Still, this seems like a case in which a grand jury would have been especially appropriate. The grand jury dates to Henry II's reforms, and its guarantee was demanded of King John in Magna Carta. It is a panel whose special purpose is to ensure that a jury of peers agrees that charges are appropriate, which seems especially to be proper in cases where there is tremendous political pressure on the government to find a way to bring charges against someone.
Thus the Fifth Amendment says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.......except in certain cases pertaining to actual military service. Florida is standing on the fact that this is not a capital case, but it surely meets the standard of a charge of an "infamous crime." The level of publicity, and attending political pressures, seem to make this exactly the kind of case in which a grand jury would be most appropriate.
I'm sure there is a legal tradition of interpreting "infamous crime" of which I am unaware; but I'd like to ask you for the benefit of your education and experience in these matters.
Most of my criminal law experience is in a realm where "grand jury" doesn't apply (court-martial). But I've got a treatise handy, and according to that --
ReplyDeleteThe Supreme Court held, in Hurtado v. California (1884 decision) that the "grand jury" provision of the Fifth Amendment is not incorporated in the Fourteenth Amendment. In other words, the states do not have to do a grand jury at all - unless their own laws or constitutions require it. And according to a footnote in this text, "Florida requires neither a grand jury nor a preliminary hearing in noncapital cases, so long as an information is filed within 21 days of arrest."
That's sound Constitutional law, though I agree with Grim that a grand jury is a good policy for media-circus crimes, as a possible check on ambitious prosecutors.
ReplyDeleteI don't mean to suggest that this particular prosecutor's office is acting out of ambition. I don't know what happened between Zimmerman and Martin, or even what the incomplete evidence suggests happened. The only thing that's clear to me so far is the ugly circus.
T99 I've been watching this one because it has had the stench of race-baiting from the beginning. It seemed, to me, a little too convenient that an incident that occurred at the end of February was suddenly the biggest (only?) thing in the news from the middle of March through to ??? -- conveniently displacing other newsworthy articles like the hot mic "flexibility" comment, the 'faux-to shopped' attempt to take credit for the Canadian-built Keystone pipeline in TX & OK, the failure of the administration's attorney to defend Obamacare in front of the Supreme Court, the continued failure of favored green energy projects that received expedited stimulus *loans*, ever-rising gas prices....pretty much anything and everything that could cast a pall upon re-election prospects.
ReplyDeleteFrom the cheap seats where the lay crowd with naught but a search engine hang:
ReplyDelete"I agree with Grim that a grand jury is a good policy for media-circus crimes"
Yup... In the current context, it seems to be as much about stylin' and profilin' as it does to getting at the truth for justice sake. Maybe S&P is more heavily weighted on the proverbial balance beam.
"DL Sly said..."
Convenient in that, Oh! Look over there! way that Pravda has become so good at presenting. And at just the right moment too, which lately it seems has become when the previous shiny objects fades... coincidentally, no doubt.
I know, it's a big surprise that the curmudgeon in the cheap seats agrees, but there it is. =8^}
This nonlawyer has never understood the value of a grand jury, except to fill a Constitutional square (which does have a value of its own). But isn't a grand jury strictly a prosecutor's tool? The defense is never present to do things like question the veracity of witness testimony, the validity of other evidence, and so on.
ReplyDeleteIt's strictly the government's dog and pony show, and grand jury refusals to indict seem few.
More to what others have said, the Second Degree Murder charge seems motivated by a desire to appease the race baiters, rather than a search for justice. This explanations I've seen of this charge in Florida's eyes include direct, murderous intent, as opposed to a manslaughter type of charge where the suspect deliberately set up the conditions within which a killing was likely, but he had no intent of killing. The publicly available "data" don't seem to support the intent aspect of the charge being brought.
In the meantime, the uproar on the dead or alive bounty put up by the Holder-backed New Black Panthers is deafening in its absence.
