Zimmerman: How to Select a Jury Despite the Child Molestation Allegation

By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

George Zimmerman

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

Practicum: Do You Have a Reasonable Doubt that George Zimmerman Killed in Self-Defense?

by Frederick Leatherman
Cross posted from Frederick Leatherman Law Blog.

note: To join the discussion(s) about the Zimmerman case, please follow the link above to the law blog.

Good morning, everyone. Yesterday was my birthday, so I took a little time off from blogging and did not post a new article or do a very good job of responding to many of your excellent comments. Y’all have a great discussion going on.

Commenter JD has asked what effect will all of GZ’s inconsistent statements and lies have on a jury, assuming this case goes to trial?

Put another way, just because he’s a liar, does that also mean he’s a murderer?

In this article, I propose that the answer to the question is, it depends on what he lied about and why he lied he about it.

Okay, for the sake of argument, let us suppose that y’all are members of the jury that will decide this case.

Let’s keep it simple today and just focus on GZ’s self-defense claim.

First, let’s start with some standard jury instructions.

The defendant has admitted to killing TM so that is an established fact.

The defendant claims he killed TM in self-defense and you are to presume that he did unless you are convinced beyond a reasonable doubt that he did not kill in self-defense.

The defendant has no burden to prove he acted in self-defense. Since you must presume that he acted in self-defense, he has no burden to produce any evidence.

A reasonable doubt is a doubt for which a reason exists and it may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully and carefully considering all of the evidence or lack of evidence.

Evidence may be direct or circumstantial. Direct evidence is evidence that is perceived through the senses. Circumstantial evidence is evidence of a chain of circumstances that, according to knowledge and common experience, lead to a conclusion. One is not necessarily better or more reliable than the other. As members of the jury, it is for you to decide how much weight to give to any evidence admitted in this case.

A person may use deadly force in self-defense, if he reasonably believes that

a. he is imminent danger of being killed or suffering grievous bodily injury and

b. the amount of force he uses to defend himself is reasonably necessary to prevent being killed or suffering grievous bodily injury.

An aggressor cannot claim self-defense.

Okay, now some evidence with which to work.

The prosecution will be able to introduce during it’s case in chief some, none or all of the statements GZ made. This means that before he ever takes the stand, assuming he chooses to testify on his own behalf, the prosecution will have introduced all of his statements to the police, including his conversation with the dispatcher.

Recall that the dispatcher told him not to follow TM and, as a student in his last semester of Criminology, he was taught that an aggressor cannot claim self-defense.

The prosecution also will have introduced evidence that he had been advised that a neighborhood watch person is limited to watching the neighborhood and calling the police to report crimes and suspicious activity. He was specifically instructed not to contact or attempt to detain a suspect because that is a job for the police to handle.

Assume the autopsy report has been admitted and the Assistant ME who performed it testified that the muzzle of the gun was 2 to 4 inches away from TM when GZ fired the fatal shot. The bullet entered TM’s chest 1″ to the left of the midline and 1/4 inch below the nipple and penetrated the chest cavity proceeding straight through from front to back destroying the right ventricle of the heart, the lower lobe of the right lung, and collapsed both lungs.

Assume the rest of the evidence that has been released and y’all have discussed has been admitted.

The prosecution will argue that, given the nature of what he knew at the time and the lies he told, there is no question that he lied to conceal that he followed TM with intent to find him after he lost sight of him and detain him, using force if necessary, until the police arrived.

“These assholes, they always get away,” likely will repeated over and over at every opportunity by the prosecution, particularly in closing argument.

The defense will argue that there is a reasonable doubt in this case, given the nature of GZ’s injuries that show TM was the aggressor, not GZ.

Now assume you are a juror. Are you going to have a reasonable doubt (i.e., a doubt for which a reason exists) that he killed in self-defense?

Come on in, the water is fine.

By the way, please suggest any topics on this case that you would like me to write about.

