Will the defendant testify or not testify?

July 6, 2013

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.


Defense mendacity in Zimmerman case is disgusting

May 24, 2013

Friday, May 24, 2013

Good morning:

George Zimmerman’s attorneys, Mark O’Mara and Don West, have unintentionally confirmed this week that they have no defense to present on his behalf by knowingly and intentionally publishing false, irrelevant and inadmissible information about Trayvon Martin to incite white racists to denounce him as a pot smoking black thug who deserved to die.

I used the word “confirmed” because three weeks ago the defendant appeared in open court and waived his right to an immunity hearing. The mixture of false and misleading information released yesterday is not a defense to second degree murder. It’s deliberate character assassination by false statement and innuendo of an unarmed teenager who was stalked, restrained and shot through the heart while screaming for help.

Here’s LLMPapa:

Last I heard, skipping school, pot smoking and participating in refereed fights between equal combatants is not a death penalty offense.

In other news, the defense attorneys filed a flurry of forgettable motions and responses to prosecution motions which, like snowflakes in April, are destined to melt when they hit the ground.

I begin with Donald West’s frivolous, dishonest and intentionally misleading reefer-madness motion that he filed earlier this week arguing that a trace amount of marijuana in Trayvon Martin’s autopsy blood should be admissible to prove that he was the aggressor even though he was unarmed and the defendant stalked, restrained and shot him in the heart.

The defense motion to continue:

1. cites no authority,

2. claims he needs to investigate Dr. Reich (the State’s audio expert who identified Trayvon as the person screaming for help), which takes about an hour if you google him,

3. claims other unnamed experts told him Dr. Reich’s opinion is based on science that has fallen into “disrepute,”

4. fails to support this assertion with an affidavit from one or more of these experts, and

5. claims he needs time to find an expert to hire even though he is supposedly in touch with all of these experts.

This motion is ridiculous and will be denied because it fails to document a reason for a continuance.

O’Mara’s motion for sanctions against Bernie de la Rionda for not disclosing the evidence that the defense obtained from Trayvon’s phone and published in its 3rd evidence dump, is frivolous because the so-called exculpatory evidence that he claims BDLR withheld in violation of the Brady rule is not exculpatory.

Therefore, the Brady rule does not apply and this motion should be denied.

West’s reply to the State’s motion to exclude opinion evidence about the defendant’s guilt or innocence generally admits that witness opinions about the guilt or innocence of a defendant are inadmissible but warns that if the State attempts to attribute the delay in arresting and charging the defendant (which isn’t relevant either), then the State will have opened the door to allowing the defense to call SPD cops to justify what they did.

I don’t believe this issue will come up as it is irrelevant to whether the defendant murdered Trayvon.

Sideline mini-trials about marginally relevant or irrelevant issues are exactly what evidence rule 403 is designed to prevent.

West’s 2-page reply to the State’s motion to exclude the defendant’s self-serving hearsay statements, which does not cite a case, generally agrees that many of the defendant’s statements are hearsay, if offered by the defense, but disagrees with the State’s argument that none of the defendant’s statements are admissible under the res gestae exception or some other exception to the hearsay rule. West asks Judge Nelson to reserve ruling until the issue comes up in trial.

This is a sneaky response because West wants to be able to ask a leading question seeking agreement from a witness that the defendant said XYZ. For example, he might ask SPD Investigator Serino this question:

George told you that he killed Trayvon in self-defense, didn’t he?

Bernie de la Rionda (BDLR) would object to the question because it contains an inadmissible self-serving hearsay statement.

Judge Nelson would sustain the objection, but she cannot unring the bell, so to speak. The jury would have heard the defendant’s inadmissible statement.

He also would probably like to mention that self-serving hearsay statement during the defense opening statement to the jury or maybe during jury selection.

The purpose of the State’s motion in limine regarding the defendant’s self-serving hearsay statements is to prevent those events from happening, and I am reasonably certain Judge Nelson has seen this trick before and is savvy enough to see through West’s tactical deception.

Therefore, I expect she will grant the State’s motion.

