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April 09, 2012

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Danube of Thought

"Perhaps the same one that will testify Zimmerman was walking back to his truck."

That will be Zimmerman, if necessary. No one will give contradictory testimony.

(Anybody think this bumptious simpleton is starting to get the picture?)

Danube of Thought

"Given the unrelenting attempts here at JOM to make the Martin murder/shooting case about how scary Afro-American men are, how terribly oppressed white identity conservatives are in America..."

Cite the three posts that most support those characterizations.

cboldt

-- Anybody think this bumptious simpleton is starting to get the picture? --


Maybe, but I don;t think so. His purpose here is agitprop.

bunkerbuster

DoT is again pretending jurists are likely to be as gullible as he is and that JOM readers have the reasoning capacity of fungus.
DoT asserts that Zimmerman himself will be an effective eyewitness. A child can understand why that isn't so. Absent independent eyewitnesses or other compelling evidence, Zimmerman's story is just that. His motives, means and opportunity to lie are undeniable.
From there, DoT tries an even feebler assertion, that the mysterious witness "John" is going to say Martin attacked Zimmerman. I suppose there is some candor in DoT's admission that his calcified view of what happened that night is based on equivocal, truncated testimony that comprises all of two sentences. Here is the entire transcript of the evidence DoT and others here say convinces them Martin attacked Zimmerman:
``The guy on the bottom who I believe had a red sweater on was yelling to me help, help, and I told him to stop and I was calling 911. I got upstairs and looked down, the person that was on top beating up the other guy was the one laying in the grass, and I believe he was dead at that point.''
First and foremost, it seems extremely likely that this testimony is edited from a longer version. Surely he wouldn't start his answer with "The guy on the bottom." But the Sean Hannity show chose to edit the answer down. Even DoT's not gullible enough to believe that Fox or Hannity decided to cut the parts of "John's" testimony that were too damning of Martin. Surely the opposite is true. "John's" testimony was most likely honed down to a virtually nonsensical two sentences because he said things that discredit him, his account or both.
And even in those two sentences we have him saying "I believe" twice, a clear reference to uncertainty. You don't have to be a lawyer to know what happens to "I believe" statements on cross examination and the filthy beauty of Sean Hannity's propaganda circus is that the now "John" will have to explain why he told little Sean "I believe" twice in two sentences AND, most likely, why they had to cut his statement down to suit their gormless, intellectually numb viewers.
Note also that "John" says he told the guy in the red sweater to stop. That makes no sense. Maybe he misspoke. It's really unfortunate that he misspoke on Hannity's hatefest TV show, because when he tries to re-unmisspeak that, the cross examiner will flatten him like an empty beer can.
Nice to see that DoT is fessing up to being "thrilled" to take me on with this issue. In the past, his act has been to act above it all when he loses arguments. How charming that he both thinks he's winning this one, and, that he shows us all how bogus his previous above-it-all pose was...

Read more: http://www.foxnews.com/on-air/hannity/2012/03/27/witness-reportedly-saw-trayvon-martin-beating-george-zimmerman-shooting#ixzz1rdSz9naz

That could be Zimmerman, depending on what prosecution evidence comes in. The eyewitness who saw Martin straddling Zimmerman while the latter yelled for help would strongly support the inference that Martin was the attacker, as would the fact that Zimmerman was aware that the police were enroute, whereas Martin was not.

No one will testify that Zimmerman attacked Martin.

bunkerbuster

DoT also hallucinates: "No one will testify Zimmerman attacked Martin."
Nor should they have to, since Zimmerman has admitted shooting Martin dead. If that's not attack, what is!?! To justify self-defense, Martin has to attack Zimmerman and will have to provide compelling evidence of that. If he doesn't, there will be no reasonable doubt but that he had no right to shoot Martin dead, the one attack in this scenario that is beyond dispute.

Bruce

Immunity from civil action isn't dependent on the criminal trial judge's ruling on the use of force unless he grants a motion to dismiss. It's an affirmative defense, and if the jury believes Zimmerman, immunity from tort action would attach.

