Zimmerman Trial: Lawyers Eat Crow

[Guest Raidne]

As far as I can tell, the trial is going forward and the case was not dismissed on any charge, meaning, I believe, that a lot of the Board's lawyers (including me) were wrong? I'm no good at criminal procedure - is there something unique about a motion to acquit in Florida vs. a motion to dismiss?

ETA: Here's a short article from Reuters: http://www.reuters.com/article/2013/07/05/us-usa-florida-shooting-motion-idUSBRE9640WL20130705

[Tempra]

As far as I can tell, the trial is going forward and the case was not dismissed on any charge, meaning, I believe, that a lot of the Board's lawyers (including me) were wrong? I'm no good at criminal procedure - is there something unique about a motion to acquit in Florida vs. a motion to dismiss?

From what I can tell, it is similar to a summary judgment standard. Thus, the prosecution's evidence is viewed in the most favorable light.

Here is a blog post arguing that it should have been granted: http://lawofselfdefense.com/why-zimmermans-motion-for-acquittal-should-have-been-granted/

I am not surprised that the motion wasn't granted, as the legal standard appears very tough. Moreover, the judge has been decidedly pro-prosecution (permits speaking objections and leading questions from the prosecution only, etc). The only notable exception was denying the State's voice experts from testifying. If you followed the Frye hearing, however, the judge had no choice but to exclude the expert testimony because they relied techniques less accurate than reading animal entrails.

[NestorMakhnosLovechild]

Nevermind.

[Guest Raidne]

A couple other questions: I don't really understand how there even is a full trial without some kind of preliminary adjudication of the self defense issue, since justifiable use of force is supposed to provide immunity from criminal and civil liability in Florida, but I really don't get how a second degree murder charge can go forward. I'm sure it's been posted before but here is Florida's second degree murder statute, for reference:

The unlawful killing of a human being, when perpetrated by any 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, is murder in the second degree....

I thought the second degree murder charge should have been dismissed - where's the evidence showing Zimmerman's "depraved mind"? And if Zimmerman did not justifiably act in self-defense, why not a first degree murder charge?

[Seli]

I have no idea of course, but doesn't the Florida second degree murder charge include the lesser charges as well? I have seen that claimed somewhere.

[Guest Raidne]

I have no idea of course, but doesn't the Florida second degree murder charge include the lesser charges as well? I have seen that claimed somewhere.

To the best of my knowledge, yes, but from what I've read, the Judge could have dismissed the second degree murder charge but allowed for the trial to go forward on the lesser included charges, which would have made more sense to me.

[Ser Scot A Ellison]

This case was never going to be disposed of on motion. Too hot politically. It's safer for the trial judge to let it go to a jury.

[Tempra]

A couple other questions: I don't really understand how there even is a full trial without some kind of preliminary adjudication of the self defense issue, since justifiable use of force is supposed to provide immunity from criminal and civil liability in Florida, but I really don't get how a second degree murder charge can go forward. I'm sure it's been posted before but here is Florida's second degree murder statute, for reference:

I thought the second degree murder charge should have been dismissed - where's the evidence showing Zimmerman's "depraved mind"? And if Zimmerman did not justifiably act in self-defense, why not a first degree murder charge?

Zimmerman waived his right to a pre-trial immunity hearing for reasons I suspect to be mostly financial and partly strategic. In early May, Zimmerman said his legal fund was out of money. The immunity hearing would have been essentially a whole other equally long trial. Zimmerman reserved the right for a judicial determination on immunity at a later date. I suspect we will see that motion before the trial is complete. Why not? A denial of immunity would be grounds for an appeal.

I agree that the murder 2 charge, at the very least, should have been dismissed.

[Seli]

To the best of my knowledge, yes, but from what I've read, the Judge could have dismissed the second degree murder charge but allowed for the trial to go forward on the lesser included charges, which would have made more sense to me.

Ah, too much technical detail for me I am afraid.

