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Wendy J. Murphy: Racism worries color our view of Trayvon case
The Enterprise ^ | May 6, 2012 | Wendy J. Murphy

Posted on 05/06/2012 7:54:41 PM PDT by 2ndDivisionVet

This is the conversation we’d be having about George Zimmerman killing Trayvon Martin if people weren’t afraid of being called “racist”:

Should George Zimmerman have been charged with a crime?

If there were no “stand your ground” law in Florida, the answer would be “maybe” because whether Zimmerman acted in self-defense would typically be put to a jury. But “stand your ground” makes self-defense effectively irrelevant because it is not a self-defense rule, it is a doctrine of immunity that explicitly forbids prosecution of a person, even if he or she uses deadly force, so long as there is a reasonable fear of “serious bodily harm” OR if such person is enduring a “felony” that involves the use of “force.”

Some people say “stand your ground” doesn’t apply because Zimmerman didn’t face “serious bodily injury” given that he seemed OK at the police station soon after the incident.

There is some dispute about the seriousness of his injuries, though his attorney provided medical records showing Zimmerman suffered a broken nose, swollen lip and two lacerations to the back of the head.

ABC News ran a photograph of Zimmerman’s head injuries that showed a significant amount of bleeding. Even if reasonable people can disagree on whether these medical facts fit the definition of “serious bodily injury”, Florida’s “stand your ground” law also grants immunity to people who use deadly force to repel a “forcible felony.” In other words, proof of “serious bodily injury” is not required. The crime of assault and battery by means of a dangerous weapon, such as a cement sidewalk, is a forcible felony.

Shouldn’t a prosecutor file charges whenever an unarmed person dies, and let a jury determine whether a conviction on lesser charges, or an acquittal, is the right result?

In some cases, this makes sense, as when the reasonableness of someone’s actions under a general self-defense rule is the issue. But under “stand your ground” prosecutors have no discretion even to file charges. This is a relatively new and different way of approaching prosecutorial decision-making. In the past, if a jury determined that a shooting death involved “excessive use of force in self-defense”, they would be compelled to at least find a person guilty of manslaughter. This is because the law generally allows individuals to defend themselves from harm using only an amount of force necessary to repel the force being used against them. So, if you’re being punched, you can punch back, etc.

“Stand your ground” gives individuals permission to use more than equal force, and even to use lethal weapons, in certain circumstances. Support for this idea grew out of increasing concern that allowing only “equal” force was inhibiting weaker people from defending themselves against serious and potentially lethal violence by much stronger individuals, even when the offender does not have a weapon. A classic example of this is when a woman is being raped by an unarmed man. “Stand your ground” allows the victim to kill her attacker.

If the prosecutor was obligated to respect “stand your ground,” why did they charge Zimmerman with murder?

Some believe the prosecutor filed excessively serious charges for political reasons because protesters on Martin’s behalf were angry and were calling for Zimmerman’s arrest. Some of Martin’s supporters were also complaining that in similar circumstances, where the victim was not black, an arrest was made quickly and that racism was involved in the decision not to charge Zimmerman sooner.

Does it matter who was the first aggressor?

It could. If Zimmerman physically attacked Martin first, Martin would have had rights under the doctrine of “self-defense” as well as “stand your ground.” In other words, this could be a case where “stand your ground” applies to both men. Martin would not have rights under self-defense or “stand your ground” if Zimmerman did nothing more than follow him and act suspiciously toward him, even if his suspicion was rooted in racism, because those actions do not justify physical aggression under either self-defense rules or “stand your ground.”

What evidence indicates who was the first aggressor?

Evidence released thus far indicates Martin was the first to use physical violence. Zimmerman’s medical records reportedly show that he suffered a broken nose, swollen lip and lacerations to the back of the head. According to the coroner who received Martin’s body for burial, there were no injuries on his body (aside from the fatal wound) to indicate that Martin had been physically injured by Zimmerman before the gunshot. While this may not establish definitively that Zimmerman did not physically assault Martin, it is some proof that whatever aggression was involved, there was no physical violence that rose to the level of “serious bodily injury” or “forcible felony.”