Except that the law is a little different in Florida in regards to self-defense. While it is an affirmative defense, it is treated just a little differently than in many states. Normally, all that would be required for an arrest would be probable cause of that, say, Zimmerman killed Martin. And, he admitted that within minutes of the cops arriving at the scene. But, in Florida, apparently, if Zimmerman claims self-defense, then the state needs to also have probable cause to believe that the killing wasn't done in self-defense to arrest him. This slightly higher burden was placed on the state (i.e. cops and prosecutors) by the people after too many people who claiming self-defense and ultimately prevailing with that defense, were being jailed. The cops were treating those protecting themselves with their guns as murderers, until proven different at trial, and the people of Florida, through their legislature, determined to treat self-defense as a natural right. Or, something like that.

This pesky little law is what seems to be driving the activists from up north crazy. Why hasn't Zimmerman been charged? He likely would have been in the states where many of them are from. But, those liberal big city enclaves also have strict gun laws, and, at least in the case of New York, a history of making those who kill in self-defense pay. But, they can't jail Zimmerman until and if they can show probable cause that he did not kill Martin in self-defense. And that means, at a minimum, that they need more evidence to negate self-defense than there is supporting it. And, if the special prosecutor indicts on her own, her case of probable cause will likely be tested early on in a preliminary hearing, and if found lacking, Zimmerman released, with his immunity to civil litigation still intact (which is, of course, why the Martins are trying so hard to get him arrested).

As for immunity - cbolt here, and a number of posters at volokh.com, have argued that there is a difference between immunity and being found not guilty by reason of self-defense. The argument is that in order to try someone like Zimmerman who claims self-defense, in Flordia, there cannot be immunity, and that requires only that probable cause be shown that the killing was not in self-defense. But, with that loss of immunity, goes the immunity from civil litigation. If this theory is correct, then the preliminary hearing where the state has to lay out its case negating self-defense, is make-it or break-it as far as whether someone like Zimmerman is immune from civil suit. The actual verdict is irrelevant. If he goes to trial, he can be sued by the Martins for wrongful death. But, if he doesn't (and doesn't plead out), they can't. Something like that.

RattlerGator

cboldt said "Speaking for myself, I'd like to obtain the political benefit of thoroughly discrediting the press; and perhaps witness Zimmerman exacting money damages for the trouble they caused him through their persistent fictionalized reporting."

With that comment you certainly speak for me and, I suspect, many more on this forum.

Sara (Pal2Pal)

Bunker: What "John" said on Hannity is secondary to what he told the police when he called 911 and also what he told them at the scene. We don't know that and neither do you.

cboldt

Immunity is part of a process. it comes in more than one flavor, and the burdens vary as the process runs its course.

FL's statutory immunity says a person who lawfully uses force in self defense is immune from arrest, charging, detention, and trial. But everybody knows, or ought to know, that errors happen, mistakes are made, and the system does include bad actors (see Nifong).

Assume for the sake of argument that a person has lawfully used force in self defense. But the police don't think so, and they arrest and detain the suspect. The police must have probable cause that a crime was committed in order to justify arrest and detention.

Further assume that the prosecutor finds the facts in evidence are adequate to support a trial. This threshold is higher than the one used by the police. The prosecutor must have a good faith belief that the evidence will establish, at trial, beyond a reasonable doubt, that the suspect is guilty.

The suspect / defendant can challenge the conclusion, and the ultimate decision maker is a judge - not to say the judge will always get it right either, the judicial corps has its share of corruption, too. But the judge is the last word, the last hope of the innocent person to avoid the ordeal of trial.

The statutory immunity does not reach to the verdict, it only reaches to the undertaking of a trial. By definition, the outcome of a trial is uncertain - when the outcome is clear as a matter of law, there is no trial. IOW, immunity can't direct the verdict in a trial. So, if Zimmerman is not immune from trial, then he is not immune from trial (a tautology, to be sure); and the outcomes in the criminal and civil realms will be determined in the respective venues.

Bruce

Nor should they have to, since Zimmerman has admitted shooting Martin dead. If that's not attack, what is!?! To justify self-defense, Martin has to attack Zimmerman and will have to provide compelling evidence of that. If he doesn't, there will be no reasonable doubt but that he had no right to shoot Martin dead, the one attack in this scenario that is beyond dispute.