Why Is Trayvon Martin Dead?

article by Frederick Leatherman with thank you to the editor at Firedoglake/MyFDL, for providing and sizing the image.

Why Is Trayvon Martin Dead?

(photo: werthmedia/flickr)

Cross posted from Frederick Leatherman Law Blog.

I apologize for the length of this article, but there is a lot of information to cover. Includes lots of new information that came out this week.

Many lawyers, including myself, have focused the discussion in the George Zimmerman case on who initiated aggressive physical contact, because there is no law that prohibits a person from approaching another person and asking them what they are doing.

Nevertheless, as I also have pointed out, Zimmerman’s intent when approaching Martin is relevant regarding who threw the first punch.

Keep in mind that it is after dark and raining.

What Was Zimmerman’s Intent?

As Zimmerman sat in his vehicle talking to the dispatcher, we know he was suspicious about Martin’s presence and intentions.

When he called the non-emergency number for the Sanford Police Department seven minutes before he shot and killed an unarmed teenager named Trayvon Martin, he said,

7:09:00: Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

7:09:25: Dispatcher: OK, and this guy is he white, black, or Hispanic?

Zimmerman: He looks black.

Dispatcher: Did you see what he was wearing?

Zimmerman: Yeah. A dark hoodie, like a grey hoodie, and either jeans or sweatpants and white tennis shoes. He’s [unintelligible], he was just staring…

7:09:42: Dispatcher: OK, he’s just walking around the area…
Zimmerman: …looking at all the houses.

Dispatcher: OK…

Zimmerman: Now he’s just staring at me.

He also was concerned about Martin approaching him and possibly being armed.

Zimmerman: Yeah, now he’s coming towards me.

Dispatcher: OK.

Zimmerman: He’s got his hand in his waistband. And he’s a black male.

7:10:03: Dispatcher: How old would you say he looks?

Zimmerman: He’s got button on his shirt, late teens.

Dispatcher: Late teens ok.

Zimmerman: Somethings wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.

7:10:20: Dispatcher: Just let me know if he does anything ok

Zimmerman: How long until you get an officer over here?

Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.

Martin, evidently, walks past him without stopping or speaking.

As Zimmerman identifies himself to the dispatcher and provides directions to his location , he expresses frustration three times that Martin will get away before the police officer arrives [See italicized material below — the bracketed descriptions of background sounds within the quoted material were provided by Wikipedia]. He gets out of his vehicle, follows Martin and acknowledges the dispatcher’s instruction not to do that with a simple “OK.”

Yet, he appears to continue looking for Martin, instead of returning to his vehicle. When the dispatcher asks him where his vehicle is parked, he says he cannot because it is parked in front of a “cut-through” or pedestrian walkway “between buildings” (townhomes). He does not appear to be in or near his vehicle because he neither provides any addresses to be used as landmarks near his vehicle, nor does he describe his vehicle or provide explicit directions to find it. Instead, he tells the dispatcher to instruct the officer en route to call him on his cell phone after he arrives in the neighborhood.

Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

7:10:39 Dispatcher: So it’s on the lefthand side from the clubhouse?

Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.

7:11:08: Dispatcher: He’s running? Which way is he running?

[Ambient sounds are heard which may be Zimmerman unbuckling his seat belt and his vehicle’s “open door” chime sounding. The change in his voice and the sound of wind against his cell phone mic indicate that he has left his vehicle and is now walking. The dispatcher seems to pick up on these changes and sounds concerned when he later asks Zimmerman if he is following Martin.]

Zimmerman: Down towards the other entrance to the neighborhood.

Dispatcher: Which entrance is that that he’s heading towards?

Zimmerman: The back entrance…fucking [disputed/unintelligible]

[This section of the recording has been the subject of much speculation. Some suggest that Zimmerman has just made a racial slur, but the audio is not clear.]

7:11:22: Dispatcher: Are you following him?

7:11:25: Zimmerman: Yeah

7:11:26: Dispatcher: Ok, we don’t need you to do that.

