New Details in the Zimmerman-Martin Controversy

[LasMa]

<p>poetgrl, sadly, it’s not from the Onion.</p>

<p>

In his signing statement released this morning, Governor Mitch Daniels stated, “contrary to some impressions, the bill strengthens the protection of Indiana law enforcement officers by narrowing the situations in which someone would be justified in using force against them.”</p>

<p>Governor Daniels went on to explain, “So as a matter of law, law enforcement officers will be better protected than before, not less so.”

</p>

<p>We’re turning into some kind of looking-glass world, where words mean the opposite of what they mean.</p>

[Bay]

<p>One disputed fact that the affidavit puts to bed, is the “f***cking punks” comment. </p>

<p>No matter how you slice it, there is a gaping hole in the facts as presented in the affidavit. It confirms that there was a struggle, arguing and cries for help before Trayvon was shot in the chest. Even if we assume everything the prosecution stated is true, it completely disregards any evidence of self-defense that led to the PD and D.A.'s conclusion to apply SYG.</p>

<p>Obviously, Corey must ignore the possibility of self-defense in order to file the charges. But I can see how Dershowitz found fault with it.</p>

[dadx]

<p>I don’t think it bodes well for the prosecutor if Alan Dershowitz thinks she’s fouling up in this case.</p>

<p>I’d like to see some forensics. Where were the two men when the gun went off? Standing? On the ground? One standing and one not? It seems that perhaps these details were not collected at the time.</p>

[07DAD]

<p>Here is the charging Information document:
<a href=“http://www.emptywheel.net/wp-content/uploads/2012/04/george-zimmerman-information-document.pdf[/url]”>http://www.emptywheel.net/wp-content/uploads/2012/04/george-zimmerman-information-document.pdf&lt;/a&gt;&lt;/p&gt;

<p>There are no lesser offenses listed. As the Florida Supreme Court webiste indicates, under Florida law, manslaughter is NOT automatically included, it must be set forth in the charging document to be available to the jurors to use it as a basis for conviction.</p>

<p>The minimum sentence for 2nd degree Murder when (as charged) the offense included a firearm is 25 years.</p>

<p>So, its “Murder,” (no accident invlovled) with evil intent toward Trayvon and no less than 25 years in prison if convicted on the sole charge.</p>

<p>Well, if nothing else it may get the Feds off of looking hard at whether there was culpable conduct on the part of the local police/state’s attorney etc. —“See we went all out on ole George after all!”</p>

[Cardinal_Fang]

<p>

No matter how you slice it, there is a gaping hole in the facts as presented in the affidavit. It confirms that there was a struggle, arguing and cries for help before Trayvon was shot in the chest. Even if we assume everything the prosecution stated is true, it completely disregards any evidence of self-defense that led to the PD and D.A.'s conclusion to apply SYG.

</p>

<p>I think this is incorrect as to law. Self-defense would certainly be a defense to the charges, but it’s for Zimmerman’s legal team to raise that issue. A person can’t just pull out a gun, shoot someone, claim it was self-defense and be protected against being charged for murder. If the facts are disputed, it’s for the jury to decide whether the self-defense claim has merit.</p>

<p>That is, we’ll never have a situation like this:</p>

<p>DA: We charge Mr. X with murder.
Mr. X: But it was self-defense!
DA: We agree it was self-defense, but we’re charging you anyway.</p>

<p>No, that makes no sense. Rather, we have this:</p>

<p>DA: We charge Zimmerman with murder.
Zimmerman’s defense team: But it was self-defense!
DA: We don’t agree. See you in court.</p>

[07DAD]

<p>

If the facts are disputed, it’s for the jury to decide whether the self-defense claim has merit.

