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


Featuring Lonnie Starr and his Theory of the Trayvon Martin Case

December 4, 2012

Lonnie Starr has been working this case displaying high intelligence with the focus and determination of a dog working a bone. Pity the hapless and extremely over-matched defendant and his defense team. Just don’t get carried away feeling sorry for them.

He also has written the two White House petitions seeking a federal investigation of the defendant for violating Trayvon Martin’s civil rights and an end to the SYG laws.

Here is his theory of the case as he presented it in two comments this morning on the Tempest in a Teapot thread. Please read it and join the discussion below.

If you like this article, please consider sharing and liking it by clicking on the buttons immediately below and making a financial contribution by clicking on the yellow donation button in the upper right part of this page just below the blue banner containing my name and the name of the blog.

Thank you.

Fred

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Unlike most investigators, I gather facts and work forward from there, creating an imaginary narrative that puts all the facts in place. Then I examine the details that don’t fit, and I then work backwards to see where they can be fitted. After I have a good narrative that accounts for as much as I can, then I sort of try to view it “from the side lines”, looking for the nexus of critical details, in other words, if this had happened, then this is what had to have been taking place as well. Then you take a closer look at what had to have happened along side what did happen, and if the narrative is false, insurmountable obstacles/anomalies appear.

Evidence can only lie by being contrived to give a false impression. People, however, have more options to falsify. So, believe the evidence more than the people who observe it, but only believe the evidence itself, if you cannot imagine that it has been contrived. If it is possible to contrive evidence, then it is possible to fool witnesses, and this is exactly the objective of the criminal mind.

So, you work backward, then forward and backwards again and take looks from the sides, it’s like panning for nuggets of gold. The chaff and waste eventually washes away, leaving the hard stuff behind.

It puzzled me for a long time, why a law student, would go out on a hunt that both the law and the rules of NW definitively prohibited. What would be the percentage in that? He’d have broken every rule and the law besides! How could he think that would make him a hero? When, any fool could see, all he’d wind up with is a harmless kid being held, who had a right to be in the neighborhood. What could he possibly do in that event? The answer is, kill the kid! That’s the only thing that prevents the comparisons from being made. But that is only a stall, since the truth would probably come out anyway.

So then, what does GZ need to make the planned hunt okay, despite the laws and the rules? The answer is: evidence that a crime had been committed. So then the question is “what kind of crime can be carried and displayed under a wide variety of circumstances”? The answer is: Bloody wounds! They can be claimed to have happened outside of the sight of any witnesses who later appear. They are hard to refute because, it’s hard to believe that a “pillar of the community” would actually harm himself, for the purpose of misleading the public, about a crime, it doesn’t appear he would or could plan.

But think about it, if George leaves his house bleeding from carefully designed wounds, he has a “crime” that can be used in a variety of ways, to excuse all breaking of rules and justify breaking the law as well. Those wounds were designed to shield him from the prohibitions of rules and laws. But, because they were created before any other actions were taken, they must not be professionally examined, if the time of their creation could be determined at all. This means that the creation of these wounds could not be left to chance. They are an integral part of the nights activities, however or whatever else happens. Only the how of obtaining them need be changed to fit what actually takes place.

This leaving home on the hunt for this project, is a “high octane” emotional performance, that required dedicated intent. It is likely that medication and alcohol, which lowers inhibitions and increases calm, would be taken to steady the nerves. If so, it adds yet another reason why the ER must be avoided at all costs, and of course, to accomplish that, the wounds must be and remain superficial, and not require professional treatment.

Next up is GZ undoing himself. He rehearsed a plausible story, probably several. As a NW, who knows that he cannot be either on patrol or following, he leaves home with a story about going shopping. To cover up notification, he “spots” his target over by FT’s cut through, a good story for night time affairs, since it comes through a “strange” area. (Of course, we are later to learn it wasn’t so strange to find people walking that way at all).

But George has his bloody head wounds to shield himself, which ever way the story plays out. The first problem arises, he can’t find the target, where he has been told to look. So he retraces his path, looking to pick up the trail. (tchoupi’s work), His fellow Watchers see his predicament and call him to correct his error, by pointing out that the target is still there at the mailboxes. George goes back and spots him, and there the play begins.

According to the script, GZ needs to frighten his target into engaging actions that can be portrayed as strange. He accomplishes this by shining his lights on the target as he shelters in the mail shed. Unbeknownst to GZ, however, his target is on the phone and gives notice of GZ’s hostile presence. So, an explanation of TM’s actions from that point onward are explained. Bad news for GZ!

When TM leaves the shelter of the mail boxes, it is actually raining harder than it was when he first got there. Meaning he was already spooked. But he contains himself enough to walk, probably out of GZ’s sight before he actually runs. However, GZ has his little defense shield in place, and since this gives him the lattitude he needs to break the rules and the law, he sets up the scene with “he’s running” to the NEN operator, then he exits his car. This one cannot get away, because George has intentions that will not allow it to happen that way. Meanwhile TM is unaware of how dangerous the situation really is, so he quickly assesses that not seeing GZ, means that he’s no longer being followed, and continues his walk home. Only to find GZ behind him again.

GZ intends to grab and hold TM for the police, using his wounds as a reason and lawful cause for doing so. That would make him a hero, if it would play out that way. Only trouble was, TM was still extremely childish far beyond his years. If only TM was more mature, the story would have worked. But, since TM was so extremely childlike, the planned story would quickly reveal as absurd. A whining, crying child asking for his momma, isn’t going to sell as a thug of any kind. GZ blames TM’s lack of maturity for inexplicably thwarting his heroic plans and decides that TM’s demeanor and character must not be allowed to display. By killing TM he accomplishes, preventing immediate challenge to his claims of attack, while making himself the only credible witness of all the events of that night.

GZ had a well rehearsed story, for how things transpired. In his drug and alcohol induced state, he can do no more than recite it verbatim. It all occurred at the “T”, where he did not follow TM, but was instead attacked while attempting to retreat. The trouble is, he was unable to modify the story as needed, thus he cannot account for the fact that the body is 40.5 feet away from where it needs to be, for the purpose of his well rehearsed story.

This story could have easily been modified to account for this distance south of the ‘T’, but Georges becalmed state, as evidenced by his bio stats, precluded critical thinking.


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