Florida boy killed by Neighborhood Watch (3 Viewers)

[Jojo the circus boy]

Judge getting ready to charge West with contempt, she just warned him (essentially).

 

[Jojo the circus boy]

wow Judge, asking West "to cite case law that shows following someone is NOT illegal."

You ignore every time the judge rules in favor of the defense (like they just did on a very important issue) and build up every time it seems as if the judge is arguing with the defense. It's absurd.

Do you find no fault with what I posted?

 

[timschochet]

Good for you, judge- West is being really disrespectful here.

 

[ArbyMelt]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

Have you watched the whole trial or just today?

 

[timschochet]

wow Judge, asking West "to cite case law that shows following someone is NOT illegal."

You ignore every time the judge rules in favor of the defense (like they just did on a very important issue) and build up every time it seems as if the judge is arguing with the defense. It's absurd.

Do you find no fault with what I posted?

I find plenty of fault with what you posted. I find no fault with the judge's decision. And she's showing great patience with this guy.

 

[kentric]

Judge putting her gloves on. This is getting juicy.

 

[timschochet]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

Have you watched the whole trial or just today?

I've watched a lot of it. And I've read you and other Zimmerman supporters accuse this judge of bias from day 1. I think it's a lot of crap. Every time you guys have raised an issue about the judge's conduct, an attorney who knows better has come in here and corrected you. It's a lot of crap.

 

[Jojo the circus boy]

wow Judge, asking West "to cite case law that shows following someone is NOT illegal."

You ignore every time the judge rules in favor of the defense (like they just did on a very important issue) and build up every time it seems as if the judge is arguing with the defense. It's absurd.

Do you find no fault with what I posted?

I find plenty of fault with what you posted. I find no fault with the judge's decision. And she's showing great patience with this guy.

Of course you see no bias where she demands West to show case law to prove something is NOT ILLEGAL, the same double negative she asserted West was asking the state to show WHY following someone is ILLEGAL. She's a nut case.

 

[jon_mx]

Very interesting debate going on now about instruction regarding the legal definition of "provoke"- could be key.

These little legal battles will not be where the case is won or lost. The jury will lock in on some single issue such as the screams and decide it on that. It won't be on some nuanced definition of provoked.

 

[Phil Elliott]

Just reinforces "EVERYTHING" is negotiable. Previous case law helps but....

 

[Rayderr]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

She did?

11:11 a.m. ET: Nelson said she will not include that following Martin was a lawful activity. She sternly told West not to continue to disagree after she has made a ruling. The defense will be allowed to tell the jury that following Martin the night of the shooting was lawful activity during closing arguments.

 

[Yankee23Fan]

Very interesting debate going on now about instruction regarding the legal definition of "provoke"- could be key.

These little legal battles will not be where the case is won or lost. The jury will lock in on some single issue such as the screams and decide it on that. It won't be on some nuanced definition of provoked.

Don't be so sure. This stuff is vital.

 

[timschochet]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

She did?

11:11 a.m. ET: Nelson said she will not include that following Martin was a lawful activity. She sternly told West not to continue to disagree after she has made a ruling. The defense will be allowed to tell the jury that following Martin the night of the shooting was lawful activity during closing arguments.

Just before that decision, the prosecution wanted language in there that following Martin was a provocation. The judge denied that. What you're referring to is a separate decision made afterward. Both decisions seem reasonable to me, BTW, but the first one favoring the defense is much more important, IMO.

 

[timschochet]

Very interesting debate going on now about instruction regarding the legal definition of "provoke"- could be key.

These little legal battles will not be where the case is won or lost. The jury will lock in on some single issue such as the screams and decide it on that. It won't be on some nuanced definition of provoked.

Every attorney says it's important.

 

[T Bell]

Very interesting debate going on now about instruction regarding the legal definition of "provoke"- could be key.

These little legal battles will not be where the case is won or lost. The jury will lock in on some single issue such as the screams and decide it on that. It won't be on some nuanced definition of provoked.