You seem to be skipping over some things. The first is your assumption that because Zimmerman shot Martin, that he attacked him. That isn't the way it works. Self-defense is somewhat of a dance, with different parties having different duties, as the dance proceeds. But the important thing to keep in mind here is that if Martin attacked Zimmerman, and as a result, Zimmerman had a reasonable fear of death or serious bodily injury, then Zimmerman using deadly force to repel the attack is lawful.

That means that the question of who threw the first punch is often critical in self-defense cases. If that was Martin, then until he retreats, he is considered the aggressor. But, even if Zimmerman had thrown the first punch, the fact that Martin was on top of him, banging his head against the pavement, is indicia that Martin had the opportunity to retreat, and didn't take it, and by failing to take that retreat, likely would have placed himself in the aggressor role.

What the state has, that we don't, is the autopsy report on Martin, along with the rest of the forensic evidence. Did Martin have premortem wounds or bruising indicating that Zimmerman had struck him, possibly first? We do have Zimmerman's statements that he was attacked by Martin, and documented injuries consistent with that claim.

As for your "compelling evidence" standard - that really isn't a legal standard, so not quite sure where it falls. The state does have to overcome or negate the known evidence supporting self-defense in order to charge Zimmerman. But, assuming that, in most states, the defendant merely has to prove his affirmative defenses by a preponderance of the evidence. Not that self-defense was compelling, but rather, that it was more likely than not.

cboldt

I believe the way the burden works in FL, in a criminal case where self defense is asserted and the judge allows the self defense argument to proceed, is that the state has the burden to prove, beyond a reasonable doubt, that the defendant's actions were NOT in self defense. This is more favorable to the defendant than having the burden of proof (even to a preponderance) that the use of force was justified.

This isn't really a change or much higher hurdle, because the state had the burden of proving, in the first place, that defendant's act was unlawful use of force. All that changes in the affirmative defense is the defendant introducing evidence to justify his actions, the prosecution poking holes in the defendant's testimony, and the jury deciding whether that defendant's evidence is credible, etc.

Sara (Pal2Pal)

Also, we see GZ in his red jacket at the police station, but we do not know if that is what he was wearing at the time of the altercation and shooting. For all we know, he had on a sweater or some other outer garment, took it off for the police and put the jacket on. It was cold and rainy. In fact, we don't even know if the jacket was his or just loaned to him.

And Bunker, you do realize that this whole event took place two or three weeks before you or any of us even heard about it. Lots of investigation could have been completed before it ever hit the national press and by then the Martin family was putting out all kinds of fanciful tales.

cboldt

-- and the jury deciding whether that defendant's evidence is credible, etc. --

More precisely, the jury deciding whether the defendant's evidence produces reasonable doubt of the prosecution's "NOT justified self defense" charge.

Porchlight

Sara: did it occur to you to check whether Obama's been selling hoodies with his name on them for a decade or so? Obviously not.

Dear bubu, I think it was the tweet from the Obama campaign on March 26th, as the entire country was talking about the shooting, that raised a few eyebrows:

"Let everyone know whose team you're on for 2012 with today's merchandise steal: the college-style hooded sweatshirt."

With a photo of a young, slim, tall, African-American model wearing the hoodie at the link.

Lots of people noticed at the time and gave Obama heat over this, not just your imaginary identity conservatives.

Threadkiller

"Rape victim shoots attacker Woman uses an attacker's gun on him, police report says.

Are you searching for rape victim shoots attacker? Highlight these search terms in the article

Police say a woman ended a rapist's assault by grabbing the man's gun and shooting him.

The woman told officers she was sitting in a car with her boyfriend around 10 p.m. Monday at Tatemville Community Park on Coleman Street when two men came up to the parked car with a handgun and ordered them out of the car, according to a Savannah-Chatham Metropolitan Police report.

The men took a purse and wallet from the couple and then approached the woman, the report says.

They ripped her pants off. The two men then began to sexually assault the woman and one of the men put his gun down.

The woman grabbed the gun and fired four shots, the report says.