7:11:28 Zimmerman: Ok

Dispatcher: Alright sir what is your name?

Zimmerman: George…He ran.

Dispatcher: Alright George what’s your last name?

[A clicking or knocking sound can be heard here]

Zimmerman: Zimmerman

Dispatcher: And George what’s the phone number you’re calling from?

[Clicking or knocking sound is heard again]

Zimmerman: [phone number redacted]

Dispatcher: Alright George we do have them on the way, do you want to meet with the officer when they get out there?

Zimmerman: Yeah.

Dispatcher: Alright, where you going to meet with them at?

[For the remainder of the recording, Zimmerman sounds distracted. The knocking sound occurs several times during the final exchange with the dispatcher]

Zimmerman: If they come in through the gate, tell them to go straight past the club house, and uh, straight past the club house and make a left, and then they go past the mailboxes, that’s my truck…[unintelligible]

7:12:10: Dispatcher: What address are you parked in front of?

Zimmerman: I don’t know, it’s a cut through so I don’t know the address.

Dispatcher: Okay do you live in the area?

Zimmerman: Yeah, I…[unintelligible]

Dispatcher: What’s your apartment number?

Zimmerman: It’s a home it’s 1950, oh crap I don’t want to give it all out, I don’t know where this kid is.

7:12:40 Dispatcher: Okay do you want to just meet with them right near the mailboxes then?

7:11:42 Zimmerman: Yeah that’s fine.

7:12:43: Dispatcher: Alright George, I’ll let them know to meet you around there okay?

Zimmerman: Actually could you have them call me and I’ll tell them where I’m at?

7:12:49: Dispatcher: Okay, yeah that’s no problem.

Zimmerman: Should I give you my number or you got it?

Dispatcher: Yeah I got it [redacted]

Zimmerman: Yeah you got it.

Dispatcher: Okay no problem, I’ll let them know to call you when you’re in the area.

7:13:02 Zimmerman: Thanks.

Dispatcher: You’re welcome. – Call Ends 7:13:07

The Critical Three Minutes

Zimmerman shoots and kills Martin three minutes after the phone call ends.

How do we know that?

All 911 calls are timed and this is how we know that Zimmerman’s call ended at 7:13 pm. During another timed 911 call from the resident of a townhouse reporting a fight between two individuals in the yard behind the townhouse, a shot abruptly punctuates a terrified scream for help at 7:16 pm.

Martin’s girlfriend calls him at 7:12 pm, which has been verified by cellular phone records for both phones.

Through counsel for Martin’s parents, she provided a statement in which she said Trayvon expressed concern about a man following him. She told him to run. Then she heard Martin say,

What are you following me for?

This was followed by a man’s voice responding,

What are you doing here?

She said that she heard the sound of pushing and then Trayvon said,

Get off me, get off me.

Martin’s headset suddenly went silent. She attempted to call him back immediately, but was unable to reach him.

That call ended at 7:16 pm.

What Happened Next

Officer Timothy Smith of the Sanford Police Department was the first to arrive at the scene of the shooting at 7:17 pm.

Police recovered Martin’s cellphone from the wet grass near his body. The Arizona Iced Tea and Skittles were found inside the pouch pocket of his hoodie.

The Autopsy Report

According to the autopsy report, the fatal shot was fired straight-on from an intermediate distance and entered Trayvon’s chest 1 inch to the left of the midline and 1/2 inch below his left nipple. It perforated the right ventricle of his heart and perforated his left lung, collapsing both lungs. There was no exit wound. The trajectory of the shot was front to back, neither up nor down, neither to the left nor to the right.

Based on the 2 inch X 2 inch smoke ring with stippling around the 3/8 inch entry wound, Dr. Vincent J.D. di Maio, the former Medical Examiner for Bexar County (San Antonio) estimated that the muzzle of the gun was 2 to 4 inches from Trayvon’s chest when Zimmerman fired the fatal shot.

The Assistant Medical Examiner who performed the autopsy also reported that Martin had severe global edema (i.e., swelling) to both hemispheres of his brain.

