Jury instructions are necessary

June 15, 2014

Sunday, June 15, 2014

Happy Father’s Day to all of the fathers and good morning to all:

Roderick and Malisha are opposed to issuing jury instructions to juries.

Roderick said the following in a comment:

The fact that [Zimmerman’s] verdict was obviously racist has the Florida legal system (such that it is) scrambling by trying to legalize warning shots (Marissa Alexander) and Trevor Dooley has been allowed to appeal his conviction.

One of the big things that I got from [Zimmerman’s] trial is that there should not be jury instructions.

Judges shouldn’t have the power to tailor the laws to the case. The juries should only get the pertinent law and they should decide which parts of the law apply to each case.

When Judge Nelson refused to include the ‘initial aggressor’ clause in the jury instructions she basically signed [Zimmerman’s] get out of jail free card.

Malisha responded:

You know, I had not thought of that, that giving jury instructions to a jury is a form of prejudice, a way to disable the jury. The judge makes the rulings all through the trial based on what the jury may or may not hear. Then, you are absolutely right, there should be no need for jury instructions period. The law should be printed up and taken into the jury room. When the jury asks a question, it should start, “This refers to section __ on page __” and if they want an explanation they get it.

PERIOD.

THey should get, along with their explanation, copies of the last three decisions that were made in the legal database on that question of LAW. They are the deciders of fact.

The initial aggressor language was crucial and this judge was committing a crime by omitting it.

Think: A guy goes into Walmart with a gun and waves it around screaing “get out get out the revolution is starting.”

A person with a ccw who has his loaded gun on him is nearby and pulls his gun and advances on the man. Why? He was not in fear of immediate death or bodily harm: the man neither saw him nor aimed at him; the screaming man was screaming to LEAVE, which was safe. The man who pulled a gun and advanced on the “revolutionary shopper” would be guilty of terroristic threatening, at least, if “initial aggressor” is not factored into this scene, the shooter himself would have been innocent of any harm to come to the armed shopper, if he had lived long enough to go to trial.

When you change “white armed neighborhood twat” and “black kid in hoodie” to “white revolutionary” and “Walmart shopper” you get two completely different pictures, don’t you?

I respectfully disagree.

Jury instructions are not the problem. They are the solution, provided the correct instructions are given.

The practice of law has become so specialized that general practitioners have become a dying breed who should limit their practice to the simplest tasks and refer the rest of their clients to specialists or associate specialists to assist them with the case.

This is especially true in the practice of criminal law, which has been subdivided into two broad categories, which are state and federal courts. Each of those are subdivided into criminal traffic offenses, juveniles, mental health commitments, misdemeanors, felonies, death penalty cases, sentencings and mitigation, appeals, post-conviction petitions and prisoner’s remedies.

Laws are complicated and even skilled lawyers encounter difficulty navigating their way through thickets of cross-referenced statutes and definitions of words and phrases that are used in those statutes. The intent of the legislature is occasionally difficult to discern because the statutes are poorly written. Practitioners also must review appellate and supreme court decisions interpreting the meaning of relevant statutes and constitutional provisions to update their knowledge.

To assist lawyers, judges and jurors to understand and correctly apply relevant laws, the supreme courts created committees of judges, practitioners and law professors to develop a comprehensive set of jury instructions for all criminal trials, including recommendations of which instructions should be given in particular cases.

For example, we know that an initial aggressor cannot claim self-defense because a person cannot create a necessity to use force in self-defense. This principle has been part of the law of self-defense extending back to the common law in England, which is the source of most of our criminal laws and practice.

The initial aggressor instruction should be given in a self-defense case whenever there is any evidence that the defendant was the original aggressor. Under existing Florida law, including a Florida Supreme Court case from the early 1950s, Judge Nelson should have given the initial aggressor instruction that prohibits a defendant from using force to defend himself against the victim of his initial attack unless the victim’s use of force in self-defense was excessive. In other words, a victim of a slap is limited to using reasonably necessary force to defend himself. If he reacts with deadly force, which would be excessive and unlawful, the initial aggressor can use deadly force to defend himself, provided that it was reasonably necessary for him to do so to prevent imminent death or grievous bodily harm.

Therefore, the problem with the instructions in the Zimmerman case was the court’s failure to properly instruct the jury.

