Zimmerman Charged With Murder But Can The State Make The Case For Second Degree Murder?

The second degree murder charge of George Zimmerman has received widespread approval. I am in Fort Worth to speak to the Fort Worth Lecture Foundation this afternoon. However, I am receiving a lot of calls on the basis for the charge. I must confess that I am not optimistic on the chances of a conviction unless the special prosecutor has undisclosed evidence to meet the high standard under the state law.  As I discussed on BBC last night, there are substantial challenges to make such a charge stick in this case.

I was surprised to see a second-degree murder charge which requires proof beyond a reasonable doubt that a person was killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life. This is a lower standard than the premeditated standard for first degree murder. However, the evidence in the case would seem to more closely resemble manslaughter. Section 782.07(1) provides that standard:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree ….

Special Prosecutor Corey went for the maximum charge allowed without using a grand jury. The decision not to go to a grand jury knocked out the availability of murder in the first degree — though such a charge would be highly questionable on these facts.

In Corey’s defense, she is merely giving the state a chance to make the case before a state judge who will first have to decide whether there is a viable affirmative defense under the Stand Your Ground law. It is at that stage that we will be able to see what new evidence Corey has to support the case. I remain doubtful on the chances solely due to the language of the state law and past rulings of state judges — absent more evidence of malice or depravity by Zimmerman. However, I have previously maintained that there was ample evidence to arrest Zimmerman at the scene.

Zimmerman is reportedly maintaining that that he shot 17-year-old Trayvon Martin after a struggle and in self-defense. “Stand Your Ground” law allows individuals who feel threatened in a public place to “meet force with force,” rather than retreat. Moreover, while Zimmerman claims Martin came at him, citizens are allowed to allowed suspicious individuals in their neighborhood.
Zimmerman says that he was driving to a grocery store when he saw Martin walking through the gated community and called the police to report a suspicious person. He says that he was bleeding and injured from the encounter. There is ample reason to contest those assertions, but the past application of this law shows a considerable deference given defendants in the use of force. We discussed the prior ruling in the the case of Greyston Garcia and the dangerous ambiguity created by these laws. The second-degree murder charges against Garcia were thrown out by a Florida judge under the Stand Your Ground law despite the fact that he did not just stand his ground, but ran after a man who tried to steal his car radio and proceeded to stab the unarmed man to death.

As discussed previously, I have been a long critic of these laws and the earlier Castle Doctrine or “Make My Day” laws. These laws address a problem that does not exist. There are ample protections under the common law for individuals to use the privilege of self-defense, including reasonable mistaken self-defense. As noted earlier, I find it a bit maddening to hear Florida legislators now claim to have never anticipated abuses under these laws. Critics like myself have been vocal about the potential for abuse under these laws for years. Legislators have ignored those warnings because of the popularity of these laws.

The problem with both “Make My Day laws” (applying to the home) and “Stand Your Ground laws” (applying in “other places”) is that they facilitate or enable those who are inclined to use lethal force. The Horn case out of Texas is such an example where, as with Zimmerman, Joe Horn ignored instructions not to confront the suspects. Even cases that border on executions have been found protected under such laws.

In the earlier case, Garcia, 25, saw Pedro Roteta, 26, trying to steal the radio from his truck outside Garcia’s Miami apartment. He grabbed a large knife and chased the unarmed Roteta down the street and proceeded to stab him to death. This week, the state judge threw out the charges under the state’s “stand your ground” law.

Cases like Garcia undermine the confidence in the Zimmerman charges. Putting aside the affirmative defense, Corey would need to show much more than is currently known to support a second-degree murder charge, in my view. Based on the current evidence, I would be surprised if she could secure a conviction for second-degree murder.

Zimmerman today is seeking bail and should receive it under the state standard. He turned himself in and cooperated with the police at the scene of the alleged crime.  While he has a prior minor record, the prior conduct would not normally be a barrier to release on bond.

135 thoughts on “Zimmerman Charged With Murder But Can The State Make The Case For Second Degree Murder?

  1. Now that he is chartged with murder it is time for all the critics and pundits to back off and allow the man a free trial. There is a jury pool out there and we do not need the Third Reich tactics of weighing in on his guilt in the media. Each one of us who wants to go on about his guilt and his bigotry is henceforth intentionally attempting to deny him a fair trial. This blog should discuss this problem and we should get out in front of this issue and not be part of the problem of denial of due process and fair trial in America.

    He is gonna need some dogs on that jury panel that listen and dont bark first.

  2. You might just as well spend your time licking your crotch talkindog. In modern day America neither side will allow a day to go by without the PR machine cranking out some bullshit to put their side in the best possible light. Then there is the whole media machine full of ghouls like Nancy Grace who feed on the souls of people dumb enough to watch them.

    No matter what you think about this case there will be plenty to be outraged about even befoer the jury returns a verdict.

  3. “Based on the current evidence, I would be surprised if she could secure a conviction for second-degree murder.”

    Agreed. As I’ve said elsewhere on the blog, I think she’s overcharging to force a plea, but I’m willing to consider her evidence.

  4. At least each side will get their say in court. That’s all the family, the statre and the public can ask at this point. Zimmerman could be acquitted. He may get a plea deal to a manslaughter charge which is the current odds-on bet. He might even be found quilty.

    He can still assert the “Stand Your Ground” defense and he likely will. In my conspiracy theory mind I can see a Florida judge tossing the case on Stand Your Ground basis. That would absolve Gov. Scott and the Special Prosecutor who could still be seen politically as going the extra mile while Zimmerman could still go free. But, at least it’ll play out in the public arena rather than having the Stanford Police Chief make the decision that no arrest was necessary despite a young boy being shot dead and the recommendation of the lead detective. It’s sad that it took a national publicity effort to get done what should have been routine, but there you have it.

  5. “You might just as well spend your time licking your crotch talkindog.”

    That’s your answer for everything isn’t it, Frankly? Building a better tomorrow through more crotch licking! You know . . . that’s . . . not a half bad idea if implemented properly. It takes a village. :D

    But you’re right on topic. This is still going to be a media circus even if She Who Must Not Be Named doesn’t sink her cadaverous fangs into the story. To wish otherwise is indeed wishful thinking.

  6. Gene H.:

    I think you got it exactly right. I understand that this prosecutor has a reputation for overcharging. I still think we’ll see a manslaughter plea somewhere down the road.

  7. Wow, that sounds like a charge designed to secure a pre-meditated dismissal. Then the prosecutor can say “Hey, I tried, what else can I do?”

    Or perhaps it is a scare tactic, to get Zimmerman to plead down to manslaughter.

  8. rc,

    “It’s sad that it took a national publicity effort to get done what should have been routine, but there you have it.”

    That sums up my whole bone of contention from the start. Well said.

  9. Mike A.,

    Thanks and agreed. I wonder what Vegas says or if anyone has a prediction market going on the question?

  10. Hopefully the prosecutor learned something from the Casey Anthony verdict and will not put all her eggs into one basket. Look for lesser included charges to be tacked on if this ever goes to trial.

  11. Is that how it’s done? Overcharge to force a plea? Just another example of a screwed up “justice” system.

  12. The Sanford Police Department detective who applied for an arrest warrant, very early in the case, listed homicide / manslaughter on the application.

    Lesser included offenses for Second degree (depraved mind) murder 782.04(2), are: Manslaughter — 782.07; Third degree (felony) murder — 782.04(4); Attempt, Culpable negligence — 784.05(2), Aggravated battery — 784.045, Aggravated assault — 784.021, Battery — 784.03, and Assault — 784.011.

    See e.g. Brown v. State, 206 So.2d 377 (Fla. 1968).

  13. Gene H.1, April 12, 2012 at 9:37 am
    ———————————————–
    when this is tried, doesn’t the jury have the ability to apply lesser charges if that is where they discern guilt, if any?

  14. W=^..^

    They do, if as OS noted, the lesser included offenses are included in the intial charge (and the usually are).

  15. I hardly think what happened in the Horn case in Texas is germain at all since the law clearly allowed for the use of deadly force to stop the commission of a crime in progress. As I have pointed out earlier, Horn went further than the law required since he gave the burglars a chance to surrender their loot. The crooks decided that the loot was more important than their lives so they ran and were legally shot and killed.

    Unless you think that armed guards should be banned, you have to agree with the Texas law and it proper application in Horns case.

  16. I have a question. If a person tries to use the “Stand your ground” law in self defense, say for instance some dude is stalking you and appears intent on attacking you, but in the process the stalker or a friend of his decides to react with deadly force.

    Can the stalker claim “Self Defense” because he felt his life was endangered? Basically, can everyone use this law to justify every action?