Zimmerman’s Statement

Zimmerman claims he followed the dispatcher’s advice and was returning to his vehicle when Martin approached him from behind his left shoulder and asked him,

Why are you following me?

[Note the use of the present tense, which suggests he has not given up looking for Martin, is not returning to his vehicle, and is not approached from behind (h/t KrisAinTX)]

Martin’s girlfriend corroborates Martin’s question and use of the present tense, if not the context in which Zimmerman claims it was asked.

Zimmerman claims he then asked Martin,

What are you doing here?

Martin’s girlfriend corroborates Zimmerman’s response.

Zimmerman’s Arrest

When Officer Smith arrived at the scene at 7:17 pm, a minute after the shooting, he saw Martin lying face down in the grass and Zimmerman standing nearby.

Zimmerman was not attempting to aid or provide CPR to Martin and there is no reference in Smith’s report to Zimmerman being upset or crying.

After retrieving Zimmerman’s gun and holster from inside his waistband, he arrested and handcuffed him with his hands behind his back and placed him in the back seat of his patrol vehicle.

Cool As A Cucumber

When an EMT checked Zimmerman in the patrol vehicle at 7:41 pm his pulse, blood pressure, and all of his vital signs were normal. Here is his report:

Assessment 1941 [7:41 pm]

Patient Conscious
Breathing Quality Adult Normal 12-20 [which is normal, not panting or out of breath]

No External Hemorrhage noted; Mucuous Membrane Normal

Central Body Color Normal

Extremities Normal

Within Normal Limits (Airway, Breathing Quality, Accessory Muscle Use, Chest Rise, Radial Pulse, Skin Temp, Skin Moisture [not sweating], Skin Turgor [not showing signs of dehydration], Cap Refill [blood circulation is normal], Pupil Size and Reaction.

[Or as Crane Station, a former RN says, He’s cool as a cucumber, which seems unusual for a person who minutes earlier killed someone and is now under arrest while sitting in the rear seat of a police vehicle with his hands handcuffed behind his back ]

Cause of Injury [to Zimmerman]: Struck by blunt/thrown object. (9640) [Emphasis supplied]

Mechanism of Injury: Blunt

Patient says he was assaulted and his head was struck on the pavement.

Pt’s GCS = 15 [Glascow Coma Scale, which is a level of consciousness scale and 15 is normal] and he is warm and dry with normal skin color. Pt has abrasions to his forehead + bleeding/tenderness to his nose and a small laceration to the back of his head. All injuries have minor bleeding. Pt also denies LOC [loss of consciousness], neck/back pain, and he has + PMS [pulse motor sensory function] X 4 [in all extremeties] with – paresthesia [no tingling]

[That means his pulse, motor, and sensory functions were all okay and functioning normally]

Crane-Station’s Take

Crane-Station put it best,

How could a guy be talking to his girlfriend and killing somebody at the same time?

Who Screamed For Help?

The FBI Digital Examination Laboratory has reported that identification of the person screaming for help during the 911 call is not possible due to the poor quality of the original recording.

Zimmerman, backed by his father and unidentified family members, claims he is the person screaming for help. A neighbor named John claims he saw Zimmerman calling for help.

Martin’s mother claims Trayvon is the person screaming for help. Two audiologists working independently of each other using different methodologies to clean up background noise and focus on clarifying the scream have excluded Zimmerman as the source of the scream to a reasonable scientific certainty.

The Witness Named John

Claims that he saw Martin on top of John beating him about the head and heard Zimmerman calling for help. He shut and locked his sliding glass door and went upstairs to call 911. He heard the shot as he was going up the stairs. When he looked out a bedroom window, he saw Martin lying face down in the grass, apparently dead, and Zimmerman standing next to him.

He did not see the beginning or the end of the fight and that also appears to be the case with the other witnesses.

Other Witnesses

Other witnesses reported bits and pieces of this tragic event. I am still reviewing their statement but have nothing definitive or new to report yet.