I'm also curious in the minor aspect that the special prosecutor had promised some hours' notice before her press conference at which she would announce her course of action. Yet well before that, her course was leaked to a newspaper. The special prosecutor is interestingly silent on that leak from her office and what she intends to do about it.
Eric Hines
I agree that grand juries normally accept prosecutor's arguments, and that the forum is biased towards the prosecution. Still, any time the government has to put its wishes before the people for ratification, we have a mechanism that is valuable for checking the governing class as such. The fact that the government has to clear the bar means that they must have a case strong enough to clear the bar.
ReplyDeleteIt seems as if they picked the highest possible charge that would allow them to avoid a grand jury. That suggests to me that the government is motivated by political pressure to bring a more serious charge than they think could really get past the grand jury. If that's true (and it seems to be true; even the victim's mother says she thinks it was an accident, and thus not murder), then I would think it would be grounds for an appeal even if a conviction is had.
I once saw a judge refuse a guilty plea and insist upon a jury trial because he wanted to assign the stiffest possible sentence, and didn't want the defendant to have the possible road to appeal of objecting that anything was lacking in the process offered him before sentencing. It would have been better to bring the charges before the grand jury, and had the full and complete process to avoid such a thing. Precisely where the government wants to make an example of someone, that's just where we might want to see the fullest protections on offer. If that leads to a conviction, then the example is noncontroversial and demonstrative: but if it does not, then the government is checked in its desire to use the justice system for a political end.
Still, I may be mistaken about all of that; it could be that there's no danger of an appeal if there's no incorporation of that particular protection to the state.
Grim,
ReplyDeleteI have no problem with the logic of your position, but I do question the underlying real world situation--without any viable answers to propose.
The grand jury is even more stacked in the government's favor because it's supposed to be secret. But I agree that it should be secret; a suspect is tainted badly enough by the fact of his arrest; the evidence arrayed against him would be even more damaging (at least legally)--especially were the jury to refuse to indict.
Secondly, why should a suspect be forced to go through the heartache and the economic damage of defending himself against a "make an example" charge? If found guilty, that's a big so what, except for the costs inflicted on what may well be an otherwise wholly innocent family. But if acquitted, the ex-suspect has no hope of resuming his pre-suspect life. The simple fact of the arrest and trial has ruined him.
If the mother truly thinks the killing was accidental, this would seem to open an avenue for just compensation to be worked out between Zimmerman and the mother, with the state not needed to be involved at all, unless an agreement can't be worked out. But that's impossible in an environment where the "authorities" think their political imperatives are more important than their duty.
In the end, we don't need examples, we need steady law enforcement. And fewer laws. But those are my own pipe dreams.
Eric Hines
I am not an attorney, but I really do not see the point of a grand jury in this case. There appears to be sufficient probable cause for the case to go forward just based on what we know from news accounts.
ReplyDeleteA kid was shot to death. Whether a defense exists will come out at trial, and grand juries generally hear only what the prosecutor chooses to put before them, so I'm not sure how Zimmerman would benefit from the process.
I also don't see what would be gained by further delay, other than fueling the fires already burning.
IMNSHO, the prosecutor did everyone involved a huge favor.
Cass,
ReplyDeleteOf course there is a serious problem with judging "from what we know in the news accounts"; I'm sure you aren't suggesting a trial by media, but rather that you cannot imagine that the facts are so different as to avoid any indictment.
My concern is that a grand jury's job includes a determination as to what indictment is proper. A grand jury might have returned an indictment on manslaughter but not on second degree murder (for example).
In that case, we would still have the prosecutor's opinion about what level of charge was proper; but we would also have an endorsement of that level of charge by a duly constituted grand jury of the accused's peers. That's a stronger process, and given the deep feelings about this case among many different communities, I think it may not have been wise to skip the step.
Or, they figured that they'd not find a grand jury that would indict, and so went straight to the trial, for which I think they also won't find a jury that will convict.
