Neighborhood Watch Captain
I knew if I waited long enough someone else would do the research so I wouldn’t have to:
Self defense is an affirmative defense to the crime of homicide. It has the effect of legally excusing the defendant from an act that would otherwise be a crime.
Stand your ground is not a defense, but an immunity statute, providing immunity from criminal prosecution. It is a bar to prosecution (and yes, arrest.)
A defendant charged with a crime who wants to raise Stand your Ground files a motion to dismiss claiming stand your ground immunizes him from prosecution. Here is a typical motion, filed in another case in December, 2011.
A hearing is held before trial. The burden is on the defendant to prove by a preponderance of evidence that stand your ground immunity applies.
The judge weighs the facts. If the judge agrees the defendant has shown stand your ground immunity applies by a preponderance of evidence, the charges are dismissed. The defendant can’t be prosecuted.
If the judge finds the defendant hasn’t met his burden, (including if the disputed evidence is so equal on both sides the judge can’t decide one way or the other) the case goes to trial to be decided by the jury. At trial, the defendant can still argue both self-defense and stand your ground immunity — he only has to establish some evidence of his theory, which can be just his own testimony, that he acted in self-defense.
The prosecution must prove his guilt at the jury trial beyond a reasonable doubt. Which means, if the defendant raises self-defense or stand your ground at trial and gets the jury instruction, the state, which has the burden of proving guilt beyond a reasonable doubt, must disprove self-defense. If the jury has a doubt, the defendant must be acquitted.
When Jeralyn sticks to law she’s usually pretty sharp. I’ve seen a lot of legal opining by people who aren’t lawyers. If you want an authoritative opinion on the Zimmerman case you should listen to people who actually practice criminal law in the state of Florida. Jeralyn got her information from a Florida judge’s opinion in a SYG case.
Every state has a different set of laws governing crime and criminal procedure. They must all conform to the US Constitution but that is a minimum standard – states can provide more rights to individuals than those set forth in the Bill of Rights. Here in California we have no such thing as a SYG motion.
The important thing to remember is that if Zimmerman claims self defense the state must disprove it beyond a reasonable doubt. That is a very high burden for the state to make.
Which brings me to the issue of probable cause:
Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated.
“You’ve seen the affidavit of probable cause. What do you make of it,” Smerconish asked. “It won’t suffice,” Dershowitz replied without hesitation.
“Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge,” Dershowitz said. “There’s simply nothing in there that would justify second degree murder.”
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.”
Smerconish identified the total lack of any mention of the supposed fight that occurred between Martin and Zimmerman prior to Martin being shot. He said he was disappointed that he did not see any mention of that conflict that led to Martin’s murder.
“But it’s worse than that,” said Dershowitz. “It’s irresponsible and unethical in not including material that favors the defendant.”
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
An Affidavit of Probable Cause is filled out by an investigator or prosecutor seeking a warrant. It is presented to a magistrate (judge) and must contain sufficient information to convince the magistrate that probable cause exists to justify the warrant.
The Affidavit does not have to include all the information known to the investigators, but it should contain any exculpatory evidence they have that would negate probable cause. If they have an eyewitness who claims they saw the defendant commit the murder but they know the defendant has a rock-solid alibi (like being in jail) then they must include that information.
The Zimmerman Affidavit makes no mention of any witnesses seeing Martin on top of Zimmerman, beating him. It also makes a number of conclusory rather then factual statements.
I would expect to see GZ’s lawyer file a SYG motion after he has a chance to review all the discovery. There will also be a preliminary hearing based on the Affadavit. This case won’t be disappearing anytime soon.
Filed under: Uncategorized
Tom Maguire has been doing lots of work on this case and following it very closely:
http://justoneminute.typepad.com/main/2012/04/zimmerman-case-a-quick-review.html
AofS:
Poor baby.
backtrack and the buffett rule, ok for you, but not for me
http://weaselzippers.us/2012/04/13/obama-reports-2011-income-of-789000-paid-20-5-tax-rate-while-in-the-35-tax-bracket/
I feel so bad for him and all the work that went into those planz.