It is possible that Zimmerman brandished a weapon, which could amount to a “forcible felony” even without causing bodily harm, but there is no evidence that this occurred. In fact, when asked during a recent hearing whether there was any evidence to contradict Zimmerman’s claim that he was walking back toward his vehicle when Martin Jumped on him from behind, the lead investigator for the prosecution said “no.”

Why did the prosecutor file charges if she knew Zimmerman had serious injuries and knew his claim about Martin as the first aggressor was not contradicted by the evidence?

Prosecutors sometimes worry more about public perception than doing justice. They also think about getting re-elected and how certain discretionary decisions might influence the feelings of voters in their district. Prosecutors are supposed to act ethically, and they can get in serious trouble if they make decisions based more on politics than law. The prosecutor in this case has been criticized for asking the public to join her “in prayer” with Martin’s family and for declaring that she would seek “justice for Trayvon.” A prosecutor has a duty to seek justice on behalf of the public interest, including the accused. She is also obligated to refrain from making public comments that might taint the jury pool or otherwise cause prejudice to the accused. The prosecutor’s lead investigator was also criticized after testifying at Zimmerman’s bail hearing that he “never” looked at Zimmerman’s medical records even though the prosecutor has a duty to uncover exculpatory evidence before filing charges.

What’s likely to happen?

If the prosecution’s case is not stronger than the evidence thus far indicates, the charges will likely be dismissed before trial because “stand your ground” allows a defense attorney to file a motion to dismiss all charges without going to trial. Unless new facts are revealed that contradict the evidence thus far released, Zimmerman will win a motion to dismiss, either at the trial level or on appeal.

What about the fact that Zimmerman apparently lied when he testified that he thought Martin was a “little” younger than he was (28), but on the 911 tape, he says he believed Martin was a “teenager”? Won’t this make it easier for a jury to find him guilty?

Not necessarily. If there is a trial, Zimmerman’s lie about Martin’s age will be admitted as evidence against him, but it’s not likely to make much difference in a case where Martin’s age isn’t a particularly important issue. Martin was over six feet tall; much taller than Zimmerman, which is just as important as age for jurors considering whether they believe Zimmerman feared serious bodily injury or death at the time of the incident.

Zimmerman also apparently lied by omission when he failed to tell the court that he had $200,000 in a bank account. He only had to come up with $15,000 cash to get out on bond because witnesses said he had no money for bail. Then it turned out he had $200,000 in an account that people donated to him for a defense fund. Won’t this hurt his credibility with jurors? If there is a trial, the jury won’t likely hear about this issue because it isn’t relevant to the murder charge. He could get in trouble with the judge, and his bail could be revoked or the amount of bail could be increased, but the judge knows that the vast majority of accused criminals lie about whether they can pay for a lawyer or afford bail without ever getting in trouble. A recent report in Massachusetts found that a vast majority of defendants charged with crimes don’t tell the truth about how much money they have. An audit found that most people who get taxpayer funded lawyers don’t actually qualify, which means not only that many people who can afford a higher bail are getting out on low bail when they don’t deserve it, they are wasting the public’s money on attorneys that they can afford to pay, at least in part, themselves. None of this excuses lying, but frankly, it was Zimmerman’s lawyer, not Zimmerman, who was obligated to tell the court about such defense funds, and he didn’t. In fact, he said publicly that he simply never even asked Zimmerman about defense funds. Some people believe this is because the lawyer wanted to make sure the money was available to pay his fees, rather than given to the court for bail. Whatever the reason for the omission, it has nothing to do with the criminal charges.

Wendy Murphy is a leading victims rights advocate and nationally recognized television legal analyst. She is an adjunct professor at New England Law in Boston. She can be reached at wmurphy@nesl.edu

Read more of her columns at The Daily Beast .