ReplyDeleteBut a trial now will take longer, and I'm sure they'll try to draw it out until after the election in November.
I too am right fond of the notion of a Grand Jury, particularly because it's, as Tex said, "good policy for media-circus crimes".
ReplyDeleteHaving the DA present the evidence to the grand jury would be, at least in my mind, the most evenhanded way to initialize the judicial side of this mess. That is based on my awareness of what has been made public of the circumstances of the shooting. Including the guilty until proved innocent agitation by the usual suspects.
Either way, Zimmerman will have his day(s) in court.
Mommas don't let your babies grow up to be neighborhood watchers...
"Including the guilty until proved innocent agitation by the usual suspects."
ReplyDeleteWhich reminds me. Did those about The Hall hear that Mike Tyson said "It's a disgrace that man hasn't been shot yet."
To which Evander Holyfield allegedly said, "Let's hope Mike does not have the ear of the President!"
=;^}
It was a grand jury that refused to indict Joe Horn. I'm glad we have them in Texas.
ReplyDeleteI'm sure you aren't suggesting a trial by media, but rather that you cannot imagine that the facts are so different as to avoid any indictment.
ReplyDeleteThat's precisely what I'm suggesting.
A boy is dead. There is no serious question of who shot him. There may or may not be mitigating/exculpatory evidence (self-defense, for instance, though in general one is authorized to use matching force and a gun isn't matching force against a fistfight). But I don't know Florida law.
The salient point here is that the prosecutor is NOT required to *prove* her case before the grand jury. She is also NOT required to present evidence for the defense. The question is whether there is enough evidence to indict so that the facts may be examined in more detail.
That's a lower burden.
I also don't think there's a jury in Florida who would vote not to indict at this point, whether or not they actually thought Zimmerman was guilty.
I see this the same way I saw the Pantano case. Have the trial and let the evidence be presented.
Sometimes it's good to have a trial. It's unquestionably harder on the defendant, but it also gives people time to think, cool down, slowly adjust to emerging facts.
ReplyDeleteIf there's no trial, people will always believe him guilty. That's not a good outcome.
If the facts don't support 2nd degree murder, the trial will bring that out. I think we need to let the system work.
"...though in general one is authorized to use matching force and a gun isn't matching force against a fistfight"
ReplyDeleteMany a man has been beat to death, so lethal force may be met with lethal force- a gun may well (depending on the specific circumstances) be proportionate use of force.
Alan Dershowitz is a pretty well respected legal mind, and normally not accused of being from the right, yet he didn't think well at all of the indictment calling it "Irresponsible and unethical".
I can think of a real world reason not to bring a grand jury- if it's white and acquits- riots. If it's black and doesn't- discontent. If it's mixed and can't decide- what help is that? I suppose it was felt it was better to bring it to trial, but the way it's happening isn't feeling very good right now.
Other than that, I personally think a grand jury would have been a good idea for a case of such notoriety and public interest.
I can think of a real world reason not to bring a grand jury- if it's white and acquits- riots. If it's black and doesn't- discontent. If it's mixed and can't decide- what help is that? I suppose it was felt it was better to bring it to trial, but the way it's happening isn't feeling very good right now.
ReplyDeleteHere, you've captured something I had at the back of my mind but hadn't really dragged out into the sunlight for inspection.
Grand jury proceedings are a black box. In an environment chock full of hysteria and inaccurate media leaks/speculation/editorializing, closed hearings are red meat for the conspiracy theorists.
That's the other reason I think a swift trial is a good idea. When people don't have enough facts, they speculate. Getting the facts out won't entirely eliminate the speculation but it does at least provide a counter to it.
Many a man has been beat to death, so lethal force may be met with lethal force- a gun may well (depending on the specific circumstances) be proportionate use of force.
ReplyDeleteI agree. I think the common law rule was something like reasonable belief in imminent death or grave injury.
