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).

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.


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.


Welcome to liveblogging day 9 Zimmerman trial (morning session)

July 5, 2013

Friday, July 5, 2013

Good morning:

Court will resume this morning at 8:30 am EDT.

The prosecution probably will rest is case today.

I am expecting the Assistant Medical Examiner, Dr. Bao, who did the autopsy. Expect graphic and gruesome photos. If you aren’t into that, you may want to cover your screen and listen.

Also expecting the State to call a wind-up witness, possibly FDLE Detective Gilbreath to connect all the dots with charts, diagrams and timelines.

Sybrina Fulton may also testify to identify Trayvon’s voice. If she does, expect Don West to do his best to impeach her credibility by accusing her of being a bad parent and bringing up the lawsuit against the HOA.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

See you in court.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


Defendant faces Hobson’s Choice

July 4, 2013

Thursday, July 4, 2013

Happy Independence Day to everyone!

I write today to allay concerns regarding the sufficiency of the State’s case.

First, we know they are going to call the Dr. Bao, the Assistant Medical Examiner who did the autopsy. I think we can reasonably expect that he will tie up any remaining loose ends regarding Trayvon’s death. Expect graphic and gruesome photographs that will firmly ground this case in the reality of a death that did not need to happen.

Second, the prosecution always ends its case-in-chief with what we call a wind-up or summary witness who ties everything together with the aid of charts, graphs and timelines that bring the evidence into focus. I am anticipating that FDLE Detective Gilbreath will be the witness and Bernie de la Rionda will ask the questions that steers him through the maze and haze.

Third, I am expecting the State will call Sybrina Fulton and she will identify her son as the person who uttered the terrified death shriek.

I believe the State will use most of tomorrow to finish up its case.

After the State rests, the defense will move to dismiss the murder charge and enter a judgment of acquittal on the ground that the State failed to present a prima facie case.

The test sJudge Nelson will apply in deciding that motion requires her to assume for the purpose of deciding the motion that all of the evidence introduced during the State’s case-in-chief and all reasonable assumptions that can be drawn from that evidence are true. Given those assumptions, she must decide if a rational trier of fact (i.e., a juror) could find the defendant guilty beyond a reasonable doubt of murder in the second degree.

Expect Judge Nelson to deny the defense motion.

After she denies that motion, the defense will have to decide whether to present any evidence. I believe sufficient evidence of self-defense has come in through the defendant’s statements to support instructing the jury on self-defense. Therefore, the defendant will not have to testify to get that instruction and the defense could rest without calling any witnesses.

Will the defendant testify?

As I commented last night,

The combination of the SPD photographs that show no significant injuries to the defendant’s face and head and the absence of any of the defendant’s blood and DNA on Trayvon Martin’s fingernails and his hoodie sweatshirt, particularly the sleeves and cuffs, put the lie to the defendant’s story.

Trayvon Martin did not hit the defendant repeatedly or slam his head against a cement sidewalk because, if he had done so, he would have been covered with the defendant’s blood and DNA.

Therefore, the defendant was never reasonably in fear of death or serious bodily injury.

Trayvon Martin’s fingernails and sleeves would have been drenched in blood, if the defendant’s story were true. The argument that the rain washed away the defendant’s DNA, and/or the packaging of the damp hoodie in a plastic biohazard bag degraded all of the defendant’s DNA is specious because Trayvon’s blood and DNA were detected.

There is no question that the defendant followed Trayvon Martin first in his vehicle and then on foot with the intent of preventing this “asshole from getting away.”

There is no question that Trayvon Martin attempted to run away from the defendant.

There is no question that the defendant had two opportunities to identify himself but decided not to do so.

There is no question that the defendant ignored the dispatcher’s warning to cease from following Trayvon Martin when he told the dispatcher to have the officer en route call him for a location and he subsequently pursued Trayvon Martin into the grassy area behind the townhomes south of the T intersection.

Given his unambiguously expressed intent to prevent Trayvon Martin from getting away, there is no doubt that he confronted him when he found him.

The defendant’s hostile pursuit makes him the aggressor and he cannot legitimately claim that he acted in self-defense, unless Trayvon Martin resisted his effort to detain him with deadly force and he could not withdraw from the encounter.

The defense claim that Trayvon Martin was “armed” with a cement sidewalk is controverted by Dr. Rao’s testimony and the DNA evidence.

I think the jury will likely find the defendant guilty, if he does not testify.

Yet, I cannot imagine how he can talk himself out of the mess he has created.

He has the right to decide whether to testify.

We will have to wait and see what he decides to do.

