Not only that – for the other elements of wrongful death, the Martins would only have to prevail by preponderance of the evidence.
Has anyone on any of these threads actually laid out the elements of wrongful death in Florida?
If the Feds do manage to put together a case how much leeway do they have to go jury-shopping, as I believe happened in the Rodney King affair?
The biggest issue with the civil trial, is there is an unanswered question in Florida law about whether or not a defendant in a civil suit can ask for a Stand Your Ground hearing. I’ve seen it argued by the legal punditry that if such a hearing could be held, Zimmerman would prevail in the hearing since he has been found legally not guilty on the grounds of using self defense and that would basically be an ironclad argument in his favor in the SYG hearing. If he prevails in the SYG hearing there can be no civil trial, and the Martin family is required to pay all of Zimmerman’s litigation costs related to the civil proceedings up to that point.
It all hinges on whether the State has any reason to allow a SYG hearing to be held after a criminal trial has been handled, as there doesn’t appear to be any precedent for that it is a big question mark.
After that there is the issue of Zimmerman having no assets and apparently no income. That makes the wisdom of conducting the trial questionable, the criminal trial was a painful experience for Martin’s parents so I imagine the civil trial would be even worse because more evidence would probably be allowed in a civil trial versus the criminal. Zimmerman would also be required to give statements I believe.
You get into stuff that professionals would be better equipped to talk about, but there are also assets and income streams that can be largely immune to civil judgments (such as a primary residence, and your income can only be garnished a certain percentage.) Some judgments can also be discharged in bankruptcy, but I don’t know the criteria for what is and isn’t allowed to be discharged. I think Casey Anthony declared bankruptcy to get out from under all the fees and compensation that various State parties and individuals were suing her for after her case.
There are some reasons to do a civil trial. On one hand there is a desire to “make Zimmerman accountable for his actions” and that’s understandable (but the practical concerns dig into the real chance of that being very effective.) There is also the desire to get more information about the shooting out in open court. Since the prosecution made the decision to present Zimmerman’s exculpatory statements without subjecting him to cross examination his story has never been really tested very hard in court, and maybe Martin’s parents would get some satisfaction out of that. I think there is a fine line though, between trying to do the right thing by your son and ruining the rest of your life with an unhealthy obsession. I’d argue Fred Goldman went in the bad direction on that one, despite being essentially entirely justified in his feelings on the matter. At a certain point you have to question the manner in which you are honoring your son’s memory if you’re actually destroying your own life in the process.
What do you mean by jury-shopping?
A trial for this case in federal court would take place in the Federal District Court for the Middle District of Florida. My guess is that would put the trial in Orlando.
The Middle District also hears cases in Tampa, and I expect Zimmerman will request that it be venued there. Or Jacksonville, on reflection, which is more conservative.
The President’s remarks:
That certainly sounds like he’s signalling there will be no federal criminal prosecution, doesn’t it?
I guess they couldn’t find any evidence Martin was on his way to rent a townhouse.
He wouldn’t actually have to be renting a townhouse. A cause of action for violating the right to housing does not require that the buyer/renter be prospective. There have been quite a few civil riots prosecutions for cross burnings, for example.
Yes, I know – I was teasing deltasigma.
Well, that’s not very nice.
It was gentle teasing.
There’s a better discussion of this point going on in another thread with more knowledgeable people, but how is this situation materially different from one in which the police are called to a homicide, and reach a conclusion that the survivor acted in self-defense, and so no charges are brought. The deceased’s family decides to bring a civil suit for wrongful death. This has to have occurred quite a few times in Florida. There has to be some mechanism for the defendant to avail himself of the civil immunity protection envisioned by Florida. It’s certainly not a criminal trial since the state decided not to prosecute. Wouldn’t the civil court just make a finding or something to determine the validity of the self-defense claim? Won’t they do the same thing for Zimmerman here?
Notwithstanding the discussion in the other thread, nobody knows. Believe it or not, nobody has asserted SYG civil immunity in a reported case yet.
Wow! I’m shocked. You’re not just talking about cases after criminal proceedings, right? No one in FL has ever tried to invoke self-defense immunity in the face of a civil suit?
No court has ever ruled on such an assertion, at any rate. We’ve only had this law for 8 years, remember.
Right, and most defendants would want to blow their “SYG load” so to speak, in the criminal trial because they’d desperately fear criminal conviction. In this unique case O’Mara decided there wasn’t a reason to hold a SYG hearing. It’s a judge based hearing and to be honest I feel the judge in this case leaned hostile toward the defense, which may have been part of O’Mara’s reasoning. While SYG resulted in a lot “more” self defense cases in Florida, I think we’re still only talking a couple dozen such hearings and cases making it to trial per year and it’s less than a decade since the law was enacted.
Not just the judge – consider the outpouring of “biased jury!” cries in the wake of the acquittal.
How much more furious would the rhetoric have been if Judge Nelson had simply ruled that Zimmerman was immune? It’s the same reason she didn’t grant dismissal as a matter of law, in my view: she was desperately hoping the jury would take her off the hook.
Cowardly, but understandable. The real test of her mettle would have been the jury returning a verdict of guilty for murder second.
I think the reason that the DOJ won’t indict Zimmerman is because they can’t.
18 USC SS 249 requires that the crime:
(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim—
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in subparagraph (A)—
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
. . . . . . . . . . . . . . . . . . . . . . . .
Those conditions simply are not met. His Kel-Tec pistol was manufactured in
Florida, in case anyone was wondering.
Doesn’t the plaintiff get to choose venue?
Reminds me about a prison rape joke (because …you know… prison rape is funny)
Only to the extent that the plaintiff may select between venues where one or more defendants reside, or where the cause of action arose (28 USC § 1391). Assuming Zimmerman hasn’t established a new domicile when the claim is filed it’s the Middle District or nothing.
As it turns out, the forum selection within the district is specified by 28 USC § 89 so it will be the Orlando division after all.
I’m starting to think I didn’t actually learn anything in law school.