BTW, the res gestae exception that West mentions is a limited exception to the hearsay rule similar to the present-sense-impression exception in which the hearsay statement about an event occurs as the event happens. Thus, the statement is part of the event itself or the res gestae and cannot be excised from it.

The State’s motion in limine seeking an order prohibiting the defense from mentioning the voice stress analysis test that the defendant took should be granted because that’s the legal rule in Florida and elsewhere. The rule is based on the lack of general agreement among scientists that this type of test can consistently produce accurate and reliable results.

In other words, the test violates the Frye Rule.

Judge Nelson should grant this motion.

The State’s 3rd motion for a gag order asks Judge Nelson to put an end to the defense effort to poison the jury pool by assassinating Trayvon Martin’s good character with false evidence and innuendo publicized after the jury pool of 500 people have received their notices to report for jury service on June 10, 2013.

It is no accident that the defense waited until after the 500 potential jurors were served with their notices, but before they report for jury service. Therefore, this was a deliberate tactic to create an unringing the bell problem regarding false, irrelevant, and inadmissible evidence.

A gag order will not unring the bell.

This is quite possibly the sleaziest tactic that I have ever seen. To intentionally poison a jury pool a couple of weeks before trial with false and misleading information about the victim of a homicide calculated to incite and unite White racists to approve of the execution of an unarmed Black teenager is astonishing.

These two lawyers are fortunate that I am not Judge Nelson because I would jail them for contempt of court and file complaints against the bar association requesting their disbarment from the practice of law.

_________________________________________________

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Thank you,

Fred


Trayvon Martin’s Murder Forces Us To Confront Racism

December 27, 2012

Thursday, December 27, 2012

I realized the defendant was lying when I first read his narrative about the shooting.

Why?

Because I believe it’s extremely unlikely that an unarmed person would flee from a menacing stranger following him and, after successfully getting away, voluntarily approach, engage and attempt to beat that stranger to death with his bare hands.

That story is ridiculous. It made no sense to me when I first read it and it makes no sense to me now.

With two exceptions, I never have understood why anyone would believe that ridiculous story.

As a former criminal defense attorney and law professor, I certainly understand, support and believe in the presumption of innocence. I trained myself to think that way and always searched for the weaknesses in the prosecution’s case against my clients. I had no problem exploiting those vulnerabilities for the benefit of my clients. I suspect that most of the lawyers and law professors who have publicly supported the defendant did so from the perspective of presuming that he spoke the truth.

Since I no longer practice or teach law, I believe I can evaluate this case from a more objective perspective.

I cannot and will not presume that an obvious bullshit story is the truth.

I have reviewed all of the evidence released to the public to date and I have not found any evidence that supports the defendant’s story. Instead, his multiple inconsistent and contradictory statements conflict with the physical and forensic evidence. In fact, he has admitted that he shot and killed Trayvon Martin after he had him under control with a wrist lock. He said he pulled out his gun, extended his right arm, aimed to avoid shooting his left hand, and fired the single shot that killed Trayvon Martin. The terrified, prolonged and desperate shriek protesting the depraved execution that was about to occur finally and forever was silenced by the gunshot.

No one is going to believe that the defendant uttered that inhuman shriek with a loaded gun in his hand.

I feel obliged to remind my former colleagues that the presumption of innocence does not require them to blindly accept a liar’s story and actively defend that liar by supporting his effort to demonize an innocent victim and his parents. I am offended, horrified and disgusted by the unrelenting attacks on Trayvon, his family and their supporters. I have no respect for anyone who participates in or supports those attacks, including members of the mainstream media who publicize them, and by so doing, legitimize them.

Enough is enough.

We do not need or want to hear any more lying racist Zimmermans polluting the news.

The Trayvon Martin murder case is much more than a set of hypothetical facts to be discussed in a classroom. It is a real case involving real people and I think our responses to this tragedy reveal much about ourselves as individuals and as a society.

For example, in order to believe the defendant’s story, one would have to believe that Trayvon Martin acted like a stereotypical Black Gangsta thug in a Hollywood action movie. Would any Caucasian person believe the defendant’s story, if the person he killed were Caucasian?