That problem was compounded by the failure of the jury to follow the instructions that were given to, in essence, base their verdict on the evidence and not their racially prejudiced opinions against Trayvon Martin.

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Juror B-29 misunderstood a jury instruction and a remorseless child-killer is free to kill again

July 26, 2013

Friday, July 26, 2013

Good morning my friends:

Juror 29 misunderstood a jury instruction and a remorseless child-killer is free to kill again.

She decided that Zimmerman murdered Trayvon, but she could not find him guilty “because of the law.” She said the prosecution did not prove that he intended to kill Trayvon and that is why she eventually caved and voted not guilty.

Intent is not an element of second degree murder. The instruction said that the prosecution had to prove beyond a reasonable doubt that the defendant intended to commit the act or acts that resulted in Travon’s death and that such act or acts evinced a depraved mind indifferent to human life.

In other words, the prosecution only had to prove that the defendant intended to shoot at Trayvon, not that he intended to kill him.

How bizarre is it that the defendant was acquitted because at least one juror misunderstood the jury instruction?

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Florida’s homicide statutes are a mess

July 18, 2013

Thursday, July 18, 2013

Good morning:

Florida’s homicide statutes are a mess and the legislature needs to fix them. Fortunately, a model exists for them to follow. Produced by the American Law Institute, it’s called the Model Penal Code.

The American Law Institute is a non-profit independent organization composed of prominent judges, lawyers and legal scholars who comprehensively developed and redesigned criminal statutes to simplify and unify existing criminal codes so that everyone would be on the same page, so to speak, operating with a uniform set of understandable concepts and statutes. The Model Penal Code was published in 1962 and updated in 1985.

A crime consists of a prohibited act (actus reus) committed with a particular mental state (mens rea). The Model Penal Code established four mental states.

Here’s Wiki:

One of the major innovations of the MPC is its use of standardized mens rea terms (criminal mind, or in MPC terms, culpability) to determine levels of mental states, just as homicide is considered more severe if done intentionally rather than accidentally. These terms are (in descending order) “purposely”, “knowingly,” “recklessly”, and “negligently”, with a fifth state of “strict liability”, which is highly disfavored. Each material element of every crime has an associated culpability state that the prosecution must prove beyond a reasonable doubt.

Purposely. If the element involves the nature of the conduct or the result thereof, it is his conscious object to engage in that conduct or cause the result. If the element involves attendant circumstances, he is aware of the circumstances or believes or hopes that they exist.

Knowingly. If the element involves the nature of the conduct or the attendant circumstances, he is aware that his conduct is of that nature or that the circumstances exist. If the element involves a result, he is practically certain that the result will occur. Further, if the element involves knowledge of the existence of a particular fact, it is satisfied if he is aware of a high probability of the existence of that fact, unless he actually believes that it does not exist.
Recklessly. A person consciously disregards a substantial and unjustifiable risk that the element exists or will result, such that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe.
Negligently. A person should be aware of a substantial and unjustifiable risk that the element exists or will result, such that the failure to perceive it involves a gross deviation from the standard of conduct that a reasonable person would observe.

If an offense requires a specific kind of culpability, then any more severe culpability will suffice. Thus if an offense is defined in the form, “It is illegal to knowingly do X,” then it is illegal to do X knowingly or purposely (a more severe state), but not to do so recklessly or negligently (the two less severe states). Strict liability means that it is illegal to do something, regardless of one’s mental state. If a statute provides only a single kind of culpability for a crime, that kind of culpability is assumed to apply to all elements. If no culpability is stated by statute, a minimum of recklessness is assumed to be required. The MPC declines to use the common terms “intentional” or “willful” in its specification of crimes, in part because of the complex interpretive history of these terms. However, it defines that any (non-MPC) statute in the jurisdiction’s criminal code that uses the term “intentionally” shall mean “purposely,” and any use of “willfully” shall mean “with knowledge.” If a law makes an actor absolutely liable for an offense, MPC sections 2.05 and 1.04 state that the actor can only be guilty of what the MPC calls violations (essentially meaning civil infractions), which only carry fines or other monetary penalties, and no jail time.

The actus reus for homicide is to cause the death of another person.

