Posts Tagged ‘Criminal Law’

An epic post on the identity, frame of mind, and other details associated with Trayvon’s alleged girlfriend DeeDee.  Kids these days apparently twitter every single thing they do, every emotional twist and turn, everything!  I can’t relate to this at all.  Yet this does make it much easier to get to know people and check their alibis.  Turns out DeeDee was probably not Trayvon’s girlfriend, not too traumatized (out shopping and picking baby names with new boyfriend days after Trayvon’s death), not hospitalized, not concerned about Trayvon’s dropped call, and not doing any of the things nor was she at any of the places described by Benjamin Crump.


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Zimmerman: Bail Hearing

I thought O’Mara managed this situation brilliantly.

One, he humanized Zimmerman.  His soft voice on the witness stand, his calm conviction, and the bullying treatment of prosecutors will generate a great deal of sympathy simply based on the arrogant tone of the prosecutors.  While Angela Corey pretended to be objective (while threatening Zimmerman with 30 years), the trial prosecutors’ tone would have been more appropriate for a Ted Bundy; their emotions far outstrip the evidence.  Two, O’Mara tore major holes in the prosecution’s case, not least in showing their use of loaded language like “profiled” had no real defense, in showing that they had no evidence to contradict Zimmerman’s account of how the fight started and what happened, and in showing their affidavit was skewed completely and included what can only be called lies by omission.  Also, the prosecutors showed some real weakness in  making such a huge deal about Trayvon’s “right to be there,” which is true, but does not include a right to start wailing on people.  They also made a big deal about Zimmerman’s very minor run ins with the law over seven years ago, which sound perfectly explainable as either youthful hot-headedness or mistaken identity and, of course, would not ordinarily be admissible in trial.

And, of course, the bloody skull picture came out.  It fully supports Zimmerman’s account and is quite dramatic. This story is as much about the media as anything else, and it would be interesting to know how long ABC sat on this one:

This is an injury that one could die from. You see bleeding and a contusion.  People get punched in the face and die all the time, sometimes after one or two punches.  People certainly get stomped and pounded into concrete and die. Remember Reginald Denny.  If the beating recipient doesn’t die, often they’re injured for life, paralyzed, or a hell of a lot dumber when the whole business began. Zimmerman did not have to endure that.  Indeed, it sounds as if he endured quite a bit before he pulled the trigger based on the minute or so of screaming on one of the 911 calls.  But even if these particular injuries are not that bad–and they don’t seem so, quite yet–they appear to be the product of a serious beating with a seriously dangerous feature:  head meeting concrete.

This story will get dropped or ignored as the evidence starts to support Zimmerman.  Even black and liberal national opinion prefers a more clear cut “good guy” and “bad guy” than all this.  They didn’t go to bat for Crystal Magnum and they won’t here either.  Some of the hardcore agitators may continue to bitch and moan, but even many blacks, particularly black opinion makers, will say, “we only wanted an arrest, and this is what happens when you act like a knucklehead.”

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In addition to its overall sloppiness, the state’s attorney’s affidavit in support of murder charges has a number of fairly egregious omissions, in particular the eyewitness account of Zimmerman being beat up, Zimmerman’s own testimony of being beaten up and attacked, and other factors supporting his self defense claims.

Florida criminal lawyer, Kevin Moot, writes the following, which seems directly relevant regarding “lies by omission” in a charging affidavit:

[T]he affidavit omits material evidence, as well as misstates a known fact. For instance, the affidavit claims that a police dispatcher “instructed” Zimmerman not to follow Martin. However, in the recorded phone conversation, the police dispatcher merely tells Zimmerman: “we don’t need you to do that.” While this may seem like a minor discrepancy, it is clearly inaccurate to state that the dispatcher “instructed” Zimmerman not to follow Martin. At a minimum, this misstatement of fact evinces a disregard for accuracy. What’s worse, the affidavit never makes mention of the 911 caller, who claimed that (1) Zimmerman yelled for help; and (2) that Martin as on top of Zimmerman, “beating up” on Zimmerman.While the affidavit claims that Zimmerman “admitted [to] shooting Martin,” the affidavit omits that Zimmerman claimed to have shot Martin in self-defense.