Is it not easier for Caucasians to believe his story because the victim is Black?

I believe we would not have heard about this case, if Trayvon Martin had been a Caucasian kid. The defendant would have been arrested and jailed that first night. He would have been charged with second degree murder and prosecuted without any of the publicity and controversy that we have seen.

The most important lesson of this case is that racism is alive and well in our nation. The defendant’s characterization of Trayvon Martin presents each one of us with a litmus test. Those who accept and believe what he said are failing the litmus test and seriously need to ask themselves why they were so willing to believe such an obvious lie.

Those who continue to believe the defendant in the face of overwhelming evidence that he is a liar may be beyond help.

We live in a racist society and nothing will change unless we admit that we do and we commit to ending racism. As always, the self is the place to start changing society.

Trayvon Martin will not have died in vain if his death becomes the rallying point for a systematic, determined and prolonged effort to once and for all eliminate racism in our society.

Unless we succeed, we will remain a racist and failed society.


Zimmerman: A Short and Concise Explanation why George Zimmerman is Guilty of Second Degree Murder

September 14, 2012

I. Introduction

Many thanks to Ada4750 for being a good sport and playing the role of devil’s advocate defending the proposition that Trayvon Martin may have provoked the fight with George Zimmerman (a) by not running all the way home to the safety of Brandy Green’s residence and (b) by confronting and assaulting Zimmerman for following him.

With Ada’s cooperation and Case 1’s unwavering analytical focus, we can now clearly see the underlying supposition for this claim; namely, Martin did not actually fear Zimmerman and chose to hide, ambush, confront and assault Zimmerman for daring to follow him.

ADA argues that Martin’s girlfriend’s (Dee Dee) testimony is absolutely critical to the outcome of the case because she is the only witness who can counter Zimmerman’s claim that Martin was the aggressor. In other words, if the jury does not believe Dee Dee’s claim that Martin told her he was afraid of the creepy man following him, it might decide Zimmerman is not guilty.

I will show why this argument is not valid and the jury does not have to believe Dee Dee to reject Zimmerman’s claim of self-defense and find him guilty of second degree murder.

In any event, her testimony will be supported by her phone records and confirmed by Zimmerman’s own statements describing Martin’s flight, disappearance from view, and import of their initial exchange of words, if not their exact words (i.e., Martin’s question why are you following me and Zimmerman’s response, why are you here?)

II. Analysis

A. Zimmerman is on trial, not Martin

The prosecution must emphasize and the jury must never forget the central truth of this case: Trayvon Martin is not on trial; George Zimmerman is on trial because he did five things that caused Trayvon Martin’s death and then he lied to the police to cover-up what he did.

(1) He should have left his gun at home because the Neighborhood Watch Program (NWP) forbids carrying a gun;

(2) He should have remained in his vehicle because the NWP forbids running after potential suspects to prevent them from getting away before the police arrive;

(3) He should have left his gun in his vehicle and immediately returned to his vehicle after the dispatcher told him to stop following Martin, instead of continuing to follow and hunt Martin down after Martin disappeared;

(4) He should not have fired his weapon because his aggressive intentions and conduct created the situation in which he found himself;

(5) He should not have fired his weapon because we know from the evidence of his injuries and the forensic evidence at the scene that he was never reasonably in imminent danger of being killed or seriously injured, regardless of what he may have believed; and

(6) He never should have lied to the police because his lies establish his guilty state of mind just as effectively as a signed confession.

B. Martin’s character and whether he feared Zimmerman are irrelevant

It does not matter whether Tratvon Martin was the most evil and violent man who ever lived, the most meek and mild man who ever lived, or something in between. Plug-in any personality you can imagine and you still have these incontrovertible facts:

(1) Martin was unarmed;

(2) As a visitor at Brandy Green’s residence, he had a right to be where he was;

(3) His conduct was not suspicious;

(4) He had not committed a crime, was not committing a crime, and was not about to commit a crime;

(5) He attempted to avoid GZ by running away from him;

(6) GZ provoked a confrontation by getting out of his vehicle and running after him; and

(7) But for Zimmerman pursuing Martin, even after Martin disappeared from view, there never would have been a confrontation and Martin would be alive today.

