Since the first charging of the case involving George Zimmerman, I have respectfully disagreed with many friends (including on this blog) about the case which I believed was clearly over-charged as second degree murder. The trial has only magnified those concerns and I believe that the jury will acquit Zimmerman and would be correct in doing so. The reason is simple: reasonable doubt. Putting aside the understandable anger and the heavy overlay of social and racial issues in the case, an objective review in my opinion leaves reasonable doubt on every element of the charge, even the lesser charge of manslaughter which the court has allowed the jury to consider. First, let me begin by saying something that should not have to be said. I am not accepting Zimmerman’s account and I do not know what happened that night. I am not condoning Zimmerman’s actions. Rather, I am looking at the facts and I cannot see a single material fact on the elements that does not create a reasonable doubt as to what occurred. We don’t make social judgment or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
The facts on these questions are no more clear today than they were on that tragic night. Zimmerman’s account has been met by an alternative account from the prosecution. However, there is no objective basis to clearly reject one over the other. In other words, they remain in equipoise and that is not a sufficient basis for a conviction.
I was frankly astonished that the prosecution did not have any stronger evidence and, as I mentioned earlier, I believe that the court failed to address the withholding of evidence from the defense.
Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The reason is that there was not a strong case for conviction on the basis that Zimmerman did not “reasonably believe” that the gunshot was “necessary to prevent imminent death or great bodily harm” to himself. Various witnesses said that Martin was on top of Zimmerman and said that they believed that he was the man calling for help. He had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create reasonable doubt on the question of the struggle.
There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. I do not understand how, under the standard jury instruction, a juror could simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial.
Rather than charge manslaughter, the prosecutors seemed to yield to the political pressure and charge second degree murder. Under that charge, they needed to show Zimmerman had the intent to kill and did so with “depraved mind, hatred, malice, evil intent or ill will.” They fell substantially below that mark. Witnesses said that both men used derogatory terms, including Martin’s reference to Zimmerman as a “cracker.” The first witness for the prosecution was in my view a disaster and admitted to previously lying under oath. The prosecution witnesses largely portrayed a consistent account from Zimmerman and even favorable views of him from some witnesses.
In the end, the only way I could see a conviction would be to discard the standard of a presumption of innocence and embrace the invitation of the prosecution to assume every fact against Zimmerman despite conflicting testimony from witnesses, including the prosecution’s own witnesses. Even for manslaughter, the jury had to find that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin but was told that “a killing that is excusable or was committed by the use of justifiable deadly force is lawful.” The jury instruction on deadly force states in part:
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.
This lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded.
The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses. For example, with an officer stating repeated that Martin’s Dad said no to the question of whether it was his son calling for help, the prosecution insisted that he was saying “no” as a type of denial of reality in hearing the tape. His dad said that he had to hear the tape about two dozen times to change his mind. Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third degree murder based on child abuse. The judge wisely rejected that demand but allowed the jury to consider manslaughter as a lesser charge.
The instruction on reasonable doubt given to the jury is as follows:
George Zimmerman has entered a plea of not guilty. This means you must presume or believe George Zimmerman is innocent. The presumption stays with George Zimmerman as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.
To overcome George Zimmerman’s presumption of innocence, the State has the burden of proving the crime with which George Zimmerman is charged was committed and George Zimmerman is the person who committed the crime.
George Zimmerman is not required to present evidence or prove anything.
Whenever the words “reasonable doubt” are used you must consider the following:
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find George Zimmerman not guilty because the doubt is reasonable.
It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of George Zimmerman may arise from the evidence, conflict in the evidence, or the lack of evidence.
If you have a reasonable doubt, you should find George Zimmerman not guilty. If you have no reasonable doubt, you should find George Zimmerman guilty.
Here are all of the jury instructions.
There is, in my view, no objective basis for an abiding conviction of guilt on either second degree murder or manslaughter. The prosecution’s case remains more visceral than legal in effectively asking for a presumption of guilt. Zimmerman should be acquitted on that basis.
Just read an article from a Florida newspaper…..all will be pleased to hear the police and other LEOs are monitoring social media just to keep abreast of any potential riot situation …… Nice…. Makes me feel safe…
rafflaw at 4:57 pm “You may be right, but I think (only a guess) the defense kept Zimmerman off the stand for the normal reasons.”
