Kendall Coffey on his Spinning the Law LinkedIn Discussion Group
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| Kendall Coffey's book Spinning the Law |
Perhaps the special prosecutor should consider agreeing to bond for George Zimmerman rather than contesting it. While aggressive prosecutors are rarely enthusiastic about backing off on anything, and with a charge of second degree murder they can argue that he should be denied pretrial release, respect for the defendant's presumption of innocence and the reality that he does not seem to be a flight risk or a danger to others in the community is compelling.
Most importantly, however, agreeing to a bond with appropriate conditions could be in the prosecution 's best interest. If the special prosecutor opposes any form of pretrial release for Zimmerman, the defense will insist on a proceeding called an Arthur hearing, which is a hearing that determines whether the state's case is strong enough to eliminate the defendant's right to be released on bond.
Even in murder cases, a defendant is eligible for bond though the state can challenge that right “where the proof is evident or the presumption great.” In applying the Florida Constitution's provision concerning entitlement to bail, courts find that the burden on prosecutors is to show proof even greater than the standard needed for conviction, i.e., beyond a reasonable doubt.
Prosecutors can use transcripts and affidavits in an Arthur hearing, but it is not clear that meeting this enhanced burden will be easy for the murder charge against Zimmerman. They would likely to show most if not all of their best evidence, something the probable cause affidavit used for the arrest explicitly and strategically avoided.
If they try and fail, they run the risk that the court could enter an order that details any and all perceived weaknesses in their case. No such order would be admissible in a court of law before a jury, but it could be a jarring setback in the court of public opinion. For example, in the Kobe Bryant case, theColorado court 's skepticism about the case against him was evident in the order that followed the preliminary hearing (and the weekending case was ultimately abandoned by the prosecution).
There is no need for prosecutors to expose all of their theories and evidence at this stage, nor can they be assured a favorable outcome. The right approach for George Zimmerman is pretrial release, perhaps home detention and electronic monitoring, with appropriate conditions.
Agreeing to that proposal could be not only the right thing for Zimmerman, it could be the correct move for the prosecution as well.
Most importantly, however, agreeing to a bond with appropriate conditions could be in the prosecution 's best interest. If the special prosecutor opposes any form of pretrial release for Zimmerman, the defense will insist on a proceeding called an Arthur hearing, which is a hearing that determines whether the state's case is strong enough to eliminate the defendant's right to be released on bond.
Even in murder cases, a defendant is eligible for bond though the state can challenge that right “where the proof is evident or the presumption great.” In applying the Florida Constitution's provision concerning entitlement to bail, courts find that the burden on prosecutors is to show proof even greater than the standard needed for conviction, i.e., beyond a reasonable doubt.
Prosecutors can use transcripts and affidavits in an Arthur hearing, but it is not clear that meeting this enhanced burden will be easy for the murder charge against Zimmerman. They would likely to show most if not all of their best evidence, something the probable cause affidavit used for the arrest explicitly and strategically avoided.
If they try and fail, they run the risk that the court could enter an order that details any and all perceived weaknesses in their case. No such order would be admissible in a court of law before a jury, but it could be a jarring setback in the court of public opinion. For example, in the Kobe Bryant case, the
There is no need for prosecutors to expose all of their theories and evidence at this stage, nor can they be assured a favorable outcome. The right approach for George Zimmerman is pretrial release, perhaps home detention and electronic monitoring, with appropriate conditions.
Agreeing to that proposal could be not only the right thing for Zimmerman, it could be the correct move for the prosecution as well.
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