In Zimmerman Trial, Prosecution Witnesses Bolster Self-Defense Claims (the New York Times?)

The New York Times ^ | June 30, 2013 | Lizette Alvarez

[2ndDivisionVet]

As the trial of George Zimmerman enters its second week on Monday, it appears that the prosecution is struggling to meet the burden of proving him guilty of second-degree murder, legal analysts said.

The first week of the trial featured testimony from prosecution witnesses that in many instances bolstered Mr. Zimmerman’s argument of self-defense rather than the state’s case, the analysts said.

“When you are talking about state witnesses as if they are defense witnesses, that is a problem for the State of Florida,” said Diana Tennis, a prominent Orlando defense lawyer who is following the case. “And any time you end each day with either a zero-sum game or the defense coming out ahead, that’s a problem when you’re the prosecution.”

In light of the first week, analysts said that prosecutors should have charged Mr. Zimmerman with manslaughter instead of second-degree murder, which involves a showing of hatred, spite or evil intent. The jury can still consider manslaughter, but doing so could complicate closing arguments and deliberations.

“The state is overreaching, and I think that may well come back to bite them in terms of credibility,” said Michael Band, a longtime Miami prosecutor and now a defense lawyer.....

[boatbums]

In light of the first week, analysts said that prosecutors should have charged Mr. Zimmerman with manslaughter instead of second-degree murder, which involves a showing of hatred, spite or evil intent. The jury can still consider manslaughter, but doing so could complicate closing arguments and deliberations.

The maximum charge they should have gone for was involuntary manslaughter. I imagine because of the "public" (read racists and MSM) outrage, the state overshot their response. The normal thinking people in the world see this was cut-and-dried self-defense. Zimmerman had NO offensive wounding (bruising of hands, knuckles), that would have shown he was hitting Martin, and only wounds that unmistakably prove he was the one being attacked by Martin. I hope the jury can see through the PC and come to the right decision.

[boatbums]

Even IF this jury returns a guilty verdict, the judge can STILL act and overrule the jury. She can give what is called a Direct Verdict of Acquittal. This is:

a verdict by a jury based on the specific direction by a trial judge that they must bring in that verdict because one of the parties has not proved his/her/its case as a matter of law (failed to present credible testimony on some key element of the claim or of the defense). A judge in a criminal case may direct a verdict of acquittal on the basis that the prosecution has not proved its case, but the judge may not direct a verdict of guilty, since that would deprive the accused of the constitutional right to a jury trial. (http://dictionary.law.com/Default.aspx?selected=519)

[Fee]

GZ claims he was returning to his SUV before TM challenged him verbally and punched him. There is no witness to back up GZ’s claim. The only possibility is the arriving officers who took a picture of both men on the ground. Where GZ was laying vs location of his SUV and TM girlfriend’s father’s condo may give a clue on who is telling the truth. Jentel’s testimony said that TM per cellphone conversation said he was being followed by GZ. Despite her clumsy performance, GZ attorney could not shake her story. What happen after that, only GZ version is available, because TM is dead and no other witness saw otherwise. Now it is all down to forensic. Location of the two men, the SUV and TM girlfriend’s father’s condo unit.

[Islander2]

“GZ did not “decide to follow TM after the 911 operator told him it was not necessary.”

He appears to have stopped following once he was told that.”

TM went all the way to his father’s house and then doubled back to confront Zimmerman. Of course entering his father’s house would have ended the whole affair..Instead, TM wanted to rumble in the AMA style, so he went back to where Zimmerman was and physically attacked him.
So far the prosecution’s case has all gone favorably to the defense side. With all that is out there already, I cannot for the life of me see any way the inept prosecutor can turn this thing around

[UCANSEE2]

My last sentence said as much

Dangnabbit.

That's what happens when one tries to read too fast (and should be in bed).

You did say it. I apologize.

[UCANSEE2]

Cory did it because the AG of Florida told her to and his boss told him. We all know who his boss is.

[UCANSEE2]

When I first heard about the case, and listened to George Zimmerman’s statements to police and the media, he said that his gun holster became visible because his shirt got pulled up, Trayvon saw it and said, “you’re dead now, m————r”, and reached for it. George then pulled it out of the holster and fired.

This is my best memory. I’d have to go search to find the sources. Tell me if you think I’m wrong.

[kcvl]

“GZ attorney could not shake her story”

I don’t know what trial you were watching but they didn’t have to shake her story because she changed her story and lied under oath repeatedly. She is too stupid to know they compared what she said in her deposition to what she said on the stand.

