Zimmerman Discovery Hearing on April 27, 2012

I have not been able to find an actual transcript or a video of the proceeding, but one of the commenters over at JustOneMinute watched the hearing live and provided paraphrased updates of what happened in the comments on a recent post. Here is what the commenter had to say:

***

Watching it live on Central Florida Channel 13. No gag order.

***

de la Rionda wants to talk about the “bond thing”.

Lester is now up to speed on “Media Law”. Has read the applicable codes and procedures. Miami Herald gets a special shout out from Judge Lester.

Only alternative is change of venue, if information prejudices fair trial. blah, blah, blah.

Now asking both defense and prosecution if there is anything else he needs to know in order to release.

***

One area in which he is not following media law and that is GZ security. Good for him.

Now what is the best way to handle the media requirement.

Herald lawyer bringing up discovery and that today it comes to the defendant and must be made public. He wants to understand the game plan for releasing discovery. Lester is not going to impose himself on the actions between defense and prosecution. Suggests they all get together and discuss how to handle the release of discovery. But its common between attorneys to ask for a few more days, etc.

***

O’Mara is now up. One area he is inquiring is witnesses who have provided statements or want to provide statements. They have cause for concern regarding their participation in the this process. O’Mara wants to be able to analyze statement and the witness prior to releasing. He can’t protect GZ or the witness or vet them if he has to release discovery. Interesting concern that de la Rionda is backing up O’Mara regarding the media scrutiny and security.

***

Herald lawyer is now trying to educate judge on media access to the information and witness information. 119.011 Fla. STatue on media discovery re: witness statements. Herald is saying legislature has already set the standard for protecting witness. Judge is concerned about the witness who is out there everyday talking on TV. File motion on case by case basis. State argued what the judge did in Casey Anthony case.

Case by case basis.

State is saying the 911 tape of witness of murder should not have been released. Judge is not being lead to one side or the other.

***

O’Mara is bringing up the financial standing of family and the websites raising money. Money then was about $2,700 in both website accounts. Website of The Real GZ. Also false websites and false twitter accounts. He told GZ no more twitter or website. That is when GZ mentioned the paypal account and what to do. Goes into O’Mara office trust account.

GZ has used some of the money for living expense. Point is that at the time GZ was at bond hearing there was $100 to 150 thousand in the paypal account. He was unaware and now the money is in O’Mara control. Not available to GZ. Needs to figure out way to administer. Wanted to make Judge aware of the fact that as of Friday that money was out there. Bernie says he is now aware of the matter from last night. Thinks the court should consider raising bond.

Judge: Wants to see who had control over the accont prior to O”Mara taking control. O’Mara has to give Judge more information. Judge may have authority or maynot have authority. O’Mara noted that the family used $5K from account to raise the $15K for the bond. Wants to do the expication of how the funds were raised and who had authority in-camera to protect the security of the family.

***

Information is on its way to O’Mara. Concerned with public disclosure of donor list and security of the donors.

O’Mara is waiving appearence of GZ today.

Bernie is asking he and O’Mara approach the bench. Confidential discussion with Lester. Bernie has a paper or two with him to discuss.

***

Well its over. But the judge seems to be more fair and balanced than probably either the State or Defense wants him to be:)

Biggest concern for this Judge is security – of GZ, of witnesses, etc. We’ll see if he is as concerned about the security of donors to the GZ fund.

[END]

Advertisements

Another Good Look at Florida’s Statutes

The Volokh Conspiracy, a blog written mostly by law professors, has a detailed look at Florida’s justified use of force statute–commonly known as the Stand Your GRound law–and whether/how it applies to the George Zimmerman case. My favorite quote is:

Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

Read the whole article by clicking on the quote.

As a reminder, I  took a “Closer Look at Florida’s Stand Your Ground Law” and also “Does Stand your GRound Even Apply to George Zimmerman.

Others Weigh in on the Zimmerman Affidavit

Others with far more legal experience than me have started to weigh in on the weaknesses in the State’s Affidavit of Probable Cause against George Zimmerman.

