<p>But Bay, the prosecution isn’t required to make Zimmerman’s case for him. He can go before a judge and ask for the case to be dismissed because of self-defense. I doubt a judge would dismiss it, but maybe they will. We’ll find out.</p>
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<p>Lesser included offenses are not typically listed in charging documents. If the evidence at trial or the facts according to the prosecution’s theory of the case would support a lesser included offense, typically a judge will instruct on the lesser offense. </p>
<p>I think one problem with reading blogs is that you pick up a lot of speculation from people who do not have a background as criminal lawyers and don’t fully understand the process. There is evidence to support a 2nd degree murder charge - I thought so before the current charges were brought; in fact, I figured that would be the likely charge at the time the special prosecutor announced that she was not going via a grand jury. (I mean - the only reason NOT to go to the grand jury would be to avoid the risk of losing something)</p>
<p>It is very clear to me that there is enough to support 2nd degree murder, IF the evidence supports a conclusion that Zimmerman pursued Trayvon & initiated a confrontation with him, and shot him for reasons other than self-defense. Second degree murder does not require premeditation or planning – the requisite “intent” to make a crime 2nd degree murder can be formed within minutes or seconds immediately before the crime is committed. The jury will be so instructed. </p>
<p>On the 911 tape where you can hear the screaming, you can also hear another voice, but it is inaudible. However, it is possible that that (a) the prosecution has been able to enhance the tape to hear what was said, or (b) there is a witness who heard what was said. The words that proceeded the shooting would be strong evidence of intent.</p>
<p>It is true that a jury needs to find all elements of a criminal offense beyond a reasonable doubt, but that does not mean beyond all possible doubt. If Zimmerman’s story (or multiple stories – at this point I count at least 3 different versions put forth by him or his family) - is demonstrably false, the jury is unlikely to be sympathetic and they aren’t going to speculate as to another, alternative, homicide-excusing set of circumstances. </p>
<p>The prosecutor would not have charged 2nd degree murder if she didn’t think she could prove her case. That does not make it a strong case or slam dunk – but the prisons are full of people serving life sentences on weaker cases. The prosecutor is way ahead of the game in that Zimmerman is the admitted shooter and she has him on tape admitting to following Martin. </p>
<p>I think most prosecutors will charge the maximum they think that they can potentially prove at trial – she can always back off of the maximum charge if evidence comes to light between now and the trial date that sheds a different light on the circumstances. I’ve noticed that Zimmerman’s lawyer does not seem to be in any hurry to try the case or even to get his client out on bond, so I am guessing that the defense lawyer is already aware of significant problems that Zimmerman faces.</p>
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<p>Of course not. But at least in the affidavit, Corey didn’t cast a scenario that conflicts with anything that Zimmerman told them happened. I am pointing out that if they have new evidence, they have not shown their hand at all, other than Trayvon’s mom’s statement, and I seem to recall that Z’s family said the same thing - that the cries were Z’s. The “probable cause” for a 2nd degree murder charge does seem pretty thin if one can argue that the same affidavit provides “probable cause” for a self-defense claim.</p>
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<p>Not true, his lawyer asked for Z’s release on bond and the hearing is set for April 20.</p>
<p>I’ve been meaning to post this earlier, but the pp reminded me to do it now …</p>
<p>"IF the evidence supports a conclusion that Zimmerman pursued Trayvon & initiated a confrontation with him … "</p>
<p>I don’t remember anyone pointing out earlier the part of the 911 tape where the operator tells him to meet the police at a certain point, and he agrees but then changes his mind and says that they can call him or he can call them (can’t remember) when they get there. He seemed to WANT to continue to pursue Martin. I hope that’s brought up in trial. That’s twice he didn’t do what he was instructed (quit following him and meet the cops).</p>
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<p>They are not required to. The probable cause affidavit isn’t supposed to be an exhaustive detailing of all evidence – all that is needed is the bare minimum to establish probable cause. A good prosecutor would tend to take a minimalist approach – and in this case, with the high level of media focus, it is also the most ethical route. </p>
<p>I am not familiar with Florida procedure, but there would be some mechanism for the defense to challenge the sufficiency of a probable cause affidavit. I did not hear Zimmerman’s lawyer object to the sufficiency at his first appearance – but the court did make a finding at that time when the case was set for further proceedings in the appropriate court. I don’t know whether Florida procedure would have required an objection to be made to preserve a challenge to the affidavit, or whether that is something that simply can be raised later on. But my point is – if the defense thinks that the affidavit is leaving something out that the law requires to be included, then the lawyer will have an avenue to raise that point.</p>