These omissions potentially render the Probable Cause Affidavit legally insufficient, and entitle Zimmerman to an evidentiary hearing on the sufficiency of probable cause. As the Florida Supreme Court held in Johnson v. State, 660 So. 2d 648 (Fla. 1995), if omitted material is added to an affidavit and thus defeats probable cause; and if the omission resulted from intentional or reckless police conduct with the intent to deceive, then a defendant is entitled to an evidentiary hearing.

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Obama’s Miscalculation

Pat Buchanan says what I tried to say a few weeks ago though with a more practical focus on electoral politics than I did:

Obama foolishly inserted himself into this volatile case weeks ago, and injected the issue of race. Expressing empathy with the family of Trayvon Martin, Obama flashed a signal of racial solidarity:

“If I had a son, he would look like Trayvon.”

Obama also implied that he shares the liberal perspective that America is a country where black kids must walk in daily fear of white racist vigilantes.

“All of us have to do some soul-searching to figure out how does something like this happen. And that means that we examine the laws and the context for what happened, as well as the specifics of the incident.”

Translation: The death of Trayvon tells us something is wrong with America.

“And if Zimmerman, Trayvon, race, guns and stand-your-ground become voting issues this fall, how good is that for Barack Obama?”

Let’s hope, like the Cambridge Cop incident, he alienates the right kind of people and screws up his election.  For better or worse–much worse for Zimmerman–this case ain’t going anywhere for a while.

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Why Didn’t Martin Family Know What Happened Earlier?  Trayvon was supposedly buying tea and skittles for his little brother.  He went to store and never came back.  Later that night–but earlyish, 7:30–there’s a shooting in the complex.  Tons of cop cars appear and likely stick around for hours.  People mill about and talk about what happened.  His father and his fiancee, according to some reports, come back from a date later that night. In other reports–including their words the day after the shooting--it sounds like they were there all along.   But they don’t find out he’s dead until the next day.  Now they say they were looking all night.  Regardless, whether early or late, they come home or they are home and there is no Trayvon.  How old is this little brother? Why didn’t Traci Martin say, “Hey little man, where’s your brother?” Why didn’t little brother say, “Hey dad, Trayvon didn’t come home, and some crazy stuff went down here earlier tonight.”  It doesn’t make sense.  I read here it’s Brandi Green’s kid, Chad, and he’s 14.  He should have known what happened or at least been concerned by Trayvon’s absence, no?  My guess is some combination of Chad, Brandi, and Traci were not there, didn’t come until very late or the next day, or were getting high, or Trayvon was gone a few days and unsupervised, or they were doing something else embarassing which is why they didn’t really look for Trayvon that night, whether they were there or not.

Who Commits a Murder When He Knows the Cops are Coming Because He Called Them?  Zimmerman calls cops and knows they’re on way. Why in hell’s name would he also proceed to intentionally kill Travyon in accord with the second degree murder charge?  Does that make sense?  And does it make sense he’d start a fistfight under those circumstances, if his aim was to kill, and he had a gun on him the whole time?  If he started fight–since we’re all analyzing the depth of his head gash on the jail video–how many contusions, bruises, gashes and the like appear on the angelic Trayvon in his autopsy?  In other words, did Zimmerman land any punches?  And, if no, can he in any world be called the aggressor?

The Top Secret 7-11 Visit.  Travyon supposedly went to the store to get “tea and skittles” for his younger brother.  Where’s the video of him at that store?  Why isn’t the “last scene of his young life tragically cut short” not being played on endless loop on the TV news?  Why hasn’t clerk been interviewed?  Does this information exist? Is something embarrassing on the tape? Did he shoplift?  Was he home with his Dad “watching NBA” or home alone, since other accounts say folks on a date, or home with this unnamed younger brother? See above.  Is this story–which originated with Benjamin Crump, the occasionally dishonest family lawyer–a  bunch of nonsense to make the 17 year old Trayvon appear both noble and childlike?  Don’t know.  Some say the video’s been turned over to investigators.  But the media should be looking into all this, but they’re so lazy and prejudiced on this it’s not even funny.

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The Zimmerman Affidavit

This thing is a joke and shows what  a weak case the prosecution has.