Alan Dershowitz, a Harvard University law professor, thinks the Affidavit is “irresponsible”. From the Mediaite article:

Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.

Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”

Andrew McCarthy, writing for The National Review, says:

I’m inclined, instead, to agree with commentators ranging from former Reagan Justice Department official Mark Levin to Harvard’s Alan Dershowitz that the affidavit is stunningly weak — “unethical,” as Prof. Dershowitz puts it. In fact, I go further (which, after nearly 20 years of writing and supervising the writing of complaint affidavits, I think I’m qualified to do). This affidavit is not law, it is agitprop:…

Florida trial lawyer Richard Hornsby who has won 15 “stand your ground” cases talked to CBS news about the case:

Hornsby told CBS News he thinks Corey’s affidavit is more significant for what it leaves out than for what it includes.

“The moment George Zimmerman fired that shot is the key question in this entire case,” Hornsby said. “Did he reasonably believe he had to fire that shot to defend himself? And the fact (Corey) completely left that out, begs the question, does she not have any evidence to refute his version of the events?”

Hornsby also has a post on his blog that does a good job of breaking down Florida’s justifiable use of force statute and how it would apply to Zimmerman’s case. He is also quoted in an article in the Orlando Sentinel as saying that, ” the charge looks like an attempt to ‘appease the public’.”

I’ll post additional links as I find them.

Manslaughter Vs. Second Degree Murder

The State Attorney Angela Corey has charged George Zimmerman with second degree murder under Florida statute 782.04 (2) . That section of the statute reads:

“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, is murder in the second degree and constitutes a felony of the first degree, …”

Findlaw lists the justifiable use of force as one of several defenses to second degree murder. By contrast, the definition of manslaughter an be found in section 782.07 (1):

“The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, …”

The Chapter 776 referenced in the manslaughter definition is the “Justifiable Use of Force” part of Florida law.

So what does the State have to prove to get a second degree murder conviction? Again, from a blog post at Findlaw:

Florida’s jury instructions (which are based on the Florida statute) spell out three elements that prosecutors must prove to establish second degree murder beyond a reasonable doubt:

  • The victim is deceased,
  • The victim’s death was caused by the defendant’s criminal act, and
  • There was an unlawful killing of the victim “by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.”

The last element — an “imminently dangerous” act that shows a “depraved mind” — is further defined by Florida’s jury instructions. Three elements must be present:

  • A “person of ordinary judgment” would know the act, or series of acts, “is reasonably certain to kill or do serious bodily injury to another”;
  • The act is “done from ill will, hatred, spite, or an evil intent”; and
  • The act is “of such a nature that the act itself indicates an indifference to human life.”

I can’t see how the State can prove this aspect of the alleged crime. This was clearly an act that took place during a heated argument with physical violence. Defending oneself can hardly be seen as done from ill will, hatred, spite or evil intent.

Others agree with me.

Was George Zimmerman’s Fear Reasonable

One of the key elements of the George Zimmerman / Trayvon Martin Case is did Zimmerman have a reasonable belief that he was about to be killed or sustain great bodily injury. That claim is going to come from Martin banging Zimmerman’s head into the concrete. So how bad can that really be? A quick Google search turned up these:

Read here about the case of James Paroline of Seattle, Washington, who was killed after a punch sent him to the concrete:

“A 60-year-old Rainier Beach man seriously injured in a dispute over a neighborhood traffic circle died Thursday night at Harborview Medical Center. James Paroline had been in a coma since being punched and hitting his head on the concrete during the altercation Wednesday,…”

Read here about the case of Angelo Fuentes, who died in Missoula, Montana, also after a single punch sent him to the sidewalk:

“…Hylton – described by one witness as about 6-foot-4, weighing 300 pounds – punched the 5-foot-6, 165-pound Fuentes. But the accounts differ as to whether there was just a single sucker punch – “a snaky move,” a witness who didn’t know either man described it – that sent Fuentes down, his head cracking against the sidewalk, or more than one blow. Fuentes was taken off life support later that day. A coroner’s report listed the cause of death as blunt force trauma to the head.”

