Snap E Tom wrote:So the AP story said this:
....
In my CHL class, 90% of the classroom discussion was about "don't put yourself in a situation where you have to use a gun to begin with." As pointed out by Detective Serino, Zimmerman had options not to be there. Doesn't that nullify self defense and everything else that's clouded this case?
...
I'd love to hear a lawyer's opinion on this. I've always thought that the legal intricacies and definitions of this case are going to tick off both sides.
No, no, no, no. <sigh>
It's very discouraging and disturbing that this topic can go on for 67 pages, 100's of messages, for months, on a CHL forum, and such simple things are still so
thoroughly misunderstood.
Of course, a major part of the problem stems from LISTENING to the Main Stream Media without doing the research personally.
If you really want to hear a 'lawyer's opinion', you will first need to learn enough to be able to determine which lawyers
actually understand the law themselves -- and 97% of those lawyers on TV do not have this ability.
Then you would need to
know the (publicly available) facts well enough to know if the lawyer knew those as well, so that he was really
following THIS CASE and the ACTUAL LAW together. Most of what passes for analysis in this case has either or both the LAW and the (known) FACTS just flat out wrong.
Saying that Zimmerman is (automatically) at fault for "being there" is akin to blaming the rape or mugging victim for walking down the street -- it's wrong -- when the criminal attacks.
Legally, the criminal remains the attacker - not the person merely "walking" (or running, or whatever) unless they are (also) committing a crime.
This case (almost solely) comes down to a couple of simple things (there are complications but I will give some references to fill those in, and plenty to read at the bottom of this post):
Did Zimmerman criminally assault Martin first?
OR
Did Martin criminally assault Zimmerman first?
[Technically, Zimmerman COULD have assaulted Martin, been punched in the face in return, thrown up his hands, claimed he didn't want to fight, and move away before being re-attacked, but that doesn't fit any likely scenario or any facts so far known so let's just ignore the weird cases like this unless the evidence base is amended.]
Zimmeran can LEGALLY defend himself even with lethal force, if he is in a place he is legally allowed to be, and not committing a crime -- AND he is reasonably convinced (means judge or jury must agree) that he is in immediate or imminent danger of death or great bodily harm. (Maybe he can do it based on preventing other felonies but again, this is not relevant to this case.)
The 2011 Florida Statutes, Title XLVI Crimes, Chapter 776 Justifiable use of force, posted at Official Internet Site of the Florida State Legislature
http://www.leg.state.fl.us/statutes/ind ... 6.013.html
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
The investigator/detective may have been stately a non-legal opinion "Hey, it wouldn't have happened if he hadn't been there" but that is true of Martin as well. Or if you get mugged, it's true of you too. If you leave your house and get in an automobile accident caused by someone running a red light, it is still true that it would not have happened if you had stayed at home.
NONE of this is relevant to the LAW.
This is specifically why "Stand Your Ground" laws are so important to enact -- to keep otherwise well-meaning people from falling prey to such poor reasoning.
Now, if we are discussing GOOD SELF-DEFENSE, I will certainly tell you to follow the
4S rule: Don't do Stupid things, with Stupid people, in Stupid places, at Stupid times.
But doing one of those Stupids doesn't necessarily make you legally responsible -- just stupid, maybe.
Zimmerman's story is that:
(not a direct quote -- just using the quote box to set this apart in formatting)
He began to follow Martin (not a crime, not illegal, doesn't abrogate self-defense)
He broke off any pursuit after the NON-emergency dispatch suggested "We don't need you to do that" *
* Notice, 911 & non-emergency dispatchers don't have ANY legal AUTHORITY, and the dispatch did NOT give an order nor instruction in any case, AND Zimmerman says he stopped.
He continued onto the next street to get the address, turned and headed back to his car
On the way (he says) back to his truck, Martin approached from behind (not a crime either) and there were words to the effect:
Martin: "Hey you got a problem?"
Zimmerman: "No"
Martin: "Well you do now..."
AT THIS POINT, no one has committed a crime (as far as the publicly known facts suggest).
Zimmerman then says that Martin
Punched him, knocking him to the ground
Got on top of him, slammed his head into the ground,
(maybe) Tried to smother him, (maybe) tried to get his firearm.
Zimmerman says, that in fear of his life he then shot Martin.
Is that true? Maybe.
Probably, based on the physical evidence we currently know, and based on the witness accounts now available on the Internet.
Zimmerman has a medical report and photos showing a "closed fracture" of the nose, 2 lacerations to his scalp, Busted lip, injured/sore back.
Martin has a small skin on his left pinky (consistent with punching) and Zimmerman's blood on one of his shirt sleeves (You have to REALLY read the 180 plus page report to find that.)
At least 2 witnesses confirm the beating part, but no one confirms nor contradicts the 30-60 seconds BEFORE Martin is on top of Zimmerman beating him (Zimmerman COULD in theory have criminally attacked Martin during this time but there is NO KNOWN evidence for that.)
Could some new evidence change this? Sure. Unlikely but possible.
Zimmerman doesn't even need the SPECIFIC "stand your ground" provision of the Florida statute to be innocent -- Texas self-defense would suffice if these are actually the facts -- according to his account, he is UNDER Martin getting beaten (to death) and could not retreat despite wanting to stop the beating.
However -- and this is where a lot of confusion also exists in the media -- the so-called "Stand Your Ground" statute contains other provisions, case law and precedents that DO HELP Zimmerman; these get lumped together colloquially under the term "Stand Your Ground" even though they are largely unrelated to the actual concept of "not running away" or "avoiding the attack".
How does the "Stand Your Ground" help Zimmerman if he doesn't need it to be innocent?