  17. There are several sick, sad, bits in this drama. Almost ignored is that state with SYG laws have much higher rates of “self-defense” shootings & not much change in random killings. This is a return to the wild west and an invitation to abuse.

    Secondly, crap like this or the case in Baltimore happen regularly around
    the country and how they get handled is too often a fluke or the result of public outrage. That is no way to build respect for law and justice. This is the result of a lot of small changes: Militarizing the police, reducing funding for and the number of police who could deal with these things, ever more revenge driven public opinion, The eternal media circus that loves to focus on the latest missing pretty white girl taking time form other investigations and a host of minor things that all add up in the wrong direction.

  18. Digital – the case in Tulsa that induced that clown to go on a killing spree was a guy attacking a burgler at a neighbors place. The guy hit the burgler with a stick and came after him with a bat. He shot the guy. While he is doing time for burglary he could not be chagred with murder because of OK’s stupid SYG law.

    Even as a gun owner I find these laws to be way over the top stupid.

  19. DigitalDave I have wondered that too, Could Martin have claimed stand your ground had he had a gun. He may well (and ultimately rightly so) have felt ‘in imminent danger’ /’felt threatened’ by Zimmerman. That phrase is so potentially ill clarified as to justify anyone killing anyone – but then so too are the concealed carry laws in the wild west that used to be called Florida.

  20. The malice issue will likely turn on the enhanced voice recording of Zimmerman as he approached Martin as well as Zimmerman’s credibility and evidence of his propensity for violence. If the jury concludes he said “coons,” I think that evidence of malice will be hard to overcome. The defense will surely rebut with their own experts but jury’s rely on their own ears and if one of the leaders thinks it’s a racial slur, it could be over right there.

    Based on what I know, i think it’s manslaughter but that recent photo of the defaced African-American recreation center posted on Zimmerman’s website tends to give credence to the claim of hate crime. His prior record of violence along with his anger management issues could also be front and center in the jury’s mind. The coup de grace could well be the voice identification evidence of someone pleading for his life just before teh fatal shot is fired.

  21. Digita Dave:

    The SYG law requires you to be engaged in a lawful activity before invoking the doctrine. In your case the stalker, if committing a crminial offense, is barred. Here’s the Florida provision:

    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.

  22. Mespo,
    Can the state claim that any physical actions by Martin were lawful under his rights via the SYG law? If so, wouldn’t that rebut any self defense claims by Zimmerman?

  23. rafflaw:

    I think Martin would have a SYG defense is charged but more importantly was Zimmerman engaged in a lawful activity after being told not to confront Martin? Trespass, battery, disorderly conduct, or disobeying an officer, maybe. Jeb Bush and other Florida lawmakers say Zimmerman was the aggressor when he disobeyed the dispatcher and moved to confront Martin and unable to claim benefits of the SYG law.

  24. If even Bush says it you have to think Zimmerman was wrong.
    Mespo I am not an attorney but it reads to me as if Martin would have also had the right to shoot Zimmerman.

  25. It seems obvious to me, based on the girlfriend testimony, that Trayvon had every right to “stand his ground” and attack Zimmerman for confronting him.

    The girlfriend on the phone says Trayvon asked Zimmerman “Why are you following me?” To which Zimmerman responded “What are you doing here?”

    To me, were I on the jury, that is clearly agression by Zimmerman, and Trayvon had every right to feel threatened. After all, Zimmerman had a gun, which Trayvon probably saw, and I think was within the SYG right to then try and get Zimmerman’s gun away or otherwise render Zimmerman harmless. Logically speaking, the SYG law cannot ONLY apply to guns, it applies to violence in self-defense when threatened, which, IMO, Trayvon clearly was, as evidenced by his final words.

  26. “Is that how it’s done? Overcharge to force a plea? Just another example of a screwed up “justice” system.”

    Thank you BettyKath, absolutely 100% correct.

    Overcharging to force a plea should be met with disbarment for abuse of the process.

    Adding in dozens of duplicative ancilliary charges as OS suggests just to allow the jury, suggest to the jury, to convict on something, anything, is also a bullshit abusive maneuver.

    These are tactics designed not to promote justice, but to game the system and to game around double jeopardy.

    Ironic that any commenters here that parade themselves as progressive would encourage that sort of prosecutorial bullshit.

    Can someone explain though why the first degree murder charge required a grand jury, but not a second degree charge that could still result in life in prison? What is the rationale for that?

  27. All of us are convicted of death. Why convict anyone of anything.? To convict anyone of anything for a human that dies would be like a human in jail convicting someone that was not in jail. The convicting human ends up convicting their own soul. Be like Jesus, and show mercy. Then his glorious flight will not be hell to you not reducing you to nothing.

  28. anon, nowhere did I suggest adding on “dozens of ancillary charges.” It is common practice to add on a lesser charge or two if the lesser charge is a viable alternative. The jury decides. Where the prosecutor made a big mistake in the Casey Anthony case was to not offer the jury the opportunity to find for something less than murder.

    I don’t do hyperbole, and do not appreciate having hyperbole attributed to me.

  29. Along with the 2nd degree murder charge, the Special Prosecutor has lesser included, meaning they could go down to manslaughter.

  30. 34 comments, and nobody speculates regarding the contents of the autopsy report? If there’s a “smoking gun” to convict Zimmerman of Murder Two, most likely it’s in that report. That, and any inconsistencies in his statements, compared to the known facts.

  31. @Jonathan Hughes: Why convict anyone of anything?

    Because we value life, and we believe that punishment works to protect it by discouraging murder.

    If you are religious, you apparently believe in the value of punishment as well. Otherwise, the threats of hell or damnation or falling into supernatural disfavor would be meaningless to you; and your words suggest they are not.

    It is human nature to believe that threats of violence, curtailed freedom or seized property will deter acts we abhor, that is why we prosecute and convict people that undertake such acts. Zimmerman is one; publicly punishing Zimmerman will make other vigilantes less eager to confront and kill strangers (which could well be you or somebody you love).

  32. Jonathan Hughes 1, April 12, 2012 at 12:43 pm

    All of us are convicted of death. Why convict anyone of anything.? To convict anyone of anything for a human that dies would be like a human in jail convicting someone that was not in jail. The convicting human ends up convicting their own soul. Be like Jesus, and show mercy. Then his glorious flight will not be hell to you not reducing you to nothing.
    ==================================================
    These concepts arguably evolved in microbes, and in some cases have not improved a great deal in the last 2 or 3 billion years.

    There is the law of the jungle, and then there is the law of the bungle.

  33. 2112 says,

    “Overcharging to force a plea should be met with disbarment for abuse of the process.”

    Actually, no, it’s not nor should that be grounds for disbarment. Judicial resources are limited. Over charging is a valid tactic that forces people with weak cases to plea to what they actually did, saving time and money. Should it be used in every case? No. But then again, it isn’t. It’s usually only done when the prosecution knows for a fact they have a winner on one or more of the lesser included charges.

    “Adding in dozens of duplicative ancilliary charges as OS suggests just to allow the jury, suggest to the jury, to convict on something, anything, is also a bullshit abusive maneuver.”

    Again, spoken like someone who doesn’t know what the hell they are talking about. Charges for lesser crimes are not duplicative – they are pled in the alternative. Not “and” but rather “or”. Charges for included crimes are “and” – actions that on their own would merit charges. To try all the charges related to an incident separately is hugely inefficient. Your opinion as to what is or isn’t bullshit is, as usual, wrong but you are still entitled to it.

    “These are tactics designed not to promote justice, but to game the system and to game around double jeopardy.”

    Nonsense. Including lesser and included offenses gives the jury a chance to find someone guilty of a lesser offense instead of forcing them to acquit on a greater charge and triggering double jeopardy. So actually, contrary to what you say, the tactic promotes justice by allowing alteratives to letting criminals walk and claim double jeopardy when they to a standard of proof did indeed commit a crime.

    There is one flaw in overcharging though. In a small number of cases, people with inadequate representation might be coerced into accepting a plea deal when a trial would have found them not guility or guility of an even lesser crime. This problem, however, can be mitigated by providing more and better PD’s.

    As to what I said, you really shouldn’t misrepresent it when I can clarify. What I said was “I think she’s overcharging to force a plea, but I’m willing to consider her evidence.” For clarification, this means I think tactically she’s overcharging but I find nothing wrong with this tactic, however, given the nature of the crime and evidence to date available in the media, I’m willing to consider her evidence of malice. She very well might not be overcharging and the 2nd Degree Murder charge is appropriate and a case she can make. This actually plays into a possible plea deal too. If her murder case is that solid, it gives her the upper hand on any plea deal. She can hold out for a maximum manslaughter penalty or simply refuse to take a plea deal at all. A superior tactical position or a superior tactical position? Hmmmm. I’m going to take . . . the superior tactical position. So did she.