I absolutely agree with your assessment. Given all his prior testimony and the prosecution trying to make him out as a liar, it would have been very risky to put him on the stand. Testifying is very nerve racking form most people and if you testify long enough and in enough detail, you’re likely to say something that is at least arguably inconsistent with a prior statement. The jury may also not like your mannerisms or tone or who knows what. That’s why I question the prosecution introducing all his prior statements exculpating himself. The defense now has his story in front of the jury without having to take the risk of putting him on the stand. If the prosecution doesn’t introduce Zimmerman’s statements, does Zimmerman then feel the need to testify to tell the jury his story?
Gene and Mike A.,
If the defense had put Zimmerman on the stand, the trial would still be going.
raff/Mike A.,
Agreed. The last thing I’d want as Z’s defense would be to subject him to cross.
Mike Appleton at 4:07 pm “In this instance, Mr. Martin was walking down a street alone at night, and noticed that he was being slowly followed by an unknown person or persons in an unfamiliar vehicle with no witnesses in the vicinity. I submit that fear was a rational response and that under these facts, a strong argument can be made that Mr. Zimmerman was the “assailant.”
Martin fearing Zimmerman under the circumstances you describe may or may not be a rational or reasonable response. But, a rational or reasonable basis for fear does not equal an assault. Following someone and/or confronting them by asking who they are or what they’re doing is simply not an assault. If Zimmerman had brandished his gun or had threatened Martin with physical harm, then that would be an assault. But, of course, there is no evidence of any of that and therefore it cannot be the basis for finding Zimmerman guilty since the State bears the burden of proof.
http://www.prisonplanet.com/twitter-flooded-with-new-wave-of-riot-threats.html
I think rafflaw has it right about Zimmerman not testifying. When your client is virtually busting at the seams to get on the witness stand, that’s generally the last place in the world you want to put him.
Michael,
You may be right, but I think (only a guess) the defense kept Zimmerman off the stand for the normal reasons. He may not be a good witness on the stand and they may have thought they didn’t need to take the chance if they believed the State did not prove its case.
Darren,
Ja, ich verstehe
Ich kann häufig ein bisschen über das Lager und mehr so in diesem Jahr sein, wie ich glaube, dass der riesige politische Unfall viele von uns haben vorausgesagt, fast auf uns ist.
mahtso at 2:56 pm “As to Mr. Zimmerman’s decision to exercise his constitutional right not to testify: some are suggesting it was not necessary because the prosecution showed so much video of him (i.e., there was nothing to gain because there was nothing he could add to what the jury saw).”
I’m not sure I get the prosecution’s strategy in introducing all of Zimmerman’s statements exonerating himself. Wouldn’t they all be hearsay and excluded if the prosecution had so objected? After they came in, Zimmerman had nothing to gain by testifying.
RTC @ 2:44 pm “The dispatcher may have had no legal authority to order Zimmerman to back off, but it was reasonable and prudent advice. Coupled with the training he received, it should have been enough for Zimmerman to realize it was time to move to safety. The onus for avoiding lethal use of force must rest with the conceal/carry permitted gun owner.”
This is just wrong from a legal standpoint. A CCH owner, like everyone else, who is acting legally has absolutely no duty whatsoever to avoid putting himself in a dangerous situation. It may not be smart or reasonable or prudent, but it’s not illegal and it doesn’t alter in any way the standard for self-defense. Check the jury instructions. There’s nothing in there about no self-defense if you weren’t acting prudent before getting yourself into a bad situation.
Ralph,
You’ll pardon me if I take advise on how the political spectrum operates (on more than one axis I might add) from someone who thinks the Nazis were “Leftists” with more than a grain of salt.
