Zimmerman: Did George Zimmerman’s Conduct Exhibit Premeditation? UPDATED Below

August 22, 2012

We not only have considerable evidence of a depraved mind with no regard for human life, we have substantial evidence of premeditation that could lead a grand jury to indict Zimmerman for Murder in the First Degree, if the prosecution were inclined to seek an indictment, because the evidence from out of his own mouth shows that he

(1) grabbed his gun,

(2) extended his arm beyond his left hand so that he would not accidentally shoot it,

(3) aimed his gun at point blank range,

(4) pulled the trigger shooting Martin in the chest,

(5) rolled Martin’s body over so that it was face down in the wet grass,

(6) told witnesses not to call 911 because he had already done that even though he knew that no ambulance was on the way because the dispatcher at the non-emergency number that he called had only dispatched an officer to the neighborhood, rather than to a specific address, to investigate a suspicious circumstance, and

(7) mounted him by straddling his body with his full weight on Martin’s back while, according to winesses Mary Cutcher and Selma Mora), leaning forward with his hands on Martin’s neck restricting Martin’s airway.

Proof of premeditation does not require a minimum amount of time. It does require evidence that a defendant formed the specific intent to kill, reflected on the decision to kill, and went ahead and killed the person.

In Berube v. State, 5 So. 3d 734 (2009), the Court defined premeditation as follows:

“Premeditation is the essential element which distinguishes first-degree murder from second-degree murder.

“Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.

“This purpose to kill may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.”

The evidence that establishes intent to kill is the shooting itself. Depravity, reflection and renewed intent to kill (i.e., premeditation) are established by the multiple acts after the shot to delay, to the maximum extent possible, the arrival of emergency medical assistance that, from his perspective, might have saved TM’s life, while at the same time secretively and furtively attempting to administer the coup de grace in the dark area between the two buildings of townhouses within view of many witnesses, including children.

GZ’s actions after the shot also are probative of his intentions before the shot, unless he wants to argue that he was just trying to euthanize Martin to prevent him from suffering, which would be exceedingly unwise to argue for reasons that I am certain I do not have to explain.

In other words, if he had not premeditated the death of TM, he would not have continued his attempt to kill him by suffocating him and delaying the arrival of emergency medical assistance.

He had an opportunity to change his mind, but he decided to continue his effort to kill Martin.

If I were Angela Corey, I would be inclined to leave the charge as is at second degree murder because it’s punishable by life in prison and GZ’s conduct is so extremely depraved and shocking to human sensibility that a life sentence is likely.

Since the probable sentence would be the same, there is no reason to prosecute him for the more serious offense.

Last, but by no means least, GZ’s depraved behavior after the shot exhibits consciousness of guilt because:

(1) He is not reasonably in imminent danger of suffering death or serious bodily injury, and

(2) He is attempting to kill the only witness who could definitively refute his claim that he shot Martin in self-defense

Put another way, if he truly shot Martin in self-defense as he claims, he would not have any reason to attempt to delay the arrival of medical attention to the maximum extent possible while attempting to secretively and furtively finish the job of killing him by smothering him to death in front of many witnesses, including children.

UPDATE: Mary Cutcher filled out a handwritten statement dated February 26th, the night of the shooting (p.102 of 184), in which she told the police she and her roommate, Selma Mora stepped out on their patio after the shot and twice asked George Zimmerman what was going on. She said he told the to “just call the police.” Her handwritten statement was released in the first document dump. (H/T to CommonSenseForChange)

UPDATE 2: Mirre commented,

“I thought 46 seconds was a long time. If you listen to Selma’s statement, knowing that Trayvon may have been concious, the depraved mind becomes very obvious. In Tchoupi’s chart, you can also see that one second before W18 tells the dispatcher, she sees GZ getting up, W3 tells the dispatcher she can see the police arriving on TTL.

Depraved mind indeed.”

Looks like George Zimmerman may have already known the police had arrived when he told Mary Cutcher and Selma Mora to “just call the police.”

His behavior prior to telling them to call 911 demonstrated no concern for Martin.

Equally important, I think, is that he did not call 911 to seek emergency medical treatment for himself. That suggests he knew his injuries were minor, even if bleeding and painful, and it was more important to him to gain more time for Trayvon Martin to die than it was to get medical assistance for himself.

How chilling is that?


Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.


Zimmerman: The Power of Circumstantial Evidence

August 14, 2012

Because there are no eyewitnesses to the shooting except George Zimmerman, who claims he shot and killed Trayvon Martin in self-defense, the prosecution will have to rely on circumstantial evidence to prove beyond a reasonable doubt that George Zimmerman did not kill Trayvon Martin in self-defense.