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<p>According to the Florida Supreme Court official website, an Information charging 2nd degree murder does not automatically include lesser offenses. It specifically lists all the lesser offenses to the 2nd degree murder charge under the heading of offenses that must also be specified in the Information in order to be submitted to the jury.</p>
<p>That is the observation that is being made. The prosecution came out with only murder 2. Why? Especially since the affidavit in support of the Information basically leaves the public to imagine that the case turns on a mother’s identification of screams on a 911 tape of a call from within a house when the media has already disclosed that (1) the standard for a forensic voice match takes 10 words and (2) using a biometric software program that does not met the industry standard the screams register 2/3rds of the “points” needed for a match to Z’s voice.</p>
<p>Recall the backup singer on *Gimme Shelter *when she sings/screams “rape, murder?” She also sounds much like the 911 tape.</p>
<p>BTW–the Florida authorities confirmed early on that what a 911 operator says on the call is not an offical anything, much less a command, order or instruction. I recall (and I could be wrong) that what was said by the operator about Z following the person was “you don’t need to do that.”</p>
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<p>Yes, the fact that Corey included this in the affidavit raised my ethics antennae. It was the Sanford Police Chief himself who stated, in writing, that they do not consider the statements of their own communications personnel to be authoritative instructions. If Corey is relying on this as evidence to support an element of the crime of 2nd degree murder, well…</p>
<p>I agree with what Calmom said. 07DAD - I don’t know about Florida but in California the charges can be amended up to and during trial (and often are) so the fact that lesser included offenses aren’t in there now may not mean anything.</p>
<p>I’ve only represented about a half-dozen homicide defendants on appeal (in California) - mostly murder2, one or two manslaughter. But from what I’ve seen of this case, unless the SYG law makes a huge difference I’d expect to see a conviction of murder2 on these facts, even without any real forensic bombshells. It doesn’t matter if Trayvon did hit Zimmerman - a guy with a loaded gun tracks down an unarmed teenager and kills him. A jury will vote murder2 on that, from what I’ve seen.</p>
<p>I think a lot of people are overthinking this case.</p>
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<p>You are misunderstanding the law. It would help if you could provide a link to what you think you found. </p>
<p>Manslaughter 782.07 - is listed as a necessarily included offense under Second degree (depraved mind) murder - 782.04(2) on the Schedule of Lesser Included Offenses which can be downloaded from the Florida Supreme Court web site. Because it is listed as “necessarily included”, the court would be obligated to instruct on the lesser offense. By law, the charging of 2nd degree murder includes manslaughter – no separate count needed. (See [Brown</a> v. State, 206 So. 2d 377](<a href=“Google Scholar”>Google Scholar))</p>
<p>I don’t know whether Florida law would allow the court to withhold the instruction on the lesser offense if the defense objects, forcing an all-or-nothing determination. </p>
<p>To 07Dad – Are you a lawyer? I am just trying to clarify this because I don’t know how far I need to go in explaining legal terminology when responding directly to your posts. I don’t want to create more confusion by failing to explain basic points, but at the same time I don’t want to come off as patronizing by telling you stuff that you already know.</p>
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<p>That doesn’t matter. The point is that on the 911 call, Z was asked if he was following M, and he said “yes” – therefore he admitted, on tape, that he was following the guy. That’s the part that helps the prosecution. He’s not charged with disobeying orders – the fact that he was following a person he deemed suspicious while armed with a loaded gun is all the prosecution needs – from that point on the stage is set. (It’s analogous to getting behind the wheel while drunk – the driver doesn’t plan to get into an accident, but the act of driving while drunk is inherently likely to lead to an accident).</p>
<p>While I agree that what the 911 operator says/requests/orders is unenforceable, my point is that, to me, it speaks to his frame of mind. He wasn’t content to stay in his car, and he wasn’t content to stay in one place. He wanted to continue to follow Martin. I think it speaks to his vigilante mentality.</p>
<p>Has any explanation been offered for why Z thought Trayvon was “up to no good,” “on drugs,” etc.?</p>
<p>I agree with Kluge’s post #1389 – we seem to have roughly similar levels of professional experience in this respect. </p>
<p>I’ve also done some basic research now & I believe that, under Florida law, the court is required to instruct on necessarily included offenses. This can possibly be waived by the defense, but the prosecution is entitled to such instructions over defense objections. Case authority: Gallo v. State, 491 So. 2d 541 (Fla. 1986)</p>