Conclusion

Given Zimmerman’s state of mind and intent, I believe he was the aggressor and did not act in self-defense. I also believe he attacked Martin while Martin was talking to his girlfriend and Martin may have struck him with the cell phone several times in self-defense causing the injuries treated by the EMT.

Can You Direct Me To The House Of The Reasonable Man?

Written by Frederick Leatherman (Masoninblue) and reblogged here with permission.

Can You Direct Me To The House Of The Reasonable Man?

Many of our civil and criminal laws are based on the theoretical concept of the reasonable person and what he or she would do in any given situation. We establish standards of conduct based on this theoretical reasonable man or woman and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

This concept of reasonableness can change over time as people’s concepts of what constitutes reasonable behavior in any given situation change.

For example, our common law comes from Great Britain and the Brits are not as violent and gun-loving as Americans. According to their cultural concepts, a reasonable person would attempt to retreat from a volatile situation before using force in self-defense. Hence, the duty to retreat at common law that we kept after we won the war for independence.

Conditions in the western frontier of our country were not as civilized and sedate as back east. Out west the thinking was real men stand their ground and shoot your ass, if you mess with them, so the western states eliminated the duty to retreat. Their concept regarding what a reasonable man would do when threatened with violence was significantly more aggressive than back east.

As our society has become more suspicious and fearful of strangers, more and more people now appear to believe that a reasonable person would stand their ground meeting violence with equal or greater violence. The NRA and many people now think that the solution to our violent society is more people armed with guns.

Recently, in a blog within these hallowed halls, a person said we should require all teachers to carry guns in order to stop violence in schools. I think that idea is absolutely crazy and about as unreasonable as unreasonable can get, but there is no denying that a lot of people believe it’s reasonable. Fortunately, I think I am still on the majority side of this issue.

Whenever you see the word “reasonable” in a law, it means an objective, as opposed to a subjective standard. In other words, reasonableness is not based on the perception of any specific identified person, which is a subjective standard. It’s based on the actual facts and circumstances of a given situation and what a hypothetical reasonable person would do in that situation.

As I have said, Florida’s SYG law is not a license to kill. Yes, a person can stand their ground. Yes, they have no duty to retreat, Yes they can use force, including deadly force in self-defense, but only if a reasonable person in the same situation (i.e., the objective reality out “there,” as opposed to a particular person’s perception of it) would do so, AND they cannot use more force than is reasonably (i.e., there’s that damn word again) necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation they are in, as opposed to their perception of it, are such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffering serious bodily injury.

Trayvon Martin was unarmed. That is an objective fact and circumstance. George Zimmerman was armed with a gun and following him. That is an objective fact and circumstance. They had a physical confrontation. That is another objective fact and circumstance. These are undisputed facts.

One of them started the fight. That is another objective fact and circumstance, but we do not know for certain who did. The identity of that person is a disputed fact and there have been many arguments about it.

I believe Zimmerman did because he followed Trayvon against the police dispatcher’s request. He thought Trayvon was a burglar casing the neighborhood and he was frustrated because he thought Trayvon was going to get away before the cops arrived. We know that is what he was thinking (i.e., his subjective state of mind) because he said so. As I recall, his specific words were, “These assholes always get away.”

He also got out of his SUV and started following Trayvon and, after being pressed by the dispatcher to provide an address or location where the police officer could meet him, he said, “I’ve to get out of here,” and told the dispatcher to tell the officer to call his cell phone when he arrived in the neighborhood, instead of agreeing to meet the officer at the mailboxes as he had previously suggested. The mailboxes are located close to the clubhouse near the entrance to the neighborhood and would have been easy for the officer to find. The only problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon, who ran behind some houses and he did not want him to get away. He then terminated the conversation.

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 711. Therefore, Zimmerman was mistaken.

Would a reasonable person have made that mistake? Would you or anyone you know have made that mistake?