You have no idea what you're talking about.

 

[Jojo the circus boy]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

She did?

11:11 a.m. ET: Nelson said she will not include that following Martin was a lawful activity. She sternly told West not to continue to disagree after she has made a ruling. The defense will be allowed to tell the jury that following Martin the night of the shooting was lawful activity during closing arguments.

His pro-Martin website where he gets his information obviously got it wrong when he copied and pasted.

 

[T Bell]

Very interesting debate going on now about instruction regarding the legal definition of "provoke"- could be key.

These little legal battles will not be where the case is won or lost. The jury will lock in on some single issue such as the screams and decide it on that. It won't be on some nuanced definition of provoked.

Don't be so sure. This stuff is vital.

Agreed. While it's minutiae to be sure, it's the minutiae in this case which will decide it as the major events (that there was a confrontation of some sort and a shooting) are all established as fact. This sort of thing is precisely what I can see jurors debating during deliberations. This is where the rubber meets the road.

 

[timschochet]

The judge just ruled in favor of the defense that Zimmerman following Martin is not legal provocation. That seems to me to be a huge victory for the defense. Gee, I thought this judge was biased for the prosecution. How do you explain that, JoJo?

She did?

11:11 a.m. ET: Nelson said she will not include that following Martin was a lawful activity. She sternly told West not to continue to disagree after she has made a ruling. The defense will be allowed to tell the jury that following Martin the night of the shooting was lawful activity during closing arguments.

His pro-Martin website where he gets his information obviously got it wrong when he copied and pasted.

You're not paying attention.

 

[jamny]

The judge needs a cough button

 

[The Commish]

Again, this is a case of "lesser included offenses."

Let's have a hypothetical. Say that JoJo hits Tim over the head with a crowbar.

I'm the DA. I might charge JoJo with attempted second degree murder on the basis that he attempted to kill Tim, without premeditation, but through an act evincing a depraved mind by deliberately hitting him with a crowbar.

In order to prove that charge, I need to prove that JoJo deliberately hit Tim with a crowbar.

That act, would also satisfy other criminal charges. Such as aggravated battery, and simple battery. Those charges are "lesser included offenses" because they contain no other elements of proof that must be shown in order to prove the case. So if the jury finds that JoJo hit deliberately hit Tim with a crowbar, but that this did not evince a depraved mind, the jury could find that JoJo did not commit attempted 2nd degree murder but DID commit aggravated battery.

Much thanks....this makes sense.

 

[timschochet]

Let's go over this again:

1. The prosecution wanted the instructions to include the proposal that Zimmerman following Martin could be termed as provocation under the law. Defense strenuously objected. The judge ruled in favor of the defense.

2. A few minutes later, the defense wanted the instructions to include the statement that it was not against the law for Zimmerman to follow Martin. The prosecution strenuously objected. The judge ruled in favor of the prosecution.

These are two separate decisions. IMO, the first decision is far more important because it is central to the prosecution's case.

 

[financewonk]

Tim if you are so sure Zimmerman is guilty of Manslaughter how much are you willing to put up (or shut up) that he gets convicted of Manslaughter?

Since (a) if I were on the jury, I would not convict him of manslaughter and (b) I don't believe he should be legally convicted of manslaughter (though I think he is guilty of manslaughter), this is not a bet I would accept either.

I asked these questions earlier, but I didn't get a response: How high must your degree of belief be in a person's guilt for you to vote guilty? What's your subjective probability that GZ is guilty of murder 2? Manslaughter? I'm mostly interested in the answer to the first question, and I hope that others will chime in.

For me personally, reasonable doubt has to be removed. Because nobody knows what happened during the fight between the two of them, there is always reasonable doubt. George Zimmerman had the right to shoot Trayvon Martin if he (Zimmerman) feared for his life. Now I don't believe that happened, but there is no way to prove it one way or the other. Thus, I could never convict Zimmerman and this trial probably never should have taken place.