And just so you know, FOX pretty much readily admits they are a far right wing propaganda organelle for the more extremist elements of the GOP first and an actual news organization second.
http://politicalticker.blogs.cnn.com/2009/10/12/wh-aide-fox-news-operates-like-an-arm-of-the-gop-2/#more-72787
I guess it’s convenient to dismiss his friend, Rachel, who was on the phone with him. She went through 7hrs over 2 days of deposition and the 7 hrs of cross examination over 2 days with Don West and her fundamental story never changed. (That much time with Don West would have sent me way over the edge.) Creepy guy was following him in a car…. he ran… he lost the creepy guy (valid inference – Trayvon didn’t know the creepy got out of his car)….talked about the basketball game as he moved toward home…. About 2 minutes later, what Rachel then heard from Trayvon was that the creepy guy was back and “Why you following me for?” Then the heavy breathing man said, “What you doing around here”. Heavy breathing man didn’t identify himself or answer Trayvon’s question. He was in cop mode – cops ask questions they don’t answer them and if you don’t answer their questions you get taken down. And that’s what Rachel heard next. A bump on Trayvon’s phone, grass sounds (inference – his earbuds fell to the ground). NO ONE except GZ says that Trayvon threw the first punch that knocked him to the ground and then magically transported him 40 feet away.
Fact is, GZ profiled Trayvon as a thug and this a$$holes didn’t get away.
If you really believe it’s ok for a grown man to follow a kid by vehicle and then on foot, then I’m sure glad I don’t live in your neighborhood and I’m very afraid for all the kids there.
Gene says: “MSM media is all owned by either right wing corporations (FOX – News Corp, CBS – Viacom, ABC – Disney) or amoral corporations playing both sides of the aisle (NBC – General Electric, CNN – TimeWarner). Even the arguably once “leftist”/liberal Huffington Post (an aggregator more than a reporting house) is now owned by AOL/TimeWarner.”
Gene, your right/left wing paradigm may hold a little water here, but it’s really in leaky bucket. Sure, Fox (NewsCorp) likes to make a pretense of being right-wing, but that’s a canard. On key issues, ALL of the Media outlets function like one giant corporation. And even if you want to believe that the various media outlets hold materially different political positions, there is no question whatsoever that MOST of them immediately seized upon this particular story to spin and promote a racial angle biased against Zimmerman. Some, you may be aware, even went so far as fabricate evidence to support their spin.
The President and the Media are united on DIVIDING the nation and drawing attention away from the real actions of the US Goverment. That’s the way they like it.
I’ve posted this Tom Lehrer song before, but it bears repeating (with a different version), and its message will never go out of style–as long as leaders like Bush, Obama, etc. and their ilk are elected. (I’ve always liked that word “ilk.” Ilk just means a type, class, or group–but it’s almost always used to represent a group negatively, perhaps because the sound of the word may be associated with the word “ill” or even literary rendering of the sound “ecchhh,” like when you might say if you happen to have eatten something “yucky.”)
Shout out to Mike Spindell, thanks. I like it when people of your obvious intellectual capacity will listen to what I say so I am both grateful and gratified.
Professor started out with what I call a bias against the notion that Trayvon Martin had a “life interest” in walking along in the rain without being bothered by anybody except, of course, if genuine police officers chose to stop and question him. If that had actually happened, and if a police officer had presented himself to Trayvon Martin and there was a videotape of Trayvon Martin doing ANYTHING aggressive and the police officer responded by shooting him through the heart with a hollowpoint bullet, it is quite possible we would have seen an article by Professor Turley about police brutality and the killing of an unarmed kid in Florida.
As it was, the facts that I have relied upon are, to be brief, as follows:
1. I did personal research by means of FOIA and learned that the stories told early on by the press about the dangerous neighborhood were all wrong. It was a low-crime neighborhood and there had been zero (0) gun violence in that neighborhood.
2. Z became enamored of his own fantasy about being the Superman who saved the RTL neighborhood from a Black crime wave and he acted on it.
3. On the night in question he left with a bullet already in the chamber, spotted Trayvon, and called the NON-EMERGENCY number of the police to carry on about the “real suspicious guy” whom he described as a “suspect.” At this point in the event, Martin had no idea that the police were called or that he was considered suspicious. In fact, he saw Z following him slowly in the SUV and HE was frightened of the suspicious character, whom he called a “creepy-ass cracker.”
4. Trayvon RAN AWAY.
5. Z told the dispatcher that Trayvon RAN AWAY.
6. Z pursued. He pursued ON FOOT. He would not tell the dispatcher where he would be found when the police arrived; he simply wanted the police to CALL HIM when they got into the neighborhood.