The problem I see here is that the shooter is an adult and the shootee was a boy. A big boy, but a boy nonetheless. Juries may have a gut feeling that extra care must be taken with a minor.
The facts used to establish whether for Zimmerman to fear for his life are likely to be murky and impossible to prove one way or the other.
Anyway, good point!
A 17-year-old is a boy only in the strictest legal sense. The person in the image at the link, published by The Miami Herald, encountered on the dark, rainy night of this incident, would give anyone pause on the consideration of whether this was a child or a man, and the distinction also become less relevant in the fear for one's life or property that Zimmerman claims.
ReplyDeleteIt's hard to read someone's mind, and harder still in the murkiness of (so far) inclusive facts and conflicting eyewitness testimony.
A trial may or may not shed more light, but given the facts alleged in the affidavit entered at the probable cause hearing, a trial is warranted, and that's the best chance we have of seeing all the data. As others have noted, a speedy trial is the best course in a case like this. It's also the defendant's right. Given a decision not to go for a capital crime, eschewing the grand jury is entirely warranted, if for no other reason than to remove that much delay to the trial.
Eric Hines
Actually it turns out that there may not be a trial: it could turn on a pre-trial hearing.
ReplyDeleteFor all the relief among civil rights activists over the arrest, legal experts warned there is a real chance the case could get thrown out before it ever goes to trial because of the "stand your ground" law.
At a pretrial hearing, Zimmerman's lawyers would only have to prove by a preponderance of evidence - a relatively low legal standard - that he acted in self-defense in order to get a judge to toss out the second-murder charges. And if that fails and the case does go to trial, the defense can raise the argument all over again.
Which gives us another facet to consider, I guess. A preponderance of evidence isn't that hard to put together when you're the only real witness; and apparently there will be evidence from the police report (which appears to be a sworn statement in Florida) that Zimmerman had sustained injuries and was given first aid. Unless the prosecutor can produce enough to outweigh that, we may never get to the trial.
This comment has been removed by the author.
ReplyDeleteTake two:
ReplyDeleteBlogger bthun said...
"Grim said...
...
Unless the prosecutor can produce enough to outweigh that, we may never get to the trial.
11:06 AM
A possibility. And at this point, one which will only reinforce the suspicion of the Civil Rights/Black Community that The Man conspires with those who would kill a black man.
Dershowitz commented that the prosecutor violates her ethics if she excludes from her affidavit facts actually in her possession that are relevant to a self-defense plea. In this case, she omitted the grass and blood stains that indicate Martin had Zimmerman on his back on the ground at some point before Zimmerman shot Martin in the chest. Dershowitz also commented that it is unethical for a prosecutor to push for a higher charge than she really believes is warranted by the evidence, simply in order to position herself better in plea negotiations.
ReplyDeleteA grand jury might have been a good way to consider whether all the available information (including the evidence of a fight) should have resulted in a different charge or possibly no charge. But it seems that the same analysis will be undertaken at the pretrial hearing, and an ordinary jury will decide the dispute only if the judge thinks the charging affidavit passes muster.
I'm still left unconvinced either way. I'm relieved to hear Zimmerman didn't shoot Martin the back (I kept hearing hints that Martin was "running away"), and it means something to me that there is physical evidence of a serious struggle. Nevertheless, the evidence we know about so far is potentially consistent with either self-defense, or an armed man who over-reacted to a stranger at night and started a fight that escalated tragically. It's hard to imagine how we're ever going to know for sure who started the fight. If it was Martin, then I hope for Zimmerman's sake that there's some kind of clever forensic evidence that can back him up.
"A grand jury might have been a good way to consider whether all the available information (including the evidence of a fight) should have resulted in a different charge or possibly no charge."
ReplyDeleteIndeed, and given the grand jury serves as an investigative body with subpoena powers which also provides an environment of security and yes, secrecy, anyone who might not otherwise be willing to come forward with testimony can do so in the GJ.