In Washington State where I practiced law for 30 years, the legislature defined four degrees of homicide, according to the mens rea:

(1) Murder in the First Degree: premeditation;

(2) Murder in the Second Degree: intentional;

(3) Manslaughter in the First Degree: reckless; and

(4) Manslaughter in the Second Degree: gross negligence.

The difference between premeditated and intentional murder is a reflection on intent to kill and a decision to go ahead and kill.

Recklessness is best exemplified by the game Russian Roulette. It is state of mind in which the actor is aware of a substantial risk of harm to another person if he commits a particular act, but he goes ahead and does it anyway.

Criminal negligence is a failure to be aware of a substantial risk of harm to another person where that failure constitutes a gross deviation from the standard to exercise due care to avoid injuring or killing other people.

Each crime is a lesser included offense of the more serious degrees of homicide. Therefore, Murder in the Second Degree is a lesser included offense of Murder in the First Degree and Manslaughter in the First Degree and Manslaughter in the Second Degree are lesser included offenses of Murder in the Second Degree.

Murder in the Second Degree in Florida does not require proof of intent to kill and it is easy to confuse with Aggravated Manslaughter because the mens rea for both is recklessness. That is, evincing a depraved mind is defined as acting with extreme or reckless indifference that a particular act will cause the death of another. That’s recklessness and Aggravated Manslaughter is defined as reckless homicide.

Intent creeps into the Florida instruction on Murder in the Second Degree requiring proof that the defendant intended to commit the act that caused the death of another, as opposed to proof that the defendant intended to kill the victim. See Haygood v. State, No. SC11-294 (February 14, 2013)

The mental state for Manslaughter in Florida is defined as “culpable” or gross negligence, which is the same as Manslaughter in the Second Degree in Washington State.

Given the evidence introduced at trial and using the Washington statutes as an example, I would have instructed on Murder in the Second Degree (intentional murder), Manslaughter in the First Degree (reckless homicide), and Manslaughter in the Second Degree (criminally negligent homicide).

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Explanation of the Jodi Arias sentencing hearing

May 9, 2013

Thursday, May 9, 2013

Good morning:

The jury convicted Jodi Arias of premeditated first degree murder yesterday. Next up is the sentencing. The same jury that convicted her of premeditated murder will decide whether to impose the death sentence.

The hearing is scheduled to start at 1 pm, PDT (4 pm EDT).

Jodi Arias has stated that she wants to be sentenced to death. She has a right to testify and may request that sentence. She may have changed her mind, however.

There is no premeditated murder, no matter how egregious, that automatically results in a death penalty.

Court will reconvene at 1:00 pm PDT for the Eligibility Phase of the trial. This phase is also called the aggravation hearing because the prosecution will have to prove an aggravating circumstance beyond a reasonable doubt. The aggravating circumstance alleged in the indictment is that the premeditated murder was “especially cruel.”

The prosecution will probably call the Medical Examiner who performed the autopsy to testify regarding how long the victim remained conscious after she initiated the assault and the extent to which he may have suffered pain and emotional distress before losing consciousness and dying.

The more extreme his suffering and emotional distress, the more likely the jury will decide that the murder was especially cruel.

The defense can call its own expert or rely on cross examining the State’s expert.

Both sides will have an opportunity to argue whether the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel.

The Court will instruct the jury as follows regarding the meaning of the term “especially cruel.”

The term “cruel” focuses on the victim’s pain and suffering. To find that the murder was
committed in an “especially cruel” manner you must find that the victim consciously suffered
physical or mental pain, distress or anguish prior to death. The defendant must know or should
have known that the victim would suffer.

Potential consequences:

If the State does not prove beyond a reasonable doubt that an aggravating circumstance
exists, the judge will sentence the defendant to either life imprisonment without the
possibility of release, or life imprisonment with the possibility of release after 25 [35] years.

If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance
does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will
decide whether to sentence the defendant to life imprisonment or death. If the sentence is
life imprisonment then the judge will sentence the defendant to either life imprisonment
without the possibility of release from prison, or life imprisonment with the possibility of
release from prison after 25 [35] years.

“Life without the possibility of release from prison” means exactly what it says. The
sentence of “life without possibility of release from prison” means the defendant will never
be eligible to be released from prison for any reason for the rest of the defendant’s life.