Initially it forbade his arrest -- once he asserted Self-Defense, the police were legally prohibited from arresting him unless/until they could prove probably cause that this was not true.
He may request a "Stand your Ground" IMMUNITY Hearing -- IF the judge finds by (only) a
PREPONDERANCE of the evidence that he engaged in lawful self-defense, and the case is over -- true immunity.
Failing that, he can still raise
"self-defense" at trial (with or with the Stand Your Ground concept) and if that raises a
Reasonable Doubt, the jury will be instructed to acquit.
IF he prevails due to self-defense, he is further
immunized against civil liability (similar to Texas Castle law).
Notice that
none of the following are illegal: 'Profiling', 'Pursuing', 'Following', 'Confronting'. 'Being rude', 'getting out of a truck', ''walking down a public sidewalk', even 'stalking' in the vernacular sense it would be used in this case**. Unless they are accompanied by criminal assault or some other actual crime.
**"Stalking" is a crime under Florida law, but it has a technical definition impossible to meet in this case so when someone on TV uses it they must be either trying to mislead or using the non-technical meaning (or both).
In general, short of assaulting Martin, Zimmerman PROBABLY could not have abrogated his right to self-defense -- and even doing that might be insufficient. (This was explained on Court TV by 2 or he lawyers who could actually understand, quote, and explain the law accurately: a former Florida Prosecutor and separately from a retired Florida judge, both of who had handled such cases.)
So, did Zimmerman assault Martin first (or commit some other significant CRIME) or not?
That is THE QUESTION.
The highly likely answer is "No" --
After reviewing a dozen or more case summaries for such Self-Defense claims in Florida, it is safe to say:
The case stands a 90% (or better) chance of
falling at the Immunity Hearing, and 99% or better raising
reasonable doubt at trial -- unless there is some really unlikely evidence out there for which there is no public knowledge.
--
HerbM
The Wikipedia article while not perfect, is NOT terrible (I have reviewed it, and even contributed a little)
http://en.wikipedia.org/wiki/Shooting_of_Trayvon_Martin
David Kopel, "Florida's Self-Defense Laws", Volokh Conspiracy, 27 Mar 2012.
http://volokh.com/2012/03/27/floridas-s ... ense-laws/
According to analysis by David Kopel, Florida's Stand Your Ground Law "is legally irrelevant to [the] case", and the case turns on whether Martin initially attacked Zimmerman, or whether the initial attack was by Zimmerman attacking Martin.
Autopsy / Medical Examiners Report Here (pdf)
http://i2.cdn.turner.com/cnn/2012/image ... ?hpt=hp_t2
Crime Scene and Evidence Pictures Here
http://www.orlandosentinel.com/news/nat ... togallery#
Full 183 Page Discovery Release HERE pdf
http://msnbcmedia.msn.com/i/msnbc/secti ... covery.pdf
Self-Defense Under Attack
http://reason.com/archives/2012/04/25/s ... der-attack
If George Zimmerman Loses a Pretrial Motion to Dismiss, He Can Still Be Acquitted
http://reason.com/blog/2012/04/12/even- ... rial-motio
Trayvon Martin and Florida's "Stand Your Ground" Law
http://prawfsblawg.blogs.com/prawfsblaw ... d-law.html
Florida’s Stand Your Ground Law: History and Present Scope
http://www.husseinandwebber.com/stand_your_ground.html" onclick="window.open(this.href);return false;
The procedures for asserting prosecutorial immunity under the “Stand Your Ground” law
are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida
First District Court of Appeal decision. The Petersen decision definitively established
that Section 776.032 was created by the Florida Legislature to establish a “true immunity”
and not merely an affirmative defense. The Court stated that, when immunity under the law
is properly raised by a defendant, the trial court (at a hearing) must decide the matter
by confronting and weighing only factual disputes. Petersen held that a defendant may
raise the question of statutory immunity pre-trial and, when such claim is raised, the
trial court must determine whether the defendant has shown by a preponderance of the
evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny
a motion for immunity simply because factual disputes exist.
http://www.leagle.com/xmlResult.aspx?pa ... SizeDisp=7" onclick="window.open(this.href);return false;
http://www.leagle.com/xmlResult.aspx?pa ... SizeDisp=7" onclick="window.open(this.href);return false;
NOTE: In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court
adopted the First District decision in Petersen, resolving a previous conflict that
existed between the First and Fourth District Courts of Appeal. Petersen is now
binding law on all Florida courts.
http://www.floridasupremecourt.org/deci ... 09-941.pdf
Florida Criminal Defense Court Filings
Sample Florida “Stand Your Ground” Motion for Declaration of Immunity
http://www.husseinandwebber.com/stand-y ... unity.html
Florida's Stand Your Ground Law
http://www.cgnlawyers.com/Legal-Blog/Fl ... d-Law.html
The reasoning behind this is that the Florida Legislature “intended to establish a true immunity and not merely an affirmative defense.” An affirmative defense is a defense which a criminal defendant may raise at his or her actual jury trial. The ruling inDennis means that a criminal defendant has the ability to have a judge decide, as a matter of law, before subjecting himself or herself to a trial, whether he or she is immune from criminal prosecution and civil action based on the facts the particular case.
It is explained that a trial judge must be the finder of fact at such a pretrial evidentiary hearing, and that he or she must weigh only factual disputes. It is the defendant’s burden, by a preponderance of the evidence standard (51%), as to whether the statutory immunity applies.
Castle Doctrine and Stand Your Ground Laws
by Frank Ettin, Esq.
http://www.corneredcat.com/Castle_Doctr ... ound_Laws/