Another thing that causes me to scratch my head is going for a 2nd degree murder charge. The definition of Second Degree Murder, in this case appears to be one that might be a bridge too far.
Murder with a Depraved Mind
Murder with a Depraved Mind occurs when a person is killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life.
Then again, I'm not a legal beagle, nor will I attempt to act like one. And yet, if it can be proved that the two were on the ground with Martin on top slamming Zimmermans head into the ground, I do not think I could find Zimmerman guilty of 2nd M.
Depending on the circumstances leading up to that point, a lesser charge maybe, but 2nd M? I'd need a much better understanding of the meaning of the definition of 2nd M.
I suppose the best that I or anyone else can only hope for is that all the attorneys involved, on both sides of the matter, are first stringers so that truth and justice might prevail.
...the grand jury serves as an investigative body with subpoena powers....
ReplyDeleteA question for the actual lawyers: whose subpoena powers are these, really? The jury, by some vote? The jury foreman? The prosecutor who convened the grand jury? If the latter, what authority does he have to refuse to issue the subpoena if it's the jury that wants one?
With regard to Dershowitz' ethical question, he may well be right, as opposed to simply expressing his own opinion, but: how do we read the prosecutor's mind in this case? On what basis do we conclude the charge brought would have been so purely cynically, rather than legitimately?
I guess, in the end, I don't share others' trust in the good offices of the government's man, who has convened a government committee, to arrive at an objective view of what is, necessarily, a one-sided review, whose goal is to determine whether there is enough to proceed to trial, and not at all intended to be an objective assessment of all of the evidence. That, after all, is the job of the little jury.
Eric Hines
"A question for the actual lawyers: whose subpoena powers are these, really? The jury, by some vote? The jury foreman? The prosecutor who convened the grand jury? If the latter, what authority does he have to refuse to issue the subpoena if it's the jury that wants one?"
ReplyDeleteGreetings and salutations Mr. Hines,
I will certainly defer to those trained in the Legal Arts, Tex and Joseph being two who post here, but I might be able to help with those questions by offering this.
In practice, the prosecuting attorney selects those cases he believes warrant prosecution. The prosecutor then determines whether to proceed by indictment or information. If the prosecutor is required to or chooses to seek an indictment, he then presents his case to a grand jury by interrogating the witnesses he has subpoenaed and presenting other evidence relevant to the alleged offense. The grand jurors themselves also may question witnesses and request additional witnesses or evidence. After that evidence is presented to the grand jury, it decides whether there is probable cause to indict the accused. The accused is not given the opportunity to present evidence in his defense or cross-examine witnesses at the grand jury phase. If the accused is subpoenaed to testify before a state grand jury, that testimony cannot be used against him at trial.
I believe that page might be able to answer most if not all of your questions.
Now I think I'd better get back to something on the honey-do list... At least until beer-thirty.
Oh yeah, M'lady Cass is trained in the legal arts too.
ReplyDelete*Bows in general direction of casa Cass*
The grand jurors themselves also may...request additional witnesses or evidence.
ReplyDeleteAnd herein lies the crux of the question. What constitutes a juror's request? Must the whole jury request, some majority? Must the jurors' request be honored, or can the prosecutor decline actually to subpoena (I'm eliding here the practicality of overruling the jury if he wants an indictment)? If the grand jury's "request" is binding, what keeps this star chamber committee from going on a fishing expedition?
Eric Hines
Based on the wording in the Florida specific documents I've read, I -think- that any juror can make such a request. Now a matter of relevancy and who makes the relevancy call can muddy the water.
ReplyDeleteI would also suspect --based on nothing more than what I've read-- that any prosecutor or Clerk of Court would need a da^^^ed good justification for not honoring the request.
At this point, I too will request that one of our legally trained folk venture a verdict on a scenario where a GJ juror requests a witness be subpoenaed.