Conclusion

Whether Martin really feared, merely feared, or did not fear Zimmerman is irrelevant. Whatever Martin may have done, Zimmerman provoked him to do it and this is true whether Martin was a psycho gangsta or a mild mannered non-violent and peaceful kid.

It would take a mighty strange concept of justice to ignore all of the incontrovertible facts and circumstances of this case and allow Zimmerman to walk away from this situation without facing consequences because Trayvon Martin did not run all the way home to Brandy Green’s residence to hide and instead had the temerity to merely ask or demand GZ to explain why he followed him.

The legal elements of self-defense and murder in the second degree do not mention the victim’s character.

The victim can be anyone, good or bad.

The victim in this case was a good kid with a bright future ahead of him, but he did not have to be. He could have been the criminal psycho gangsta George Zimmerman claimed him to be and George Zimmerman would still be guilty of murder in the second degree.

BECAUSE when he shot and killed Trayvon Martin:

(1) Zimmerman was not reasonably in fear of suffering imminent death or serious bodily injury, as shown by the evidence of his minor injuries, the forensic evidence, and his many conflicting and inconsistent statements that are equivalent to a signed confession of guilt; and

(2) the shooting was an imminently dangerous act exhibiting a depraved mind indifferent to Trayvon Martin’s life.

Special thanks to all who participated and helped shape the discussion.

Note: the word “reasonable” is italicized to emphasize the self-defense test is objective


Why Did George Zimmerman Kill Trayvon Martin?

August 26, 2012

I fear the answer is:

He wanted to be respected and he believed he would be respected, if he could get away with killing an expendable person whom no one would miss or care about.

He thought Trayvon Martin was expendable, a statistic no one would miss or care about, if he died.

George Zimmerman appears to be extremely submissive, inadequate, manipulative, controlling, fearful, angry, self-destructive, and above all not very smart.

His life is a tapestry of massive failure for which he appears to compensate by lying and manipulation.

All in all it’s a deadly combination, an accident waiting to happen.

We can tell from the forensic evidence and his lack of serious injuries that his description of his encounter with Trayvon Martin is a fantasy. I suspect it provides us with insight into who he is and how he thinks.

I believe George Zimmerman probably would have killed any apparently “expendable” stranger he encountered that night on “his turf” who did not willingly submit to his authority as the self-appointed sheriff of the neighborhood.

That person could have been you or me or anyone else on foot in that neighborhood that night looking for an address.

Trayvon Martin was in the wrong place at the wrong time.

Don’t know enough about George Zimmerman to be more specific, but there is something very wrong with his thinking process and we see evidence of that all over the place.

It’s almost as if he killed a projection of the person whom he most despises in the world, a nobody. In other words, I suspect he killed a projection of himself.

I wish he would take a battery of psychological tests that I could review to get a better understanding of who he is.

Looks to me like he was playing the role of George Zimmerman, under-appreciated Super Hero and now he’s playing the role of George Zimmerman, Super Victim.

He appears to be oblivious to having killed a human being. He shows no remorse and incomprehensibly dismisses what he did as “God’s plan.”

Trayvon Martin’s life appears to have been no more important to him than a cockroach.

I think he is a danger to others and belongs in a psych ward or in prison.

Welcome to the world of forensic psychiatry and psychology.

In the discussion that follows, please do not demonize him. He may be a failed human being, but he still is a human being and not an evil demon.


Did George Zimmerman Have a Reasonable Suspicion that Trayvon Martin Intended to Commit a Crime?

August 25, 2012

I believe it may be useful to compare what a police officer may have been able to do to Trayvon Martin, if he had seen him walking in the rain.

A police officer could not have stopped Trayvon Martin and temporarily detained him to determine his identity and investigate what he was doing in the neighborhood, unless he had a reasonable suspicion that Trayvon had committed, was committing, or was about to commit a crime.