Having made that mistake, what, if anything, would you have done upon encountering Trayvon?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was George Zimmerman a reasonable person that night?

A casual perusal of the 47 pages of his 911 calls to report suspicious activity strongly suggests that he was anything but a reasonable person. Those 47 pages are a damning indictment of a deeply paranoid person and I challenge everyone to read every freaking entry on every freaking page and then construct an argument that he was not a ticking time bomb waiting for the right stressor to set him off.

Why did George Zimmerman call the police that night? He saw an older teenage Black male wearing a hoodie type sweatshirt, jeans, and white tennis shoes walking around in the rain looking around at houses. I am surprised he even noticed him. Why call the cops? Why not ask him, if he needs help or directions? Don’t the police have better things to do than to respond to calls about supposedly suspicious people doing ordinary things?

A police officer cannot detain someone to investigate a possible crime, unless they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A hunch is not enough. There must be sufficient objective facts and circumstances that would cause a reasonable person to suspect that the person was committing a crime. I do not see that here and I see no reason to summon police to investigate.

George Zimmerman likely knew all about the reasonable suspicion test since he is a student in a criminal justice program. That is one of the key concepts that is taught in those programs.

Nevertheless, George Zimmerman was certain that Trayvon was “up to no good” and, we know that because that is exactly what he told the dispatcher.

Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, which is something that no reasonable person would have done, what do believe he was prepared to do, if he found Trayvon and Trayvon was not cooperative?

What would a reasonable person have done in Trayvon’s situation? We know he knew he was being followed because that is what he told his girlfriend, when she called him moments before he was shot. We know he was afraid because he ran away from George Zimmerman.

Even if George Zimmerman did not start the physical confrontation, which I suspect he did, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

Perhaps George Zimmerman should have asked someone that night for directions to the house of the reasonable man.

I do not see a reasonable person doing anything George Zimmerman did that night up to and including his effort to find Trayvon. Nevertheless, this is not my judgment to make.

We have a legal system to decide what happened and what to do about it. We have due process of law with an adversarial system presided over by judges and we have juries to decide what happened. We will have to be patient and wait and see what happens.

In the meantime, we can wonder and while we wonder, we can conduct a diligent search for the reasonable man.

As an aside, why does our president believe he has and should exercise the power to unilaterally decide to kill someone just because he believes that person is a terrorist.

What is reasonable about that?

Cross posted from my law blog

Stand Your Ground Explained

Written by Frederick Leatherman (Masoninblue) and reblogged here with permission. The article is also on Firedoglake.com/MyFDL, where editors assisted to provide the justice scales image/graphic, from Wikipedia commons.

Scale of Justice (Wikipedia)

Florida self-defense law is a bit unusual, so I am going to explain how it works.

First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.

All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.

Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.

Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.

The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.

If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.

Therefore, by definition, an aggressor cannot act in self-defense.

The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.

Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.

Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.

This is how it will happen in the Zimmerman case:  [cont’d]

Trayvon Martin: What Forensics Can Tell Us

This my my second day out due to an incapacitating migraine headache. One of these days I will write about these spectacularly flattening headaches.

Here is an article by Mason (Fred). It is cross-posted at Firedoglake/MyFDL, currently recommended with several comments, and also at frederickleatherman.wordpress.com.

Introduction

We already know that two independent forensic audiologists have examined a recording of a 911 call by a woman who reported a struggle going on behind her residence. A long high-pitched scream for help that is audible in the background terminates abruptly with what sounds like a single shot.

Using different analytical methods the two experts have compared the scream to a police recording of George Zimmerman’s voice when he called a police non-emergency number approximately 10 to 15 minutes before the shooting to report a suspicious person in his neighborhood.

We now know that person was Trayvon Martin, who was walking back to his father’s girlfriend’s residence, whom he was visiting with his father, after walking to a nearby 711 store to purchase some Skittles and Arizona Iced Tea.

Both experts excluded George Zimmerman as the person screaming in the background to a reasonable scientific certainty. They have not compared the scream to a recording of Trayvon Martin’s voice, presumably because they do not have a recording of his voice.