One of the shots struck one of the attackers in the neck, causing him to fall over.

The woman and her boyfriend jumped back into their car. The men followed and, using the gun, broke the car's rear windshield, the report says.

But the couple drove away. They went to a house on Stuyvesant Street, where they called police.

The two men - including one who was bleeding from a bullet wound in his neck - ran on to Adel Street. They knocked on several doors, demanding help. Someone at the third house finally answered the door to find two men on the doorstep, the report says.

Officers arrived at 902 Adel St. to find Eric Easterling on the porch, "bleeding profusely from the neck/ear area," the report says.

Easterling, 20, of Tatem Street, was taken to Memorial Health University Medical Center with serious injuries, police said. He was wearing a condom when he arrived at the hospital, according to the report.

Easterling faces charges of two counts of armed robbery as well as other sexual assault-related charges, police spokesman Sgt. Mike Wilson said. He will be charged upon his release from the hospital.

Police said they still are trying to identify the second suspect, who Easterling described as his brother.

The woman was taken to Candler Hospital, where she was treated and released.

No charges have been filed against the woman for the shooting, but the matter will be turned over to the district attorney for review, Wilson said.

"Based on the evidence at the scene, we have no reason to discount what she was stating," Wilson said.

Mary McAlister, director of the Rape Crisis Center, said it would be unlikely that the woman would be charged, because she was defending herself.

McAlister advises women to always fight off their attacker if they can.

"She was gutsy. That was a very courageous thing to do," McAlister said. "The more you can surprise the attacker, usually the better.""

In BungDuster's world the rape victim is actually the attacker and the head of the rape center is a wingnut.

Bung, are you Bens?

Bruce

I believe the way the burden works in FL, in a criminal case where self defense is asserted and the judge allows the self defense argument to proceed, is that the state has the burden to prove, beyond a reasonable doubt, that the defendant's actions were NOT in self defense.

cbolt - I obviously have no experience here, and so am fumbling around. Know I should be using Lexis or Westlaw, but don't have them readily available right now. So, my research is quite weak here.

Late last night (or early this morning) when I was trying to research burdens of proof, the general impression that I was getting was that the actual burdens of proof at the trial were not really changed by the recently new Florida law, but just at the front end, the arresting/charging. And, in most states, there does appear to be more than merely a burden of going forward - that you have to in many cases show, for example, that self-defense is more likely than not.

I would be interested in links to other sites and the like, or maybe cases, that develop the issue of burden of proof in Florida self-defense cases. If you can't find such, or not immediately, instead, maybe your thoughts on why you think that Florida has a lower self-defense standard for the defense.

Bruce

Cbolt - Continuing my last post - is the theory that the force used in self-defense is lawful (or, maybe more accurately, not unlawful)? I am having a trouble getting from the statutory language (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...) to the burdens of proof. Which is where a nice set of annotated statues would be nice, or, for those more comfortable with online tools, Lexis and WestLaw.

Danube of Thought

"DoT asserts that Zimmerman himself will be an effective eyewitness."

I made no such assertion. I recited the testimony that he can give (if necessary), and pointed out that there will be no contrary testimony. I would never assert that anyone would be an effective witness without first meeting him and seeing how he responds to my cross.

Bubu does not pay attention.

Danube of Thought

"DoT tries an even feebler assertion, that the mysterious witness 'John' is going to say Martin attacked Zimmerman."

I made no such assertion. I said that the quoted tstimony would tend to corroborate Zimmerman's claim that it was he who was attacked.

Bubu does not pay attention.

Danube of Thought

Florida is one of the states in which the burden is on the prosecution to disprove the defense beyond a reasonable doubt.

Danube of Thought

"DoT also hallucinates: 'No one will testify Zimmerman attacked Martin.'"

Anyone who is not an abject imbecile knows that, under the law, the relevant attack is the initial one. If it was made by the victim, the defendant's response is allowed by the law and he is innocent of any crime. The only testimony will be that Martin was the initial attacker. There will be no testimony that it was Zimmerman.

Bubu does not pay attention.