Read here about James Jones of Newark, New Jersey, who also died, after yes, a single punch sent him to the concrete:

“When one of the men punched Jones, he fell, striking his head on the concrete walkway, Jones’ girlfriend later told police. Jones, who lived in the apartment complex, was taken to University Hospital, where he died Monday, at 4:30 p.m. The Essex County medical examiner has ruled his death a homicide from blunt force trauma to the head.”

I’m sure I could find many more. Lots more. According the Centers for Disease Control, the estimated annual average number of traumatic brain injuries in the United States for the years 2002 to 2005 that were due to assault was approximately 170,000. Of those, approximately 5800 resulted in death. See the report here.

So could George Zimmerman have had a reasonable fear that Trayvon Martin smashing his head into the concrete would result in death or great bodily injury? Hell yes.

Does “Stand Your Ground” Even Apply to George Zimmerman?

The George Zimmerman case has, naturally, prompted a lot of discussion in the media about self-defense and the Florida statue regarding the justifiable use of force, commonly called the “Stand Your Ground” law. As I said in a previous post, the”Stand Your Ground” nickname comes from one eight-letter phrase in a sentence referring to the justified use of deadly force:

“a person is justified in the use of deadly force and does not have a duty to retreat if…”

If we take Zimmerman’s account of the events of that night as true, then the above phrase is irrelevant. Zimmerman could not have retreated at the time he chose to use deadly force; he was underneath Martin and hadn’t been able to get away from him despite 30 seconds to a minute of struggling. Retreating was simply not an option. Zimmerman would have been justified regardless.

HOW WOULD MARTIN’S ACTIONS BE VIEWED WITHOUT “STAND YOUR GROUND”?

Another interesting part of this discussion is how Trayvon Martin’s actions that night would have stood the legal test if the “have no duty to retreat” clause was not included in the statute. I’ll consider a couple of scenarios for Martin. Under both scenarios, though, Zimmerman and Martin had lost sight of each other. That seems to not be in dispute on the night in question.

Could Martin have legally gone back and confronted Zimmerman? Well, simply going back and talking to Zimmerman would be fine, and just as legal as Zimmerman approaching Martin and talking to him. “Talking” in this case does not mean “making threats”; it means asking and/or answering questions, etc. However, if Martin truly believed that Zimmerman was a threat and if he had a duty to retreat, then he wouldn’t, in my opinion, have been legally justified in going back and using force against Zimmerman. Martin would have had a duty to retreat, and he could easily have just gone home and stayed there.

What if Zimmerman had caught up to him as alleged by some? What if Zimmerman had shoved him first? Then, in the absence of “stand your ground”, Martin might have been justified in throwing the punch and knocking Zimmerman down, but he would still have to try to retreat before using deadly force–e.g., slamming Zimmerman’s head into the ground. He didn’t do that. He stayed and fought or wrestled with Zimmerman, despite being on top and being able to disengage and run away. And Martin was clearly the faster runner, evidenced by the fact the he lost Zimmerman earlier.

IN SUMMARY

Therefore, my opinion is that if the “Stand Your Ground” portion of the law were removed, Zimmerman’s actions would still be justified but Martin’s would not. The very portion of the law that has come under criticism by some is the only portion under which Martin’s actions can be defended. Ironic, isn’t it?

[The standard “I am not a lawyer, I just play one on the Internet” applies to the preceding discussion.]

Trayvon Martin’s Actions and the “Stand Your Ground” Law

[Let me preface this by saying that I am neither a police officer nor a lawyer. The following discussion about the law is a lay person’s view of it.]

TRAYVON MARTIN’S ACTIONS UNDER THE “STAND YOUR GROUND” LAW

Picking up where I left off in my last post, I wanted to look at the assertion by some that Trayvon Martin had the right to start the fight with George Zimmerman under the “Stand Your Ground”. Note that we are still operating under the scenario that Zimmerman’s story, as we know it so far, is true–Zimmerman lost sight of Martin, and Martin later came back and approached Zimmerman and threw the first punch.