And I don’t want to hear about the poor illiterate girl, she has had every chance to get an education as anyone else in this country, she chose to be stupid.

[nathanbedford]

When GZ decided to follow TM after the 911 operator told him it was not necessary he entered a legal no man’s land.

Rubbish!

1. The dispatcher is without authority to order Zimmerman to do or refrain from doing anything.

2. In fact, the dispatcher did not order Zimmerman to refrain from following Martin, read the actual words, they are close but not to the same as the ones you posted.

3. There is no such place as "legal no man's land."

4. Even if the dispatcher had authority, contrary to law, to order Zimmerman to refrain from following Martin, and even if the dispatcher had, contrary to the facts, exercised that authority and ordered Zimmerman to refrain from following Martin, Zimmerman had an absolute right to follow Martin without diminishing his right to act in self-defense. Your analogy of entering a bar and provoking a fight so that one can shoot his antagonist in self-defense simply is not applicable. Following someone, apart from a court order of restraint, is perfectly legal. A dispatcher's order even if considered to be somehow binding on Zimmerman, has absolutely no bearing on his right to exercise self-defense. Following someone, even in violation of a dispatcher's mandate to refrain from doing so and even if one considers that legally binding, does not cause forfeit of our right to self defense that right is dependent on, and only upon, Zimmerman's reasonable apprehension of imminent "great bodily harm."

Florida Statute:

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or [even if (A) Zimmerman had been ordered to refrain from following Martin (B) and the dispatcher had the legal authority to do so, and (C) Zimmerman had in fact followed Martin after a mandate not to do so-for which there is no evidence, Zimmerman still have the right to use deadly force if he reasonably believed that he was in imminent danger of great bodily harm and having one's nose broken, being pummeled from someone on top of oneself, and having one's head bashed into the concrete, inarguably justified Zimmerman in a reasonable belief that he was in imminent danger of great bodily harm]

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force. [You will note in your bar fights scenario the armed user of deadly force must first withdraw-not to be confused with the failure to refrain from following Martin]

What do the "proceeding sections of this chapter" say?

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; or

(2) Under those circumstances permitted pursuant to s. A76.013. (Emphasis supplied)

[VerySadAmerican]

One of three things happened.

One) The prosecuted Zimmerman knowing they’d lose but be able to say “We tried”.

Two) The prosecutors are blowing in on purpose because they’re pissed that they were forced to prosecute.

Three) They know they’ve got a conviction no matter what.

[PhatHead]

The issue for the DA is not that GZ was justified to shoot TM, but GZ following TM provoked a fight that ended with a shooting that could have been avoided.

That is wrong. First, there is no evidence that Zimmerman "followed" Martin beyond the 15 seconds or so when he was still on the phone with police. Second, it is perfectly legal to follow somebody, and even to approach them and ask a question. That is not provocative or violent.

CCW need to understand this nuance of the law when using a gun. Why this law exists is to prevent armed people from saying or doing things that they normally will not do if unarmed.

What things do you mean? Things like calling the police about suspicious persons, rather than confronting them?

Example a hothead armed with a CCW Glock, goes to a bar and starts an argument with a bigger guy, which results in a fight, a fight he is losing and then he shoots his bigger and stronger attacker and claims self defense when the cops come. In a drawn out event, self defense is valid if the gunowner did not start the fight, and did everything to de escalate the situation before he had to shoot.

Nothing in your example above is even remotely related to any of the events at issue in this trial. But even in your example, starting an argument does not give the other person the right to punch you. You didn't start the fight. Even if you shove the person, if they respond by hitting you over the head with a brick, you have a right to defend yourself. Good grief, use common sense.

Jentel was a bad witness but she established one thing, TM noticed GZ was following him.

You may not be aware of this, but Zimmerman stated during his call to police that Martin was aware of him. Martin circled Zimmerman's car, checking him out. Jeantel established nothing. Her account, as much as can be credibly gleaned from it, completely supports Zimmerman's version of events.

Question to jury, is that legally considered a provocation?

No, it isn't, and that isn't a question for the jury. Juries decide questions of fact, not of opinion and not of law. It never ceases to amaze me how many people insist that Martin "had every right to walk through that neigborhood," but somehow Zimmerman didn't. There is no evidence whatsoever (even in Jeantel's account) that Zimmerman followed Martin. But even if he did, that is perfectly legal and not provocative, and not a justification for violence against Zimmerman. This is not complicated.