Danube of Thought

"Here is the entire transcript of the evidence DoT and others here say convinces them Martin attacked Zimmerman"

I say no such thing. I am not at all convinced of what happened. I am simply asessing what I understand to be the known evidence, and the result that is likely to follow from that evidence in light of Florida substantive law and the allocation of the burden of proof.

The evidence as I understand it causes me to doubt that Zimmerman's defense is invalid. If a jury ever hears all the admissible evidence and concludes otherwise, I will not dispute that verdict.

Bruce

Florida is one of the states in which the burden is on the prosecution to disprove the defense beyond a reasonable doubt.

Thanks. Sitting here several thousand miles away from there, this wasn't clear, which is why I was fumbling around.

For those not following this debate - the burden of proof for an affirmative defense, and, esp. for this one, varies significantly throughout the 57 states. I believe that the "beyond a reasonable doubt" standard is applicable everywhere in this country for the case in chief, for at least felonies. But, there is a wide range of how affirmative defenses are handled. Apparently, the Supreme Court has accepted defendants having to meet at least the preponderance of the evidence standard in, I believe, Ohio (Ohio self-defense laws put burden of proof on defendant).

I have long felt that the way that Florida handles this is better. You need to assert the defense, and maybe show some (scintilla?) evidence to support it, and then the prosecution needs to overcome the affirmative defense beyond a reasonable doubt.

Sara (Pal2Pal)

Oh my, JOM has been made famous on Facebook by The Kitchen Cabinet:

The Kitchen Cabinet

Over at "Just One Minute" blog they are following along as NBC News tries to shove their previous "erroneous" edit of the George Zimmerman 911 phone call down the rabbit hole.

"NBC's "He Looks Black" - Now You See It, Now You Don't"

"NBC is busy taking down the evidence of its repeated usage of its bogus edit of the George Zimmerman 911 call. This follows the firing of a producer for the use of the same bad edit on the March 27 Today Show. Left unanswered - what about the March 22 use on the Today Show? [LATE ADD: a third usage of "He looks black" has been found and edited out of existence (but not Google Cache!) at NBC 6 Miami, as described below. When will the Elite Media sniff a cover-up?]"

Uh... why would they? "Anything to support the narrative" seems to be their long-held motto and they sure seem to be sticking to that!!!

More: http://justoneminute.typepad.com/main/2012/04/nbcs-he-looks-black-now-you-see-it-now-you-dont.html

Rob Crawford

Apparently, the Supreme Court has accepted defendants having to meet at least the preponderance of the evidence standard in, I believe, Ohio (Ohio self-defense laws put burden of proof on defendant).

As I understand it, in Ohio it's dependent on the circumstances. If you're in your home or car, then you have a "rebuttable presumption of self-defense" -- the case starts from the POV that you were in the right, and the prosecution has to demonstrate you weren't.

Outside your home or car, then, yeah, the defendant has to show self-defense.

bunkerbuster

Maybe I did misunderstand DoT: I'd thought he was arguing that there is hard evidence to support Zimmerman's innocence. Now he appears to be suggesting that the linchpin of his argument is that no evidence is required.
The trouble with DoT's "we don't need no stinking evidence" argument is that it forgets that Zimmerman confessed to killing an unarmed teenager, an act that, sans very compelling evidence, is highly unreasonable.
Without exculpatory evidence, the jurists' only rational presumption is that Zimmerman acted unreasonably.
Whatever irrational technicalities "stand your ground" may present can and will easily be overcome by prosecutors based on the obvious unlawfulness of killing unarmed citizens for no particular reason.
SYG or not, there will have to be affirmative evidence that Zimmerman was reasonable. If there is none, they'll have to convict.

Bruce

Whatever irrational technicalities "stand your ground" may present can and will easily be overcome by prosecutors based on the obvious unlawfulness of killing unarmed citizens for no particular reason.

Let us do this a little more slowly. Zimmerman has claimed self-defense. There is some evidence to support his claim. Much more evidence publicly supporting his claim to self-defense than discrediting his claim. Florida law requires that the state show probable cause why the killing was not in self defense. It is not a mere technicality, but rather fundamental to the self-defense laws of Florida, apparently amended in 2005.

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