After both the prosecution and the defense rested in the Zimmerman trial, the prosecution popped out with its secret strategy: they asked the court to drop the aggravated assault charges and instruct the jury instead on felony murder (that is, murder committed in the process of a felony). What's the predicate felony, you ask? Child abuse, because Trayvon Martin was 17 years old.
Kafkaesque.
14 comments:
Fortunately, the judge declined; although, she allowed a lesser included, manslaughter, to be included in the jury instructions.
Then the prosecution proceeded, in his closing argument, to argue manslaughter and not the primary, Murder 2.
Eric Hines
This is a summary of the Florida view of 1st, 2d, and 3d degree murder: "First degree murder implies that someone thought about causing the death of another and went to where that person was and caused them to die by either their action or inaction. Second degree murder means that someone does something on purpose that could cause someone to die, knowing that it could cause someone to die, and someone does die. Manslaughter means that someone does something on purpose that could cause someone to die without thinking of that possibility and someone dies."
Those are all hard to reconcile with self-defense. I suppose the question is, if the jury thinks Zimmerman was not acting in self-defense, then what's the theory about his motive? Is he supposed to have been deliberately stalking this kid (1st degree)? Is he supposed to have been spoiling for a fight and recklessly indifferent to the possibility he might kill someone (2d)? Is he supposed to have been too thoughtless about the inherent danger in ever carrying a gun anywhere (3d)? I can see the third argument working on a jury that's convinced that the only way to eliminate violence from the world is to ban guns. If someone's bashing your head in on the pavement, well, it's your own fault: you should have called the police, gone home, and bolted your door.
What I worry about is a finding of manslaugher by the jury as a compromise to show they weren't bigoted.
I've followed the case somewhat closely, and the evidence I've seen and the live testimony I've heard and seen tell me not just reasonable doubt but actual self defense.
And I'd have stopped listening (Bad Juror! Bad!) about midway through the prosecutor's closing because a) he was showing the primary charge was BS by arguing solely the lesser charge, and b) he was distorting the facts he was willing to talk about and cynically eliding other facts that he knew we jurors knew about but that belied his case instead of addressing them and showing their unimportance or showing them actually supportive of his case.
The prosecutor did, though, do a fine job of raising reasonable doubt about the defense's case.
But that's just me.
Eric Hines
And yet a 17 year old charged with anything would be tried as an adult.
Well, I'm not an attorney, and I certainly did not stay at a Holiday Inn Express last night so would one of you legal eagles mind explaining to me how in the hell a new charge can be brought to bear against a defendant after his defense of the current charges has rested in the trial. Where are his Constitutionally protected rights to defend against those charges? I've seen many murder filings where manslaughter was included in the warrant as a secondary charge. If the prosecution wanted to have this as a potential *fail safe* for the jury to consider, why then wasn't it included in the charges from the get-go?
Help me, Legal Ones WhoKnowBe, you're my only hope.
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The real government strategy must be to tie this all up in court forever, until people have forgotten about it. The judge denied the admission of hundreds of pieces of cell-phone evidence showing Martin was involved in illegal gun sales, street fighting and drug use -- and that the reason she denied its admission was that the defense hadn't been prepared to respond to her questions about its chain of custody, but the only reason the defense wasn't prepared was that the prosecution had kept the evidence secret from them for as long as they could get away with it.
Even if they got a conviction on anything, then, the defense has a perfectly valid appeal (indeed, my opinion would have to be that they ought to win on an appeal so grounded). But that would give you headlines of "Zimmerman convicted!*" with the asterisk "*'convictions set aside on appeal'" coming only several years later.
Of course, his life will have been destroyed in the meantime, but that's not the state's problem.
So the over/under betting is on this question: how much is this an outlier example of particularly bad practices, and how much is this how the court usually runs -- we just aren't usually watching this closely?
Remember the OJ trial? You can run into bad judges any time, and some are worse than others when it comes to political pressure. I don't practice in criminal court, so I can't say how prevalent it is. I know that civil courts are a mixed bag: everything from wonderful to truly awful. My gut tells me that the more important question here is how awful the jury is. I wonder, too, how afraid the jury is of being attacked physically when the trial is over.
DL: the "child abuse" flyer seemed a little over the top, and probably would have run into problems on appeal. The "manslaughter" charge is, as I understand it, more standard: the prosecution is allowed (sometimes? by some judges?) to instruct the jury on a "lesser included charge."
I wasn't going to write about this case at all, but since you brought it up, this is some amazing stuff. Just watch the video -- don't read the analysis at all. Just watch what actually happened.
I have no idea who the raters are, or the quality of this site, but the four pages of raters are decidedly unimpressed.
Eric Hines
Those are some seriously bad reviews.
T99, it's not the specific charges I'm asking about. It's the fact that the prosecution asked to include charges against the defendant after the trial is, for all intents and purposes, over -- closing arguements supposing to be nothing more than a summation of the facts produced in evidence wrapped up in a neat little package (the prosecution/defense version's of the events) with a pretty little bow.
Therefore, my question is, how can a prosecutor introduce additional charges after the trial has essentially concluded?
The way I understand it is that the courts don't view the "lesser included charge" as a new charge. It's only a watered-down version of what the defendant already knew he was charged with. (In contrast, the "child abuse" charge was out of the clear blue.) The standard for whether something is a lesser included charge is whether all the elements of the lesser charge are included in the greater one, but the greater one requires something extra. In other words, the evidence at trial was aimed at the same elements, so the defendants wasn't misled about what evidence to produce or rebut. An example would be larceny and robbery, which both require a showing that the defendant took property that didn't belong to him -- but the robbery charge requires the additional showing that he used force. If the evidence of force turns out to be weak but the evidence of the theft itself is strong, the jury might be instructed that it is still free to find the defendant guilty of larceny.
It's not entirely a case of gamesmanship on the prosecution's part. In some cases, the court is required to instruct the jury that it is entitled to convict on a lesser included charge, for fear that the jury might otherwise convict on weak evidence of the greater charge, because the only alternative would be to put the defendant back out on the street.
Thank you! That was the piece of the puzzle that didn't *fit*.
Although, to pull this stunt, in this manner, at this time, is both telling and foreboding. Might have something to do with the DOJ funding security and planning for the Anti-Zimmerman rallies and such prior to the elections, but I'm sure that was just some sort of "community outreach"....
Go to http://legalinsurrection.com/author/law-of-self-defense/ and follow Andrew Branca, who has been live blogging each day.
His bio is at the top of the page and all of his posts are listed.
"Life Member of the National Rifle Association (NRA) and a Life Member and Master-class competitor in multiple classifications in the International Defensive Pistol Association (IDPA)"
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