If the jury concludes that the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel, the sentencing will proceed to the Penalty Phase.

The judge will then read the following instruction to the jury:

While all twelve of you had to unanimously agree that the State proved beyond a
reasonable doubt the existence of a statutory aggravating circumstance, you do not need to
unanimously agree on a particular mitigating circumstance. Each one of you must decide
individually whether any mitigating circumstance exists.

You are not limited to the mitigating circumstances offered by the defendant. You must
also consider any other information that you find is relevant in determining whether to
impose a life sentence, so long as it relates to an aspect of the defendant’s background,
character, propensities, record, or circumstances of the offense.

The defendant bears the burden of proving the existence of any mitigating circumstance
that the defendant offers by a preponderance of the evidence. That is, although the
defendant need not prove its existence beyond a reasonable doubt, the defendant must
convince you by the evidence presented that it is more probably true than not true that such
a mitigating circumstance exists. In proving a mitigating circumstance, the defendant may
rely on any evidence already presented and is not required to present additional evidence.
You individually determine whether mitigation exists. In light of the aggravating
circumstance[s] you have found, you must then individually determine if the total of the
mitigation is sufficiently substantial to call for leniency. “Sufficiently substantial to call for
leniency” means that mitigation must be of such quality or value that it is adequate, in the
opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances are of the same
quality or value, that juror is not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence
even if the defendant does not present any mitigation evidence.

A mitigating factor that motivates one juror to vote for a sentence of life in prison may
be evaluated by another juror as not having been proved or, if proved, as not significant to
the assessment of the appropriate penalty. In other words, each of you must determine
whether, in your individual assessment, the mitigation is of such quality or value that it
warrants leniency in this case.

The law does not presume what is the appropriate sentence. The defendant does not
have the burden of proving that life is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide
what you individually believe is the appropriate sentence.

In reaching a reasoned, moral judgment about which sentence is justified and
appropriate, you must decide how compelling or persuasive the totality of the mitigating
factors is when compared against the totality of the aggravating factors and the facts and
circumstances of the case. This assessment is not a mathematical one, but instead must be
made in light of each juror’s individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of the mitigating factors found by each
juror.

If you unanimously agree there is mitigation sufficiently substantial to call for leniency,
then you shall return a verdict of life. If you unanimously agree there is no mitigation, or the
mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of
death.

Your decision is not a recommendation. Your decision is binding. If you unanimously
find that the defendant should be sentenced to life imprisonment, your foreperson shall sign
the verdict form indicating your decision. If you unanimously find that the defendant should
be sentenced to death, your foreperson shall sign the verdict form indicating your decision.
If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the
judge.

And there you have it.

Go here to read the full set of pattern jury intructions for the Eligibility and Penalty Phases.

Livestream Link

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Thank you,

Fred


Nitty Gritty: Three Questions for Jury to Answer in Trayvon Martin Murder Case

December 31, 2012

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!!!!!!!!

Fred


Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.


Zimmerman Case: Who Uttered the Terrified Scream for Help Punctuated by a Gunshot?

July 13, 2012

UPDATE: The defense has filed a Motion to Disqualify Judge Lester. Read it here. H/t to commenter Sharona Baby.

Both sides will be attempting to prove that their person is screaming for help because that is the central issue in the case, Zimmerman and his dad will say it’s him. TM’s parents and his cousin will say it’s TM. I would not be surprised if his girlfriend also identifies him as the person screaming.

Unclear at this point if audio experts can conclusively identify the source.

Two audiologists using different methodologies while working independently of each other claim they have excluded GZ as the source of the scream to a reasonable scientific certainty. They compared a recording of his speaking voice during his conversation with the dispatcher to the background scream on the recording of a neighbor’s 911 call.

An expert at the FBI Crime Lab has issued a report concluding that no opinion can be reached given the poor quality of the 911 recording.

Common sense indicates that the man with the gun would not have been screaming for help up until the precise moment that he pulled the trigger ending TM’s life. The terrified scream also is high pitched indicating a young person in fear for his life, rather than an adult male armed with a gun and, of course, GZ’s injuries were relatively minor and unlikely to have provoked him to scream in terror.