TOPICS: Crime/Corruption; Culture/Society; Editorial; Politics/Elections
KEYWORDS: banglist; georgezimmerman; standyourground; trayvon; trayvonmartin; zimmerman

1 posted on 05/06/2012 7:54:46 PM PDT by 2ndDivisionVet
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To: 2ndDivisionVet

Caution: This is the same (plus “a little work” around, at least, the eyes) Wendy “I’ve never heard a false rape claim” Murphy who embarrassed herself and the legal profession on a weekly basis during the Duke Rape Hoax.

http://durhamwonderland.blogspot.com/2006/12/wendy-murphy-file.html


2 posted on 05/06/2012 8:01:24 PM PDT by jiggyboy (Ten percent of poll respondents are either lying or insane)
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To: jiggyboy

Perhaps she learned a BIG lesson from that episode. It would appear so, from this column, which probably couldn’t be more pro-Zimmerman if it was written by his mother.


3 posted on 05/06/2012 8:05:33 PM PDT by 2ndDivisionVet (Ich habe keinen Konig aber Gott)
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To: jiggyboy

The internet never forgets.


4 posted on 05/06/2012 8:05:53 PM PDT by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: 2ndDivisionVet

Good stuff.


5 posted on 05/06/2012 8:06:05 PM PDT by Ronin (Dumb, dependent and Democrat is no way to go through life - Rep. L. Gohmert, Tex)
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To: 2ndDivisionVet

Good stuff.


6 posted on 05/06/2012 8:06:05 PM PDT by Ronin (Dumb, dependent and Democrat is no way to go through life - Rep. L. Gohmert, Tex)
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To: 2ndDivisionVet

Indeed. The only part of the article I would quibble with is her statement that Zimmerman “lied” about his defense fund. I don’t think that’s been proven even in the court of public opinion.


7 posted on 05/06/2012 8:14:51 PM PDT by jiggyboy (Ten percent of poll respondents are either lying or insane)
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To: 2ndDivisionVet
What about the fact that Zimmerman apparently lied when he testified that he thought Martin was a “little” younger than he was (28), but on the 911 tape, he says he believed Martin was a “teenager”?

A "lie"? After a couple of sane comments, Wendy reverts to type with her typical jumping-to-conclusions nonsense.

These estimations by Zimmerman refer to two different points in time. His first guess as to Trayvon's age when he was talking to the police dispatcher was based on less information than at the later point in time when the physical confrontation occurred. Why didn't his later estimation become more accurate? Who knows? Maybe Trayvon had a deep voice. Maybe he had been growing facial hair as pictures seemed to indicate. Maybe Trayvon's aggressiveness seemed untypical for a mere teenager.

Zimmerman also apparently lied by omission when he failed to tell the court that he had $200,000 in a bank account.

Zimmerman was in jail until after the time of the bail hearing. Presumably, he didn't have internet access and may have had no idea what monies had been deposited in his web account. However, the existence of his website solicitation was reported in the news and it's surprising his lawyer was not aware of it.

8 posted on 05/06/2012 8:18:12 PM PDT by Meet the New Boss
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To: Meet the New Boss

Exactly correct. At best, this analysis is close to neutral, but trending in favor of the Martin camp.


9 posted on 05/06/2012 8:20:21 PM PDT by marktwain
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To: jiggyboy

There is nothing new here, but, it does place everything on the table at one time. All the cards are here. It looks like the prosecutor should be in more trouble than Zimmerman.

Zimmerman has to walk, it’s the law.

The Internet really makes it harder to railroad someone than before.


10 posted on 05/06/2012 8:27:32 PM PDT by JAKraig (Surely my religion is at least as good as yours)
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To: 2ndDivisionVet

Zimmerman actually de-thugged Florida to some extent..


11 posted on 05/06/2012 8:39:34 PM PDT by hosepipe (This propaganda has been edited to include some fully orbed hyperbole...)
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To: hosepipe

In a rational world, the city of Sanford would have given Zimmerman a plaque at an awards dinner in his honor.


12 posted on 05/06/2012 8:43:59 PM PDT by meatloaf (Support House Bill 1380 to eliminate oil slavery.)
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To: 2ndDivisionVet

It’s a shame that there are protected groups. Race should not play any part in this unless there is some proof Zimmerman killed trayvon because he was black. There isn’t.


13 posted on 05/06/2012 8:52:04 PM PDT by Yaelle
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To: 2ndDivisionVet; maggief; Cboldt; little jeremiah; Interesting Times

I.T. looks like the positive Zimmerman article are hitting the presses.....any day now the MSM will start publishing them..../sarc

Three in one week end from the real journalist....the web.