    Thanks for again demonstrating that you offer tales of sound and fury signifiying nothing, anon.

  34. “The malice issue will likely turn on the enhanced voice recording of Zimmerman as he approached Martin”

    I’d like to know where in the audio Zimmerman is approaching Martin. The transcript of the call is;

    Zimmerman:

    Yeah, now he’s coming toward me. He’s got his hands in his waist band.

    Now let’s combine this with the statement from Martin’s girlfriend that he was “walking fast”.

    So, according to the call transcript, and the account of Martin’s girlfriend, we have Martin walking fast as he approached Zimmerman.

    Once the two were close enough, Martin allegedly said something along the lines of “Why are you watching me?” To which Zimmerman responded with “What are you doing here?”

    Up until this point, no one had broken any law. No one had a reason to retreat, and no one had justification to suspect a serious threat.

    It is the next chain of events that will be important for the judge, and or jury, to decide.

    Who initiated any physical assault? Did Martin punch Zimmerman, or did Zimmerman punch Martin? According to Zimmerman, it was Martin who punched him. Zimmerman then, allegedly, was knocked to the ground and Martin then, allegedly, began banging Zimmerman’s head into the ground. The police report would seem to support that. Fire/EMS and a doctor visit allegedly could be used for further support.

    Then there were screams for help. These screams could be heard on the recording of the 911 call made by the neighbor. -Who was it that was screaming? We have one audio expert who says it wasn’t Zimmerman, based on the results of a relatively new piece of software. (A demonstration video of that software indicates that a minimum of 6 seconds of acceptable audio is required. Was the software able to acquire 6 seconds of “usable” audio from the redacted recording? I don’t think so, but I’m not an audio expert. Can the software make an accurate comparison based on one word that is being screamed repeatedly? Again, I don’t think so. I think there is not a sufficient sample set, nor have sufficient comparative tests been performed for the software to result in a reliable conclusion at this point. -Then we have the second audio expert, who, by his own admission, would need an in context sample before he could make an expert conclusion.

    Let’s look at the reason for someone to scream for help:

    If someone has a gun pointed at you, would most people stand there screaming for help, or would most people either (a) try to run away -or- (b) try to calm down the guy who is pointing the gun? -I have yet to hear of someone screaming “help” because a gun was being pointed at them.

    If, as Zimmerman claims, Martin was on top of him, and Zimmerman could not get away, would Zimmerman have a reason to call for help? Most people would say yes. How long did the screams for help continue? They continued for over 30 seconds! If someone was on top of you, beating you, for 30 seconds, that would feel like a very long time. And when no help came, and the beating continued, what would you do? How much longer would it continue? -Note: at the time of the shooting; after at least 30 seconds of calling for help, no help was on the scene. If there would have been help in the vicinity, there would have been a witness in close proximity.

    If Zimmerman hit Martin, where are his injuries? (other than the gunshot wound that ended any scuffle)

    Now let’s look at the neighbor who said she heard “a child crying”, and determined that it must have been Martin who was crying because the crying stopped. If Zimmerman was calling for help, and Martin was crying, she would have surely heard the call for help, but she does not say that. All she claims to have heard was a child crying. -Was it Martin, Zimmerman, or maybe just a neighbor’s child crying? Because it stopped after the gunshot, why would it have to have been Martin? If it was a neighbor’s child crying, the noise of the gunshot might have caused the child to stop out of surprise. If it was Zimmerman or Martin, why would either be crying after the gunshot? Martin couldn’t and Zimmerman would no longer have the need.

  35. Notice the big difference between this recent photo of Zimmermann shown here, and the booking photoe taken 26 February, the night Zimmermann shot Trayvon:
    http://www.trutv.com/library/crime/photogallery/trayvon-martin-the-case-in-photos.html?curPhoto=8

    Zimmermann has lost substantial weight in the past 6 weeks. To my eye, it looks like he is trying to be much less “substantial” than Trayvon in order to support his claim of self-defense-because-he-was-so-afraid-for-his-own-life.

  36. @RealInvestigator: “If someone has a gun pointed at you, would most people stand there screaming for help, …”

    Yes, I would, in order to call as much attention to myself and the situation in the hope that someone would call the police. I would not consider running away (esp. now at my advanced age), believing in the real possibility that the gunman would shoot me, and in the back.

  37. Zari,

    It would help if you knew that the booking photo was from 2005. (not Feb 26th of 2102 as you suggest.) Is your confusion due to your advanced age? :)

    If you think someone is going to shoot you, do you really care if it is in the front or the back? I have yet to hear the report of someone screaming for help because a gun is pointed at them. Further, the person holding the gun is not likely to just stand there while you’re screaming for help.

  38. Gene H.

    “Over charging is a valid tactic that forces people with weak cases to plea to what they actually did, saving time and money.”

    It is also the tactic of an overzealous prosecutor to appease the public. I have seen overcharging take place on numerous occasions when there was no chance of a conviction on that charge. The prosecutor lets the person sit in jail for a period of time and then offers a plea deal that would result in immediate release. Though the defendant committed no crime, the prosecutor gets his conviction (which helps come election time), and the defendant gets his get out of jail card. -It’s an abuse of the system. It’s political prostitution, and it should be recognized to be unacceptable.

  39. It is apparent that some here (including those who claim familiarity with the legal profession or are active in the trial process) don’t know why the lesser charges are included, nor what standard is used.

    In most jurisdictions they have what are known as “jury instructions”. As part of due process, the instructions given to members of the jury are required to be uniform.

    In Florida these instructions are known as “FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES”. They are available via the Florida Supreme Court’s website.

    http://www.floridasupremecourt.org/jury_instructions/chapters/entireversion/onlinejurryinstructions.pdf

    The instructions for Second Degree Murder are on page 122.

  40. Real Investigator:

    “I’d like to know where in the audio Zimmerman is approaching Martin. The transcript of the call is;
    Zimmerman:

    Yeah, now he’s coming toward me. He’s got his hands in his waist band.”

    ***************************
    Well, Paul Drake, to answer your easily investigatable question, here’s the part of the transcript you apparently didn’t read:

    “Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.

    Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

    Dispatcher: So it’s on the lefthand side from the clubhouse?

    Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.

    Dispatcher: He’s running? Which way is he running?

    Zimmerman: Down towards the other entrance to the neighborhood.

    Dispatcher: Which entrance is that that he’s heading towards?

    Zimmerman: The back entrance…fucking [unintelligible]

    Dispatcher: Are you following him?

    Zimmerman: Yeah

    Dispatcher: Ok, we don’t need you to do that.

    Zimmerman: Ok

    I take the common definition of “following” to be synonymous with the word “approaching” since both relate to closing or maintaining a distance. If you want to quibble with how fast Zimmerman was following or if the gap between the two was narrowing, so be it. In either case, he was disregarding the dispatcher and proceeding in Martin’s direction while Martin was not proceeding in his — at least at the point Zimmerman uttered the possibly deciding word. Zimmerman was clearly frustrated from his discernible comments and entering into harm’s way fully armed and with the intention to follow or apprehend a citizen engaged in a lawful activity.

    The unintelligible word is what we need to enhance. He said “fuckin'” something. That “something” could decide the case.

  41. “Well, Paul Drake,”

    Ok, that was good … I’m still smiling and considering that both my dishwasher and my washing machine just broke … the smile is really appreciated.

  42. “I take the common definition of ‘following’ to be synonymous with the word ‘approaching'”.

    You might also take the common definition of “house” to be synonymous with “steak”, but that would do you much good if you ever leave your land of fantasy.

    Why do you have such a problem with using words as they are already defined? “following” is not a synonym for “approaching”;

    “If you want to quibble with how fast Zimmerman was following or if the gap between the two was narrowing, so be it.”

    Zimmerman said “he’s coming toward me”. I don’t need to “quibble” over anything. Zimmerman identified Martin to be the one coming toward him. If you have evidence to the contrary, provide it. If you have reason to discount Zimmerman’s account, you can provide it too. I’m going off the record. Just because you don’t like the record, doesn’t not grant you the creative license to deviate from it, and then try to sell it as being the record.

    “In either case, he was disregarding the dispatcher and proceeding in Martin’s direction”

    Again, facts not contained in the record. You’re making it up.

    From the transcript:

    911 dispatcher:

    OK.

    We don’t need you to do that. [2:26]

    Zimmerman:

    OK. [2:28]

    The transcript indicates that Zimmerman said “OK” after the operator told hem they didn’t need him to follow. Do you have any evidence to support that Zimmerman did continue to follow? (not that it would be relevant, other than to show that you are basing your conclusion on nothing more than what you made up in your head))

    “at least at the point Zimmerman uttered the possibly deciding word”

    Keep hanging your hat on that. Recent enhanced audio has concluded that he said “fucking cold”.