7. Z’s after-invented story of why he got out of the SUV (to find an address? Why? The “suspect” was no longer AT that address!) was plainly ridiculous and preposterous on its face. He got out of the vehicle to find and apprehend his “suspect.”
8. He was the aggressor by the time he came within visible range of his prey. Trayvon Martin was enabled by the SYG law in Florida to do whatever he could do to protect himself because he would naturally feel himself to be in danger of great bodily harm or death; in fact, such a fear can hardly be discounted in view of the fact that he actually sustained both great bodily harm AND death.
I can’t see any doubt about this being sufficient for a murder charge. The ONLY way out is to believe the “self-defense” claims of Z but he did not swear to them in court and subject himself to cross-examination.
I am told by someone who knows Professor Turley somewhat better than I know him that he likes to be on the weird side of cases, likes to be the one who says, “but you didn’t look at this very subtle thing here and I DID” and so forth. Not that I think it is my place to opine, but I am saying this because I have had several conversations with this other person where I express my astonishment that Professor Turley is so squarely in Z’s corner. I cannot see this his way because the facts are so strongly piled up to show murder; the facts to show self-defense are somewhere between unbelievable and “oh please!”
7. After
Michael Val,
You are correct. I forgot Florida is an exception in shifting the burden of proof on self-defense claims to the state. Mea cupla.
Still, that being said, if the defense hasn’t sufficiently met the threshold of evidence, self-defense can be overcome. Which again goes back to reasonableness.
Ok1 extolled:
“Sieg Heil, sieg heil, sieg heil”
~+~
Sie haben keine Glaubwürdigkeit, weil Ihre Aussagen sind abwegig. Sie sollten versuchen, mehr höflich zu den Gästen hier.
Ausgezeichtnecht! Sie haben recht!
Dangoodbar at 1:58 pm “The point being is this [self-defense] is an affirmative defense.”
To paraphrase a familiar saying, we’re all entitled to our own opinions, but we’re not entitled to our own law. The quote is an incorrect statement. In Florida, self-defense is NOT an affirmative defense. The State has the burden to prove beyond a reasonable doubt that Zimmerman was not acting in self defense.
Marv,
1) “We are sitting here with a case that has been in the national news since day one. Why?”
Actually, the case wasn’t national news since day one. It became a national news story after it was apparent Zimmerman was getting special treatment from the SPD and the local prosecutors in not arresting him and investigating the matter. Race was brought into the equation by the media and Zimmerman’s father as noted above.
2) “At first GZ was being reported as a white man. If he was black this case would never be discussed at all and charges never would have been filed.. So what does that say about the case?”
It says you don’t understand the case or the underlying politics involved in attempting to give Zimmerman a walk that would have under any reasonably objective legal standard resulted in his arrest and investigation. It say you don’t understand that race is irrelevant to the merits of the case. It says you don’t understand the salient factor in Zimmerman getting initial preferential treatment is the result of his magistrate father’s political standing and not his color.
3) “Its a case where it can be reasonably argued ‘self defense’. So why is it still national news?”
Because it’s also arguably manslaughter. Self-defense is an affirmative defense and the burden of proving it rests with the defense.
4) “look at all those cases of sheer violence that were black on white crime and not one was nationally reported. In fact its as if its taboo to cover them. Why?”
Black on white crime gets reported on the national news all the time. The nanny cam case you yourself brought up was perfect example. Crimes get reported nationally by the ridiculous reporting meme of “if it bleeds, it ledes”. That’s the primary criteria – sensationalism. If they can gin up a race angle to increase viewers/readers or if it is specifically a race related crime (like cross burning)? They’ll go with that too. The name of the MSM game is eyes to advertisers. That means sensationalism whether it’s on a relevant legal point or not.
5) “We might have race riots over a not guilty verdict. If its not about race then why?”
Because of idiots trying to make it about race and leveraging it into an excuse for bad behavior they’d like to perpetrate if they don’t get their way.
Any other questions?
**Mean while that American hating piece of trash, the modern day Nazi Fascist Obama tortured the He’ll out of Brady Manning, which is a crime against humanity.**
What kind of crime is torture? It don’t matter. It slips my mind for the moment, but it is a crime.