Unfortunately, Florida does not define circumstantial evidence other than to call it “indirect” evidence. See Wadman v. State, 750 So.2nd 655 (FL 1999).

Washington State, where I practiced law for many years, defines direct and circumstantial evidence as follows:

Evidence may be either direct or circumstantial (WPIC 5.01).

Direct evidence is that given by a witness who testifies concerning facts which he or she has directly observed or perceived through the senses.

Circumstantial evidence consists of proof of facts or circumstances which, according to common experience permit a reasonable inference that other facts existed or did not exist.

The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.

Wikipedia has a good discussion of circumstantial evidence:

A popular misconception is that circumstantial evidence is less valid or less important than direct evidence. This is only partly true: direct evidence is popularly, but mistakenly, considered more powerful. Many successful criminal prosecutions rely largely or entirely on circumstantial evidence, and civil charges are frequently based on circumstantial or indirect evidence. Much of the evidence against convicted American bomber Timothy McVeigh was circumstantial, for example. Speaking about McVeigh’s trial, University of Michigan law professor Robert Precht said, “Circumstantial evidence can be, and often is much more powerful than direct evidence”. The 2004 murder trial of Scott Peterson was another high-profile conviction based heavily on circumstantial evidence.

Indeed, the common metaphor for the strongest possible evidence in any case—the “smoking gun”—is an example of proof based on circumstantial evidence. Similarly, fingerprint evidence, videotapes, sound recordings, photographs, and many other examples of physical evidence that support the drawing of an inference, i.e., circumstantial evidence, are considered very strong possible evidence.

In practice, circumstantial evidence can have an advantage over direct evidence in that it can come from multiple sources that check and reinforce each other. Eyewitness testimony can be inaccurate at times, and many persons have been convicted on the basis of perjured or otherwise mistaken testimony. Thus strong circumstantial evidence can be a more reliable basis on which to determine a verdict.

In response to a Zimmerman supporter who posted recently here that circumstantial evidence can support conflicting conclusions, I said,

Anything is theoretically possible and the nature of circumstantial evidence is such that each individual circumstance in a chain of circumstances might indicate more than one possibility. However, when examined as a totality of circumstances, they add up to only one possibility.

Put another way, the more splainin’ that Zimmerman has to do by resorting to ridiculous extremes like, I was walking in the same direction as Martin but not following him because I was looking for a street name and an address to give the dispatcher, the more unlikely his story becomes. Especially when he has lived in the neighborhood for three years, patrolled it as the neighborhood watchman on a regular basis for months, and he walked right past townhouses on TTL with the addresses on them in plain view, ignored them, and never provided the dispatcher with an address. It doesn’t take any intelligence to figure out that he was never looking for an address.

Step by inexorable step he lies and lies and lies.

What is he concealing?

He wasn’t out there exercising in the rain.

He was hunting.

The answer is obvious to anyone with a functioning brain cell.

The burden of proof is beyond a reasonable doubt, not beyond all theoretical doubt.

I am not going to detail every lie that we have revealed and discussed at length because I want to go macro on y’all and look at the big picture.

However, if you want to review the evidence to date, I recommend you watch this video prepared by our very own Whonoze.

Is there a discernible pattern to his lies that reveals his intent or are his lies mere random occurrences that happen due to chance?

Consider, for example, his stubborn insistence that Trayvon Martin suddenly came out of the bushes next to a townhouse or materialized out of the gloom on the N/S sidewalk a few feet south of the intersection and confronted him as he was on the sidewalk cut-through between TTL and RVC supposedly minding his own business returning to his vehicle parked on TTL.

Some who post here and at other internet sites contend that we must take GZ at his word and cannot look at other evidence (i.e., the circumstantial evidence) to determine if he is telling the truth and, if not, discern his intent.

Sorry, but that is not how trials work.

GZ claims that TM sucker punched him knocking him to the ground and then he jumped on him and started beating his head into the sidewalk and punching him repeatedly in the face.

Aside from the lack of physical injuries that would be consistent with such a claim, the location of the fight is inconsistent with the location of TM’s body. That is, if GZ is telling the truth, the body and the location of the fight should be in the same place, but they are not and he has no explanation for that other than he kind of sort of stumbled after TM hit him. Yet, that explanation only gets him a little less than halfway to the location of the body and various items found within a few feet of it, such as his phone, the earbuds, the can of iced tea, the Skittles, and the spent casing.

We have to ask ourselves what does the circumstantial evidence tell us regarding the fight that ended with TM’s death? That is, what can we reasonably infer from the evidence at the scene.

