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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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 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.


Zimmerman: Jury Instructions for Second Degree Murder and Self-defense

July 12, 2012

Here are some definitions for y’all to keep in mind.

All state and federal trial courts use sets of pattern instructions that are submitted to juries to follow during their deliberations. The instructions define legal terms, the elements of the crimes charged and the relevant defense claimed by the defendant. They also include a presumption of innocence, burden of proof, and definition of reasonable doubt instruction that is given in all criminal cases.

You are in an upper level graduate school course so you know this part by heart:

The defendant, George Zimmerman, is presumed innocent and remains innocent unless the jury unanimously finds him guilty beyond a reasonable doubt.

The defendant has no burden to produce any evidence or to testify in this case. He has a constitutional right to not testify and the jury may not assume anything regarding his silence.

The State has the burden of proving each element of the crime charged beyond a reasonable doubt.

Since the defendant admits killing Trayvon Martin, but claims he was legally justified to do so in self-defense, the State must prove beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

A reasonable doubt is a doubt for which a reason exists. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.

Each side is entitled to the benefit or detriment of the evidence, regardless of which side introduced it.

Evidence may be either direct or circumstantial. Direct evidence is perceived directly by the senses: vision, hearing, touch, taste and smell. Circumstantial evidence is inferred from a chain of circumstances which in ordinary common experience leads to a particular conclusion. One type of evidence is not necessarily better or worse than the other. It is for the jury to decide how much weight to give to the evidence.

Murder in the Second Degree

In Florida second degree murder is defined as the unlawful killing of a human being when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.

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.

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.

Element number 2 will be the battleground and that is why I italicized it.

Self-Defense Instruction

This is the pattern jury instruction for self-defense that the State must disprove beyond a reasonable doubt.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the charge of Murder in the Second Degree with which the defendant is charged if the death of Trayvon Martin resulted from the justifiable use of deadly force.

“Deadly force” means force likely to cause death or great bodily harm.

In deciding whether defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.

No duty to retreat..

There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime for which the defendant asserts the justification.

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself.

An Aggressor Cannot Claim Self-Defense

The legal justification to use deadly force in self-defense is not available to a person who:

1. Initially provokes the use of force against himself, unless such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm

and

2. That he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.

These instructions or ones that are substantially similar will be given, if this case goes to trial.

The lawyers on both sides will be preparing for trial with these instructions in mind and y’all should keep them in mind as we continue to evaluate and discuss the evidence.

Keep in mind that Trayvon Martin’s alleged use of force may have been legally justified as reasonable force in self-defense while standing his own ground. The State will have the burden of proving beyond a reasonable doubt that he acted in lawful self-defense in order to prove that GZ’s use of deadly force was not legally justified in self-defense.

Clear as mud you say?

That’s why we have a comments section, right?

Last one in the pool is a rotten egg.


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