I was hoping that you would give me number values. What constitutes reasonable doubt (e.g. 5%)? Should you be at least 95% certain of someone's guilt to vote guilty, or should it be higher? Lower?

 

[The Commish]

So let me get this straight, the judge forced Zimmerman to go under oath and testify that he wasn't going to testify and worded it in a way that could have produced testimony that the jury could have used against him? And then flipped out on his lawyer when the lawyer objected?

Is it possible that she's actually biased enough to TRY to create a mistrial because she knows how badly the prosecution is doing? Or is she just that incompetent? Seems like something she should possibly be removed from the bench for.

This is the discussion that everyone's up in arms about. I don't get it. She was asking if he had made a decision or if he needed more time. I'm not sure of the wording you are talking about either.

I find the reaction a little mystifying too. Perhaps the timing was a bit weird (although I know of no rule that the Defendant must be allowed to make a decision to testify at any time during the defense's case in chief), but there was literally no "testimony that the jury could have used against him." And in fact, before swearing him in, she clearly instructed Zimmerman that the jury would (properly) be instructed that they could not draw an inference based upon his decision to decline to testify.

Glad I'm not alone...so, all of you that are making a big deal out of this. Can you help me understand your position and why you are so outraged at this incident??

I would have been annoyed. I don't know how they do it in Florida though - here I would have been given the opportunity to answer for my client, and I do all the time. If my client doesn't have to speak in a criminal court he/she isn't going to speak if I can help it, for any reason. The pinning him down to a time is rather stupid. The judge was more confrontational than need be. I'm willing to bet we would have sidebarred something like that here well before it got that far.

I get the not speaking part, but this didn't seem to be about who answered the question. It seemed to be about her asking if he was ready to answer or not and if not how much more time he was requesting to be ready to answer. I don't understand what the "objection" was for. Did he object because she was talking to Zimmerman instead of him or was it because of the specific question? Also, while I understand it might have been poor etiquette, some have suggested 'mis-trial' level issues with the incident....what in that incident would be grounds for a mis-trial?

No idea. Forcing a criminal defendant to testify in a criminal proceeding. Because that is what she did - she swore him in to provide testimony - granted it wasn't fact testimony, but it was testimony as defined by that judge. I just don't know the Florida rule when it comes to that.

In a criminal case is it important who answers the question? Meaning, if she asked the question of "are you going to testify?" and the lawyer answers is it like the defendant answering? Right or wrong, I stumbled out to the internet to see places where "mis-trial" was claimed because the defendant didn't answer the question themselves. In the end, it didn't fly, but that's the theory I've seen. Perhaps instead of just objecting he could have simply answered in Zimmerman's place?

 

[Worm]

Based on my recent experience on a jury, the assertion that "you have no idea what the jury is thinking" is completely correct. I was elected foreman and we took a silent poll before we even began deliberations. I expected a very lopsided poll result and got one split right down the middle.

 

[ATC1]

I stand by what I said before, Zimmerman was acting on behalf of his neighborhood.

It was Martin's actions that ultimately caused his demise. All signs point towards Martin being the aggressor, he had ample opportunity to walk back to Brandy Green's house, he might have actually made it most of the way there and decided to return to the T to confront Zimmerman given the amount of time Zimmerman stayed on the phone with NEN.

Just because the HOA settled with Martin's parents does not mean Zimmerman is guilty of anything, it means the HOA should have had better lighting, better security, etc...whatever else they had liability regarding the incident.

You have no right transferring that liability towards Zimmerman.

Now Martin's parents are getting greedy, they already got one check and they feel they are deserved more even though they know the truth about their son and his proclivities towards violence, they know Trayvon was no saint.

I find it repulsive that people think Zimmerman should serve 30 years in jail for preventing Trayvon Martin from murdering him, Trayvon ignored two neighbors interjections to stop the beating he was putting on George and he ignored both of them, George was unable to physically defend himself and had no reason to assume the beating would stop.

