside courtroom]

No fewer than eight motions and demands were heard by Nelson on Tuesday, as Zimmerman sat in the same courtroom where his murder trial is set to begin in six weeks.

He arrived at the Seminole County courthouse Tuesday morning dressed in a suit coat and yellow tie.

The first motion taken up at the hearing was the motion for all data from cellphones belonging to to Trayvon Martin and Zimmerman, as defense attorney Don West said the defense wants to be sure they have all records.

Assistant Prosecutor Bernie de la Rionda said they are unaware of data that has not been turned over to Zimmerman's attorneys. Nelson ordered the state to share all it has and gets about Martin and Zimmerman's phone calls. The state said it has and will.

The second motion taken up was the defense seeking any enhanced 911 audio files that Tracy Martin and Sybrina Fulton's family may have listened to. Zimmerman claims he is the one screaming and Martin’s father at first said he could not positively identify them as his son’s screams, but later determined it was Trayvon after, his lawyer said, he listened to a clearer version of the call.

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De la Rionda said the defense has all the 911 recordings the state has and was unaware of the cleaned up file that Tracy Martin's dad says he convinced him of his son's calls for help.

"Your honor, I am not Ben Crump, I wasn't there, I wasn't aware of it," de la Rionda said.

Zimmerman case experts are trying to clean up or enhance 911 audio and Nelson said the the "cleaned up" audio must be provided to both sides within 24 hours.

Nelson on Tuesday also granted the defense's motion to add five witnesses to its list of potential witnesses, despite the court having set an April 17 deadline for witness disclosure. The motion does not name the witnesses, only lists them as A, B, C, D and E.

The state did not object the the additional witnesses, only said they should get the same opportunity if it arises. The defense must turn over any reports to the state within 24 hours of the receipt.

Nelson also ordered the redaction of the apparently inadvertent release of Martin family' old address from a court record filed by defense. In addition, she ordered the amount of the settlement by the Retreat at Twin Lakes homeowners association with the Martin family to remain under seal unless it becomes relevant at the trial.

O'Mara spoke to Nelson about the state's response to the defense's requests for sanctions against the state for "discovery violation" and the costs and fees from for delaying videotaped depositions of Witness 8 and Martin family members. O'Mara said the defense had informed the state weeks earlier they intended to videotape the sworn statements.

After a five-hour delay, Nelson had allowed the taping to commence, but the defense wants nearly $5,000 from the state for the fees and costs it attributes to the state’s refusal to let the deposition proceed on time and on tape.

O'Mara said the state's response, which questioned O'Mara's professionalism and ethics, was "unethical, inappropriate and scurrilous." He called the state's response a "horrific attack" that could undermine the result of the case and asked it to be stricken from records.

Nelson responded saying that in the state's response she found things the "court wishes were not the in court file," and allowed O'Mara to seek strike of portions. O'Mara has five days to tell the state portions he wants redacted from its response to his motions for sanctions.

De la Rionda said the prosecution stands by their responses.

O'Mara then called attorney Don West to the stand to discuss sanctions sought by the defense against the state attorney’s office for concealing information about Witness 8, the young woman Martin was talking to on the phone moments before he was shot to death.

West said the state hid that Martin's family and lawyers were there during the Witness 8 audio interview.

West claimed the state concealed Witness 8's age--which was first reported by Crump to be 16 but was later determined to be 18. The defense also said Witness 8 school and mutual friends with Martin was concealed by the state, along with Witness 8 "lying" about needing hospitalization after Martin died and said the state knew in August 2012.

The state has said it is unfair to fine the state and the issues the defense has aren't discovery violations. The state said the defense could have deposed Witness 8 long before they did.

De la Rionda also said the defense has caused delays and that the state could claim that they violated discovery issues.

Nelson interrupted, saying that to make a ruling on the discovery sanctions it must be determined defense experienced procedural prejudice by violations by any alleged discovery violations.

"We can't get ready for trial," O'Mara responded, asking Nelson to tell the state to stop withholding information from the defense.

"The things you are alleging as discovery violations have been cured," Nelson said, because the defense now has the information from the state they sought.

De la Rionda said the state "forgot" to reveal the Witness 8 situation.

"I have brought extensive discovery on this case to the best I can," de la Rionda said.

"The court does not make a finding that there was a discovery violation," Nelson said.

As for the defense seeking monetary damages, the court will decide on that issue at another hearing on Tuesday, May 28, along with the final motion on sanctions for the Miami videos.

Immunity hearing at trial?

If an immunity hearing were conducted at the same time as the trial, the judge would decide at the end of all evidence and argument whether the defense has proved by a preponderance of the evidence (the slimmest of burdens) that Zimmerman killed Trayvon Martin because he was in reasonable fear of death or great bodily harm.

If immunity is not conferred by the judge, the six-person jury would decide -- by the most burdensome beyond-a-reasonable-doubt standard -- whether the state has proved Zimmerman committed second degree murder, or a lesser crime, including manslaughter.

In Florida, second-degree murder means a killing done by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. The act must be done from ill will, hatred, spite, or an evil intent, and it must indicate an indifference to human life.

But regardless of whether he seeks immunity before or during the trial,  Zimmerman will still try to show jurors he acted in self defense. The judge will instruct the jury that to find Zimmerman guilty, they have to believe the state disproved the self-defense theory, ruling out any “reasonable hypothesis of innocence.”

That does not mean the state has to conclusively rebut every possible variation of Zimmerman’s self-defense claim. A conviction would stand as long as the state introduced competent evidence that is inconsistent with Zimmerman’s story.

In other cases, inconsistencies in a defendant’s statements to police and others has been enough for appellate courts to uphold a second-degree murder conviction where defendants claim self defense.

But, if the jury believes the state did not negate all “reasonable hypotheses of innocence” and Zimmerman acted in self defense, then Zimmerman should be found not guilty by the jury.

The case does not fall under the "Stand Your Ground" case because the defense alleges it didn't have the duty to retreat and Zimmerman didn't have the opportunity because his head was being pounded into the ground and he shot Martin in simple self-defense.