<p>Yep–Z called 911 and gave the operator proof positive that he was there. Yep, he told the truth that he was going to follow the guy. Not exactly the acts of a depraved skell who was going to kill someone. Z put what he was up to right there on tape.</p>
<p>Yep, after the shooting, he told the arriving neighbors to call the authorities. He reholstered his registered gun (instead of ditching it). He stayed on the scene.</p>
<p>He co-operated with the police and sat through hours of interview/interrogation without lawyering up although his dad was a retired magistrate.</p>
<p>Real depraved dude, ya think? </p>
<p>And, the authorities reported that THEY saw wetness/stuff off the ground on the back of Z’s jacket, blood on his face and the back of his head. The police tape seems to show injury to the back of Z’s head. People give different reports but people were on the scene very shortly after the gun shot and no one reports seeing Z bashing his own head or face or falling to the ground and rolling on his back.</p>
<p>Really tricky depraved dude, ya think?</p>
<p>With this you get a conviction for murder 2?</p>
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<p>Any armed person who would admit to the cops that he was following someone, would have to be depraved if he thought admitting it would help him get away with murder.</p>
<p>In other words, one could argue that a person who takes the initiative to inform the police of his actions at several steps along the way and asks for their assistance in apprehending a suspicious person, does not fit the profile of a person intending to commit murder. It looks a lot more like good intentions gone awry.</p>
<p>kluge, I realize you and calmom are two of the attorneys on this board, but I don’t know. If you re-stated the Texas case, it would sound the same no-brainer, wouldn’t it? “A man, safe in his house, leaves his house to accost two unarmed thieves leaving a nearby property, yells “you’re dead”, and kills them.” I would have thought that would not have been self-defense, either.</p>
<p>Here is the link to the Florida Supreme Court website.</p>
<p><a href=“Opinions - Supreme Court”>Opinions - Supreme Court;
<p>Here is what the Court has directed:</p>
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<p>If you continue to read the document at the website (use the above link), it lists 2nd degree murder without ANY catagory 1 offenses. It lists manslaughter and several other offenses in catagory 2. That means to me that the Information has to specify any lesser offense to murder 2 to get it submitted.</p>
<p>*Gallo v. State *opines: </p>
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<p>Gallo does not address whether the Information has to contain the lesser offenses since in that case it did specify them.</p>
<p>Manslaughter falls under category 1:
That is clearly specified in the schedule of lesser included offense.</p>
<p>Even as to category 2, the lesser offense does not have to be specified in the information – " may or may not be included in the offense charged, depending on the accusatory pleading and the evidence," means that if the EVIDENCE AT TRIAL makes out the elements of a lesser included offense, then the instruction is warranted, no matter what the accusatory pleading says. Sometimes the facts which support a lesser offense only become apparent at trial during the defense case – the defendant might present testimony or a defense which, if believed, would reduce the level of culpability or make out a lesser offense. </p>
<p>You didn’t answer my question about whether you have a legal background, but I’m guessing that the answer is no, as you don’t seem to understand what “depending on the evidence” means. There is no requirement that lesser included offenses be specifically pleaded or set out in the accusatory pleading – but a prosecutor would not be able to introduce irrelevant evidence at trial, so the information essentially sets forth limits that would not allow a prosecutor with a weak case to try to make out a new offense and call it a “lesser”. </p>
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<p>That’s not true. The Schedule of Lesser Included Offenses specifies:</p>
<p>SECTION<br>
782.04(2) </p>
<p>CHARGED OFFENSES<br>
Second degree (depraved mind) murder </p>
<p>CATEGORY 1
Manslaughter 782.07 </p>
<p>CATEGORY 2
Third degree (felony) murder 782.04(4)
Vehicular homicide 782.071
(Nonhomicide lessers)
Attempt
Culpable negligence 784.05(2)
Aggravated battery 784.045
Aggravated assault 784.021
Battery 784.03
Assault 784.011 </p>
<p>I already pointed that out in my post #1390, citing to the specific statutes. </p>
<p>If there is something that you don’t understand, then please point to it and ask whatever question you have – but I hope you will refrain from wasting everyone’s time by posting falsehoods. I am quite puzzled by your absolute statement that there is no category 1 offense listed for 2nd degree murder when manslaughter is clearly listed on the chart.</p>
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<p>2nd degree murder is often a matter of “good intentions gone awry”.</p>
<p>Z’s intent at the time he made the phone call is not relevant. If there was evidence that he intended, or even contemplated, going after Martin and shooting him, then Z would be facing charges of 1st degree murder. The primary distinction between 1st and 2nd degree is the lack of planning or premeditation.</p>
<p>What is relevant is Z’s intent at the moment of shooting. </p>
<p>You’ve posted an excellent argument to defend Z against 1st degree murder – but that is not the crime he is charged with.</p>