</p>

<p>Not necessarily under Florida law. It goes to the judge as a pre-trial matter if Z asks.</p>

[hayden]

<p>I agree that from a layman’s point of view the affidavit was pretty skimpy, but I have no training on what is typical for Florida. The key point I think is that the affidavit does not accept the major point of Zimmerman’s story. Zimmerman said that he had broken off pursuit and was returning to his car when he was attacked from the back by Martin. The affidavit says Zimmerman pursued then confronted Martin.</p>

<p>Bay, you raise a point I’ve been wondering, too. At what point can someone who is the victim of an incident initiated by a second party, become the aggressor? The SYG laws don’t protect an “aggressor”, but does Florida law deal with how you define that?</p>

[07DAD]

<p>The Provocation Exception
One final exception to the use of deadly force is found in Florida Statute 776.041, which states that a person can not justify the use of deadly force if they initially provoked the altercation.</p>

<p>But for every exception, there is yet another exception. So under 776.041, even if a person provokes a fight against themselves, they can still use deadly force if the person they provoked responds with disproportionate force. Meaning a person starts a fist fight and the other person pulls out a knife.</p>

<p>This statute remains unchanged under Florida’s current Stand Your Ground law and, as explained below, will likely play a major role in the outcome of George Zimmerman’s case.</p>

<p>

</p>

<p>776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
History.—s. 13, ch. 74-383; s. 1190, ch. 97-102.

</p>

[NYMomof2]

<p>07DAD’s post #1344 links to the charging document, but I saw a familiar name in the link. EmptyWheel is the nom-de-plume of a brilliant woman whose writing I followed during the Scooter Libby case. She is a lawyer who was the leading analyst on that case, IMO. She manages to find and synthesize all available information. I believe that she eventually wrote a book on that case.</p>

<p>She has a post on the Z charge with some interesting comments.</p>

[Cardinal_Fang]

<p>Zimmerman’s defense will presumably be exactly what 07DAD references: he was in the fistfight, but Martin was using force so great that Zimmerman was in imminent danger of death or great bodily harm.</p>

<p>But then (correct me if I’m wrong here, lawyers) the burden of proof is on Zimmerman, to prove that he did in fact <strong>reasonably</strong> think he was in mortal peril. He could have a tough time with that proof. His injuries were not serious enough for him to need medical treatment beyond that offered by paramedics on the scene. We can’t tell, from the police video, whether he might have had minor cuts and bruises, but no major injury was visible and he wasn’t moving as if he was seriously injured. </p>

<p>Fistfights, streetfights and bar fights are common. The men involved in them don’t usually die. Why are we to believe this fight was more dangerous than the common garden variety bar fight? If two people were involved in a bar fight, and one guy pulled a gun and shot the other guy, normally we’d think the shooter should be accused of murder; we’d be reluctant to accept a self-defense claim.</p>

[NYMomof2]

<p>A random thought: I noticed that Z’s new lawyer loomed over him in the court hearing. I wonder whether he was selected, in part, based on his height? Z looks small next to him.</p>

<p>Good points above, CardinalFang. Fistfights don’t usually result in death or serious harm, and there is no evidence that Trayvon was particularly experienced in hand-to-hand combat. So unless there is evidence that he was repeatedly smashing Z’s head onto the concrete, his claim of self-defense will be hard to prove.</p>

[07DAD]

<p>In her news conference announcing that Z has being charged with second degree murder in the death of Trayvon Martin, Corey said that SYG is “a tough affirmative defense to overcome.” </p>

<p>Although Z has to introduce some evidence that he acted in self-defense, that doesn’t mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a “reasonable doubt” as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.</p>

<p>In Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense. The Fourth District Court of Appeal stated:</p>

<p>

But, with these additional facts, did he also incur a “burden of proof” identical to the State’s? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt? Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value – other than they might be true? The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.

</p>

<p>Last year the Fifth District Court of Appeal quoted this language from *Murray *and followed the same rule in the case of Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). In Montijo the trial judge had instructed the jury that the defendant had the burden of proving that he acted in self-defense “beyond a reasonable doubt.” Montijo’s attorney did not object to the jury instruction, but the appellate court found that the trial judge had committed a “fundamental error” by giving that instruction and ordered a new trial for the defendant. The Fifth District Court of Appeal stated:</p>

<p>

The inclusion of the phrase “beyond a reasonable doubt” in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.