Can the Prosecutor deny the request to subpoenae?
If so, would that not potentially undermine any chance of successfully prosecuting the case in question should it go to trial?
In other words, can an unscrupulous prosecutor thwart the intent of the GJ to get the info the GJ jurors think they need to decide to indict à la Star Chamber or not?
What oversight role does the Court play in such a scenario?
I'll hush now, drink my brewski while waiting to hear from a legal pro.
I'm not sure how much discretion the prosecutor has to deny a Grand Jury's request for a subpoena, but I'd guess that a refusal would put a big dent in the Grand Jury's willingness to grant him his indictment, which is the GJ's ultimate trump card.
ReplyDeleteEric, about the danger of a Grand Jury going wild, I hear you, but the alternative is that the defendant is formally charged and has to undergo a trial, which certainly will subject him to even greater intrusive investigation. The purpose of the GJ is potentially to short-circuit that onerous process, as a check on a rotten indictment. (Alternatively, the judge can perform that function during pretrial motions.) The GJ can't force a prosecutor to bring charges against anyone; all it has is a veto. Also, a GJ can try to get to the bottom of things, whereas a petit jury is stuck with whatever evidence the lawyers choose to show it at trial.
I'm not as horrified as some of you about the 2d-degree murder charge, though. If I were shown evidence that Zimmerman started the fight, then got scared or mad when Martin fought back too effectively, and then shot Martin, something like 2d-degree murder is what I'd be thinking about. It's not premeditated, so it's not first degree, but it's not exactly negligent homicide, either: he evidently aimed the gun at Martin and shot him on purpose, with a mortal wound to the chest. It's not as though he fired a warning shot in the dark and missed, or meant to shoot him in the leg. Only self-defense renders that a non-crime instead of unpremeditated (2d-degree) murder. Maybe manslaughter, but I never can remember how that's different.
Thanks Tex.
ReplyDeleteI think it differs by state; but in Florida it appears to be that murder 1 is premeditated; murder 2 is characterized by a "depraved mind" that is indifferent to the damage, or certain kinds of unpremeditated felony murder. (In Georgia, felony murder is felony murder.) Because you have to prove the depraved mind state, it's a pretty tough charge to prove; but the minimum sentence is 25 years.
ReplyDeleteThere's apparently also a murder 3 in Florida, which is unpremeditated wrongful killing while engaged in one of several other crimes -- minus the depraved mind state.
Manslaughter is a much less significant charge, which merely requires that you prove that there was a killing, and it was wrong (e.g., it was negligent, or it was because you simply lacked legal authority to kill). No additional crimes need to be proven, nor do mental states.
Murder 2 sounds like a pretty strange choice unless you believe the racist angle. However, the affadavit doesn't mention that at all, and in clears Zimmerman of the suggested racial slur. Thus I'm really not sure why they think they can prove depravity, especially since it all happened during a fight. Manslaughter is probably the most they could really prove, unless there is substantial evidence we haven't seen; and that still requires establishing (twice!) that Florida's self defense law doesn't hold.
Georgia's law differs substantially, so I've been interested to read about the distinctions. In Georgia, there's only one degree of murder; felony or depravity are just aggravating factors that can raise the crime to a capital or life-without-parole case. The minimum sentence is life.
ReplyDeleteManslaughter, however, comes in two flavors. Voluntary manslaughter encompasses intentional killing of people who really probably had it coming -- the canonical example is finding your wife in bed with another man and shooting him. The penalty for this can be no more than 20 years, but can be as little as a single year.
Involuntary manslaughter is accidental killing where you were really reckless in producing the accident. This has a sentence of up to ten years; but it can also be prosecuted as a misdemeanor.
Of course, we have a self defense law in Georgia as well. It is, I believe, harder to prove than Florida's law: you have to demonstrate that you were using lethal force to prevent death or grievous bodily harm (such as rape or dismemberment) to yourself or an innocent third party. This standard, I have always been pleased to note, is the sole lawful standard for killing someone in Georgia -- whether the killer is a policeman or anyone else, it's the same standard. The only exception is, of course, lawful execution.
