Friday, July 19, 2013

Zimmerman could be tried in state court again

Theoretically,  Zimmerman could be tried in state court again on murder charges if the prosecution successfully appeals the jury instruction that let him get away with a legally uncontested self-defense claim (it was obviously factually contested, but that's different).  There is no statute of limitations on murder charges and there would not be a double jeopardy problem either if the defense lost an appellate ruling on the jury instruction problem that I am about to discuss below.

Here's why and how in my view.

The pre-trial court ruling that allowed the court to truncate its jury instruction by omitting the part of the standard Florida Jury Instruction on self-defense (relating to and nullifying "the initial aggressor's" claim of necessity for a self-help solution when the agressor--Zimmerman--was committing an independent forcible felony) was incorrectly ruled upon a huge set-back for the prosecution, and is a reversible error possibly enabling a re-filing of the original state murder charges in state court with, again, no double jeopardy risks or bar. At least this is the view of some practicing attorneys, which I am not.  I hope that a federal prosecutor will not make this  error. In essence, this criminal trial was lost by the prosecution even before it began in earnest in state court.

Also, the state failed to pursue an "aggravated assault with a deadly weapon," a stalking charge, nor a battery charge as far as I know. Similarly, brandishing a weapon, a simple charge that includes a felonious assault by definition would also have put the focus where it should have been. 

Zimmerman's initial stalking of and confrontation of Martin was an illegal assault (putting the victim in fear of immnent physical harm), followed in short order by a battery (which is obvious).  By charging him this way--in addition to a murder charge--it would have nailed down the importance of the illegality  of Zimmerman's initial accosting of Martin rather  than  let the focus become solely on Martin's reaction to Zimmerman's crimes. Instead it would have put the focus on the impropriety and potential illegality of vigilante like "neighborhood watches," watchers, and murderously arbitrary excesses and held ZImmerman accountable and culpable. And it goes without saying that "stand your ground" laws are constitutionally infirm due to their arbitrariness, vagueness, and over-breadth.

For you and the other list members I am attaching two things.  If the list does not accept attachments, then here are the citations:

(1)  Florida Jury Instructions "3.6(f) Justifiable Use of Deadly Force" (which contains the
stand-your-ground clause, but also clearly states that when the aggressor is committing a separate forcible felony  (like aggravated assault and/or battery), self-help/self defense is not available as a defense option.

(2) Giles v. Florida,   4th Dist, 831 So. 2d 1263 (2002), LEXIS 19033;  28 Fla.L. Weekly D55 which is on point; four square.

In my view, Zimmerman could and should have been vigorously pursued legally on the theory that he (1) stalked Martin twice even after having been warned off,  (2) he assaulted the victim, and the assault was aggravated by his possession of a fire arm, and (3) he arguably committed a battery upon Martin before Martin beat his ass.  Those are the independent forcible felonies that gave riseto Martin's right to self-defense and the use of any instrumentality of deadly force, e.g., the pavement.

Unfortunately, the defense was able to shift the emphasis to the actual fight and shooting
and, thus, put Martin on trial.

The prosecution would have had to make out "the proof of facts" including that one or more of Zimmerman's felonies occurred beyond a reasonable doubt. This may or may not have worked, but it surely would have gotten the issue and additional conviction options in front of the jury.

Politically, the prosecution was very unlikely to want to take on vigilante (private purveyors of
"neighborhood watch" self-help justice) activity in Florida, but that would have been better
than what they did.  And if there were a "conflict of laws problem" 

The absurdity of the law of (this) case is that the pre-trial rulings allowed an assertion of
self-defense in a vacuum; without regard to the defendant/claimant's conduct. And, as the public clearly sees now, this means that anyone can shoot anyone in those states and get away with it so long as they kill the victim.

When Florida passed this law back in 2008 I envisioned exactly this scenario involving a
white man and a black man. It was so apparent that even Stevie Wonder could see it (which is why, today, he has pledged to do no concerts in any state that has a "stand your ground" law.

Best regards,
Michael Oshoosi 
(Michael F. Wright, Ph.D., J.D.)

"PS: Did you know that Mr. Zimmerman is demanding an apology "from black people?"