Given GZ’s track record for uttering inconsistent and provably false statements, I doubt that a jury will believe his claim.

Will the jury believe the father, or will it assign little weight to his testimony on the ground that he is trying to save his son from a long penitentiary sentence.

If I were a betting man, I would bet the jury will be more likely to believe the grieving mother and father who seek justice for the tragic loss of their unarmed son.

For these reasons, if I were GZ’s lawyer, I would be extremely concerned about the probable likelihood that the jury would conclude TM was screaming for help and begging for his life when, according to GZ, he “aimed” and shot him in the heart at point blank range.

Does that sound like self-defense or does it sound like an “act imminently dangerous to another and evincing a depraved mind regardless of human life?”

Recall the statutory definitions of “imminently dangerous conduct” and “evinces a depraved mind”:

Imminently dangerous conduct means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.

A person evinces a depraved mind when he engages in imminently dangerous conduct with no regard for the life of another person.

Recall

The Florida jury instruction for second degree murder (Fla. Std. Jury Instr. (Crim.) 7.4) provides that an act is imminently dangerous to another and demonstrating a depraved mind if it is one that

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another

and

2. Is done from ill will, hatred, spite, or an evil intent

and

3. Is of such a nature that the act itself indicates an indifference to human life.

Would you be willing to bet 25 years in prison, which is the minimum mandatory sentence for second degree murder, that a jury would not find that shooting a terrified kid screaming for help constituted “ill will, hatred, spite, or an evil intent?

I did not think so.

So, what can you do, if you are GZ’s lawyer?

How, if at all, can you climb or get around this Everest that appears to block any meaningful chance to win the case?

If I were GZ’s lawyer, I would have him secretly tested in a sound lab to see if his screams “match” the scream in the background of the 911 call to a reasonable scientific certainty.

If it were a match, I would take it to the prosecutors and say “Checkmate, Got Yah!”

If GZ were excluded as the source, which is what I am expecting, I would never mention the test or the results.

The test and the results would not have to be disclosed since they would be protected from disclosure by the attorney-client work product privilege.

I know that might sound crazy to you but it’s true. I have arranged for private testing in many cases, usually involving DNA testing, and that is the way it works.

The only time the defense has to disclose the unfavorable results of expert witness testing is when the tests involve mental health as might be the case when the defense is insanity or diminished capacity. Even then the results do not have to be disclosed unless the defense asserts the defense.

Meanwhile, I would have thought that GZ’s lawyers would have arranged for this test while he was out before his bond was revoked. Maybe they didn’t have the time or the money to do the test. In any event, you can be certain that they would have introduced the result at the recently concluded bail hearing, if they had it and it helped their case.

They clearly did not, but given the relatively short opportunity to do the test between bond hearings, I don’t believe we can reasonably conclude they did the test yet.

The more time that passes without the defense saying anything about a test, the more likely the test was completed with unfavorable or inconclusive results.

Should that have already happened, or if it happens, we can be reasonably certain that the defense will never mention it, ever.

There is another possibility to consider. The prosecution could move for an order requiring GZ to submit to a voice analysis test, or scream analysis test, if you prefer.

There is no Fifth Amendment right to refuse to participate in such a test because the evidence is not considered testimonial. That is, the suspect or defendant is not being forced to testify against himself. For example, it’s permissible in a bank robbery case to have each person in a lineup step forward and utter some phrase the robber said, so that witnesses can compare the sound of their voices to the robber’s voice. It’s also permissible in a forgery case to require a suspect to provide a handwriting exemplar.

The prosecution has not expressed an inclination or desire to go there, perhaps due to the expert at the FBI Crime Lab who opined that the scream is unsuitable for comparison purposes.

That would not stop me or any good defense lawyer from pursuing the matter, especially since we know there are two experts who have relied on the 911 recording.

Where there are two, there will be more, and where there are some, there will be one.

Pick the most respected legitimate expert and if the results are favorable, use them.

The prosecution might object, but if it does, request a pretrial Frye/Daubert hearing with expert testimony on the admissibility of test results obtained using a novel scientific theory or methodology.

Under the present circumstances of this case, if defense counsel fail to go down this road, I think they would have failed to provide effective assistance of counsel, which they are required to do under the Sixth Amendment.


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