    Why don’t you at least attempt to sell your story with what you can verify right now, instead of what you want to believe took place?

    As soon as someone suggested it, you determined that chuga chuk sounded like “fucking coons”. You’re hanging you hat on that because you need to make this about race. You don’t care that nothing else points to racism.

    Here’s some of your first comments on this case:

    March 17th: “I bet some of Zimmerman’s “best friends are black.”

    March 19th: “Under the circumstances and If I’m the kid, I’m hitting the guy too and trying to get out of there.”

    Really, Mespo? You’re advocating unprovoked violence?

    You made up your mind without examining the available evidence. You don’t need evidence. You’re “Mespo”.

  43. leejcarroll:

    “Mespo I am not an attorney but it reads to me as if Martin would have also had the right to shoot Zimmerman.”

    ******************************
    You may not be a lawyer but you think like one. Martin, if in reasonable fear for his safety from a larger armed man who accosted him for no valid reason while he was walking home in the rain, could have invoked the law if he was charged with a crime against Zimmerman. Sadly he won’t get that chance. But the law could still rear its head as a shield for Trayvon if Zimmerman is deemed the aggressor since Trayvon would be fully justified in fighting back and even smashing Zimmerman’s head into the pavement while in reasonable fear for his safety. That would be a irony of the first order if the jury concludes that, despite the desperate fight, Zimmerman was the aggressor and thus legally culpable for the homicide.

  44. RI,

    Oooo. Anecdotal evidence. How precious. And an anecdotal problem that would have been mitigated had the person in question had adequate representation. Which I believe was mentioned. As to the rest of what you say culminating in . . .

    “It’s an abuse of the system. It’s political prostitution, and it should be recognized to be unacceptable.”

    That’s your opinion and you’re entitled to it. It’s clearly not an abuse of the system though since the pleading in the alternative of lesser chages (such as manslaughter in this case) are permissible under Florida law and incorporated into the standard jury instructions you cited. Just because you don’t like the practice doesn’t mean it’s an abuse. It just means you don’t like it.

    However, if you’re so concerned about political prostition, why not address the ALEC sponsored legislation that is in large part fueling this media debacle? Because permissible and tactically valid trial strategy doesn’t sound like prostitution to me, but allowing corporations to draft and promote legislation that creates the kind of confusion and invited disaster like the SYG legislation certainly does sound like prostitution to me. Corporatist fascism too. Corporations shouldn’t be allowed to make the rules. This case is a perfect example of why they shouldn’t.

  45. @Real Dumb: Clearly, if Trayvon was “running,” and Zimmerman was “following,” then following could be taken as “chasing.” Which means Trayvon was being chased by a man with a gun. That is reason enough for Trayvon to be Trayvon was not approaching Zimmerman, the audio clearly indicates that, he was trying to escape him.

    No matter what Trayvon does to Zimmerman when Zimmerman catches him, Trayvon was justified in doing in self defense by the very Stand Your Ground law Zimmerman is trying to hide behind.

  46. I meant to type, “reason enough for Trayvon to be threatened.” The word “threatened” is missing from that last post.

  47. “if in reasonable fear for his safety from a larger armed man who accosted him for no valid reason while he was walking home in the rain,”

    The key word there is “if”. There is nothing in the current public record that indicates that Zimmerman accosted Martin. At best, the record indicates that it was Martin who accosted Zimmerman.

  48. Real Investigator:

    “Really, Mespo? You’re advocating unprovoked violence?

    **********************

    Nope, I’m advocating that “real investigators” learn to read and not proffer cherry-picked information designed to advocate a position while clinging to a veneer of faux-objectivty.

    By he way,thanks for the catalog of comments too. I make no apology for my advocacy of the position aligned with the prosecution. Seems the State of Florida agrees with me in this regard since probable cause to arrest has been established. We’ll see how the trial works out, but until then I suggest you stick to finding out “Where’s Waldo,” capturing Big Foot, or handling the grid search for DB Cooper.

    Real investigator? You couldn’t find your way home.

  49. Real Investigator:

    “The key word there is “if”.”

    ********************

    Nope the key word there is “murder.” Martin cannot be charged with anything since he’s dead there, Javert. If he were alive and been charged with battering our busy-body night watchman then he could invoke the law as he was engaged in a lawful activity. Tragically, our young victim here brought mere fists to Zimmerman’s gun fight.

  50. Tony C.

    Listen, bitch. You’ll call me RI or Real Investigator. What kind of low-life piece of crap enters into a conversation by insulting a participant? Is that your pathetic attempt to silence me?

    “Clearly, if Trayvon was “running,” and Zimmerman was “following,” then following could be taken as “chasing.” Which means Trayvon was being chased by a man with a gun. That is reason enough for Trayvon to be Trayvon was not approaching Zimmerman, the audio clearly indicates that, he was trying to escape him.”

    Who said Martin was running? The record doesn’t indicate that Martin was running. His girlfriend didn’t say he was running.

    Did Zimmerman have his gun drawn? Nothing in the record indicates that he did. Then how do you arrive at your absurd conclusion?

    and you have the nerve to call me dumb.

  51. “learn to read and not proffer cherry-picked information designed to advocate a position while clinging to a veneer of faux-objectivty”

    Anyone reading can see who cherry-picked what they presented. Your’s conveniently cutoff before Zimmerman said “OK” when the operator told him that they did not need him to follow.

    Regarding the Paul Drake and Javert comment. We can all so how quickly you try to divert attention. It’s so obvious, and so pathetic. Did you think you were the only person here who is well-read enough to know what you’re talking about? Did you think I would take it as an insult?

  52. @Real Dumb: I will call you whatever I want, you are a dumbass. You certainly have shown no reason to be called a “Real Investigator.”

    Zimmerman, in the audio of the 911 call, says Trayvon is running.
    Zimmerman, in the 911 call, says he is following him.

    From Trayvon’s point of view, “following” can be chasing. I didn’t say that Trayvon knew anything, I said that Trayvon had reason to be threatened, he was being chased by a man with a gun, and certainly at some point Trayvon knew that Zimmerman had a gun.

  53. Real Investigator:

    “Did you think you were the only person here who is well-read enough to know what you’re talking about?”

    ******************

    Nope, I assume most everyone here is familar with the works of Erle Stanley Garner and Victor Hugo; that’s why I reference their characters. Duh? It’s just I can spot a poser when I see one. Don’t hold yourself out as something you’re so clearly not.

  54. RI:

    “Who said Martin was running? The record doesn’t indicate that Martin was running. His girlfriend didn’t say he was running.”

    *****************

    Your’re right the record didn’t say it. As Tony C explained to our esdeint sleuth, Zimmerman did:

    Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

    Dispatcher: So it’s on the lefthand side from the clubhouse?

    Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.

    Dispatcher: He’s running? Which way is he running?

    Zimmerman: Down towards the other entrance to the neighborhood.

    Should I say it? …. yep …. nice work there Sherlock! Are you seven-years- old? Man, some conservatives are just so dumb.

  55. Tony C:

    “Listen, bitch. You’ll call me RI or Real Investigator. What kind of low-life piece of crap enters into a conversation by insulting a participant?

    ********************

    This little piece of hypocrisy from “Real Investigator” is just priceless. May I use it for my amusement?

  56. Corollary to Mespo’s last post:

    ***********************

    Dispatcher: That’s the clubhouse, do you know what the – he’s near the
    clubhouse right now?

    Zimmerman: Yeah, now he’s coming towards me.

    Dispatcher: OK.

    Zimmerman: He’s got his hand in his waistband. And he’s a black male.

    Dispatcher: How old would you say he looks?

    Zimmerman: He’s got button on his shirt, late teens.

    Dispatcher: Late teens ok.

    Zimmerman: Somethings wrong with him. Yup, he’s coming to check me out, he’s got
    something in his hands, I don’t know what his deal is.

    Dispatcher: Just let me know if he does anything ok

    Zimmerman: How long until you get an officer over here?

    Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does
    anything else.

  57. @Tony C. (I can call you whatever I please too. Would that make you feel better?)

    If your shit-for-brains legal representative had any skills, he would have copy and pasted the part where Zimmerman says that he’s running (which would make you correct, and me wrong). Unfortunately, to prove his point, the incompetent Mespo only copied the portion of the transcript where the Dispatcher asked if the suspect was running.

    Don’t get confused here Herr Mespo. Zimmerman did say that the suspect was running. He did it before the portion that you copied and pasted.

    We don’t know when the gun came out. If the gun came out prior to Martin hitting Zimmerman, that “kid” was too stupid to run.