If the summary in the link Tempra posted is correct it seems the motion rested to a large extent on the statements of what happened by Zimmerman himself. I have no idea how those are usually handled in cases like this, but in the political and media mess that this is I can imagine the judge did not want to touch it.

[Guest Raidne]

Ah, too much technical detail for me I am afraid.

Essentially, the Judge could have let the trial go forward on a manslaughter charge, but dismissed the second degree murder charge.

In a case where a jury is not quite sure, they will sometimes err in favor of "splitting the difference" over sticking the reasonable doubt standard. So, where there is an option to (1) convict the defendant of second degree murder, (2) convict the defendant of manslaughter, or (3) acquit, and the jury is less than certain that the defendant is really guilty, they'll stick him with the manslaughter charge and consider it a good compromise.

That's not a desirable or just result, and why a judge should take care to not offer up charges to the jury that have no merit. Judges who care about whether or not they should touch something because of the media shouldn't be on the bench. I'm guessing she had a better reason than that, but I still think I disagree.

ETA: Tempra - thanks for the explanation on the immunity issue. Much appreciated.

[Seli]

Thanks Raidne.

[Former Lord of Winterfell]

From prior thread,

Mormont:

So you now have two keyed-up, aggressive individuals confronting each other on a dark night in a situation where both have a degree of confidence and both have the impression they're in the right. Nine

Nine times out of ten, this gets sorted out verbally. This is the other time, when one of them makes a move, or one of them thinks the other's about to make a move, and it escalates: someone swings a punch or rushes forward, the other person grabs them, there's a struggle, both wind up grappling on the floor, the guy with the gun panics and someone dies.

Again, not saying that this is what happened, but it seems to me a plausible scenario without odd behaviour from either party.

That's all entirely possible. But this is that one time out of ten when one of the two crosses the line from a verbal confrontation to an assault, and who that person is matters. I'd agree there is no conclusive evidence as to which one did that. But under that scenario, there are basically four possibilities, and how I'd judge each:

1) Zimmerman physically attacked Martin, was the guy on top pounding Martin, then just shot him: Zimmerman guilty of second degree murder.

2) ZImmerman physically attacked Martin, was overpowered, Martin on top punching ZImmerman, Zimmerman shoots: Zimmerman guilty of something less

3) Martin phyically attacked Zimmerman, was overpowered then shot as Zimmerman was on top: ZImmerman guilty of second degree murder.

4) Martin physically attacked Zimmerman, was pounding Zimmerman, Zimmerman shots: Zimmerman not guilty.

And include in "physically attacked" that the person engaged in overt, deliberate actions that would put the other person in fear of imminent assault. I think the requirement of imminency of a potential attack has gotten short shrift by some. You're not under "imminent" threat of bodily assault from someone 20 feet away -- they must be within striking distance before that fear is reasonable.

Now maybe that could be tweaked abit, but that's essentially how I see it. I think there are some people who believe that Zimmerman should automatically be considered guilty of something by the mere act of leaving his home armed to follow Martin. I don't believe that is correct either morally or legally.

[H von T]

My sister has an interview today to become a judge. I'm amazed she can follow all this shit you lawyers are always arguing about.

[Arch-MaesterPhilip]

My sister has an interview today to become a judge. I'm amazed she can follow all this shit you lawyers are always arguing about.

I feel like I'm learning a lot from the resident lawyers posting on this topic.

[snake]

This case was never going to be disposed of on motion. Too hot politically. It's safer for the trial judge to let it go to a jury.

That's so sad, man.

[Former Lord of Winterfell]

From prior thread:

YellowDogJen:

I dunno what I'd do. I guess it would depend on how close the following person came to me. If they came really close I might hit or shove them. I know I would be angry. Furious! That is how fright affects me.