Expiration of the Bush tax cuts only for the top bracket ($380k plus annual income) would raise $800 billion over 10 years. Obama’s Buffett Rule raises $47 billion over 10 years. It’s peanuts, just political gesture.
Thanks for this. Great information.
FYI: New Black Panthers announced they would bring an army down to FL and kill people in self defense. What a lovely group of nuts. I hear some lovely neonazi groups are making nose too. Maybe we can put both of these groups on a deserted island someplace.
That would be an epic season of Survivor.
http://hotair.com/archives/2012/04/13/now-president-ann-romney-lacks-life-experience-and-imagination-to-relate-to-most-americans/
Someone doesn’t understand the First Rule of Holes. NOW – still irrelevant to most women after all of these years.
Got something in the mail from NOW just the other day. I sent it back to them with a message quite similar to yours. “You have no meaning in my life or the lives of the women in my family. Where were you in 2008?”
Righteous.
http://americanglob.com/2012/04/12/hilarity-rosen/
loved this
NOW…National Organization of Wastrels……LATER!
Pardon me if I view the opinion of those who declared Obama the most feministiest feminist EVAH with a jaundiced eye as regards their reliability re: Ms. Romney.
NOW is really reaching.
Hillary Clinton would never make that statement; not after having gone through 2008.
The Hillary Clinton that made the “cookies” statement is long gone and much wiser now.
I haven’t followed this issue in great detail but I am bothered when people state that being a stay-at-home mom versus a working mom is a “choice.” Most women don’t get to make that choice. They HAVE to work to support their family.
Not true. Women always have a choice to become a mother or not unless you contend that magically babies are dropped off by storks & a woman wakes up one day a mother when the day before she wasn’t. The fact that making the choice to become a mother may limit other choices in your life down the road is merely the result of that orignal choice to become a mother. But choice is always there.
Angie, you are right – but the dirty little secret is that making the choice to become a mother instantly limits all other choices for you because now everyone knows what your womanly priorities *should* be.
Because something isn’t available to everyone doesn’t negate it as a “choice”. And a lot of women who think they have to work really don’t, but the lifestyle that they want isn’t available to them if they don’t. There are sacrifices that families with a SAHM make that many families aren’t willing to make. One of the fallacies that many families believe is that they need two incomes in case one of them loses a job. But most single earner families are actually in better shape because they have not adjusted their lifestyle to include two paychecks, and if the breadwinner loses a job, the other spouse can take on work to make up the slack. I took some time off from work to be at home with our kids, and friends asked me how we were going to afford college. Frankly, it was easy because when I did return to work, my whole paycheck went into a college fund for the kids. Both graduated with no school loans and bills marked “paid”. None of my friends who didn’t take a hiatus from work could do that. They had allowed their weekly expenses to equal their weekly paychecks for too long. And our kids didn’t suffer irreparable damage because they didn’t everything they asked for growing up.
The past couple of years, many working moms have turned into SAHM moms simply because they lost their jobs and haven’t been able to find new jobs. That’s not much of a choice either.
They are so full of shit. These people NEVER propose that any Democratic woman, no matter how wealthy, no matter how privileged, no matter how cosseted in academia her entire life, is incapable merely by virtue of her wealth and background of understanding the needs of women and families.
And dragging the imaginary Hillary Clinton appeal to authority into it tells me one thing for sure:
They are shitting over their internal polls telling them working class woman Hillary voters are deserting Obama. Because the “but Hillary would…!” argument is starting to pop up all over.
Did Caroline Kennedy ‘ever work a day in her life’? Of course, she would have made a wonderful senator. Last time I looked Ann Romney is not running for office. The fact that her husband values her opinions and insights is not a bad thing, is it? The woman has been on the campaign trail for some time and I am sure that people, even women people, have conversations with her. Life experience is one component of one’s knowledge, but it is not the only one.
