Adam Winkler: Will George Zimmerman Be Convicted?





Adam Winkler is Professor of Law at UCLA and an expert on constitutional law. His book "Gunfight: The Battle over the Right to Bear Arms in America", was published by W. W. Norton in September 2011.

The news that Florida prosecutors are bringing charges against George Zimmerman for the death of Trayvon Martin raises two questions: Will Zimmerman be convicted? And what role will Florida's "Stand Your Ground" law play in the case?

Before considering either of these two questions, however, one must recognize that we don't have all the relevant facts yet.

Yet one thing is clear: prosecutors are not going to have an easy time convicting Zimmerman. There are too many conflicting accounts of what occurred that night, which creates the possibility of the jury finding reasonable doubt.

What no one apparently disputes is that Zimmerman, an active neighborhood watch volunteer, saw Martin out on the street of the residential community; called 9-1-1 to report a suspicious person; followed Martin despite being told that wasn't necessary by the 9-1-1 dispatch; and eventually shot Martin at close range.

Beyond that, however, there is much uncertainty. If Zimmerman's story is to be believed -- and, frankly, I am as yet unconvinced -- he gave up the pursuit of Martin and was returning to his car when Martin attacked him. Zimmerman claims that Martin then began banging Zimmerman's head against the concrete and threatened to kill him. If that's right, then Zimmerman will have valid defense under Florida law for using deadly force.

That's not, however, due to the Stand Your Ground Law. In any state in the nation, a person reasonably fearing imminent death or substantial bodily injury is entitled to fight back if no escape is possible. If Zimmerman was being prevented from escaping by Martin's sitting on him, then the expansion of self-defense under Stand Your Ground is irrelevant.

What if Zimmerman's story isn't credible? Even then, a conviction is going to be hard to obtain. That's because there are apparently conflicting accounts of witnesses about who was on top in the struggle. That one fact may be enough for Zimmerman. The conflicting accounts make it more likely that a jury will find that prosecutors haven't proven their case beyond a reasonable doubt. Which eyewitness accounts are believed may depend on the recording of cries of help -- and on whether the judge allowed experts to testify about whose voice, Martin or Zimmerman's, is heard screaming.

The Stand Your Ground law won't likely offer Zimmerman much of a defense in this case, but nevertheless may still be relevant. In particular, the law offers Zimmerman the possibility of avoiding a trial. The real impact of Stand Your Ground laws is not in their expansion of the right of self-defense to the public streets -- many states, including my own liberal state of California, have allowed people to stand their ground for decades. The innovation of Stand Your Ground laws is to establish procedures to reduce the likelihood that a person who kills in self-defense ever has to stand trial.

Traditionally, one claiming self-defense would have the opportunity to raise that defense at trial before a jury. In Florida, however, the Stand Your Ground law gives defendants like Zimmerman the right to a pre-trial hearing to challenge his indictment. At this special pre-trial hearing, which will occur long before any jury trial, Zimmerman will have the opportunity to present evidence to a judge showing he acted in self-defense. If he can show that he was acting in self-defense by a "preponderance of the evidence" -- legalese for "it's more likely than not" -- then the charges against him will be dropped and he'll never face a jury. That burden of proof is not very demanding and requires a showing far less demanding than the "beyond a reasonable doubt" test used in criminal trials ordinarily.

It may well be that, even here, the Stand Your Ground law won't play a big part in the outcome of this case. Criminal defense lawyers in Florida say judges tend not to dismiss homicide charges where the facts are genuinely in dispute. Certainly, the facts in this case are in dispute. One also imagines that most judges would rather not be in the center of the media storm that would almost certainly ensue if Zimmerman is allowed to go free before a trial. Most judges, one can safely assume, would rather have the guilt or innocence of Zimmerman decided by a jury.

So even though many people in America are certain that Zimmerman is guilty, obtaining a criminal conviction in this case is going to be a real challenge for the prosecution. And Florida's Stand Your Ground law may not, in the end, have much of an influence on whether they are successful.



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