Monday, December 31, 2012
Thankfully, 2012 will soon pass into the rearview mirror.
As we look forward to next year, I think today is a good day to review the three predominant questions that the jury will have to decide when the defendant charged with murdering Trayvon Martin goes to trial. I posted this comment last night.
Actually, O’Mara has conceded that SYG and the castle doctrine do not apply and the evidence will show that, as a matter of law, the defendant was the aggressor.
As the aggressor, the defendant can use deadly force in self-defense only if,
(a) Trayvon responded to his aggression by using more force than was reasonably necessary to defend himself;
(b) He reasonably perceived that Trayvon’s use of such force created an imminent danger of death or serious bodily injury; and
(c) He attempted to end the confrontation and withdraw before he used deadly force.
O’Mara announced at a press conference that he will argue that the defendant could not withdraw before using deadly force because the defendant was lying on his back unable to withdraw with Trayvon straddling him raining down blows MMA style and slamming his head into the concrete sidewalk.
Those are the basic three questions that the jury will have to decide.
The Court will instruct the jury to presume the answer to all 3 questions is “Yes,” and the prosecution must prove beyond a reasonable doubt that the answer is “No.”
Keep in mind that, as a practical matter, the defendant will have to testify and that means he will be cross examined, thoroughly.
Malisha was the only person to attempt an answer and this is what she said:
Professor, thanks for the clarity.
The three questions. I love them. I always love “three questions.”
(a) Did Trayvon respond to Fogen’s aggression by using more force than was reasonably necessary to defend himself?
I think the answer “NO” is easy to prove because in fact Fogen killed Trayvon. Thus, Fogen’s aggression against Trayvon was, by definition, potentially lethal from the get-go. Thus, also by definition, deadly force was authorized.
(b) Did Fogen reasonably perceive that Trayvon’s use of such force created an imminent danger of death or serious bodily injury to himself, to Fogen?
I think the answer “NO” is also easy to prove because injuries that Fogen sustained were nowhere near life-threatening. If he was beaten at all, he was beaten in such a way as to do no serious damage. A fender bender would have hurt him more than the encounter with Trayvon Martin hurt him, even if both scratches on his head AND a minor injury to his nose were all attributable to contact with Trayvon Martin.
(c) Did Fogen attempt to end the confrontation and withdraw before he used deadly force?
Fogen has not even claimed that he did so. Even as he narrated his non-credible self-defense story, he claims that he told the neighbor to help him “restrain” Trayvon Martin, but he never told Trayvon Martin that he wanted to stop fighting. Nor did he tell Trayvon Martin, at any point (according to his own narrative) that he had a gun and would shoot unless Trayvon Martin stopped hurting him. Remember, even as he narrated that he “spread out [Trayvon's] hands,” he still claimed that Trayvon was continuing to struggle and curse. And at no time before or after firing his one shot did Fogen say, “I’m leaving now; I’m going back to my schtruck now; I’ll leave you alone now,” or even, “The police are coming so stop fighting now and we’ll wait for them.”
Now it is your turn. What are your thoughts?
How do you think the defendant will do on cross examination?
I also will start an open thread for those who wish to discuss other matters.
Many thanks and many blessings to all of you for participating and making this blog a great and safe place to discuss the case.
Happy New Year!!!!!!!!