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George Zimmerman to Appeal Recusal Denial

Bump and Update: Mark O'Mara said at a press conference today he will appeal Judge Kenneth Lester's denial of his recusal motion. When asked about his announcement last week his client will file a Stand Your Ground motion, he said:
He told reporters today that he believes the facts of the case show his client didn't have any option to retreat rather than shoot.

"I think the facts suggest in this case that what probably happened was that my client was reacting to having his nose broken" while lying on his back being pummeled, O'Mara said.

I agree. But he had no duty to retreat under Stand Your Ground. If O'Mara is discussing a "duty to retreat", I would think he's not talking Stand Your Ground, but traditional self-defense. (I didn't hear the press conference, but the media is reporting he said he's not proceeding under SYG but self-defense, and intends to argue it at a pre-trial hearing.) Earlier post below:[More...]

Mark O'Mara is expected to make an announcement shortly in the George Zimmerman case. He's also scheduled a press conference for this afternoon. Update: Changed now to just a press conference, set for 1:45 pm ET.

The mainstream media is saying they have no idea what it's about.

Update: O'Mara is right. He can seek immunity based on self-defense without invoking Stand Your Ground. Three statutes are involved:

776.012 Use of force in defense of person.

—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013.

776.013 Stand Your Ground

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
and

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer...As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
The only difference the aggressor statute, 776.041 makes is that should he be found to be the aggressor (which I don't think he is), he would have a duty to retreat if possible. The aggressor can use the justification in 776.012 even though he provoked the use of force against him so long as:
(a) Such 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;

When you are flat on the ground, beneath the person who is using force against you, and you can't get away or out from under them, and you believe you are in danger of serious bodily injury or death should the attack continue or they get hold of your gun, you have no means of escape. According to GZ, he tried to wriggle away and move his head to the grass, fearing he would lose consciousness, and that's when his gun became exposed and he felt Trayvon's arm reach towards it. According to GZ, he also cried out for help but no one came to his aid, they all went to call 911 instead. And according to Witness 6, he tried to sit up -- he saw his back lift up, but Trayvon prevented him. So he tried 3 avenues to escape the danger: wriggling away, crying out for help and trying to get up, and none worked.

My only question is why is O'Mara not using SYG? Zimmerman was not engaged in unlawful activity when he was hit by Trayvon, he was in a place he lawfully had a right to be, and his belief he was in danger of serious bodily injury or death if Trayvon's attack was not stopped was a reasonable one.

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    Interesting.... (none / 0) (#1)
    by ruffian on Mon Aug 13, 2012 at 12:20:03 PM EST
    All morning helicopters have been circling a particular area of town. Nowhere near Sanford, but I wonder if it has anything to do with GZ. Last time I saw so much activity it was always when Casey Anthony was leaving from or returning to her parents' home.

    Romney was supposed to be (none / 0) (#2)
    by Jeralyn on Mon Aug 13, 2012 at 12:24:23 PM EST
    in Orlando today but canceled last night. Cited exhaustion. Yet he kept his St Augustin appearance this morning and one for Miami tonight. I doubt there would be helicopters for an O'Mara presser.

    Parent
    Thought maybe there was a GZ sighting (none / 0) (#3)
    by ruffian on Mon Aug 13, 2012 at 12:29:36 PM EST
    but it is probably something else altogether. Just unusual for them to be there in the morning when I went in to work and still be there at lunch. Rules out a traffic-related thing.

    St. Augustine is much more restful....no doubt the Mittster needs a break....

    Parent

    Live stream is live (none / 0) (#4)
    by Kyreth on Mon Aug 13, 2012 at 12:35:51 PM EST
    http://www.wftv.com/s/watchlive/  not expected to start for another few minutes, but they're setting up in front of O'Mara's office now.

    Writ of prohibition (none / 0) (#5)
    by MJW on Mon Aug 13, 2012 at 01:09:23 PM EST
    In case anyone hasn't heard, the defense will seek a writ of prohibition in the Judge Lester recusal.

    What does that mean? (none / 0) (#7)
    by sarcastic unnamed one on Mon Aug 13, 2012 at 01:36:09 PM EST
    it's a motion to a higher court (none / 0) (#10)
    by Jeralyn on Mon Aug 13, 2012 at 01:45:30 PM EST
    seeking an order prohibiting the judge from proceeding further.

    Under Florida law, so long as a motion to recuse is legally sufficient, the judge has to recuse himself without addressing the facts alleged.

    If the motion was legally sufficient under the rule and statute, Lester has no authority to proceed further and the writ prohibits him from staying on the case.

    Parent

    Thanks. (none / 0) (#16)
    by sarcastic unnamed one on Mon Aug 13, 2012 at 02:37:03 PM EST
    This seems pretty clear-cut (none / 0) (#21)
    by Jello333 on Mon Aug 13, 2012 at 04:11:07 PM EST
    Unless I'm missing something, Lester doesn't really have a leg to stand on.... right?