...the alternative is that the defendant is formally charged and has to undergo a trial....
ReplyDeleteWhat's the per centage of grand juries refusing to indict? And in a case like the present one, a refusal won't clear Zimmerman; his life is ruined absent formal, plain acquittal--and likely even then.
Were I in his shoes, I'd look real hard at wanting the trial, rather than the (apparent) cop out of a grand jury refusal, which is very unlikely in any event.
...it's not exactly negligent homicide, either: he evidently aimed the gun at Martin and shot him on purpose, with a mortal wound to the chest.
Assuming facts not in evidence. At least not in the publicly available evidence today. I'd have to know the range of the shot, angle of entry for the bullet, and so on before I could say "aimed the gun" and not a gun (amateurishly) snatched from an (amateur's) holster (yes, assumptions of my own, for illustration), struggled over (recall the panicky cries for help by one of them) and the gun goes off. Or, in the struggle, deliberately fired in self-defense desperation. Such holsters typically are worn at the belt, so the gun starts out near chest level.
Since the grand jury is only going to indict, I'd just as soon get straight to the trial and let these facts be brought to the fact finders.
Eric Hines
I would be willing to bet even money that those individuals who are disinclined to acquiesce to the findings of a Grand Jury, would not put any more faith in the correctness of an innocent verdict delivered by a petite jury, should the evidence or lack of warrant such a verdict, regardless of the evidence being made public during the trial.
ReplyDeleteIn any event, particularly since there will be no GJ, I agree with the "I'd just as soon get straight to the trial and let these facts be brought to the fact finders" sentiment wholeheartedly.
Of course, we have a self defense law in Georgia as well. It is, I believe, harder to prove than Florida's law: you have to demonstrate that you were using lethal force to prevent death or grievous bodily harm (such as rape or dismemberment) to yourself or an innocent third party.
ReplyDeleteTo the best of my knowledge, that's what self-defense means everywhere. ("Stand your ground" only removes the duty to retreat if you can do so with safety; it doesn't change the standard of what justifies killing.)
Are you sure about the "you have to show it" standard though? Most places, the military included, you have to raise some evidence of it...and then the prosecution has to disprove it, beyond a reasonable doubt.
In military sex assault cases, Congress changed the law for "consent" and tried to say that the accused had to prove it to a preponderance of the evidence, at which point the government must then disprove it beyond a reasonable doubt. (That doesn't make sense to you? It doesn't make sense to anybody else, either. If the defense has proved it to a preponderance, then it can't be disproved brd.)
The Army trial judiciary, sensing a constitutional problem, have solved the problem by instructing per the older standard(the July 2011 Army Laywer - my favorites link now goes to the Library of Congress site where anyone can get it - has an article on the subject).
I think if I understand correctly -- having some informal education in the law, and some limited experience working with the DA's office many years ago as a student intern -- to use it as an affirmative defense you have to demonstrate that you reasonably believed it to be the case.
ReplyDeleteSo, for example, if you came in and found your wife with another man and shot him, it is a lawful homicide (not "self defense," really) if you could reasonably claim that you thought she was being raped and you were acting to protect her. The fact that you were wrong about that wouldn't hurt your case if you could establish that you reasonably believed it; but if she can show that you knew perfectly well that wasn't true, you'd be back with an accusation of voluntary manslaughter.
I think, though, that you get something akin to the procedure that Florida is offering: if the charge isn't set aside because of this decision, you still have the benefit of "reasonable doubt" available from the jury. They could decide they reasonably doubt that you didn't reasonably know... etc.
Laws are unimportant to those born to power. They can just force the issue. And nobody can counter say them.
ReplyDeleteThat is reality of American 2.0 .... or rather, Obamanation 2.0