It reveals nothing that was not already in the public domain, and the affidavit does not even attempt to address the evidence already known to contradict the Martin narrative.  For starters, it makes a big deal about Zimmerman’s “profiling.”  This is not illegal.  He can think what he wants, call the cops when he wants, and ask whomever he wants what they’re doing in his neighborhood.  Not only is none of this illegal, but none of this implicates “stand your ground,” which is a nonissue in this case, as Zimmerman claims he was on the floor getting pounded to death after being suckerpunched by Martin and, in addition, that the struggle came to be over the gun he lawfully had on his person.  No possibility of retreat there, and thus no “stand your ground” issue. Traditional self defense law never required one to “avoid all confrontation” or “not ask questions” or “not think evil thoughts” as implied by the irresponsible Angela Corey’s affidavit.

The worst part of this affidavit centers on the physical confrontation Zimmerman and Martin had.  This is the heart of the matter.  Under the law of self defense, it is highly relevant who initiated force, how much force was used, and what the situation was immediately before Zimmerman pulled the trigger.  Instead, we get “Zimmerman confronted Martin and a struggle ensued.”  This is so deliberately unclear as to suggest the totality of physical and eyewitness evidence points in favor of Zimmerman’s account.

The affidavit is equally weak with respect to the mens rea components, i.e., the defendant’s mental state.  Second degree murder requires intentional unpremeditated killing or killing with a depraved mind not showing regard for human life.  Manslaughter is killing through “culpable negligence” or, alternately, “[w]hoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter . . .”  So, when you have a fight or someone suspecting another of crime, that use of force may be illegal or potentially legal, but only if nondeadly.  If in the course of such a fight your use of deadly force is unreasonable, unnecessary, or disproportionate, it can be a case of manslaughter.  Man shoves you and calls you a jerk, and you shoot him:  not justifiable deadly force. Nowhere in this affidavit is the usual requirement of showing intentional killing, depraved mind, or the other hallmarks of murder.

This affidavit is being released six weeks after this killing took place.  Indeed, no eyewitnesses to the struggle are named, though the girlfriend and mother of Trayvon are given top billing.  This, even though we know at least one real eyewitness, John, saw Zimmerman crying for help, underneath Martin, in a great deal of distress.

What a totalitarian world we live in where a completely reasonable suspicion of a stranger acting strangely coupled with some possible deviation from a 911 dispatcher’s instructions is treated as a real crime–when it’s not–and where Maritn’s alleged aggravated battery is only mentioned in the passive voice, i.e., “a struggle ensued.”  I hope that a courageous judge dings this under Fla. Rule Crim. Pro. 3.113, which allows a probable cause determination within 21 days after an arrest by information or Rule 3.190, which allows a pretrial motion on the basis of the special immunity afforded under Florida’s self defense laws.  In my experience, such courage is short supply.

Such diverse observers as Alan Dershowitz and former prosecutor Andrew MacCarthy have noted the grave defects in this affidavit.  They all flow in my view from the same source:  Special Prosecutor Corey’s deep identification with the Martin family–the sweet people with whom she prayed–as well as her identification with Trayvon Martin himself and the various agitators who have gathered around this case.  She said at her strange press conference that she was seeking “justice for Travyon” even though, in a case like this, the question of justice must be a global one, justice simpliciter, as justice for Zimmerman depends a lot on the alleged bad acts of Trayvon that led to the shooting.  In other words, by self consciously “seeking justice for Trayvon,” she already prejudged the most central event of this case.

According to Zimmerman’s account and that of the only eyewitness to the actual fistfight that preceded the shooting, it was Trayvon who started this and continued this as an aggressor.  That makes Zimmeran’s acts self defense.  Corey should be ashamed of herself for pursuing this case under these circumstances.

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Thank God for High Profile Cases

I’m basically happy with our justice system.  For the most part it works and, even in the worst of times with the craziest of prosecutors, you still get your day in court before a jury.  It’s good for people like me, who lean towards law and order conservatism, to occasionally see someone like me in the dock.  Zimmerman could be me or a brother or a friend.  Even people in bad neighborhoods who make mistakes are not always guilty of what they’re charged with.  They get off some times . . . because of juries.

The criminal courts should punish the guilty and protect the innocent.  This is why juries work so well in criminal trials; most people feel this way.  Sometimes tribal loyalties undo this, as in the twin extremes of the Jim Crow South or the modern day Bronx.  But mostly they work, and the demographics of Seminole Country are such that Zimmerman should be able to get  a reasonably favorable jury.  Prosecutors are part of this process, but they often fail.  But their word is not final, the jury has the final say.

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