    Oh, and I wanted to ask something about your update, where you said that MOM said George didn't have the ability to "retreat or escape". Even though that's one of the keys to SYG -- that you don't HAVE to try to "retreat or escape" -- surely you can still use the SYG hearing to argue the case should be dismissed? I mean, George has a STRONGER argument than SYG. He's got traditional self-defense. Surely he can't be penalized (by NOT being able to have a SYG hearing) for that, can he?

    Heh.... I'm not making much sense. What I'm asking is, even if he DIDN'T have the ability to get away, he can still win at SYG, can't he?

    Parent

    At the risk of being imprecise... (none / 0) (#15)
    by MJW on Mon Aug 13, 2012 at 02:26:40 PM EST
    It means he's appealing the judge's ruling to a higher court. The trail courts are under district courts of appeal. There are five districts in Florida. Zimmerman's trial court is in the 5th district. A panel of three judges will decide whether to overrule Judge Lester and force him to recuse himself.


    Parent
    thx. (none / 0) (#19)
    by sarcastic unnamed one on Mon Aug 13, 2012 at 02:49:13 PM EST
    School's In! (none / 0) (#6)
    by Cylinder on Mon Aug 13, 2012 at 01:26:33 PM EST
    So who's going to school us, the little people, on the stndard of review for this pleading? :)

    MOM said it will be reviewed de novo. Does that mean evidence outside of the 10-day window is considered or is it just the four corners of the original motion?

    As one of the little people... (none / 0) (#8)
    by DebFrmHell on Mon Aug 13, 2012 at 01:38:49 PM EST
    School me, too!

    In a SYG, GZ didn't have to retreat.  He was unable to retreat?  I think he was making efforts to extricate himself if I read W6 correctly.

    I R Confuzzled....

    Parent

    Not SYG (none / 0) (#9)
    by Cylinder on Mon Aug 13, 2012 at 01:42:06 PM EST
    MOM is trying to deflect from the idea that SYG immunity is some kind of technicality. He correctly asserted that this is a traditional self-defense case. If Zimmerman and the eyewitnesses are to be beleived, Zimmerman had no avenue of retreat. He was attacked, cried for help and was unable to extract himself short of use of force.

    Parent
    then how does he get a (none / 0) (#13)
    by Jeralyn on Mon Aug 13, 2012 at 02:23:42 PM EST
    pre-trial hearing? Maybe he means he's going to establish he had no means of retreat even though it's not required?

    Parent
    Immunity claim vs duty to retreat (none / 0) (#17)
    by Cylinder on Mon Aug 13, 2012 at 02:41:12 PM EST
    MOM is just pointing out to the media that pretrial immunity and duty to retreat are seperate issues. By "traditional self defense" I mean "even if he had a duty to retrerat."

    MOM also asserted that even before the immunity statute, Zimmerman would still have an avenue to assert self defense to the judge through a motion to dismiss or whatever you attorney types call it.

    What he didn't do that he needs to is to point out that if the state cannot defend against the preponderance of evidence standard then it should never be placed in front of a jury in the first place.

    Parent

    You're right (none / 0) (#18)
    by Cylinder on Mon Aug 13, 2012 at 02:46:05 PM EST
    You're right, BTW. MOM did state that the evidence suggests (using the O'Mara-ism) that Zimmerman had no avenue of retreat - even though retreat is not required.

    He stated that he doesn;t want to project the image of Zimmerman with a firearm - waiting on someone to shoot. He was very effective in his usual, understated way.

    O'Mara would want me on most any jury. His quiet intellectual approach appeals to me where perpetual outrage tunes me out.

    Parent

    de novo (none / 0) (#11)
    by Jeralyn on Mon Aug 13, 2012 at 01:47:16 PM EST
    means they don't have to start from the assumption Lester was correct, or examine for an abuse of discretion. They examine the motion from scratch and make their own determination as to whether it was legally sufficient.

    Parent
    But no new evidence, correct? (none / 0) (#12)
    by oculus on Mon Aug 13, 2012 at 01:58:30 PM EST
    Sorry, I don't know the answer to that... (none / 0) (#22)
    by Jello333 on Mon Aug 13, 2012 at 04:18:10 PM EST
    ... but even without any new evidence, this seems pretty easy. I don't see how, based on what MOM put in the recusal motion, the appeals court can deny that George has a STRONG reason to believe Lester is biased. And from what I gather, that's about all that's needed. But I hope the appeals court goes further than just overrule Lester... I hope they slam him HARD for all his actions in this case, right up to present.

    Parent
    Traditional Self-Defense (none / 0) (#14)
    by justincaselawgic on Mon Aug 13, 2012 at 02:26:12 PM EST
    Florida Statute 776.012 entitles the Defendant to an Immunity Hearing, as well.

    "776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, ..."

    If that's true, then I hope MOM.... (none / 0) (#24)
    by Jello333 on Mon Aug 13, 2012 at 04:21:14 PM EST
    ... makes a big point of that. So once the case is dismissed, MOM can say that George won on traditional self-defense grounds, and that SYG wasn't even necessary. That will make the prosecution (and all their fans) even MORE angry, because they won't have SYG to blame. ;)

    Parent
    The prosecution might be angry... (none / 0) (#29)
    by unitron on Mon Aug 13, 2012 at 05:01:16 PM EST
    ...but if SYG isn't a part of this, I think they (or at least the political bosses pulling their strings) will be tickled pink.

    They've got to try to convince the minorities that the state's not racist while keeping the "pro-gun" crowd happy by keeping SYG out of the spotlight as much as possible.

    Parent

    I thought he did so in the press (none / 0) (#38)
    by justincaselawgic on Tue Aug 14, 2012 at 08:24:40 AM EST
    conference. He made it a specific point to spell out how they will still proceed with an immunity hearing under traditional self-defense.

    I have mixed feelings about this particular tactic. I see an immunity hearing as essential, but I also recognize that the State is trying to argue that Zimmerman was the aggressor by getting out of his vehicle and, at least initially, following Martin. If this ever gets to a jury trial, the jury will have to decide if they think that made Zimmerman the aggressor. However, it would be nice if the jury was also made aware that an aggressor can also claim self-defense. I don't see that being brought up as a counterpoint down the road, considering the statute that covers that type of defense, 776.041, does not allow for an immunity hearing.

    Parent

    Technicalities (none / 0) (#39)
    by cboldt on Tue Aug 14, 2012 at 09:02:23 AM EST
    You are right, that if Zimmerman is found to have provoked the altercation, he may win self-defense, but lose immunity.

    However, if getting out of a truck and following are found to be provocative acts, by a judge or jury, that would be a radical departure from current law defining an act of provocation, and would be reversible error.

    Parent

    I completely agree. (none / 0) (#40)
    by justincaselawgic on Tue Aug 14, 2012 at 10:23:19 AM EST
    It was astonishing to me to see the State's premise for a charge. Those actions really lead to culpable negligence, perhaps Manslaughter, if one is reaching, but not 2nd Degree Murder.

    Parent
    justincaselawgic (none / 0) (#43)
    by bmaz on Tue Aug 14, 2012 at 11:55:29 AM EST
    Exactly.

    Parent
    Provocation vs. Not Provocation (none / 0) (#45)
    by cboldt on Tue Aug 14, 2012 at 01:33:29 PM EST
    I don't see getting out of a truck and following to be basis for ANY charge.  Not murder, not manslaughter, not negligence, not assault (certainly not battery), and not even disturbing the peace.

    The point I was making was that the notion of "provocation" plays in the self defense argument in chief (the one where Zimmerman concludes "at this point I was in fear for my life").

    I think he has to show that he did not provoke the altercation, in order to prove he is entitled to immunity under .012, because he is also entitled to immunity under .041, and he has to preclude being under .041.

    The State v. Dooley decision puts burden on defendant to show he was not engaged in unlawful activity, and that he did not provoke a physical altercation.  I don't think this can reasonably be taken as proving a negative, so all Zimmerman does is describe what he was doing, and assert that he did not provoke the punch in the snoot.  The state has no evidence otherwise, so he meets the burden just by his own statement.

    I took the argument as one where the jury would say getting out of the truck and following was enough to justify Martin to punch Zimmerman in the snoot, that is, Zimmerman provoked Martin to use force in self defense.  Some people honestly think that should be the rule, that getting out of a truck and following is grounds for punching somebody in the face.  The law doesn't agree.

    Parent

    Maybe it's not the truck - (none / 0) (#47)
    by MikeB on Tue Aug 14, 2012 at 01:59:26 PM EST
    I understand your point and agree, but the provocation (if it does indeed exist) may not be the act of getting out of the truck. The problem is, nobody really knows what happened between Martin and Zimmerman before Z ended up on the ground. The prosecution could be claiming Z started the fight when the argument ensued. Even discounting Dee Dee's testimony, other witnesses heard Z and M arguing. There is a fairly large window of events that cannot accurately be accounted for in terms of exact detail. But we do know something significant happened. If the prosecution claims Z shoved M and Martin started putting the beatdown on Z afterwards, maybe the SYG can't fit. However, self-defense rules still apply as noted in this very informative thread. The entire sequence of events surrounding the argument could be negated with self-defense.

    Having said that, I would prefer to know those exact details versus taking a legal "side". I just don't know if that's possible. But I'm also not ready to convict someone who may be innocent because evidence doesn't exist. Removing that entire event seems to be the safest way from my non-lawyer mentality.

    Parent

    That unknown (none / 0) (#48)
    by bmaz on Tue Aug 14, 2012 at 02:55:25 PM EST
    may well be why GZ does not prevail at the Dennis hearing; however, it is a far different matter at a trial where every presumption beyond a reasonable doubt will flow to Zimmerman.  Legalistic or not, and yes we would all like more hard facts, that is how the law works.

    Parent
    It's the State that would bring... (none / 0) (#42)
    by Gandydancer on Tue Aug 14, 2012 at 11:12:16 AM EST
    ...up .041, but Z would lose immunity only if .012 didn't apply, so they'd have to argue that he could have retreated instead at the point of the shot. As MOM would probably say, the evidence "suggests otherwise".

    Parent
    yes it does (none / 0) (#31)
    by Jeralyn on Mon Aug 13, 2012 at 07:43:15 PM EST
    Thank you for pointing this out. So three statutes are involved:

    776.012 Use of force in defense of person.--

    --A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

    (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013.

    776.013 Stand Your Ground

    (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    and

    776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer...As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.


    Parent
    Terminology (none / 0) (#34)
    by IrishGerard on Tue Aug 14, 2012 at 01:05:47 AM EST
    I know this has been discussed before but it's my understanding that 776.013 is the Home Invasion counterpart to 776.012

    They seem to be otherwise redundant?
    They both include the 'no duty to retreat' (StandYourGround) element.

    Parent

    Yes, 776.013 is the Home-invasion (none / 0) (#36)
    by justincaselawgic on Tue Aug 14, 2012 at 08:09:06 AM EST
    counterpart. The redundancy is within subsection 2 of 776.012. It is, essentially, an unnecessary subsection.

    Parent
    You're welcome. It is my understanding, (none / 0) (#37)
    by justincaselawgic on Tue Aug 14, 2012 at 08:10:46 AM EST
    based on O'Mara's press conference, that they do not intent to use subsection 2 of 776.012, so this is probably just encompassing two statutes. I could be wrong, though.

    Parent
    Video (none / 0) (#20)
    by Cylinder on Mon Aug 13, 2012 at 03:03:15 PM EST
    O'Mara Press Conference

    Courtesy DiwataMan2

    SYG hearing (none / 0) (#23)
    by friendofinnocence on Mon Aug 13, 2012 at 04:20:42 PM EST
    O'Mara said even though it is called an SYG hearing, it also covers traditional self-defense.  It wouldn't make sense if it didn't.

    Ah, cool! (none / 0) (#25)
    by Jello333 on Mon Aug 13, 2012 at 04:26:20 PM EST
    So my other 3 or 4 questions I posted here earlier might not have been necessary. You're right, it WOULDN'T make sense to not allow traditional self-defense arguments at a SYG hearing. I hope that's right... and I hope George doesn't get off because of just SYG. Instead, I want him to get off on just your basic, centuries-old, universally-recognized self defense... and THEN watch the GZ-haters cry about it. Watch as they try to condemn self defense across the board!

    Parent
    i see a major problem for the defense (none / 0) (#26)
    by cpinva on Mon Aug 13, 2012 at 04:32:36 PM EST
    right now:

    "I think the facts suggest in this case that what probably happened

    *bolding mine.

    if i'm the judge and/or jury, i don't want to hear what "probably" happened, i want to hear what actually happened. the only indisputable fact that exists, until the trial begins, is that mr. zimmerman shot and killed mr. martin, period. everything else is subject to debate/cross-examination.

    unfortunately for mr. zimmerman (and thus, for mr. o'mara), are the multiple stories, regarding what happened that night, from mr. zimmerman himself, his family, friends, former attorneys, etc. obviously, the only ones that would be allowed into evidence would be mr. zimmerman's own statements, official (police questioning) and unofficial, along with relevant third-party testimony.

    the prosecution has, no doubt, interviewed everyone who even mentioned his name in conversation with someone else. i fully anticipate some of those who talked directly with mr. zimmerman, subsequent to the event, will appear on the witness stand, as a means to fracture his credibility.

    absent a clear, compelling set of provable facts to the contrary, all bets go to the house (prosecution).

    all of which goes to prove ms. merritt's #1 piece of advice: keep your mouth shut, unless you're talking to your attorney.

    Burden shifting (none / 0) (#27)
    by Cylinder on Mon Aug 13, 2012 at 04:50:58 PM EST
    if i'm the judge and/or jury, i don't want to hear what "probably" happened, i want to hear what actually happened. the only indisputable fact that exists, until the trial begins, is that mr. zimmerman shot and killed mr. martin, period. everything else is subject to debate/cross-examination.

    Actually, is Zimmerman shows his version is probable then he wins in either case. In the immunity hearing, his burden is perponderance - more likely than not. At trial, the state's burden is much greater.

    MOM uses language carefully. Some interpret this a milquetoast. I intrepret it as confident. Also remember that he has threat of a gag order over his head and a media more than happy to do the state's dirty work staring him in the face.

    Parent

    Standard of proof (none / 0) (#28)
    by MJW on Mon Aug 13, 2012 at 04:55:59 PM EST
    So you thing the judge should require the defense to prove self defense beyond a reasonable doubt. The Florida courts, on the other hand, say the standard of proof is preponderance of the evidence -- which is even less that "probably." See Peterson v. State.

    Parent
    cpinva, his burden at a SYG hearing (none / 0) (#30)
    by Jeralyn on Mon Aug 13, 2012 at 07:31:24 PM EST
    (or immunity hearing) is only a preponderance of the evidence -- which is like 51%, more likely than not. It is higher than probable cause, less than clearly convincing or reasonable doubt.

    He has the burden at an immunity hearing, but at trial, the state must disprove self-defense -- beyond a reasonable doubt. And the jury is instructed in Fla. where the evidence " 'leaves room for two or more inferences of fact, at least one of which is consistent with the defendant's hypothesis of innocence, [it] is not legally sufficient to make a case for the jury.' " Stieh case 2011. Meaning a judgment of acquittal would be in order at the close of the evidence.

    Parent

    Jeralyn writes, in the update... (none / 0) (#32)
    by Gandydancer on Mon Aug 13, 2012 at 11:41:03 PM EST
    ...no less,
    My only question is why is O'Mara not using SYG? Zimmerman was not engaged in unlawful activity when he was hit by Trayvon, he was in a place he lawfully had a right to be, and his belief he was in danger of serious bodily injury or death if Trayvon's attack was not stopped was a reasonable one.

    Now I understand that the idiot media, which keeps asserting that it is the SYG law that gives someone the right to use deadly force if he believes he is in danger of serious bodily harm (which is wrong in two different ways) inexcusably continues to confuse the casual reader, but what does Jeralyn mean by "use SYG" here? I understand that at the time of the update she hadn't seen the actual press conference, where MOM hade clear that he was merely pointing out that calling an immunity hearing a "Stand Your Ground hearing" was misleading, but... she knows that. I'm pretty sure she's even said it.

    Here is the actual... (none / 0) (#33)
    by Gandydancer on Tue Aug 14, 2012 at 12:27:35 AM EST
    ...determinedly stupid quote from AP, saying the same wrong thing they say every time:

    Zimmerman's attorneys had said last week that they would use Florida's controverial "stand your ground" law, which allows people to use deadly force -- rather than retreat -- if they believe their lives are in danger.

    Actually the belief has to be "reasonable" and, if it is, deadly force is allowed by ordinary self defense if you are unable to retreat. Six months in and they still don't get it right.

    The "legal expert" AP interviews is no better:

    University of Miami law professor Tamara Lave said this change by O'Mara may be a signal that he thinks his case for self-defense is solid even without the special provisions afforded by "stand your ground."

    "'Stand your ground' makes it easier to prevail under self-defense theory than the law that existed beforehand," Lave said. "I think what he's saying is his case is so strong that he doesn't need `stand your ground."'


    This is completely wrongheaded. O'Mara doesn't not need SYG because his case is strong. He doesn't need SYG because GZ was pinned by TM and couldn't retreat. MOM explained this several times at the press conference, but might as well have been talking to coconuts.

    Parent
    Yes (none / 0) (#35)
    by bmaz on Tue Aug 14, 2012 at 01:20:42 AM EST
    The "legal expert" the AP utilized is basically an uninformed on the facts babbling dunderhead.

    Parent
    776.041 (none / 0) (#44)
    by boar d laze on Tue Aug 14, 2012 at 01:14:05 PM EST
    You're wrong about 776.041.  The reason the prosecution wants it and the defense fears it is it's elevated standard for justification.  

    Secs. 776.012 and .013 both require "reasonable fear" on the part of the defendant.  But
    Sec. 776.041(2)(a) requires that the fear have been caused by the actual amount of force used by the "assailaint" (i.e., the victim).  

    In this case, the actual force used by Mr. Martin was insufficient to cause more than minor injury to Mr. Zimmerman.  Consequently, the quanta of force is highly unlikely to create a preponderance in the Motion, and unlikely to create reasonable doubt at trial.

    Q.  Did Mr. Zimmerman "provoke" the use of force against him as provided by Sec. 776.041?

    A.  As defined by Mixon v. State 59 So.2d 38 (Fla. 1952), yes.  The Mixon court held that mere following (with what might best be described as "attitude") after initial contact is broken off is sufficient to void a claim of self defense.  

    While it's true that Mixon has some vintage, it's still good law.  And since Mr. Zimmerman is arguing "traditional self defense," specific "SYG" objections shouldn't have much force.  

    Furthermore,  Johnson v. State, 65 So.3d 1147 (3rd Dist. 2011) describes the conditions under which the fact finder must consider Sec. 776.041, and those conditions are certainly met in Florida v. Zimmerman.    

    The problem with your analysis (none / 0) (#46)
    by bmaz on Tue Aug 14, 2012 at 01:46:29 PM EST
    ...is that it requires the assumption that the "actual force" used by Martin would not meet the threshold.  I do not think Jeralyn agrees with that assumption, and I sure as heck do not. Initiating the physical part of the confrontation by punching GZ in the nose and then mounting him and beating him, which I believe the better view of the facts seems to support, and is consistent with GZ's statements, absolutely meets that burden.

    Now that issue may well have to go to a jury, but there the self defense burden kicks in and it should, by all rights, be game over for the prosecution.

    Parent

    They have eyes but will not see. (none / 0) (#49)
    by boar d laze on Tue Aug 14, 2012 at 03:06:22 PM EST
    Self defense is not available to the person who provoked the use of force unless the amount of force used against him "is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm."  

    In this case, the amount of force used against Mr. Zimmerman resulted in a broken nose, minor bruising, minor abrasions, and "atruamatic," "noncephalic" head injuries.  

    You may believe the objective evidence in the form of the medical evidence demonstrates "great force," but I do not. Of course, you're entitled to your opinion no matter how mistaken.  

    The witness testimony regarding who was on top and for how long is not strong enough to support "mounting" (apparently a word supplied by the interviewing investigator), neither is there evidence beyond Mr. Zimmerman's own statements that Mr. Martin hit or attempted to hit Mr. Zimmerman if and when he was on top of Mr. Zimmerman as "John," the witness who told the first investigators that Mr. Martin was "wailing away MMA style," later recanted.  

    Furthermore, if Mr. Martin was indeed straddling Mr. Zimmerman as Mr. Zimmerman claimed, it would be nearly impossible for Mr. Martin to see Mr. Zimmerman's gun (as it would be behind Mr. Martin); for Mr. Martin to attempt to reach for Mr. Zimmerman's gun; for Mr. Martin to seize Mr. Zimmerman's wrist while Mr. Zimmerman's hand was on the gun; etc., etc.  

    The physical evidence, the disposition of the evidence at the crime scene, the "improbabilities" regarding the fight, as well as a great many other improbabilities, inconsistencies, and  misrepresentations, destroy Mr. Zimmerman's credibility completely and his claim of self defense along with it.  

    Parent

    You have 20/20 hindsight - (5.00 / 1) (#52)
    by MikeB on Tue Aug 14, 2012 at 03:38:29 PM EST
    ...Zimmerman didn't.

    It's easy to view his injuries from the cheap seats, but what would Zimmerman's injuries have been had he not stopped the fight with a bullet?

    Zimmerman was screaming for help. That is a fact. Martin was on top of Zimmerman at the least, restraining him. That is a fact. Zimmerman had injuries consistent with a beating. That is a fact.

    Zimmerman had no way to know what his injuries actually were or where Martin would have stopped. You have dismissed a man's credibility based on what you know having had time to thoroughly analyze the evidence. Zimmerman had to do this while on the ground fearing for his life (as evidenced by the calls for help).

    The witness did not "recant" his statement. He clarified that Martin may not have been pummeling him (although evidence shows he was being injured while on the bottom with Martin), but Martin clearly had Zimmerman on the ground and used MMA style tactics to retain the advantage he had.

    Parent

    Right... (none / 0) (#53)
    by bmaz on Tue Aug 14, 2012 at 04:09:17 PM EST
    Maybe the "MMA style" is disputable, maybe not; but that is not really the point. Martin was exerting physical assault dominance on a basically defenseless individual at the moment prior to the single shot.

    Parent
    So... (none / 0) (#51)
    by bmaz on Tue Aug 14, 2012 at 03:32:28 PM EST
    ...you really don't do criminal law for a living I take it.  My "eyes" see just fine.

    Parent
    Maybe time for a checkup (none / 0) (#57)
    by Yman on Tue Aug 14, 2012 at 05:27:23 PM EST
    I remember someone interpreting Judge Lester's actions in the first bond hearing as highly favorable to Zimmerman and dismissive of the State's case.  Lester's "measured response", his limiting the scope of the State's cross, the "general feel" of how he handled the hearing and (last but not least) his "body language".

    Not so much as of late, of course.

    Not sure why you think this person's opinion should be given more weight than boar d laze's opinion, but I would most certainly disagree.

    Parent

    board d laze, please stop (none / 0) (#65)
    by Jeralyn on Tue Aug 14, 2012 at 07:30:01 PM EST
    stating your opinion or your interpretation of the law as fact. And do not insult other commenters.

    And read the aggressor statute and case law a little more closely. You misquote and misinterpret it. Your interpretation is flawed, as is your recounting of the facts of what people say they saw and heard.

    The statute says a person who initially provokes the use of force against himself can respond with deadly force if:

    Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm.

    You keep insisting GZ's injuries weren't serious enough. That's not the test. It's whether he reasonably believed he was in imminent danger of great bodily harm -- which includes not only what had already been inflicted on him but what he anticipated would happen to him if the attack did not stop. One example: He said he feared losing consciousness. Imminent means about to happen or likely to happen soon. So his belief doesn't have to rest on the damage that has already been inflicted.

    And he didn't say Trayvon saw the gun. He said he thought Trayvon saw or felt the gun. TM was on top of him, straddling him. He could have felt the gun and decided to reach for it. GZ said he felt TM's hand going for the gun -- he said TM took one hand off GZ's mouth to do so.

    My view: If Zimmerman was not the aggressor, he was  justified in fatally shooting Trayvon if he reasonably believed he was in imminent danger of serious bodily harm or death. The danger he perceived doesn't have to be real, he just has to believe it is real. His belief is considered reasonable if a reasonable person in his situation would believe the danger was real.

    Zimmerman has medical records and photographs to show his battered nose; the back of his head was bleeding from lacerations; he had abrasions on his face. He says he believed he was in danger of losing consciousness if he didn't stop Trayvon's attack. He says Trayon was on top of him, straddling him, and preventing him from getting up. He believed his gun became exposed and Trayvon had seen or felt it, and was reaching for it. John, witness 6, the one witness at the scene who observed the two struggling in his backyard before the shot, confirms Trayvon was on top and Zimmerman was trying to sit up and couldn't. He has never varied from that statement. The only thing he changed was his certainty it was GZ crying out for help (since he couldn't see the face of the person as he was crying out for help) and that while he first assumed Trayvon was hitting GZ, he may have been trying to restrain him.  

    What reasonable person in Zimmerman's situation would not believe himself to be in imminent danger of serious bodily or injury or death if the person who had just fractured his nose and slammed his head into the ground didn't stop?

    If Zimmerman was the aggressor, he would  still justified in fatally shooting Trayvon, unless he had lesser means at his disposal to respond to Travyon's use of force against him.

    Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force  against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ,  Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman. (Statute here.)

    A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.

    In order for Trayvon to have been justified in his use of non-deadly force against GZ, he had to reasonably believe he was in imminent danger of a physical attack by Zimmerman. He can't just have unsure what Zimmerman up to. And the provocation cannot be the result of something GZ did earlier, like following him.  Being followed does not allow one to respond with a punch in the nose or hitting the pursuer's head against the ground.  We've seen no evidence of that from the State or an eyewitness as to GZ provoking the use of force by TM against him.

    See Martinez v. State and Johnson v. State:

    Specifically, section 776.041 "[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force" contemporaneously to the actions of the victim to which the defendant claims self-defense.

    And Stinson v. State:

    When the deceased swung at him, appellant was under no compulsion to wait around and see whether the second blow might find its mark as promised by the aggressor.

    ...In the circumstances reflected in this record, there was no evidence from which the jury could infer that the appellant acted in a manner evincing a depraved mind as defined by our Supreme Court in Ramsey v. State, 114 Fla. 766, 154 So. 855, when he instinctively neutralized his attacker with the only appropriate means at hand. That the attacker sustained a mortal wound is a matter that should have been considered by the deceased before he committed himself to the task he undertook.

    If Zimmerman was not the aggressor, and he reasonably believed himself to be at risk of imminent  serious bodily injury or death from Trayvon, he was justified in fatally shooting Trayvon, regardless of whether he could extricate himself from the situation without using deadly force and regardless of whether lesser force  than deadly force would have sufficed. So long as GZ was in a place where he had a legal right to be - the paths and roads of his own neighborhood - and was not committing an unlawful act, if he reasonably believed himself to be in danger of imminent serious bodily injury or death, he was justified in using deadly force.

    Stand Your Ground:

    (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    That's it for now from me. Please also limit yourself to four comments a day. per our comment rules

    Parent

    Could Reaching for His Cellphone (none / 0) (#68)
    by RickyJim on Wed Aug 15, 2012 at 09:49:33 AM EST
    make Zimmerman the aggressor? Martin could have interpreted it as an imminent physical threat since he didn't know what Zimmerman was reaching for.  It seems to satisfy the definition, based on 776.012, that Jeralyn lays out.

    Another point you miss: To be the aggressor, Zimmerman had to have contemporaneously provoked Trayvon's use of force  against him. For Zimmerman to have provoked Trayvon's use of force against him, justifying TM's use of force against GZ,  Trayvon had to reasonably believe he was in danger of an imminent physical attack by Zimmerman.

        A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.



    Parent
    Mixon v. State (none / 0) (#50)
    by MJW on Tue Aug 14, 2012 at 03:15:19 PM EST
    Perhaps you ought to add a little analysis on what you believe Mixon v.Sate proves and why you think it proves it.

    The opinion says:

    The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped.

    The state's version of the events that followed, which the jury believed, are:

    According to the witnesses for the state, the pedestrian stepped back from the car, then put his hands forward, advanced, and projected the upper part of his body into the car just as the gun fired. A witness quoted appellant's wife as asking appellant immediately afterward: "My Lord, why did you shoot this boy?"

    * * *

    [The jury believed] the deceased was not himself armed and had approached the jeep only for the purpose of disarming appellant when the appellant stopped and drew his gun.

    So the jury believed that after the initial altercation, the defendant went to his house to arm himself, then pursued the victim with the intent of confronting him. The defendant then drew his pistol, and shot the victim when the victim attempted to disarm him.

    Yeah, just like Zimmerman following Martin to see where he was going.


    Parent

    The Trouble With boar de laze's Post (none / 0) (#56)
    by RickyJim on Tue Aug 14, 2012 at 05:10:43 PM EST
    1. It totally begs the question of how it is determined whether or not to use 776.041.  The latter has the criterion,
    Initially provokes the use of force against himself or herself.

    But despite my pleadings, no lawyer posting here or on the forum has ever explained the standards of proof needed to establish the criterion at the immunity hearing and trial. One would assume to go to .041 at the immunity hearing that the prosecution would have to show that it is more likely than not that Zimmerman did the provoking.  Is there a legal definition of "provoking" that the prosecution can establish by whatever burden of proof is necessary?

    2. Now suppose the criterion mentioned above is in established, the statute continues

    (a) Such 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.

    boar de laze insists that the post facto determination of the extent Zimmerman's injuries is the determining factor in the deciding the reasonableness of Zimmerman's firing his weapon.  This seems to contradict all the examples that have been given of self defense being judged applicable where the defendant was not injured at all.

    Parent
    Now we know the quality of your legal chops (none / 0) (#58)
    by cboldt on Tue Aug 14, 2012 at 05:39:16 PM EST
    Mixon case

    The jury doubtless believed, as well they might have from the defendant's actions and the  direction he eventually took, that when the first difficulty ended and the men separated, he went to his home, armed himself and deliberately began a pursuit of the deceased, instead of a search for a deputy sheriff.


    Parent
    He already noted that (5.00 / 1) (#59)
    by Yman on Tue Aug 14, 2012 at 05:48:37 PM EST
    ... in comment 55.

    His/her "legal chops" seem just fine, although - to be honest - that line is getting a bit old.

    Parent

    Substantiated vs. unsubstantiated (none / 0) (#62)
    by cboldt on Tue Aug 14, 2012 at 06:45:06 PM EST
    That "legal chops" line hits close to home, eh?

    Parent
    Not in the least (none / 0) (#63)
    by Yman on Tue Aug 14, 2012 at 07:14:34 PM EST
    Particularly given the assessor.  OTOH, I do remember someone getting verrrrrry sensitive when asked about their experience as a practicing attorney ("Irrelevant!", etc., etc.)

    Now, if you were judging the chops of an engineer, perhaps I would give your opinion more weight.

    Probably not.

    Parent

    Back to substantiated vs. unsubstantiated (none / 0) (#64)
    by cboldt on Tue Aug 14, 2012 at 07:20:57 PM EST
    Heh.  You're still running on fumes.

    Parent
    Baloney (none / 0) (#60)
    by bmaz on Tue Aug 14, 2012 at 06:17:38 PM EST
    Completely

    Bmaz, I deleted the comment (none / 0) (#67)
    by Jeralyn on Tue Aug 14, 2012 at 08:03:24 PM EST
    you were responding to. It contained demonstrable falsehoods of fact.

    Parent
    I would respond (none / 0) (#61)
    by bmaz on Tue Aug 14, 2012 at 06:18:34 PM EST
    to your insolent, and misunderstanding of the burden in criminal cases baloney, but it would violate the conduct codes of this blog. so, I will leave this nonsense be.  I believe we have established you don't practice criminal law.

    Then and now (none / 0) (#66)
    by MJW on Tue Aug 14, 2012 at 07:37:18 PM EST
    In your original comment you said:
    As defined by Mixon v. State 59 So.2d 38 (Fla. 1952), yes.  The Mixon court held that mere following (with what might best be described as "attitude") after initial contact is broken off is sufficient to void a claim of self defense.

    Now you assert that the state's theory matches the facts of Mixom: which would be that Zimmerman pursued Martin with the intent of engaging in an armed confrontation with him; then drew his gun on Martin before Martin punched him. Is that your definition of "mere following"?