WTF. Hillary Clinton would never say this today. Can’t see her accusing Barbara Bush of “never having worked a day in her life” even back in 1992. NOW is laying down for Obama just like last time. It’s kind of sad.
RANT -
I’m so tired of this BS. I am a SAHM.
Before becoming a SAHM, I was a Systems Architect for enterprise wide systems with a development team of systems engineers. Everybody was male… except me. Every man on the team had a wife who stayed at home to raise kids and did everyone’s laundry – their wives worked hard to enable the husband to devote all of their mind-share to work. All of the managers also had wives who stayed at home. My credibility wasn’t THAT much of a problem because of my vision for the application and understanding the needs of the stakeholders and tech stuff. Apparently, that is difficult for many engineer types to do. I’m sure DT and other techs know it is and the skill set is hard to find where somebody can do both business, design and super cutting edge tech, in some cases my application needed to do things where white papers didn’t even exist. I figured out how to do those things without a roadmap.
Anyway, I had a baby.
While I was on leave, the architect role (for an application that was already designed and planned) was given to one of the engineers. My work. He threw a fit when I was coming back that I did not “deserve” my same role and he should be allowed to keep it. Remember, it was all designed and planned – my work. Really, if I was a man who had a by-pass, would that have even come up? maybe. BUT my management thought I might like to have less responsibility to allow me “family time” and put me as a “developer” on the team. They didn’t have to change my pay or title to do this, so it was all kosher, right? Legally, it is.
Here’s the thing – every woman has a story like this. Women like me (and probably RD) have several. This is a daily battle and there really is an organized wink & nod system in place to take our ideas and hard work to assign to some rising star who CAN be promoted because they are both smart and male. The guy who took my work wanted to leverage it for a promotion and my management probably helped him do it. (I was gone by then so I don’t know what happened)
When the chance came for me to stay at home, it wasn’t a hard choice. I am not the only SAHM who made this choice after years in high-level tech or director jobs. I have a friend who was a CEO for a small-ish company who also checked out for a while. It sucks that bad.
NOW should be worrying about THIS problem and get the hell out of beating up SAHMs because there are more than a few like me who just won’t eat that dogfood any more. Sexism, lower pay, constant battles ending with people stealing our ideas with management help.
/Rant
HONK!!!!
Brilliant rant. I agree. I have seen the same crap. I was lucky to be in a start up where nearly 1/2 the engineers were women. It was the best place I’ve ever worked. The rest haven’t been so wonderfully balanced and sane. I have noticed the same crap you talk about. Now I have my own company and I’ll slap someone on the head if I see any of that shit. I’m told that might not be legal though.
HONK!
Honk!!
Thank you for this post! Dershowitz pretty much expresses my layman opinion. I was stunned at the conclusory, i.e., pulled out of her behind, statements the charging doc is riddled with. She claims that GZ’s comment “these a$$holes always get away” supports her accusation
that he pursued a fleeing TM and attempted to detain him, when it’s just as likely (more so IMO) that it supports GZ’s story that he’d lost sight of TM and was heading back to his car. Really flimsy stuff for a 2nd degree murder charge in my non-legal opinion.
If I were a juror and just based on the info I have so far, I couldn’t support Murder2 because GZ was on the phone with the police almost the entire time. He admitted to shooting TM, went peacefully with the police, then turned himself in as soon as charges were filed.
ITA. IMO murder 2 is an overcharge and could end up hurting the prosecution’s case if they don’t come up with any substantial evidence. And IMO the phone call “testimony” of someone who was not there and wasn’t even on the phone when the shot was fired is weak at best.
One of the TV stations played Zimmerman’s 911 call and pointed out certain things yesterday. For one, the noise (wind) in the phone and his breathing point to the fact he didn’t quit running after he was told he could stop. He also started talking in a much lower voice which probably means he was close to Martin and didn’t want to be overheard.
Funny, the TV station report I saw had the opposite conclusion — you could tell from Zimmermann’s breathing that he *had* stopped running after he was told to stop.