I am not expecting the defense to present any other evidence, with the possible exception of calling a family member(s) to identify the defendant as the person who uttered the terrified death shriek.

I suspect the jury will not believe them since the defendant was never in any danger and the shriek abruptly ends with the gunshot that silenced Trayvon Martin forever.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.


Prosecution hammers defense with DNA evidence in eighth day of trial in Zimmerman case

July 3, 2013

Wednesday, July 3, 2013

Good afternoon:

The State hammered the defense with DNA evidence today. FDLE laboratory analyst Anthony Gorgone testified that the defendant’s DNA was not found on Trayvon Martin’s fingernail cuttings or anywhere on Trayvon Martin’s sweatshirt, including the area from the elbows to the cuffs.

Gorgone also testified that Trayvon Martin could not be excluded as a contributor to a bloodstain on the lower portion of right cuff of the defendant’s jacket.

These results are a devastating blow to the defense because they refute the defendant’s story. Given the scenario that the defendant described, his blood and DNA should be all over Trayvon Martin’s fingernails and sleeves.

Judge Nelson recessed the trial until Friday morning at 8:30 am EDT.

The State will be resting its case sometime Friday, possibly before noon.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.


Welcome to liveblogging day 8 Zimmerman trial (morning session)

July 3, 2013

Wednesday, July 3, 2013

Good morning:

Court will resume this morning at 8:30 am EDT with a hearing outside the presence of the jury regarding the admissibility of testimony by a professor at the local community college introducing the defendant’s textbook and course work on the law of self-defense and Florida’s Stand Your Ground law. Also at issue is the admissibility of the defendant’s application for employment with a police department in a county in Virginia and an application to ride-a-long as a civilian with a Sanford police officer.

The evidence from the school is being offered to show that the defendant knew the law of self-defense and the Florida SYG law.

The applications for police employment and to ride-along are being offered to show his interest in police work (i.e., he is a police wannabe).

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


Prosecution delivers in seventh day of trial in Zimmerman case

July 2, 2013

Tuesday, July 2, 2013

Good afternoon:

This was a strong day for the prosecution.

Today’s session began with Judge Nelson instructing the jury to disregard Investigator Chris Serino’s testimony that he believed the defendant told the truth. Judge Nelson had ruled in limine before the trial began that police officers cannot express their personal opinions as to the defendant’s guilt or innocence or whether he told the truth. Defense attorney Mark O’Mara violated that order when he asked Serino if he believed the defendant. Therefore, Judge Nelson properly ordered the jury to disregard Serino’s answer.

If the shoe had been on the other foot and a prosecutor had asked the lead investigator if he believed the defendant when he denied guilt and the answer was “No,” a mistrial would have been declared and the jury would have been sent home. If the error were deemed deliberate (i.e., provoked) because the trial was not going well, the Double Jeopardy Clause would prevent a retrial

Although not much was said about what happened, it was a very serious error and an extremely sleazy move by O’Mara.

In any event, Serino was defending how he handled the case before it was taken away from him. He had formed his opinion based on eye and ear witness testimony, the defendant’s statements, and his recorded NEN call. He did not have the benefit of considering the forensic evidence that has not been introduced yet and the autopsy report.

In a strong redirect, Bernie de la Rionda reviewed several inconsistencies in the defendant’s statements, such as his claims that he forgot the name of one of only three streets in his neighborhood, his claim that he had to walk all the way to Retreat View Circle to look for an address when they were right in front of his face on Twin Trees Lane, and his claim that he did not follow Trayvon Martin even though he admitted that he went in the same direction.

The State played the Hannity interview in which the defendant denied knowing anything about the SYG law, expressed no regrets, and said it was all according to God’s plan. He said he did not believe Trayvon Martin was afraid of him and also said he was not afraid of Trayvon Martin whom he described as “skipping away” instead of running away.

Dr. Valerie Rao, a forensic pathologist and assistant medical examiner testified that the defendant’s injuries to his face were minor and insignificant and could have been caused by a single blow.

The State was going to follow that testimony with the testimony of a professor at the local community college introducing the defendant’s textbook and course work on the law of self-defense and Florida’s Stand Your Ground law. They also had his application for employment with a police force in a county in Virginia and an application to ride-a-long as a civilian with a Sanford police officer.

Defense objected and Judge Nelson gave the defense until tomorrow morning at 8:30 am to prepare a response.

This was a strong day for the prosecution.

(H/T to disappointed for reminding me to include the defendant’s description during the Hannity interview of Trayvon “skipping.”)

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


%d bloggers like this: