REASONABLE PEOPLE WILL FIND ZIMMERMAN GUILTY OF 2ND DEGREE MURDER

With all of the talking heads and media attorneys lambasting the Prosecutor for charging George Zimmerman (GZ) with 2nd degree murder for the killing of Trayvon Martin, I want to explain why I believe it was the correct charge. Let me say that I simply do not believe the charge was political posturing or a pumped up charge in order to force a plea as some have speculated.

Florida's jury instructions (which are based on the Florida statute) spell out three elements that prosecutors must prove to establish 2nd degree murder beyond a reasonable doubt:

•The victim is deceased,

•The victim's death was caused by the defendant's criminal act, and

•There was an unlawful killing of the victim "by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life."

The last element -- an "imminently dangerous" act that shows a "depraved mind" -- is further defined by Florida's jury instructions. Three elements must be present:

•A "person of ordinary judgment" would know the act, or series of acts, "is reasonably certain to kill or do serious bodily injury to another";

•The act is "done from ill will, hatred, spite, or an evil intent"; and

•The act is "of such a nature that the act itself indicates an indifference to human life."

Note that Florida's jury instructions state prosecutors do not have to prove the defendant intended to cause death.

http://blogs.findlaw.com/blotter/2012/0 ... urder.html

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

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. Place yourself as a juror on the case, and decide whether 2nd degree murder will prevail.

Florida’s SYG law is not a license to kill. A person can stand their ground. They have no duty to retreat. 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, but they cannot use more force than is reasonably 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 actually 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.

The undisputed objective facts are:

√ Trayvon was not armed.
√ GZ was armed with a gun and following Trayvon.
√ The two had a physical confrontation.

One of the two started the fight. That is another objective fact, but we do not know for certain who did. The identity of that person is a disputed fact. I believe GZ 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 (his subjective state of mind) because he said so. His specific words were, “These assholes always get away.”

He also got out of his vehicle and started following Trayvon and, after being questioned by the dispatcher to provide a location where the police officer could meet him, he 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 problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon and he did not want him to get away. His conversation with dispatch ended at this point.

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. Thus, GZ's belief that Trayvon was a burglar casing the neighborhood was incorrect.

Would a reasonable person have made that mistake? Would you have made that mistake?

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

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

Was GZ a reasonable person that night?

Keep in mind that you have attended a Neighborhood Crime Watch lecture and know that the program's manual specifically states that members shall not carry weapons, pursue, or confront suspicious persons.

A casual read of the 47 pages of GZ's calls to the SPD 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 IMHO. I dare you to read each and every entry and then provide me with an argument that he was not a ticking time bomb waiting for the perfect storm to set him off. It was only a matter of time.

Ask yourself, why did GZ call the police that night? Because he saw a teenage male wearing a hoodie type sweatshirt, walking around in the rain looking around at houses. Why call the cops? Why not simply ask the teen if he needs help or directions? GZ is the "captain" of his neighborhood watch, why not just announce this fact to the teen and offer assistance? If nothing else, it would have given the "suspicious" teen notice that he was being watched if he were in fact casing the joint.

What was a police officer going to be able to do more than that? 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 suspicion or 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 in this case and I see no reason for GZ to have summoned the police to investigate.

GZ most 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's taught in these programs.

In GZ's mind, he was certain Trayvon was "up to no good" because this is exactly what he told the dispatch. Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, what do you believe he was prepared to do when he found Trayvon and Trayvon was not cooperative? What would a reasonable person have done? Would a reasonable person have taken the dispatcher's advice and waited for the officer or would a reasonable person taken off behind the townhouses into the dark to find a suspicious teen who you did not know whether or not was armed?

What would a reasonable person have done in Trayvon’s situation? Trayvon knew he was being followed since that is what he told his girlfriend. We know he was afraid because he said he was going to put up his hoodie and "walk fast" to get away from GZ.

Even if GZ did not start the physical confrontation, which I believe 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.

I do not see a reasonable person doing anything GZ did that night.

These are the questions that a jury will have to decide. Meanwhile, we can wonder and we can conduct a "reasonable man" test by asking ourselves what would they, as a reasonable person, have done?

1. He could have called out to Trayvon and asked to talk with him for a minute.

2. He could have abided by the crime watch training - watch, observe and report WITHOUT pursuing, confronting and especially not possessing a weapon.

3. He could have listened to the 911 dispatcher, and stayed in his vehicle.

4. He could have told Trayvon who he was, why he was there, why he was following him.

5. He could have let Trayvon alone.

6. He could have fired his gun into the air to scare Trayvon into not trying to get away until cops arrived.

7. He could have shot Trayvon in a nonlethal area of the body.

9. Lastly, he could have told the truth to the police about what happened that evening.

The distinction between manslaughter and 2nd degree murder is that the 2nd degree murder charge requires a finding that GZ killed Trayvon while engaging in an act “imminently dangerous to another and evincing a depraved mind regardless of human life.” Take that element away, and you still have the lesser included offense of manslaughter, so both charges are still theoretically on the table. But what constitutes a depraved mind regardless of human life?

The case of State v. Bryan, 287 So.2d 73,76 (Fla. 1973) holds that an accidental shooting when coupled with malice toward the victim constitutes second-degree murder. Thus, the intentional and forceful striking of the deceased in anger with a loaded pistol
which accidentally discharged killing him constitutes an act "imminently dangerous to another" and "evincing a depraved mind regardless of human life." 287 So.2d at 76.

GZ's discharge of his gun was not accidental, he readily admits pulling the trigger.