The assertion usually goes like this: “Zimmerman scared Martin by following him, and Martin had the right to confront him. He didn’t have a duty to retreat. Even if Martin threw the first punch, he was still justified.”

Let’s look at the statute again (so you don’t have to click back to the last blog post):

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony…

Let’s start with the first sentence, which deals with other than deadly force. A couple things strike me as important. First, the person has to believe that unlawful force is “imminent”, and second, that belief has to be reasonable. Under our scenario, it would be hard to argue that any force Zimmerman might use against Martin was “imminent”. Zimmerman had lost sight of Martin and stopped pursuit. What if Martin didn’t know that, though, and maybe thought he was still being pursued and decided to “stand his ground”, return and confront Zimmerman.

Martin returning to confront Zimmerman and ask him if he is following Martin is not illegal, any more than Zimmerman approaching Martin and asking what he was doing there was (if we take Martin’s girlfriend at her word). However, once they are face-to-face again, any danger would be imminent, so we would have to look at the reasonableness of Martin’s belief that Zimmerman was about to use unlawful force.

This is the tricky part of the law, and I don’t think there is a clear-cut answer. My opinion is that–absent any verbal or physical threat–it is NOT reasonable to believe that someone means you harm simply because he has followed you a short distance. And Zimmerman asking Martin what he was doing there, if that occurred, also does not seem to reasonable grounds to assume Zimmerman was going to attack Martin.

Some would argue otherwise, that simply following is threatening. I can certainly understand that being followed might feel threatening to some–perhaps even most of us–but that is a vague threat, a “I wonder what he wants? Does he want to hurt me? Steal from me?” kind of a threat. But until the follower approaches, it’s not imminent and it’s not specific.

Ultimately, though, I think a court and/or jury would have to make this call. It is not clear-cut to me how such a claim would shake out.

BUT DEADLY FORCE?

The second sentence of the statute talks about when deadly force can be used. Again, under Zimmerman’s scenario, Martin banged his head into the concrete more than once.

This is deadly force. Let me repeat this: Banging someone’s head into the concrete is deadly force. It can crush a skull and cause brain damage or death in a very short period of time. And you can’t say, “Well, I’ll only smash his head hard enough that it hurts, not that it kills him.” because it is impossible for an attacker to know just how much force is too much. Therefore as soon as the attacker does this, the possibility of death or great bodily harm is immediate and real.

So was Martin warranted in using deadly force? He would have to reasonably believe that Zimmerman was about to kill him or cause him great bodily harm,.

I just don’t see it.

Let’s assume for a moment that a court would say, “Yes, following someone is considered a threat of immediate harm.” Is it reasonable for Martin to assume that that threat was so great that he could be killed or sustain great bodily harm?

I’m not so sure it is. Martin was a big kid, 6’2 or 6’3″, and 150 to 160 lbs. Zimmerman is much shorter, 170 to 180 lbs. Martin was athletic–he played football–and physical and he had reach on Zimmerman. Zimmerman is stocky, maybe pudgy, but certainly not a lean fit 5’9″. Zimmerman’s gun was concealed.  In a fist fight, absent weapons, Martin certainly had the physical size and stamina to hold his own.

The only way Martin’s use of deadly force would be justified, in my opinion, is if he saw Zimmerman’s gun (before he used deadly force) and if Zimmerman made an overt threat to him. Under Zimmerman’s scenario, however, the gun didn’t become visible until later in the fight.

SUMMARY

To summarize, Martin throwing the first punch might be justified under current Florida law, if one could prove that the act of following along is a sufficient threat of the immediate use of unlawful force. Martin’s use of deadly force does not appear to be justified under this scenario

UP NEXT

Other possibilities. What if Zimmerman “chased down” Martin as some have claimed? What then?