Your conclusiory statement that he was “talking lower so he wouldn’t be overheard by Martin” would be laughable if it wasn’t so dangerous to the meaning of due process.
Why did Zimmerman not want to give out his address to the 911 operator?
He gave it to them but it was blanked out on the tape that was released.
Full transcript here http://motherjones.com/documents/326700-full-transcript-zimmerman
So he gave them his name and phone number. What’s your point?
I don’t know about anybody else, but it’s been my experience that the wind continues to blow whether I’m walking or running. It doesn’t magically stop blowing when I stop moving or slow down. It was a rainy night, the wind was blowing… this is evidence of absolutely nothing. It proves nothing except that the wind was blowing.
In the charges that were on the pdf I posted on a prior thread, It said that martin’s mother identified his voice as the one calling for help. Everything else I read said the witnesses said it was zimmerman calling for help.
Is it usual for the victim’s family to verifiy the evidence??
I heard on the news that the main witness who will take the stand will be Trayvon’s “friend” who was on the phone with him that night. When my son was wrongfully arrested for committing a crime in another part of our state (IL) while he was hundreds of miles away in a different state (Iowa), they would not allow his “friend” speak at the trial – yes, it went to trial ! He was ID’d by gang members in a city far SE of where we live. And it was only on the final day of testimony that there was a “discovery” of evidence that made the entire arrest invalid. This was evidence the state had all along. The police had it even before he was arrested and made the arrest anyway. I guess if we had had Sharpton and Jackson screaming “foul” they just might have permitted those of us (who could place him no where near the crime) to have spoken. If we had someone like Sharptom and/or Jackson yelling and screaming to begin with, the arrest would have been overturned (or whatever they call it). And if the people who selected my son’s photo out of a “line up” of driver’s licenses hadn’t lied, my son would never have gone through this ordeal (of being charged with a white on black attack). It did serve a useful purpose, though. He changed his mind about the justice system to a more realistic one, and he has developed a healthy scepticism for the truthfulness of others.
My problem with using Trayvon’s mother to identify his voice on the tape is not that I think she’d lie. It’s that she’s a grieving mother, and that does color perception.
When my son was 4 years old, I got a visit from the FBI, wanting to talk to me, see my son’s birth certificate, school records, talk to neighbors, etc. I had taken my children to the circus, and the local paper had published a photo of the kids in the audience. My son’s blurry face was there on the events page, about 1/4 hidden behind my daughter’s head.
There had been a little boy kidnapped a year before in our community. His mother saw the photo in the paper, and was absolutely convinced that it was her son. She was POSITIVE. The FBI figured out within about 2 minutes that yes, Michael was indeed my son, and said they’d let that mother know, and apologized for disturbing us. But I remembered the story of the kidnapping from the year prior, and I felt so very horrible for that mom, and her searching for hope that he was alive.
I offered, if they wanted me to, to actually take Michael and go visit that mother, so she could see with her own eyes that he wasn’t her child. I told them: Look, if it were my son missing for a year, I’d be seeing him everywhere. Every school bus or group of laughing kids that passed, I’d be searching faces, thinking for an instant, WAIT!…was that him?…..could be…..I maybe thought I saw…..
I feel for grieving mothers. I just realize that their grief can color their perceptions, and that needs to be taken into account.
It’s Opening Day here in chicago. I’m going to the game! it’s the first time ever that I’ll have attended an Opening Day game. Please don’t let BOTUS be there….amen
enjoy the game, hope your team wins
DITTO..
I tell ya guys, this is the future of the Dem party, love this man:
http://twitchy.com/2012/04/13/twitter-lights-up-with-corybookerstories/
Replacing Biden as VP with Booker would guarantee the Dems 12 more years.
I’ve seen lots of stories from people who know him that say he really is a humble, “Aw shucks it was nothing, just doing what anyone would do” guy. I’ll bet he is embarrassed by all the funny tweets over his heroic act.
