murderbythebook wrote:
IMO the defense doesn't have to have an immunity hearing before trial in order to use some of the elements at trial as a defense. MOM has already passed on the hearing. The state wants everything about immunity kept out of the trial.
Bernie doesn't want that in the hands of the jury.
Juries don't decide
immunity. A jury will not even
hear a discussion of immunity, but rather only the affirmative self-defense.
Per
Peterson v State (2006) (
PDF), the legislative intent of the immunity statute is to
avoid prosecution altogether. Immunity is explicitly
not a form of affirmative defense. Per
Peterson, Immunity is to be determined by the trial court, via pre-trial evidentiary hearing.
From my reading of the relevant case law, O'Mara is taking a calculated risk. By missing the trial court judge's established deadline to file a Motion for Declaration of immunity, the court can deny any later filing of such a motion, and the appellate court would not provide relief, as it would affirm the trial court judge's denial on appeal. Nelson could agree to accept a later-filed motion, or could agree to roll the immunity hearing into the trial (somehow). The State could object (though I don't see any grounds on which for the State to do so), and it would be up to Nelson to decide. Based on the case law, the appellate court will very likely support whatever decision Nelson makes in that regard.