The state apparently believes from the circumstances surrounding Trayvon’s death they can prove GZ was acting dangerously, unreasonably, and with no regard for human life. The affidavit of probable cause supports this theory, in that every allegation that has been added in to meet the depraved mind element is based only on facts of the case that have been widely reported in the media, i.e., GZ perceived a threat where the objectively was none, as it was just a kid walking home from the 7/11; GZ’s state of mind was that he was enraged about “those assholes” and “those fucking punks"; GZ then disobeyed police dispatch instructions not to pursue Trayvon, presumably due to his apparently deep-felt desire to make sure this particular asshole didn’t get away. So, it’s possible that the prosecution thinks this alone would be enough to convict GZ for a depraved mind killing.

The fact that Florida is charging GZ with murder and not manslaughter is a strong indication that the prosecutor thinks there is some pretty compelling evidence out there in the state’s favor. In addition, the public outcry would tend to demonstrate that there are sufficient reasonable persons (on the jury) who would agree that GZ's actions were “imminently dangerous to another and evincing a depraved mind regardless of human life.” Such compelling evidence could be:

1. The autopsy of Trayvon Martin contradicts GZ’s version of events. It is possible that the autopsy revealed evidence that does not support GZ's story. We know that Trayvon was shot at “close range,” but perhaps the coroner’s report was somehow able to confirm that Trayvon was shot from a distance or angle that is hard to reconcile with GZ's sequence of events.

2. The prosecution has evidence that thoroughly discredits GZ. Perhaps either through a combination of small but significant inconsistencies, e.g., if the evidence doesn’t support his version of how the encounter occurred, or through a major, so far unreleased discrepancy — some piece of evidence that has been withheld so far, with blows GZ’s story out of the water — the prosecution believes it has enough evidence to suggest that GZ knows that the killing was not actually in self-defense, and GZ has deliberately crafted a false, alternative version of events to support his self-defense claim. GZ is the only person alive who saw how the fight started — if the only evidence he has to support a claim of self-defense is his own testimony, and if his own testimony is shown to be false and misleading, then he has no self-defense claim to proceed on. As I have stated all along, I truly believe that GZ had his gun unholstered at the time he confronted Trayvon. I also believe that GZ turned Trayvon over after the shooting him to check for weapons and this is why he was on his stomach.

3.The prosecution is confident that it can prove that the voice yelling “help” was Trayvon; or, failing that, they can prove it was not GZ. It would be crucially important for the prosecution for several reasons, and would go a long way to helping the state make its case. If it can be proven to be someone other than GZ yelling for help, then (a) it strongly suggests that at the time of the killing, Trayvon's screams for help were of someone who was in fear for their life and wants to end the altercation, not screams of someone who is trying to murder someone else; (b) supports that GZ subjectivey knew, even during the fight, that Trayvon's yells were not the yells of an someone equally participating; (b) GZ is shown to have had the presence of mind to tell an untruthful cover story, suggesting a depraved state of mind.

The use of deadly force only becomes justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” No matter how subjectively real the belief is, an unreasonable belief does not provide any right of self-defense. The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If GZ was not actually getting his head deliberately bashed into concrete — which, from the investigator's testimony at the bail hearing leads one to surmise that prosecutors do not believe occurred as GZ claims -- then GZ was not justified in using force against Trayvon, no matter what his actual beliefs were. GZ may have had the adrenaline rushing through his veins, may have perceived his opponent as a murderous gang-member rather than a skinny teenager because of the presence of a hoody; it’s possible GZ really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty, “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924).

Even if GZ truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest GZ was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from GZ’s behavior that his fears were unreasonable, and that his fear for his life due to a couple bumps on the head was not practical, then the killing is not justifiable as self-defense.

The SYG law imposes a duty to retreat in instances where the defendant has caused the fight, even if he later finds himself on the losing end of it:

Fla. Stat. Ann. § 776.041. Use of force by aggressor.—

The justification described is not available to a person who… [i]nitially provokes the use of force against himself or herself, unless [s]uch force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant[.] (emphasis added)

If GZ instigated the encounter, then, even assuming he could somehow prove that Trayvon was in fact trying to wrestle GZ’s gun away from him, this still won’t necessarily provide an absolute defense to the killing. GZ was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; GZ was the one who chose to exit his vehicle looking for the teen, even when he was told not to do so by police dispatch; GZ was the one who created a situation where, if a shoving match occurred between him and Trayvon, he could then argue that the fact he was armed made an unarmed teen a potentially lethal threat that put GZ in fear of his life, because GZ knew he had a gun that the boy could theoretically steal. “A killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

Even if Trayvon threw the first punch, the moment GZ pulled his gun, he became the aggressor. Regardless of who threw the first punch, GZ provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent teen who was a guest in the neighborhood. GZ could have easily avoided any confrontation with Trayvon. GZ himself admits that the kid ran away from him when he first saw GZ, trying to escape. GZ did not have to go for a kill shot. Most importantly, if GZ had not pursued Trayvon, and if GZ had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State, 31 Fla. 266, 12 So. 865.

In my opinion, and given that we have seen very little evidence, the State appears to have already met all the elements necessary to convict him of manslaughter, and they have a good shot, IMHO, at proving 2nd degree murder. If GZ does claim self-defense, I believe he will have to take the witness stand to do so. In which case, I suspect the prosecution is confident that they can impeach his testimony by pointing out the discrepancies in his statements, which it appears will not be too difficult given that GZ cannot even recall identifying Trayvon as a teen in his discussions with the dispatcher.