Non of the witnesses so far can account for the events after the cellphone call and neighbor who saw TM on top of GZ. What transpire can determine GZ guilt or innocence.

Not really. We have witness testimony that Martin was banging Zimmerman's head against concrete, which is clearly a life-threatening action. There is no evidence at all that Zimmerman did anything to precipitate this. None. And there is common sense reason to believe that Zimmerman did nothing (why call the police, then start a fight when you know they are minutes away?)

When GZ decided to follow TM after the 911 operator told him it was not necessary he entered a legal no man’s land.

As a matter of law, that is a ridiculous statement. First, he stopped following while still on the phone with police - that is on the recording. Second, the operator had no legal authority to "order" him not to follow. Third, it would have been perfectly legal and not provocative for him to follow, had he done so -but again, there is absolutely no evidence that he did.

GZ claim that he was confronted and attacked by TM while he was heading back to his SUV. Heading back to the SUV is considered a de escalating action. If TM felt threaten by GZ following him, he can attack if GZ was following him.

Are you out of your mind? You think that you can legally assault somebody because you think they are following you?

If GZ was heading back to his SUV, TM cannot follow and attack GZ for the perceived threat.

Sure, he can follow. He can't assault.

There no witness to back up GZ claimed he was attacked after he was heading for his SUV, and TM is dead and cannot tell his side of the story.

Except for every eyewitness so far, none of whom contradict a single detail of Zimmerman's account.

Unless the DA has evidence or witness that GZ lied, GZ is most likely to be off the hook. IMHO who is right or wrong depends on the back and forth between the two men.

So many people say this. Even if Zimmerman followed Martin (no evidence he did,) and even if Zimmerman verbally confronted Martin (no evidence he did,) and even if Zimmerman grabbed or shoved Martin (no evidence he did,) none of that obviates Zimmerman's right to self-defense when Martin punches him in the face and bashes his head against the concrete - which Martin indisputably did.

This trial is not so clear cut.

It's a lot more clear-cut than you seem to think. Let's not lose sight of the forest here: Martin had ample time to return home while out of Zimmerman's sight, while Zimmerman was still on the phone with police. His friend's "earwitness" testimony confirms that in fact, he did return home. The fight occurred fifty feet from Zimmerman's SUV. Martin obviously returned to that spot. Zimmerman screamed for help, Zimmerman is the only one with injuries, and Zimmerman did not pull the trigger until literally seconds before the officers he had called arrived on the scene. Use some common sense.

It was clearcut enough that police knew better than to charge him before this got politicized.

[PhatHead]

Just because a 911 dispatcher tells me something, I am under no obligation to comply.

It wasn't 911. It was non-emergency. The operator did not order him to do anything, and did not have the authority to do so. The operator has testified that they never order people to do things. Discussion of what the operator said or did not say is a red herring. It is irrelevant.

[SWAMPSNIPER]

"Mr. Zimmerman’s wounds did not appear to be life-threatening"???

They keep bringing this up. When someone is pounding your head on the pavement how are you expected to know how much your skull will take?

People die or end up in a coma from a single punch almost every day.

[PhatHead]

GZ claims he was returning to his SUV before TM challenged him verbally and punched him. There is no witness to back up GZ’s claim.

There is, however, some physical evidence. GZ is the only one with injuries. He had a broken nose, possible concussion, multiple hematomas, abrasions and excessive bleeding from his head and face. Martin had some knuckle scratches. What does that physical evidence tell you?

The only possibility is the arriving officers who took a picture of both men on the ground. Where GZ was laying vs location of his SUV and TM girlfriend’s father’s condo may give a clue on who is telling the truth. Jentel’s testimony said that TM per cellphone conversation said he was being followed by GZ. Despite her clumsy performance, GZ attorney could not shake her story. What happen after that, only GZ version is available, because TM is dead and no other witness saw otherwise. Now it is all down to forensic. Location of the two men, the SUV and TM girlfriend’s father’s condo unit.

I guess you are not following the trial, and have never read anything about it. Martin had enough time to get back to the home where he was staying, even at a slow walk, before Zimmerman ever got off the phone with police. Jeantel's testimony indicates that he did get there. Yet the fight occurred steps away from Zimmerman's car.

Of all the possibilities for what might have happened, Martin fleeing in fear is simply not one of them. It is, in fact, patently ludicrous. And not a single witness has materially contradicted Zimmerman's account of events.