The bad blizzard a couple of years ago he rode with emergency crews helping dig people out all night. I remember that on twitter when he was asking people to tweet him if you’re stuck. He answered every one of them and got them help. 911 was overwhelmed during the storm, so he helped them out too
Booker just seems like a natural leader who really loves his city. He’s very hands on with just about everything, even riding along with the pot hole crews.
When I lived in Charleston SC post hurricane Hugo, mayor Riley was out there every day in a grubby teeshirt, wielding a chainsaw and helping neighbors haul the trees off the roads.
He is pretty much mayor for life now if he wants to be. People remember stuff like that.
Thx, myiq. People out there have a really warped understanding of Stand Your Ground laws and self defense claims (two separate things) and keep running around making all kinds of wild accusations about them.
No, the SYG statute does not say that one can go jump someone to initiate a fight, get them to hit you, then shoot the person. The FL law specifically says that SYG does not apply in that case.
The SYG statutes were enacted to correct a problem. That problem was that the general standard in shooting deaths was that if there is a dead body, a crime will be charged, and the shooter had a presumptive burden to flee. Yes, you got your day in court to claim self-defense, but you still had to go to the expense and time of a trial and defending yourself in court, even if you were lying on your back getting raped just before you shot the guy. So you got double victimized. You got to court, and prosecutors spent days pointing out that it was theoretically possible, in a perfect world, that you could have gotten away in some other manner. Someone who had been violently attacked got told “Yes, Mrs. Smith, but in that 30 seconds when his zipper jammed and he got distracted and stopped hitting you, could you not have fled rather than pulled your gun out?”
SYG attempted to say that in very specific circumstances, the police can look at the scene and the event in question and if it meets the standards outlined in the SYG law, there’s no need to even charge. There’s not much point in saying citizens can be armed and can use those arms to defend themselves, if you are then going to turn around and say “But if you ever actually USE that right, we’re going to charge you and haul you into court” SYG is an attempt to take away the bias in the system that in essence said, “If there is a body, a crime gets charged no matter what.” It basically tries to lay out the sets of circumstances under which the law will presume that no crime has been committed in the first place.
Some SYG statutes are better than others. A lot of them probably need to be tweaked. Making laws to correct a problem often leads to other problems. But I agree with their general intent, which was to recognize people’s right to defend themselves without being then almost automatically charged with a crime when they do.
Lot’s of people are confused about the meaning of “initiate.”
If you see something suspicious in your neighborhood you can investigate. If you see a crime being committed you can make a citizen’s arrest.
In order to lose your right to self-defense you have to initiate an unlawful physical confrontation. Exchanging words isn’t enough. Following someone in a public place is not a physical assault.
Even if Trayvon assaulted GZ out of a reasonable fear (self defense) that does not mean that GZ can’t also claim self defense.
GZ was not acting unlawfully when he followed a suspicious person, even if he was “profiling.”
Let’s assume that GZ grabbed TM’s arm to detain him. TM then acts in lawful self defense and punches GZ in the nose and knocking him down.. So far, so good. TM then should flee. (He was 50-75 yards from home)
But instead TM jumps on top of GZ and begins pummeling him. GZ yells for help but no one responds. GZ, in reasonable fear for his life, draws his pistol and shoots TM. That’s self defense.
In some states (Nevada is one), following someone ONE time can be considered stalking.
This case didn’t take place in Nevada.
Love the pic of the little neighborhood watch captain….glad he doesn’t live in my neighborhood and emerge from the corn field at the end of the road every morning!!!
http://www.rawstory.com/rs/2012/04/09/zimmermans-homeowners-association-could-owe-millions-in-martin-case/
here is another twist in this case
http://wwwwakeupamericans-spree.blogspot.com/2012/04/what-justice-has-become-under-barack.html
has this whole thing become mob rule or justice??
George Zimmerman’s attorney may ask for new judge; judge is married to attorney who works at firm of CNN commentator – @OSTrayvonMartin
http://weaselzippers.us/2012/04/13/sharpton-takes-credit-for-zimmermans-second-degree-murder-charge/
sharpton takes credit for zimmerman arrest. Does that mean the mob rule is alive and well in FLA????