Trayvon Martin’s mother has identified her son as the person screaming.

Since there is a witness who claims to have seen the struggle between Zimmerman and Martin with Martin on top and Zimmerman lying on his back in the grass yelling for help, there is an apparent conflict in the evidence between the eyewitness’s statement and the two expert opinions. I say “apparent conflict” because the witness did not observe the fatal shot. He locked his door, went upstairs, and when he looked out the window, he saw Martin lying face down in the grass and not moving.

Because the witness did not observe who initiated the physical confrontation or the fatal shot, he cannot tell us who was the aggressor or where Martin and Zimmerman were positioned and what Martin was doing when Zimmerman fired the fatal shot. This missing information is important because, under Florida law, Zimmerman’s claim of self-defense must be rejected, if he was the aggressor, or if he was not in danger of being killed or suffering serious bodily injury when he fired the fatal shot.

For example, during the time period while the witness was in transit between locking his door, going upstairs, and looking out the window, Zimmerman, who outweighed Martin by 40 pounds, according to Wikipedia, might have locked his arms and legs around Martin, rolled over on top straddling him, and then pulled his gun out of the holster and fired the fatal shot. He might even have separated from Martin and fired the fatal shot. Neither scenario would justify using deadly force in self-defense.

Let us now consider what other forensic evidence to see what it might tell us about the relative positions of Zimmerman and Martin when Zimmerman drew his gun and fired.

What Can Forensics Add To This Investigation?

I would want to review the autopsy report and interview the medical examiner who conducted the autopsy to find out whether he noticed any injuries other than the fatal gunshot. For example, did Martin have any abrasions on his hands and fingers.

I would have a lot of questions for the medical examiner regarding the nature of the gunshot wound and Martin’s clothing.

For example, the weapon was a black Kel Tek 9 mm PF9 semiautomatic. The bullet would have been discharged when Zimmerman pulled the trigger causing the hammer to strike the primer igniting the smokeless powder in the casing producing rapidly expanding gas (consisting of carbon monoxide, nitrogen dioxide, carbon dioxide and other gases) that ejects the bullet, burning and unburned gunpowder (the burn always is incomplete), and trace amounts of the primer that contains heavy metals, including lead, antimony, and bismuth. Depending on the nature of the wound and the presence of all, some, or none of these materials, a qualified forensic firearms expert can determine how far away the gun barrel was when the shot was fired.

The gases, including the heavy metals, and some smoke from unburned but gaseous carbon, are projected only a few inches. The effects of the gas produce what are called contact or near-contact wounds that are characterized by variable skin lacerations or tears from the expanding gases that rip the skin apart and stippling, which is blackening skin from the unburned smokeless gunpowder that is propelled out the barrel of the gun with the bullet by the rapidly expanding gas.

As the distance of the gun barrel to the skin increases, the effect of the gas diminishes and only the unburned powder and bullet are capable of penetrating the skin. Stippling is present when the gun barrel is 0.5 centimeter to 1 meter from the wound. The pattern gets larger as the distance increases. So-called distant wounds do not cause tearing or stippling.

Based on Zimmerman’s statement, I would expect Martin to have had a contact or near contact wound with skin laceration or tearing caused by the explosive gases entering the wound expanding and tearing the skin. I also would expect to see some stippling or unburned smokeless powder. If I did not see evidence of either in the wound or clothing fibers, I would conclude that the gun barrel was more than a meter away, which is at odds with Zimmerman’s statement in which he claimed that he shot Martin as Martin was on top and hitting him.

Given Zimmerman’s statement, I also would expect to see high velocity blood spatter (mist-like spray of blood drops about 1 mm in diameter) or blowback on the barrel of Zimmerman’s gun, his shooting hand, and the sleeve of his jacket.

Absence of skin tearing, stippling, and high velocity blowback or blood spatter would seriously undermine a claim of self-defense.

Cross posted from my law blog.