[Fee]

Here is the problem, if you follow someone, and he notices that you are. Most people will move on quickly, some may turn and ask what the hell you are up to? In his mind you may be up to no good. No one is around to tell the jury GZ was away at reasonable distance or GZ was eyeing him and following him close. No one knows. GZ is the only one alive to tell the tale. TM is not. Jentel can only testify that TM noticed GZ following him and he is agitated. GZ attorney can nit pick the details, but the overall testimony is TM noticed that he was followed. The neighbor who called 911 can only testify that moments TM was shot, TM was on top of GZ beating him. Both do not tell you what happen in between. As far I can tell, the DA cannot refute GZ story that he stopped following TM, was walking back to his SUV and TM followed him, challenged him and punched him. Forensic is next and they will use a computer generated 3d to show the location of the two men when the cops arrived, GZ SUV and Jentel’s father’s condo unit location. That may shed clues of who was chasing who. Unless there is another witness, GZ should win, but all this could have been avoided if he did not follow TM to see where he went around the corner. Never give a hair of reason for the DA to come after you. DA are a funny lot. Some see convictions as scores for future higher office, others just respond to political pressure from higher ups. Problem is don’t give them an excuse to prosecute you. A trial is legal risk, innocent people have been found guilty, and even if you win, the financial costs are unbelievable. Anytime you want to play policeman and it result in shooting someone, you better have all your ducks in order. Cops have more latitude then a CCW to shoot someone. They can kill you without you doing anything, CCW have very strict criteria if the shooting is not so clear cut.

[PhatHead]

Zimmerman’s PA has testified that “whatever actions he took to stop the injuries probably saved his life.” That is medical testimony based on his injuries.

[PhatHead]

You keep getting hung up on “following.” Even if there were videotape evidence that Zimmerman got out of his car and walked five paces behind Martin the whole time up until the fight that would be completely, legally, utterly irrelevant.

As for the verbal confrontation, even Jeantel (the “earwitness”) confirms that Martin initiated it.

Finally, while it’s true that nobody saw who threw the first punch, Zimmerman had extensive injuries to his face and head, resulting in a great deal of blood and of documented, life-threatening severity. Martin had scratches on his knuckles and a bullet wound.

Don’t overcomplicate this. The police saw all this and did not charge Zimmerman until it became politicized.

[snarkytart]

What law are you reading? Since when is looking at someone and watching what their doing while on the phone to 911 provoking a fight? That was GZ neighborhood and he can follow and even ask what someone is doing if he likes especially if he thinks they’re up to no good. You’re not allowed to attack someone for watching you, then refuse to retreat as they’re screaming for help. This is self defense.

[Fee]

I think TM was on top of GZ beating the daylights out of him and GZ had to use his gun to shoot TM. That is established by witness and injuries. Problem for GZ is what lead up to that fight and shooting.
It is like two guys in a bar fight. The CCW guy started an argument with another patron that resulted in a fight. During the fight the second guy grabs the CCW guy by the throat and start to choke him. Unable to break the hold and starting to get dizzy, the CCW guy pulls his gun and shots the attacker. Yes his life was in danger, but he is still liable for manslaughter because he started the fight.
GZ followed TM. Question for jury, did GZ action started a chain of events that lead to a confrontation, fight and shooting. Even if the shooting is defined as self defense, problem for GZ is if the jury concludes that following TM is the initiating event, GZ can be found liable for manslaughter just like the CCW guy in the bar illustration.
Same bar scenario. If CCW notice that the argument he started with the second guy is starting to get physical. If the CCW guy tells the other guy that he wants no trouble and starts to leave the bar. The other offended guy follows him to the parking lot and tackles him and then chokes him, the CCW fearing for his life shoots the attacker. He is not liable for manslaughter.
GZ claims he stopped following TM and was returning to his SUV when TM came up and ask him if he had a problem. GZ claims he responded no, and TM declares, yes you do and attacked him. If GZ version is the truth, since TM followed after GZ and confronted him before attacking, then GZ is not liable for manslaughter.
The next group of witness is forensic who will illustrate the crime scene with 3d computer graphics that will show GZ SUV location, location of where the cops found the two men laying in the grass, and the condo unit TM was trying to get to. Hopefully the locations will provide a clue to what happen that night.
I will say this once and say it again, when GZ decided to follow TM to find out where he went after the 911 operator told him it was not necessary he enter a legal no man’s land and gave the DA a scant reason to prosecute. That is something one never wants to have happen. One misstep and you can end up in jail or you can win but financially ruined.

[Ann Archy]

OMG....My GAYDAR is going off the Charts!!!!