    This is my last post. In typical fashion, the regulars on this blog resort to name calling.

  58. Ok, maybe not the last post – but Drake’s interpretation of the transcript is clearly tortured.

  59. I will also point out that if Zimmerman was lying about Trayvon running, then he was making a pre-meditated attempt at justification for his violence-to-come. If he was not lying about Trayvon running, then Trayvon obviously became panicked at being followed and took his girlfriend’s advice to run, regardless of what he had said earlier on the phone, and the fact that he was running away from Zimmerman could only mean that Zimmerman chased him down to confront him.

    This exchange means either Zimmerman invented an excuse to chase Trayvon, or Trayvon felt threatened by Zimmerman and started running.

  60. RI:

    “Don’t get confused here Herr Mespo. Zimmerman did say that the suspect was running. He did it before the portion that you copied and pasted.”

    *******************

    Well, you’re close again there, Poirot. It’s right in the middle of the portion I pasted at lines 8-11.

    Self-immolate much there Master Inspector Scooby-Doo?. Yuunk? You really need a Saturday morning cartoon.

  61. The first test of Zimmerman’s affirmative defense of self-defense will come in a pretrial motion, which will involve a full on evidentiary hearing.

    The burden will be on Zimmerman.

    If the judge denies Zimmerman’s defense, he can still bring it up before the jury at trial.

  62. Mespo:

    “Martin cannot be charged with anything since he’s dead there, Javert.”

    May I point out that Insp. Javert did “get” his man. What does this mean? Are you complimenting RI, it would seem so. Wouldnt Sledge Hammer be more appropriate?

    “It’s Hammer Time”

  63. The many thoughtful comments on this thread illustrate the serious difficulties in applying the SYG law in a rational manner. The castle doctrine makes sense because it has clear parameters and operates in situations in which the ability to invoke the protection of law enforcement is usually absent. But the SYG standard is another matter. It is essentially subjective and consequently arbitrary. Furthermore, standing one’s ground describes the mental process which precipitates virtually every schoolyard fight and barroom brawl. SYG is a testosterone tease and dangerously intrudes upon the state’s monopoly on the imposition of punishment for criminal behavior.

  64. There is going to be one witness at trial as to what happened. There is the tape of the defendant and the defendant. I suppose the girl on the phone will testify as to what she heard– objection hearsay. But by and large the case rests on the credibility of the guy in the box looking the jurors in the eye and testifying under oath as to what happened. There may be other cop witnesses who say Zimmerman said bla bla after they got to the scene and interviewed him. But there elements of the case have to be proven beyond a reasonable doubt. Zimmerman was on his back when he shot the kid? If so that is reasonable doubt. He standing his ground on his back. Other witnesses can talk about angle of the bullet. Yeah. Poweder burns help the defendant. Are there any? All these people want to poison the jury and call Zimmerman a bigot. Now that he is charged let the chips fall at trial. That is what America should be about.

  65. Bron:

    Ol’ RI has been spouting about his capabilities as a seer of facts and investigative genius. I just threw up a few fictional detectives to tweak him.

    As for Javert getting his man he certainly did but it wasn’t Valjean:

    Javert: Reform is a discarded fantasy.

    Javert: What did you say? Speak up, people don’t mumble when they speak to me.

    Javert: It’s a pity the law doesn’t allow me to be merciful.

    Javert: I’ve tried to live my life without breaking a single rule…
    [takes Valjean’s shackles off, pushes him to the ground and puts them on himself]

    Javert: You’re free.

    It was Javert himself that Javert saved from being unleashing on humanity.

    I love that book. What a race down the center line between justice and mercy!

  66. Mespo:

    this is actually a pretty hard case. It is the perfect storm for Zimmerman. It is too bad the press muddied these waters. It will be hard for the process to produce an untainted outcome either way. I think the justice and the mercy will be in sentencing. The verdict of the jury is going to be suspect either way. At least in my opinion.

  67. I agree with the departed “sleuth” in only one aspect of his comments. Overcharging has been used repeatedly of late to raise bail, have underfunded defendants languish in prison and force them into plea deals and/or informing. In this case, however, I don’t think it was overcharging. There seems to be a reasonable possibility that this was second degree murder, but if the current “facts” hold true I think it will be some version of manslaughter. However, let’s wait for the trial and see what the evidence discloses.

  68. Being a speck of dust in the wind, and late in this thread, I have reviewed the PC affidavit linked in this forum and based on my opinion I am surprised the judge signed off on it.

    I reviewed Florida’s Murder Statute (782.04) and I would have expected more coverage of the elements of the crime.

    The Second Degree Murder Statute has an element which reads (in pertinent part):(2) unlawful killing of a human being, when perpetrated by any act imminently dangerous to another AND (emphasis added) evincing a depraved mind regardless of human life

    I question where in the PC Affidavit the state has established the defendant has a “Depraved Mind” and since it seems according to the statute “Killing” AND “Depraved Mind” together must be satisfied I don’t see it here.

    Thus lends us to look at section (3) which describes some of the criminal acts that in conjunction with the killing establish additional possible elements. sorry for the length due to enumeration, but you might see my point:

    (3)When a person is killed in the perpetration of, or in the attempt to perpetrate, any:
    (a)Trafficking offense prohibited by s. 893.135(1),
    (b)Arson,
    (c)Sexual battery,
    (d)Robbery,
    (e)Burglary,
    (f)Kidnapping,
    (g)Escape,
    (h)Aggravated child abuse,
    (i)Aggravated abuse of an elderly person or disabled adult,
    (j)Aircraft piracy,
    (k)Unlawful throwing, placing, or discharging of a destructive device or bomb,
    (l)Carjacking,
    (m)Home-invasion robbery,
    (n)Aggravated stalking,
    (o)Murder of another human being,
    (p)Resisting an officer with violence to his or her person, or
    (q)Felony that is an act of terrorism or is in furtherance of an act of terrorism,
    by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree,

    And in the above enumerations there isn’t an allegation of any of these, perhaps the stalking but the affidavit itself indicates the defendant was acting to what he believes to be preventing a person involved in crime from eluding the police.

    But in cutting through the fog, I see only one short paragraph that would lend credence to the murder complaint:

    ” Zimmerman confronted Martin and a struggle ensued. Witnesses heard people arguing and what sounded like a struggle. During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police. Trayvon Martin’s mother has reviewed the 911 calls and identified the voice callign for help as Trayvon Martin’s Voice.”

    Again, where is the PC that the defendant had committed murder? He confronted him, Okay, but what evidence is presented that Zimmerman intended to unlawfully kill Trayvon, in at least this affidavit it does not indicate what the context of the fight was other than in the next paragraph that Zimmerman shot him. Very lacking in my view. There is the mention of the cries for Help but when did this happen and why? I’ve personally arrested many people who suddenly cry out Help or scream and this did not invalidate the arrest or was indicative the arrestee was being assaulted. This is a somewhat difficult pill to swallow but the killing of another person is not always unlawful and it is up to the state to show in charging someone that it is, and in my view the document does not establish it.

    Furthermore, much mention is made of the defendant’s “mistaken or false” belief Martin was involved in a crime, it would seem to me that rather than making a weak attempt to paint the element of a Depraved Mind it is actually assisting the defense in the case.

    It would probably also be a good measure to refrain from such inflammatory language as “Profiling” where “saw” could have been just as descriptive and not so prejudicial.

    I’m not making any judgement as to the guilt or non-guilt of those involved, obviously that is for the jury, I do take exception to this lacking PC Affidavit and thus the reason for my post. One would think that a little more evidence would be offered than this, especially in a case involving such serious a felony against a defendant who has been so demonized in the public arena with those who genuinely in their minds feel a miscarriage of justice has happened. At least it would lend a better appearance of legitimacy, especially when the investigation is instigated from a governor’s executive order, a non-law enforcement political officer, where the king’s men tend to follow the king’s orders.

    I feel bad for what happened to Trayvon and everyone would have been better off if Zimmerman would have chosen to just hang back but when the dust had settled could just a little more effort and due process be spent to charge a man with second degree murder? One and a half pages: Were Writs of Assistance as short? Would we like to be held to second degree murder charges on the efforts required of a page and a half?

    I suppose my criticisms could, not as if it mattered, be addressed by an addition of a few more lines and better editing. Thank goodness we have juries rather than paper to decide these matters.

  69. @TalkingDog: I suppose the girl on the phone will testify as to what she heard– objection hearsay.

    You apparently do not understand the term “hearsay.” The girl on the phone can testify, under oath, to what she personally heard on the phone, which includes everything Trayvon told her, and the exchange between Trayvon and Zimmerman, and her sense that what ensued sounded like a struggle to her. That was her personal experience and the jury can hear it.

