jon_mx said:
Jojo the circus boy said:
So Defense objected to Manslaughter and Assault charges being added as lesser charges.
They will hear those objections in the morning.
Down to assault now? I guess Zimmerman face assaulted Martin's fists? It seems kind of a bait and switch tactic to add charges like this which haven't been asserted before or properly defended against.
These charges are lesser includeds of the charge he's already facing. That is, all the elements of an assault are technically all elements of murder (with murder requiring additional elements). So technically, they've been asserted the entire time. The fact that the state is now requesting them is great news for the defense. Generally, requested lesser includeds be presented to the jury is a tactic by either side, when the particular side doesn't like their potential outcome, to offer a jury a potential "compromise" choice. For example, the defense may ask for a lesser included of theft on a robbery case where their case is so weak the only prayer the defense had was to claim there was no assault. I've personally successfully done this in a rape trial where I requested a lesser included of assault because I figured the jury didn't like that my client got in a fight with a girl and wanted to convict him of something, but I thought our case against actual forced intercourse was quite good and I wanted to prevent the jury from convicting him of something much more serious just out of spite.
In this case, I'd surmise the state doesn't like their murder case, so they're providing the jury with a sort of third option so they can at least obtain a conviction. The defense would naturally object because instances like this one where they like their chances the "all or none" prospect is better "value."
ETA: I like this move by the state if they think they've lost their case but think the jury doesn't like Zimmerman and wants to stick him with something.
So Woz, I'm not pretending to be Tim. I feel like I asked a genuine question and never got a genuine response.
So...in addition to my additional question...The state is asking the permission of the Defense to include these additional lesser charges, am I right in assuming it is up to the Defense on whether they allow these lesser charges to be included or not?
Obviously if Florida was a state that AUTOMATICALLY included lesser charges this would be a non-issue, but that is not the case.
How do you expect Judge Nelson to rule (as biased as she has been this entire ####### trial in favor of the State)?
She is acting like this is not a normal occurrence in the legal system and she has to seek guidance through case law to arrive at a solution.
1. The decision whether to permit lesser included offenses to be presented to the jury as a verdict is a decision left up to the judge. However, the defense can object and make arguments against putting it before the jury. As a mentioned, there are strategical pros and cons to both sides of going with a lesser included. So, what will happen is the judge will hear arguments from both sides (assuming the defense continues to object) then make the decision. Nonetheless, if the defendant wanted to agree to the lesser included, since both sides would be in agreement there'd be a stipulation and the judge's hands would be bound and he'd have to permit. Sounds like the defense isn't going to agree though so it's up to the judge. 2. You're confusing the "automatic" inclusion of lesser included charges with the legal issue of whether they should be presented in front of a jury. As I already stated, there are many higher level claims of which more general, "lesser" crimes are always a "lesser included" because in order to commit the higher offense you must have obviously committed the lesser one. The examples I provided before were theft as a lesser included of robbery (which is essentially just theft + assault) and assault as a lesser included of rape (assault plus non-consensual intercourse). This is common sense and nothing to do with state law. That said, there may be some specific Florida case law on the issue of lesser includeds. Generally though, one someone goes to trial they only go on the charges with were brought in the complaint or indictment. A party, at the conclusion of the case, can request a "lesser included" charge be added to the complaint (aka an amendment) absent the double jeopardy issue. What may sound surprising is that probably the majority of the time the lesser included request is made by the defense. It may sound odd that the defense wants another potential charge for the defendant to possible be convicted of, but as I hinted at earlier the strategy here is to play to the human tendency to compromise and get the jury to convict the defendant of a much more minimal crime and acquit on the more serious charge. Since juries don't get to known the potential sentencing ranges for each charge, the defense is gambling on the jury thinking they are still doing a service to the state or the victim by giving them a conviction, when in reality they've only convicted the defendant of a far less serious charge (of a crime with a sentencing range ideally lower than the best plea offer made in the case).
3. It's hard for me to specifically predict here since I'm not familiar with any Florida law on point and I haven't watched the trial. Also, as I mentioned earlier, generally the defense is the one who makes this motion so my personal experience here is probably not a big enough sample size (although I feel confident saying that the fact the state requested it means they lack confidence in their case). My gut says the judge will reject it and claim that if the state wanted the charge they should have originally filed it or motioned to amend prior to a jury panel being sworn. On the other hand, if the judge thinks there is sufficient evidence presented at trial that a reasonable trier of fact could convict and that the lesser included was so elemental to the factual issues at trial that the defendant is not prejudiced, he could let it in. But again, there could be some Florida rule I'm not aware of me which would control.