14 posted on 05/06/2012 8:59:23 PM PDT by hoosiermama
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To: marktwain

Did you mean the Zimmerman camp?


15 posted on 05/06/2012 9:34:41 PM PDT by skr (May God confound the enemy)
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To: 2ndDivisionVet
Forget race!

What about statistics?

Has the burglary rate declined recently?

16 posted on 05/06/2012 10:11:23 PM PDT by rawcatslyentist ("Behold, I am against you, O arrogant one," Jeremiah 50:31)
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To: 2ndDivisionVet
He only had to come up with $15,000 cash to get out on bond because witnesses said he had no money for bail. Then it turned out he had $200,000 in an account that people donated to him for a defense fund.

I certainly don't know all the facts and, though Wendy appears to want to sound impartial, I doubt she knows enough facts to make that statement. I question her reasoning, if not her impartiality.

When the bail issue arose, did George already have $200,000 in donations? Is he expected to be psychic now?

Knowing that this person was also in the thick of the "Duke Rape Hoax" just cements my skepticism about this presumed "expert."

17 posted on 05/06/2012 11:02:44 PM PDT by Publius6961 ("It's easy to make promises you can't keep" - B.H.Obama Feb 23, 2012)
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To: JAKraig

“Zimmerman has to walk, it’s the law.”

Also, NBC should be charged with obstruction of justice.

Its a shame people do not have equal protection under the law in the US anymore, if we ever really did.


18 posted on 05/06/2012 11:04:02 PM PDT by MikeSteelBe (Austrian Hitler was, as the Halfrican Hitler does.)
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To: JAKraig
Zimmerman has to walk, it’s the law.

George is in a lose-lose position. If the law says he's innocent, the Jesse Jackass/Sharpie Mau-mau mob will kill him.
If he is sent to prison, his odds are not much better.

19 posted on 05/06/2012 11:08:28 PM PDT by Publius6961 ("It's easy to make promises you can't keep" - B.H.Obama Feb 23, 2012)
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To: 2ndDivisionVet
If there were no “stand your ground” law in Florida, the answer would be “maybe” because whether Zimmerman acted in self-defense would typically be put to a jury. But “stand your ground” makes self-defense effectively irrelevant because it is not a self-defense rule, it is a doctrine of immunity that explicitly forbids prosecution of a person, even if he or she uses deadly force, so long as there is a reasonable fear of “serious bodily harm” OR if such person is enduring a “felony” that involves the use of “force.”

I don't believe those statements are true. Even under ordinary self-defense laws it would be illegal to arrest and charge someone without probable cause to believe that the person had acted without a "reasonable man" standard of belief that he was threatened with death or serious bodily harm.

An SYG law only negates the caveat that one must also believe, by the reasonable man standard, that he had no means of escape. It doesn't negate the standards required for probable cause that law enforcement must abide by.

20 posted on 05/06/2012 11:27:54 PM PDT by TigersEye (Life is about choices. Your choices. Make good ones.)
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To: TigersEye
In Florida, the law reads this way: "a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another." [Florida Statute Section 776.012.] "The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located." [Florida Statutes Section 782.02]
21 posted on 05/06/2012 11:31:02 PM PDT by 2ndDivisionVet (Ich habe keinen Konig aber Gott)
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To: 2ndDivisionVet

Yes, that’s correct.


22 posted on 05/06/2012 11:55:59 PM PDT by TigersEye (Life is about choices. Your choices. Make good ones.)
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To: hoosiermama

I think this is the real background story. They (black race-baiters) are all looking to make a big “killing” off the tragedy!!

http://theconservativetreehouse.com/2012/05/06/update-17-trayvon-martin-shooting-trademarked-exploitation-tour-goes-international-tracy-and-sybrina-jet-to-london-england/

JC


23 posted on 05/07/2012 12:16:03 AM PDT by cracker45
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To: jiggyboy

THe concept of “stand your ground” is probably irrelevant here since there was “no ground” to “stand” re Zimmerman or Martin.