    “Hearsay” means she cannot testify that anybody was actually following Trayvon, because that is just something that he told her, not something she personally experienced.

    As an example, if a man tells his wife on the phone he is at the office, she can testify she heard him say that on the phone (her personal experience), but her testimony is not proof he was at the office, he could have been lying to curry favor with her or conceal something from her.

    The girlfriend can personally attest to what she heard transpire on the phone, and to her state of mind at the time. That is not hearsay, that is called ear-witness testimony. The law does not treat that as qualitatively any more suspect than eye-witness testimony; other than obvious physical differences between hearing and seeing.

    I have seen a man convicted of murder (and sentenced to life) based partly on the ear witness testimony of a neighbor in an apartment that overheard the fight that ended in a spousal murder.

  70. Darren Smith 1, April 13, 2012 at 5:33 am

    Thank goodness we have juries rather than paper to decide these matters.
    ==============================
    The case I cited up-thread, Brown v. State, 206 So.2d 377 (Fla. 1968), goes into great detail to explain why, in Florida, “lesser included offenses”, including “degree”, “attempts”, “necessary included” offenses, and offenses which also “may be included”, whether charged or not in ink, depend on the allegations / proofs, and on the jury.

    In this case there is an added element, the affirmative defense of “self-defense”, complicated by Florida’s “stand your ground” law.

    It is probably better to grasp it procedurally, rather than on the full-blown factual elements pulling and tugging on comprehension.

    The admission of the killing simplifies matters, setting up a prima facia scenario leaning toward a charge / arrest. This is why the lead homicide detective on the case requested a search warrant.

    The claim of self-defense throws a curve, requiring another view of the evidence. That secondary inquiry was handled by a prosecutor who saw it one way.

    Following that prosecutors recusal, another prosecutor, upon a deeper review of the evidence, came to a different conclusion: the self-defense claim was not sufficient to decide the case at that point in the process.

    So we have a murder charge, which in Florida, tends to include anything lesser that the evidence and jury verdict would come up with.

    The out-of-the-ordinary, from the perspective of non-Florida criminal procedure, is the upcoming hearing before a judge, to determine if a jury trial is required following the criminal defense’s presentation of their self defense case.

    If a judge dismisses the charges based upon the self-defense case presented, the state can appeal, and the feds can still bring federal charges.

    So this has a long ways to go.

  71. Darren Smith:

    “One would think that a little more evidence would be offered than this, especially in a case involving such serious a felony against a defendant who has been so demonized in the public arena with those who genuinely in their minds feel a miscarriage of justice has happened.”

    **********************

    Demonized? One wonders why you criticize the public for complaining that an armed man who confronts and then kills and unarmed child is not then arrested and called to account for his actions. Not hung on the rack, not put in the public stocks, merely called to explain his actions to his peers and accept their judgment as to their propriety.

    There is more than enough evidence of depraved mind in the PC affidavit and you yourself disclosed as much in your statutory recitation at subsections (h) and (o). The Judge properly agreed especially in view of the profiling allegation. I suspect the word was not used lightly.

    I heard a judge say once in response to a very respectful question by a law enforcement officer such as yourself that it was the officer’s role to bring the defendant to court and the judge’s role to scrutinize his conduct with the microscope of the law. Not the other way around.

  72. If everything that was on the police report (Zimmerman’s account and an alledged eyewitness to the incident) is proven to or decided to be true in court, then he should NOT have to plea down to manslaughter. He should walk.
    As we know, especially when it comes to race at trial , things can go ethically wrong. The OJ Simpson case is a good example of that.

  73. “The Horn case out of Texas is such an example where, as with Zimmerman, Joe Horn ignored instructions not to confront the suspects. ”

    And while stand your ground laws can be abused, this is the problem I have with claiming that normal self-defense laws already have this taken care of.

    By the book, under non-stand-your-ground laws, if you – lawfully – go out and confront someone that you think is committing a crime and they jump you, and you end up needing to shoot them to protect the whole life-and-limb bit, then that is a legitimate shoot. You don’t lose that right to self defense simply because you went out there. The duty to retreat is the duty to retreat at the time they are presenting a threat, if you can do so in reasonable safety. You ARE NOT lawfully required to refrain from confronting them before that absent an order from an actual peace officer who is present (not a dispatcher), and if they jump you and you *then* cannot retreat, you may use force.

    The duty to retreat comes into play AFTER the threat or action is presented, not before. This doesn’t mean that you can’t do something that will result in your being found responsible for provoking their threat or attack – but simply “entering” or “not leaving” a public or private area you have a right to be in will not result in that.

    That should be why stand your ground laws are not needed – but people keep getting charged anyways because there is always some busybody in the back telling everyone they should just sit inside and wait for someone else to come take care of it. You don’t get to make that call for Horn.

    There are a lot of people who don’t want the law (or the authorities, interpreting it) to force them to cower inside while criminals cart off their or their neighbors’ property.

    Note that there is a vast difference between not wanting forced inaction and approving of people simply running around shooting criminals – people aren’t asking for a license to harm people, they simply want to be able to defend their property without fear that they’ll be prosecuted for wanting to do something about it.

    When I see people out taking my stuff, I don’t have the right to simply walk out there and harm them or threaten them, but I certainly have the right to walk out there and tell them to knock it off. If you want to handle it differently, knock yourself out, but don’t tell me I have to sit on my hands, because I don’t.

  74. Thank you Dred for the clarification on Florida’s procedural differences. This is certainly different from the state I reside in and it was an interesting read. In Washington State a defendant who has been found not guilty may request the jury decide if the action was a self defense. If the jury decides the action was in fact a self defense the state is required to pay the defendant’s legal fees and costs. This is a factor that can weigh on a prosecutor’s decision to charge a person if threre is a possibility of a self defense claim due to the notion of having to pay these fees, especially if it involves a near capital offense.

    I brought my views on to the forum on the PC statement, to address another posting’s comments, because at least in our state defective charging documents can cause the loss of otherwise solid cases. Here, we have what is referred to a Knapstad Motion. ( State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). ) which essentially means the defendant can seek dismissal of charges because the state has failed to bring a prima facie case against the defendant. Essentially the specific statutory elements, such as intent, permanently deprive, etc, were not presented by the prosecution and the judge should dismiss the action; somewhat akin to a summary judgement in the federal system.

    At least in our state due to these it is important to make PC statements or charging documents tight as to meet the statutory elements. I

    Regarding the issue posted previously about the demonization of Mr. Zimmerman it is known that he has received death threats publicly by some caught up in the emotion of the issue.

    Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.

  75. anon nurse: Zimdecision 2012: ‘The Daily Show’ Mocks George Zimmerman’s Media Coverage (VIDEO)

    it has begun, from Yahoo news

    George Zimmerman buys $79.84 worth of items from jail store

  76. Oy. How in the world can this be an overcharge? To prove second degree murder the prosecutor needs to prove that Zimmerman deliberately shot Martin, resulting in his death. That’s it. There need be no intent to kill. Once your intent is to put a bullet into another human being you have the intent necessary to prove an “act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual,” and if the shooting isn’t justified it is, in fact “unlawful.” It is crystal clear that Second Degree murder is an appropriate charge in this case, and once justification is determined not to exist it’s an easy case to make. Zimmerman admits shooting Martin and no one contests that that shooting caused Martin’s death. The failure to charge Second degree murder, unless the prosecutor believed there was justification, would be legal malpractice and a disbarrable offense.

    I’m pretty sure that everyone arguing that a second degree murder charge is an overcharge is either a liar or has not even bothered to read the Florida homicide statute.

  77. “Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.”

    Interesting comment considering the only ‘discretion’ I have seen the police use these days is lack of basic common sense, lack of any respect for the American public, and taking the lazy way out of all encounters (by unnecessary force, ridiculous use of the Taser and pepper spray, etc. et al). I have had an encounter with police that made no sense whatsoever, the Occupy Movement is proving every single day that the police in America have freaking lost their damn minds on power and control issues- so much so that the new rally cry is “WHO do you serve and WHO do you protect”.

    Sorry you might be a stellar officer, but the stupid, cruel and outright dumb actions of your fellow officers paints all of you with a broad brush. Clean up your act if you want to have any honor or respect in the justice system. And advise your comrades in the force to do so. We hard working civilians are sick and tired of the thick blue line being used to wreck our civil liberties even to the point of criminal actions on the part of the police departments all over the nation.

    Because face it, if George Z. had not been the son of a judge, or if he had been black, he would have been charged a month ago with a crime.

  78. Darren Smith:

    “Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.”