If the person approached you and invaded your personal space to the point where you could shove him while holding your own ground, you may be justified in that response. Of course, that is a difference scenario than if someone was following you at a distance greater than that, and you then turned around, walked right up to that person, and shoved/punched them because you were pissed/scared. Because there was no imminent threat of attack prior to you turning and approaching them. In fact, if you turned around and came at someone, and invaded their personal space, they'd be justified in standing their own ground against you.

And remember, under Florida law, I have no duty to retreat if I feel threatened and I am in a place I have a legal right to be and I am committing no crime.

True. That would apply to both Martin and ZImmerman in this case, assuming either one or the other was approached in the manner you describe.

What would a jury say if a strange man was following me, a little bitty middle aged woman, through the rain in the dark and I hit him when he came up close enough for me to reach him? Do you think they would convict me of assault?

Martin was not a little bitty middle aged woman, but even then, it would depend on how closely you were approached. If some guy is following you at a distance of 20 yards or so, you at least should (but for a sexist jury) be convicted of assault if you deliberately approached him and struck him.

[H von T]

I feel like I'm learning a lot from the resident lawyers posting on this topic.

I totally agree. I've learned a ton from Tempra, Raidne, Nestor, FLOW, and Ser Scot. Lawyers are an easy target but IMO are incredibly important to our society.

[Tempra]

So far 7 witnesses for the defense have identified Zimmerman as the person crying out for help on the 911 call. Contrast that to just two for the State, one of which waffled over whether it was really Martin saying "help!"

Interestingly, a Vietnam vet that served as a combat medic testified that based on his experiences he can identify the distressed yell as Zimmerman's. Two weeks ago, the FBI audio expert (defense witness but called by the State), testified that a life-or-death yell would be very different than a regular yell. So, this Vietnam vet was used basically as an expert witness because he had experiences with those types of life-or-death yells. Interesting strategy.

[Former Lord of Winterfell]

So far 7 witnesses for the defense have identified Zimmerman as the person crying out for help on the 911 call. Contrast that to just two for the State, one of which waffled over whether it was really Martin saying "help!"

Interestingly, a Vietnam vet that served as a combat medic testified that based on his experiences he can identify the distressed yell as Zimmerman's. Two weeks ago, the FBI audio expert (defense witness but called by the State), testified that a life-or-death yell would be very different than a regular yell. So, this Vietnam vet was used basically as an expert witness because he had experiences with those types of life-or-death yells. Interesting strategy.

Unless he'd previously heard Zimmerman give a death yell, and therefore could compare it to this, I don't see how much weight any of this testimony deserves. If anything, that vet's testimony is a good argument to disregard everyone's opinion as to whose yell it is. And I'm also guessing that none of the witnesses had previously heard even a regular yell from both Zimmerman and Martin. And if you don't know what the other guy's yell or even voice sounded like, how much of a basis do you really have to say it wasn't him? After all, they may have had somewhat similar-sounding voices.

[Tempra]

Unless he'd previously heard Zimmerman give a death yell, and therefore could compare it to this, I don't see how much weight any of this testimony deserves. If anything, that vet's testimony is a good argument to disregard everyone's opinion as to whose yell it is. And I'm also guessing that none of the witnesses had previously heard even a regular yell from both Zimmerman and Martin. And if you don't know what the other guy's yell or even voice sounded like, how much of a basis do you really have to say it wasn't him? After all, they may have had somewhat similar-sounding voices.

I agree that I don't think his opinion is necessarily any more credible than other friends and family testifying for Martin and Zimmerman. Still, the way it was done makes it sound like his opinion should be given more weight. The State objected and I wouldn't be surprised if the estimony doesn't end up stricken from the record.

Generally, I think the voice identification for both sides is a wash. Martin's mom testifying that her son yelled for help is the best evidence the State has for a murder charge. Now that Zimmerman has paraded witness after witness to combat the mother's testimony, I think reasonable doubt has or should have been created on this issue, unless the jury can glean some information that we can't (e.g. Demeanor evidence) that might call into question the credibility of a witness.