Zimmerman wasn’t protecting his “ground” (i.e. home, yard, car) and neither was Martin. He was patrolling it as the eyes and ears of his neighborhood. When he called the police, he was doing what he was supposed to do.

Martin was moving, so where is “the ground” he was protecting? None, and if he moved on Zimmerman, there was still no ground involved. If Martin had been at his mother’s house, then you would have had a different scenario.

This is a real red herring for lawyers to spout off on, like a bull with diarrhea, but in the end, it means nothing (except for the poor bull).


24 posted on 05/07/2012 12:38:49 AM PDT by MadMax, the Grinning Reaper
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To: TigersEye
-- An SYG law only negates the caveat that one must also believe, by the reasonable man standard, that he had no means of escape. It doesn't negate the standards required for probable cause that law enforcement must abide by. --

There is a sloppy usage in the press, that SYG also means statutory immunity from criminal prosecution and civil suit.

25 posted on 05/07/2012 2:47:26 AM PDT by Cboldt
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To: MadMax, the Grinning Reaper
-- THe concept of "stand your ground" is probably irrelevant here since there was "no ground" to "stand" re Zimmerman or Martin. --

That's true because the fact pattern in this case negates the possibility of escape. In he general case, Florida's absence of duty to retreat extends to anyplace one may lawfully be.

26 posted on 05/07/2012 2:49:19 AM PDT by Cboldt
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To: Meet the New Boss
Why didn't his later estimation become more accurate? Who knows? Maybe Trayvon had a deep voice.

And maybe he was 6' 3" or so, and built like a lumberjack. Trayvon Martin was a football player.

How come we haven't seen any info from Trayvon's coaches in Miami about Trayvon's conditioning, how much he could bench-press, how much he could clean-jerk, hand strength, leg strength, speed, and so on? What position did he play? First string, or third? What was his playing weight? Could he hit hard and tackle, take a man down? What were his typical practice times in the 40- and 100-yard dashes? Where's the info? The cat was an athlete, not a clocker.

27 posted on 05/07/2012 5:11:05 AM PDT by lentulusgracchus
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To: MadMax, the Grinning Reaper
He was patrolling it as the eyes and ears of his neighborhood.

Actually ... he wasn't patrolling, he stated elsewhere that he was on an errand to the store when he saw Trayvon casing a house.

Zimmerman admitted carrying his piece on patrol (that's the end of his involvement in Citizens on Patrol, very probably, since it's against the rules), but at the time of the incident he wasn't on patrol and so wasn't breaking any rules.

By shooting Trayvon, Zimmerman proved that a) Trayvon was a criminal and Zimmerman had correctly profiled him, b) it endangers Citizens on Patrol volunteers to demand that they go on patrol without any sort of weapons, and c) the dangers increase when patrollers dismount, against the rules as Zimmerman did (if he'd been on patrol) -- but then the rules confine the patrollers to the point of uselessness in a scenario like this, involving a home invader/house burglar who is trying to avoid contact with police.

28 posted on 05/07/2012 5:18:59 AM PDT by lentulusgracchus
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To: lentulusgracchus

>>that’s the end of his involvement in Citizens on Patrol, very probably, since it’s against the rules

Then it is a stupid rule, and personally I would want little to do with the group.


29 posted on 05/07/2012 6:18:00 AM PDT by FreedomPoster (Islam delenda est)
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To: Cboldt

That is what I was getting at but I suspect it’s more than sloppiness on the part of many reporters. There is a very clear vein running through the media reporting other than the start-a-race-war angle and that is the anti-gun angle.


30 posted on 05/07/2012 11:30:27 AM PDT by TigersEye (Life is about choices. Your choices. Make good ones.)
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To: jiggyboy

Estimating someone’s age is guesswork, not a precise measurement; and a first impression, while watching from a distance, in the dark, is probably open to modification. It is not written in stone.

Perhaps, when Mr. Zimmerman saw Mr. Martin up-close, and when he was being beaten up by a much taller and stronger man, he had reasons to think that Mr. Martin was older than someone in his “late teens.”


31 posted on 05/07/2012 9:04:02 PM PDT by manforallseasons
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