    *******************

    Of course, you, as a LEO, have some discretion in the charging decision but it is neither final nor unfettered as this case has shown time and time again. I’m sure you make as prudent as decision as you can at the scene or maybe even after some reflection with your colleagues and superiors but the decision to charge ultimately has to be given to a constitutional officer who answers to the people and not a public servant who answers to his superior. That is the nature of a democracy and contrasts it from a bureaucracy.

    That said, the complaining officer should have no discretion in the nature of the final charge or the probable cause thereof as those decisions are the job of the prosecutor to proffer and the judge to decide. Then once the charges are tested a jury may decide if the factual elements of the charge are present such that a conviction is appropriate. Any other solution renders the LEO with too much discretion in the process and provides a too tempting opportunity for abuse. The nature of our criminal justice system, like our governing system, is a separation of powers and checks and balances.

  79. Thanks for explaining that, mespo. When the cops think they OUGHT to be the judge, jury and executioner they need to be struck down with all impunity.
    Am waiting for the grand jury on Kenneth Chamberlain Sr.:http://www.democracynow.org/2012/3/29/killed_at_home_white_plains_ny

    A Marine gunned down in his home by the cops who were responding to a MEDICAL emergency. Now, if this is the sort of discretion the police would like to have, I say absolutely NO. They killed a sick old man for no reason and all of the policemen involved
    should be IN JAIL.

  80. Swarthmore mom1, April 14, 2012 at 10:06 am
    ———————————
    well, that’s an unfortunate headline…..

    hope it’s not an ill-wind or just a lot of hot air….

  81. shaefferhistorian:

    “There is no hope for a fair trial as the prosecutor’s office is clearly folding to public pressures.”

    ******************

    That’s about the dumbest comment I’ve ever heard an American history teacher say. Read some Jefferson would you:

    “A judiciary independent of a king or executive alone is a good
    thing; but independence of the will of the nation is a solecism,
    at least in a republican government.”

    –Thomas Jefferson to Thomas Ritchie, 1820.

  82. @Sheafferhistorian: That is ridiculous. The prosecutor doesn’t control the judge, and although is involved in jury selection, no more so than the defense, and neither control how the jury finally decides.

    What, precisely, would be inherently unfair if the prosecutor is “folding to public pressure”?

    Justice is not served by keeping a case out of court, that is what would be unfair. Once it is in court, the only things the prosecutor can do that would be unfair to Zimmerman is manufacturing evidence; a crime itself. The main thing a prosecutor can do, which would be unfair to the public, is fail to vigorously prosecute Zimmerman, to throw the case in Zimmerman’s favor.

    Zimmerman is not being unfairly treated by being prosecuted, no matter what the motivation of the prosecution. The public will decide his fate, and my hope is they put him in prison for life. he pointlessly stalked and killed a child that was doing him no harm. I do not know what drove him to play self-appointed cop with a loaded gun, I do not know how he lost the line between his heroic self-fantasy and reality, but in my mind he is clearly a danger to society that should be separated from society.

  83. Swarthmore mom1, April 14, 2012 at 10:21 am

    Woosty, Charles Blow is a prominent …
    —————————-
    sorry, that was my little self piping up….the linkline struck me as a dble entendre….so if it was serious it could be a tad undermining…

    and funny….no offense to Mr. Blow…

  84. on the issue of ‘Justice’ being served….

    Justice ‘serves’ the body of a society, hopefully w/greater understanding than the mob but how could it do it’s job if it did not listen to the cries in the street?

  85. I also agree with Wootsy’s statement- justice ‘serves’ the body of a society…”
    but regardless of wether or not the protesters- the marchers-Sharpton have a valid point or not, it is still MOB MENTALITY. There is a reason that there is the ideology of BLIND JUSTICE created by our Forefathers and Framers of the Constitution.

  86. http://www.mediaite.com/tv/harvard-prof-alan-dershowitz-zimmerman-arrest-affidavit-irresponsible-and-unethical/

    Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated.

    “You’ve seen the affidavit of probable cause. What do you make of it,” Smerconish asked. “It won’t suffice,” Dershowitz replied without hesitation.

    “Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge,” Dershowitz said. “There’s simply nothing in there that would justify second degree murder.”

    Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.

    Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”

    Smerconish identified the total lack of any mention of the supposed fight that occurred between Martin and Zimmerman prior to Martin being shot. He said he was disappointed that he did not see any mention of that conflict that led to Martin’s murder.

    “But it’s worse than that,” said Dershowitz. “It’s irresponsible and unethical in not including material that favors the defendant.”

    “This affidavit does not even make it to probable cause,” Dershowitz concluded. “everything in the affidavit is completely consistent with a defense of self-defense. Everything.”

    Watch the segment below via MSNBC:

  87. Intriguingly, California has had Stand-Your-Ground for over a hundred years and most states had them until 30-40 years ago

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/15/BA2J1O3418.DTL

    The stand-your-ground doctrine, which has vaulted into national prominence with the killing of Florida teenager Trayvon Martin, isn’t limited to the two dozen states that have passed laws since 2005 expanding the right to use deadly force in confrontations.

    It’s also the rule in California, by court decree. For more than a century, the state’s judges have declared that a person who reasonably believes he or she faces serious injury or death from an assailant does not have to back off – inside or outside the home – and instead can use whatever force is needed to eliminate the danger.

    The California Legislature has never enacted one of the National Rifle Association-sponsored laws, pioneered by Florida in 2005, that spell out the rights of a defendant in such confrontations and the procedures for applying them in court. But in California, the judicial rulings had much the same effect. The rulings are binding on state courts and are reflected in judges’ instructions to juries in cases involving claims of self-defense.

    The instructions say a person under attack is even entitled, “if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.”

    Most states had similar rules until 30 or 40 years ago, when some passed laws barring a claim of self-defense outside the home if the person could have fled safely, said Andrea Roth, a UC Berkeley law professor. She said almost all states still allow the use of deadly force against home intruders.

  88. Trayvon Martin Case: Zimmerman Asks For New Judge After Conflict Revealed

    “SANFORD, Florida — The neighborhood watch volunteer charged with killing an unarmed black teenager in Florida asked a judge in the case to step down Monday after she revealed a potential conflict of interest.

    George Zimmerman’s attorney, Mark O’Mara, filed the request and said Circuit Judge Jessica Recksiedler revealed the potential conflict last week.

    Zimmerman was charged last week with second-degree murder in Trayvon Martin’s Feb. 26 death. The lack of an arrest in the shooting inspired weeks of protests nationwide.

    Zimmerman is pleading not guilty, saying it was self-defense.

    Recksiedler’s potential conflict involves her husband, who works with attorney Mark NeJame. Zimmerman’s family first approached NeJame about representing Zimmerman. He declined and referred them to O’Mara.”

    Since NeJame declined the case and only works with Recksiedler’s husband, I’m not sure how this is would be considered a conflict. Seems like a bit of a reach.

  89. This entire situation is a tragedy, but I have felt all along that Zimmerman should be charged. First, as the person who organized the Neighborhood Watch (NW), we know Zimmerman knew that NW regulations forbids patrolling, forbids carrying a weapon and forbids confronting anyone. In order to get those NW signs around your neighborhood, you agree to the regulations/restrictions. You are also told if you do anything outside those regulations you can be held criminally responsible. So Zimmerman was completely in the wrong as far as NW is concerned.

    Second is that Zimmerman created fear in Martin because Martin was being pursued by an unknown stranger and Martin had no way of knowing if Zimmerman had bad intent. (Cell phone records prove Martin was on phone with his girlfriend and she can testify to the fear Martin shared with her.) Martin was committing no crime- just walking through the neighborhood. Due to the profiling Zimmerman obviously was doing, he was pursuing an innocent person and created fear in that person. So even if Martin did “attack” Zimmerman- Martin had a right to self defense against an unknown pursuer. Since Zimmerman created the situation and the original fear, he should not get to claim self defense after killing Martin. While Zimmerman may have had a concealed carry permit, he was armed in violation of the agreement the neighborhood had with NW in order to have those NW signs placed in the area. Had Zimmerman stayed in his vehicle and just called police, Martin would more than likely be alive today. As it is, a teen who was doing no wrong is dead and now Zimmerman wants a free pass for killing someone who was committing no crime and did nothing to create fear in Zimmerman until after Zimmerman created the original fear. I don’t see how the prosecutor could not charge Zimmerman. I can’t be sure about the degree of the charge, but I certainly believe it is the right thing to do. Zimmerman should have been charged in the first place and not allowed to be free for 1 1/2 months. I can understand why the parents were angry that a grown man had killed their son and was not going to pay for it. Had they arrested and charged Zimmerman in the first place, all the protests and anger would have never occurred.

  90. MTinMO – sorry but you have NO credibility at all here. You make statements and present yourself as if you have some type of credential of authority as if we should accept it all as facts. People with commonsense wouldnt accept anything you just said.
    On the other hand the contributor “Real Investigator” posts nothing but COMMONSENSE.