</p>

<p>Seminole County, where Trayvon Martin was killed, is in the is in the Fifth Appellate District, so the rule in Montijo is controlling unless and until the law is changed.</p>

<p>Florida Standard Jury Instructions online are in accord with the courts’ rulings in Murray and Montijo. Instruction 3.6(f) states:</p>

<p>

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

</p>

<p>On April 1, 2012, the Florida Bar News published proposed amendments to the Standard Jury Instruction 3.6(f) which would strengthen this language to clarify that the jury may convict the defendant only if it finds beyond a reasonable doubt that the defendant did not act in self-defense. The proposed amendment adds the underlined phrase to the charge to the jury:</p>

<p>

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

</p>

<p>Z cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.</p>

[Cardinal_Fang]

<p>I second NYMomof2’s advice about checking out EmptyWheel’s blog (which I can’t link to here) for commentary on the Martin case. The author of the relevant posts at EmptyWheel is not EmptyWheel (Marcy Wheeler) herself, but another poster called bmaz. </p>

<p>Also this Reuters article is a good summary of the legal issues:</p>

<p>[ANALYSIS-Zimmerman's</a> challenge in citing Stand Your Ground](<a href=“Westlaw Today - Premium Legal News | Thomson Reuters”>Westlaw Today - Premium Legal News | Thomson Reuters)</p>

<p>According to the Reuters article, Zimmerman and his defense team can go before a judge and ask the case to be dismissed on the grounds of self-defense, but judges are reluctant to grant such immunity motions, preferring to let a jury decide the facts, particularly when the facts are in dispute.</p>

[missypie]

<p>I think they know they can’t prove 2nd degree, which is why they brought that instead of manslaugher. Bring Z in, he’ll be safer there. Let the streets cool down. Try him, fail to get a conviction.</p>

[Cardinal_Fang]

<p>Wow, 07DAD, what a complicated situation of law. So, if I understand correctly, my hired killer can get into a fistfight with my annoying boss, and shoot him. When the DA charges my hired killer, he can say he had to kill my boss in self-defense, and it’s up to the DA to prove beyond a reasonable doubt that my hired killer wasn’t acting in self-defense. Wow. I’m calling the killer right now. I really want to get rid of my annoying boss. (Oh wait. I don’t know any hired killers and I don’t have a boss. But if I did…)</p>

[07DAD]

<p>missypie–it must be a Texas thing. I wondered if that might be the ploy.</p>

<p>Charge him extremely tough (enhanced 2nd degree–25 year minimum) to get off the hook. But go so far out on a limb without any lesser included charges and he has a double chance of walking if : (1) not guilty of the charges or (2) self-defense not disproved beyond a reasonable doubt.</p>

<p>The wild thing from this would be that Trayvon’s mother now says it was murder, so there can’t be any complaint that Z was charged with that. The Feds are stymied since the locals “got tough” on Z.</p>

[NYMomof2]

<p>Thanks for the correction, CardinalFang. I didn’t realize that someone else had posted the entry about the Zimmerman charge. </p>

<p>Missypie and 07DAD, some of the commenters on the emptywheel site are speculating that the special prosecutor charged as she did in order to get Z acquitted. I hope this is not true.</p>

<p>I don’t know what to think about the charging document. Many people, including Dershowitz, are saying that it is insufficient.</p>

[hayden]

<p>Everything you are all saying just goes to show why the SYG law is a crock of dog pooh.</p>

<p>It seems to have been written with Bernie Goetz in mind, but they somehow forgot to consider other circumstances. Or else they didn’t care.</p>

[07DAD]

<p>

the SYG law is a crock of dog pooh

</p>

<p>T-shirt slogan, anyone?</p>

[zoosermom]

<p>There was a case here in the last month in which a young man celebrating his engagement at a restaurant was stabbed to death. The stabber was a member of a not very popular ethnic group in the community and had a very long criminal record. He also fled the state. The young man died in his fiancee’s arms and was a very sympathetic and well known member of the community. He was extradited and calls were out for blood. The DA kept quiet, which really annoyed people, but when the guy was brought back and went before a grand jury, the DA produced videotape of the entire incident, including footage of the groom being drunk, urinating on the building, and then beating the heck out of the stabber who was a restaurant employee and wanted him to use the bathroom instead. Apparently the video shows something totally at odds with the narrative put out by the family, and the stabber wasn’t charged due to self defense. Point being, I really, really wonder what evidence is out there separate from what we all “know.”</p>