The initial conclusion is GZ lied about the nature and extent of Martin’s attack because his injuries do not support his story and his conflicting claim regarding where and how Martin confronted him tells us he changed his story during the walk-through video the next day when he realized there were no bushes at the scene behind which Martin could have been hiding.

What do these lies suggest?

They suggest GZ went looking for Martin in the area between the two rows of townhouses and found him where the shooting occurred.

If that is what happened, why would he lie about it?

The obvious conclusion is that he did not want to admit that he went hunting for Martin and found him.

Why is that a problem?

Maybe it has something to do with his statement, “These assholes, they always get away, fuckin’ coons.”

Hmmnn. That sounds like GZ was determined to make sure this “asshole” did not get away.

Why would GZ lie about Martin jumping him?

Could it be because he knew an aggressor cannot claim self-defense?

A pattern is apparent in these lies. They all appear to be motivated by a desire to cover up that he was the aggressor who hunted down TM and attempted to detain him, but TM did not submit to his authority willingly. A struggle ensued in which GZ sustained some minor injuries and he shot and killed TM without legal justification.

This is the incredible power of circumstantial evidence because, ultimately, the explanations GZ offers for each item of evidence become increasingly strained until they degenerate into irrelevant and irritating whining.

As I have said before, he is his own worst enemy and his conviction of the crime of Murder in the Second Degree will materialize out of his own lyin’ mouth and the abundant circumstantial evidence.


Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


The Difference Between Homicide And Murder

October 23, 2011

Although states vary in their definitions, the majority of states define homicide is the unlawful killing of a human being. Killing a person in self-defense is a lawful killing of another person. Therefore, it is not a homicide.

There are four degrees of homicide which vary according to the actor’s state of mind when he or she commits an act that causes the death of another person. The four degrees of homicide are:

1. Murder in the First Degree (premeditated intent to kill another person). Note that premeditation is defined as forming the specific intent to kill before committing the act that causes the death of another person. There is no established minimum amount of time, but the actor must have had an opportunity to reflect on the decision to kill before committing the act that causes death.

2. Murder in the Second Degree (intentional murder). In effect, the actor forms the specific intent to kill another person and acts immediately such that the formation of intent and the act occur simultaneously or so close together that there is no opportunity to reflect on the decision. Murder in the Second Degree typically involves killing another person in the heat of passion.

3. Manslaughter in the First Degree (reckless killing). The actor engages in conduct knowing that there is a substantial risk that the conduct will cause the death of another person. The typical example is playing Russian Roulette with another person. There is no intent to kill, but a death results nevertheless.

4. Manslaughter in the Second Degree (criminally negligent killing). The actor causes the death of another person while committing an act that he should have known would likely cause the death of another person and his failure to know that constitutes a gross deviation from the standard to act with due care to avoid injuring others.

Depending on whether a state has the death penalty, there is another category called Aggravated Murder, which is a premeditated murder with aggravating circumstances.

Aggravating circumstances are defined by statute and typically include the premeditated killing of another person to conceal the commission of another crime. For example, a rapist kills the victim to prevent her from reporting the crime and identifying him. Other examples include the premeditated murder of a cop or a judge. In each case the aggravating circumstance is the purpose behind the premeditated intent to kill.

The death penalty is not automatically imposed upon conviction of aggravated murder, no matter how heinous or depraved. Instead, a sentencing hearing is held after the jury convicts the defendant of aggravated murder in which the same jury that convicted him considers evidence submitted by the prosecution in aggravation of the offense and evidence offered by the defense in mitigation of the offense.

Evidence in aggravation includes the evidence the jury already heard about the offense in the guilt phase, a statement from a friend of the victim or member of the victim’s family who testifies regarding the impact of the victim’s death on the witness or family, and evidence of the defendant’s prior record of criminal convictions, if any exists.

Evidence in mitigation is evidence about the defendant, such as organic brain disorder, limited intellectual functioning, mental illness, victim of childhood sexual abuse or assault, or the defendant’s role in committing the murder (e.g., an accomplice who assisted another person to commit the murder but who did not commit the murder and may not have even been present when it occurred) that in fairness or mercy warrants a sentence of life without possibility of parole instead of the death penalty.

In Washington State where I handled all of my death penalty cases, the final instruction given to the jury after both sides rest in the penalty phase is as follows:

Having in mind the crime of which the defendant has been convicted, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a sentence of less than death?

The jury also is instructed that the law presumes that the appropriate sentence is life without possibility of parole unless the prosecution overcomes that presumption with proof beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit the life without parole sentence.

The jury must be unanimous to impose the death sentence.


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