  91. And in the above enumerations there isn’t an allegation of any of these, perhaps the stalking but the affidavit itself indicates the defendant was acting to what he believes to be preventing a person involved in crime from eluding the police.

    excuse me, if I do not read the rest of your comment.

    Zimmerman’s 911 call tells us that he spots the “real suspicious guy”, while entering the gated community through the “front entrance”. So it is clear that at that point he cannot have stolen anything.

    Dispatcher: He’s running? Which way is he running?

    Zimmerman: Down towards the other entance of the neighborhood.

    Dispatcher. Which entrance is he heading towards?

    Zimmerman: The back entrance. Fucking coons.

    Dispatcher: Are you following him?

    So it is not planning to “prevent a crime”, but is clearly not trying to prevent a crime in the community but is trying to prevent an assumed criminal from getting away. See map. What he cannot know is that the house of Brandy Green, Trayvon father’s girlfriend, lies exactly in that direction.

    If he only wanted to prevent a crime, report it to the police, and get the “criminal” arrested, he knows they are on the way, he could have watched the “criminal entering a house” from further off. But he is already assuming this guy wants to get away. Just as he is 100% sure he is both a criminal and trying to get away from him.

    Thus

    (n)Aggravated stalking,
    resulting in:
    (o)Murder of another human being,

    seems to pretty closely fit the situation.

    I, by the way, belong to the people that clearly heard fucking coons, after listening to the tape several times carefully to get a feeling for the situation. I have a very favorable impression of the man answering the 911 call, I think he tries to hold him back with more than just the sentence: We don’t need you to do this. He also reacts interestingly to: Now he is coming to check me out. Look at the place, Zimmerman reports he initially encounters the “suspect”. It’s the front entrance, Trayvon Martin has no other chance but to walk towards him, if he wants to go home.

    I do not rule out anything, by the way, apart from this basic assessment of the situation. I could even imagine that Martin indeed assaulted him, and made things worse. But what would you do if someone follows you onto a dark pathway? Trayvon clearly had no chance to understand what this man wanted from him. And considering the result, Zimmerman doesn’t seem to have tried to tell him either, after all he already knew: this guy is up to no good.

  92. Leander- so YOU have decided that the following is FACTUAL:
    “Zimmerman: The back entrance. Fucking coons.”

    There has not been any shread of evidence to PROVE that to be true, that he called Martin a “coon”

    YOU have made that assumption which makes you at the very least a BIASED individual in regards to U.S. Justice laws. If there is a jury trial on this case lets HOPE no one like YOU sits in the jury pool.

  93. i would refuse to sit in the jury, Bosco. I am clearly biased in this case. Besides I am no American.

    If you prefer this mindset can sit in the jury:

    13 percent of the population, 61% of the homicides.
    Saint Trayvon lived by thug life, and died by thug life. C’est la vie.

    Whatever happens it won’t give TM his life back. Ideally we will learn what really happened, but I somehow doubt.

  94. Judge steps aside from Zimmerman-Martin murder case

    MSNBC says, “Seminole County Circuit Judge Jessica Recksiedler took herself off George Zimmerman’s second-degree murder case on Wednesday because of a possible conflict of interest.

    The new judge on the case is Judge Kenneth Lester Jr., a 15-year veteran who has heard death penalty cases, the Orlando Sentinel reported.”

  95. Leander, It is true that we will never know EXACTLY what happened between these two BUT once we get all of the FACTS pertaining to this tradgedy we will be a lot closer to knowing what happened instead of SPECULATING to what happened. For example ,those that have stated as a fact because of SPECULATION that Zimmerman is a cold blooded racist killer. Media manipulation is a big part of this slanted view. For ‘us’ to parrot what we have heard others say,,i.e.
    ‘Zimmerman called Martin a coon on the 911’ is irresponsible at best, no matter where you are from.

  96. Bosco, I am not parroting anything I read somewhere. Quite the opposite I do not agree with many of the assumptions made, e.g. I don’t hear car noises, or car doors open and shut, or clicks of seat belts. I spontaneously made the above up, it was meant to be provocative.

    It’s an interesting case. I don’t think that Zimmerman is a “cold blooded racist killer”. I am interested in the human issue, which means interested in both victim and shooter. The psychological profile, the people they are or were at the time that resulted in a death. I do not completely trust the witnesses on either side.

    Can I ask you some questions? When Zimmerman first reported the “suspect”, he stated:

    Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

    We had some break-ins in my neighborhood, a couple of years back. You obviously react to strangers, and people that appear suspicious to you. Now why doesn’t he simply ask “the real suspicious guy”, who he is and what he is doing there?

    Why does he think TM is on drugs or something? What signs do people have that are up to no good? Do you occasionally go out in spite of the fact it is raining? If you stay for a short holiday somewhere aren’t you looking around? What does it mean in GZ’s mind that the “suspect” is now running and running towards the back entrance in your opinion? He could have put it any other way. Earlier he gives precise descriptions, no matter how on edge he seems to be about having to do it, on at least one point.

    Admittedly I never had a chance to listen to something similar.

  97. Leander ,first of all my intentions here are not to insult you or create an argument. I appreciate your responses especially this one. Ill say this about GZ’s 911 words,
    “This guy looks like he’s up to no good, or he’s on drugs or something..”
    We weren’t there to see what GZ saw. TM could very well have been acting in an erratic way based upon GZ’s statement. Who are we to say that is a lie? Keep in mind, GZ volunteered to be a part of the Neighborhood Watch Group” That organizations title is
    SELF EXPLANATORY as to why GZ got out of the car to see where this guy was going next. Especially when there had been in that area, a rash of home break ins in the last few weeks. Most of which done by young black men.
    You ask ,”..why doesn’t (GZ) simply ask “the real suspicious guy”, who he is and what he is doing there?”
    Would you have approached someone that ,hypothetically, was acting in a suspicious manner under those particular circumstances, have walked up to the guy and asked him that? Unless your SUPERMAN you would NOT.
    I live here in the near west side of Chicago,Im a mixed Latino/White person
    too. If i see something suspicious ,Ill watch to see if it results to anything that would lend to having the police come out. I will not approach anyone here. Anything can happen. Im not a member of a neighborhood Watch group but i WILL call the police if i see something that isnt right to the eye. No matter what color the other person might be.

  98. @Bosco: Would you have approached someone that ,hypothetically, was acting in a suspicious manner under those particular circumstances, have walked up to the guy and asked him that?

    Apparently that is precisely what Zimmerman did; the earwitness testimony of the girlfriend is that Trayvon asked Zimmerman “Why are you following me?” and Zimmerman replied “What are you doing here?” and then she heard what sounded to her like a scuffle.

    A “neighborhood WATCH” is not a neighborhood cop, vigilante, deputy or other law enforcement. If he had stuck to watching we would not be having this conversation. He could have watched, witnessed any crime committed, taken pictures, written down license plates or addresses or called the cops. All of those are within the scope of a neighborhood WATCH. Confrontation of any kind is not, we have hired and trained professionals for that job, and it should be left to them and not undertaken by amateurs without any authority or training.

  99. There you go, Tony.

    Puncturing male macho fantasies everywhere.

    Intervening to stop a crime in progress is only excusable under exigent circumstances, but it is never recommended.

  100. @Gene H — I think there are lots of Americans who confuse “crime” with “doing stuff I don’t like.” Zimmerman did not observe Martin committing any crime, yet Officer Ayala’s police report indicated that at least one officer that night intended to charge him with the crime of accidentally killing someone while trying to apprehend them as they were committing a crime. The attitude persists on many public forums [forgive grammar please] that Zimmerman was not doing anything wrong by following and confronting a person who was “looking suspicious” or “acting wrong” or any variation on that theme. THere are indignant mini-tantrums flying all over the web about Martin’s responses or reactions having been less than optimal or even just “other than” what Zimmerman’s supporters would have had the be! And all this says nothing. You don’t get to shoot someone for acting, dressing, behaving, speaking, or otherwise conducting themselves in a way that you don’t like. And you don’t get to excuse having shot them by bringing up any of these issues to “justify” your behavior.

    Only the legislature can define crimes. If you haven’t done anything that can fit into one of those descriptions, and EVEN IF YOU HAVE, you’re not supposed to have to fear being shot by someone who doesn’t like your conduct at any particular time.

  101. It occurs to me now: Zimmerman is in jail. There should be a complete physical of him, including x-rays, to make sure of his physical condition right now, at “base-line” because there may be some questions down the line. Possibly, also, a bone broken on 2/26/2012 will still show something on an x-ray on 6/6/2012. Right?

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