Whenever you see the word “reasonable,” as part of a legal test or rule, you should immediately realize that the test or rule is objective, not subjective.

Let us assume for the sake of argument that George Zimmerman actually believed Trayvon Martin was, as he put it, “up to no good.” In other words, he had a subjective hunch that Trayvon was casing the neighborhood looking for a house to burglarize or someone’s property to steal.

A subjective hunch is not a reasonable suspicion unless there were sufficient articulable facts and circumstances such that a reasonable person in George Zimmerman’s situation would have suspected Trayvon intended to burglarize someone’s home or steal someone’s property.

We know the answer to that question is “No,” because Chris Serino told him that. Based on what George Zimmerman claimed to have seen, he did not have a reasonable basis to stop and detain Trayvon Martin.

Regardless what the Zimmerman supporters say, this is an undisputed fact and conclusion of law.

Serino was right. Walking through the neighborhood looking around at houses and hanging out in the covered mailbox area while it was raining does not suggest criminal activity of any kind is about to happen.

Serino also told him that his hoodie notwithstanding, Martin was not dressed in gang attire because he was wearing tan chinos and white tennis shoes.

Therefore, a police officer would have violated Trayvon’s Fourth Amendment right to privacy, if he had stopped and detained him for a few minutes to check his identification and ask him what he was doing in the neighborhood.

Police also have a community caretaker responsibility, however, that does not necessarily involve preventing criminal activity. If an officer saw a front door open, for example, she could walk up to the open door and look inside or call out to see if anyone is home.

If she saw Trayvon walking in the rain looking around at houses, she could approach him and ask him if he needed any assistance. That type of contact does not constitute a stop because the person contacted is free to leave at any time. The protections of the Fourth Amendment do not apply to those types of contacts.

George Zimmerman passed up two opportunities to do the same thing, but declined to do so.

By the way, if you should ever find yourself in an ambiguous situation after being contacted by a police officer, just ask the officer politely if you are free to go.

If the answer is “No,” the protections of the Fourth Amendment apply to you. You can be temporarily detained long enough for the police officer to determine your identity and confirm or reject his suspicion. If the officer determines that there is probable cause to arrest, he may arrest you and take you to jail. If not, he must release you.

At any time, you may assert your 4th Amendment right to refuse to consent to a search, your 5th Amendment right to refuse to answer questions, and your 6th Amendment right to counsel. If you decide to assert any or all of these rights, do so politely.

Be advised that operating a motor vehicle is a privilege and not a right. If you are pulled over for suspicion of DUI and asked to take a breathalyzer, your refusal will result in a suspension of your license, regardless if you are subsequently acquitted of DUI. You can always insist on a blood test.

Probable cause is reasonable grounds to believe that a person has committed a crime. As such, it is more than reasonable grounds to suspect that a person has committed a crime.

I believe it’s now clear that George Zimmerman assumed Trayvon Martin was a criminal looking for a house to burglarize or some property to steal and he hunted him down with the intent of detaining him in order to prevent him from getting away. He was so determined to do that that he intentionally and willfully disregarded the Neighborhood Watch rules and the NEN dispatcher’s admonition.

Acting as a private citizen, he had no authority or right to touch Trayvon, let alone restrain him.

Now that we have reviewed and understand the SYG law, we realize that Trayvon had the right to stand his ground and use reasonably necessary force to defend himself.

I am not satisfied that he used any force to defend himself, but if he did, he had a right to do so.

Since George Zimmerman was the aggressor, he had no right to use any force, let alone deadly force to defend himself.

Assuming for the sake of argument that Trayvon Martin used excessive and deadly force to defend against George Zimmerman’s initial use of force, George Zimmerman would have been required to attempt to withdraw from the confrontation and offer to quit fighting before he could lawfully use deadly force to defend himself.

George Zimmerman never claimed that he did and there is no evidence that he did.

Therefore, George Zimmerman did not act in self-defense. He committed an imminently dangerous act with a depraved mind indifferent to human life and that is the definition of murder in the second degree.


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?


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