Saturday, July 13, 2013

Perils of overcharging: Zimmerman Is Acquitted of Murder and Manslaughter Charges -

Trayvon Martin

The Zimmerman acquittal is a shame - because the unnecessary death of Trayvon Martin goes unpunished.  He was hunted down by an armed man who had been told by the police to stop following the man.  Zimmerman sought the confrontation and, as the armed man, won.  Aided by the presumption of criminality of young black men, and by competent defense lawyers, we got another racist verdict by a southern, white jury. As one commenter on the Times site said - what about Trayvon Martin's right to stand his ground? to defend himself?  George Zimmerman suspected Martin for no good reason, went armed, tracking down Martin, found himself in a confrontation in which Martin was clearly defending himself against a lethal threat.  And the jury acquits.  Appalling.

Also appalling is the conduct of the prosecutor - who had no evidence of Second Degree murder. [See R.P.C. 3.8 The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause]  The case should  have been tried as a manslaughter case.  From the moment the indictment was released it was plain that they did not have the evidence for second degree murder - as many observed.
Instead the Prosecutor resorted to the improper - appearing at a press conference with a cross dangling from her neck babbling about praying with the Martin family and speaking of the "constitutional victim".  If they really wanted to overcome the presumption of criminality of the hoodie-wearing black teenage male they should have focused on the facts.  That would have led them to a manslaughter case.  Overcharging is like any other credibility issue.  Every basic trial practice course tells you not to offer to prove what you cannot prove.  The prosecutors of George Zimmerman neglected that basic rule.  - GWC
Zimmerman Is Acquitted of Murder and Manslaughter Charges - "SANFORD, Fla. — George Zimmerman, the neighborhood watch volunteer who fatally shot Trayvon Martin, an unarmed black teenager, igniting a national debate on racial profiling and civil rights, was found not guilty late Saturday night of second-degree murder. He also was acquitted of manslaughter, a lesser charge."
The jury instruction is HERE.  Compare New Jersey model jury instruction on self-defense.  In New Jersey the burden of proceeding on self defense is on the proponent - the defendant.  The ultimate burden to prove the killing unjustified remains with the State.

The Florida charge is notable for its subjectivity - the question is what the defendant believed "at the time force was used".  If Zimmerman "believed" he was in danger of seriosu bodily harm - he had the right to use deadly force even if he was the aggressor!  Thus juror B37 (wife of a lawyer) explained that Zimmerman was acting in self defense.

In New Jersey the Zimmerman defense's task would have been much more formidable because juries are instructed:
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.

Under Florida's stand your ground law there is no duty to retreat.  By this reasoning Trayvon Martin was justified in attacking with fatal intent the armed man who was stalking Martin.  Each was justified in killing the other.  Congratulations to ALEC whose lobbying and law-drafting helped created such a circumstance.  They are the only winners.

Is there a next step? Federal Civil Rights prosecution under the hate crimes act?  It will not be easy.  The statute, 18 U.S.C. 249,  provides:
a) In General.—(1) Offenses involving actual or perceived race, color, religion, or national origin.— Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person...

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