Here is your problem with Z acting as part of his neighborhood. Martin was a member of that neighborhood since his parents lived there. So unless M was doing something illegal which he was not, Z had no business of getting out of his car and attempting to confront M. We will never know who started the fight you think it was M, but I equally think it was Z. And guess what there is no proof either way to say who started the fight. Was Z getting his ### kicked and then shot M, yes. And that is why he will most likely get away with killing M.

And who is to say TM heard the neighbors, why did they not try to go and break up the fight? IF TM was scared for his life, he has the same rights to defend his self.

But here is a question for you JoJo. Would you be supporting TM if he had killed Z and claimed self defense? Both parties had reason to believe that they were in danger. IMO

Most analysts I have heard agreed that both could use the self-defense if Zimmerman would have been beaten to death before he shot TM. I agree with them, works both ways.

Sadly, 2 bad decisions were made. GZ following TM, and then TM engaging GZ with the punch to the nose to start the altercation (both the "follow" and the punch to start the fight may not be 100% factual, so partly my opinion).

So essentially bad decisions by each led to an altercation where with the evidence we have been presented (no eyewtinesses), both should be able to use self-defense as written by Florida law. So GZ will walk away not guilty, and if TM would have killed GZ, I believe he could have used self-defense if charges were pressed (which I really doubt they would have, especially if GZ has gun on him).

So TM beats Z to death and you doubt charges would be pressed? Come on man.

Jon went outside, told him to stop and heard GZ scream for help. No way that is self defense.

 

[timschochet]

Tim if you are so sure Zimmerman is guilty of Manslaughter how much are you willing to put up (or shut up) that he gets convicted of Manslaughter?

Since (a) if I were on the jury, I would not convict him of manslaughter and (b) I don't believe he should be legally convicted of manslaughter (though I think he is guilty of manslaughter), this is not a bet I would accept either.

I asked these questions earlier, but I didn't get a response: How high must your degree of belief be in a person's guilt for you to vote guilty? What's your subjective probability that GZ is guilty of murder 2? Manslaughter? I'm mostly interested in the answer to the first question, and I hope that others will chime in.

For me personally, reasonable doubt has to be removed. Because nobody knows what happened during the fight between the two of them, there is always reasonable doubt. George Zimmerman had the right to shoot Trayvon Martin if he (Zimmerman) feared for his life. Now I don't believe that happened, but there is no way to prove it one way or the other. Thus, I could never convict Zimmerman and this trial probably never should have taken place.

I was hoping that you would give me number values. What constitutes reasonable doubt (e.g. 5%)? Should you be at least 95% certain of someone's guilt to vote guilty, or should it be higher? Lower?

I can't give you that. Reasonable doubt is reasonable doubt. However, Ramsay Hunt made a post this morning that is making me rethink my position on this.

 

[Mr. Chumley]

I'm not a lawyer so someone help me out here. If Zimmerman was charged with second degree murder and entered a plea to 2nd degree murder. How can they then convict him of manslaughter? Shouldn't he have had a chance to enter a plea to that? I assume the penalty for manslaughter is significantly less. It could have had a bearing on his plea. Also I have a basic understanding of the difference in murder and manslaughter but would the defense be any different if he were being tried for manslaughter vs. murder?

 

[Ramsay Hunt Experience]

Tim if you are so sure Zimmerman is guilty of Manslaughter how much are you willing to put up (or shut up) that he gets convicted of Manslaughter?

Since (a) if I were on the jury, I would not convict him of manslaughter and (b) I don't believe he should be legally convicted of manslaughter (though I think he is guilty of manslaughter), this is not a bet I would accept either.

I asked these questions earlier, but I didn't get a response: How high must your degree of belief be in a person's guilt for you to vote guilty? What's your subjective probability that GZ is guilty of murder 2? Manslaughter? I'm mostly interested in the answer to the first question, and I hope that others will chime in.

For me personally, reasonable doubt has to be removed. Because nobody knows what happened during the fight between the two of them, there is always reasonable doubt. George Zimmerman had the right to shoot Trayvon Martin if he (Zimmerman) feared for his life. Now I don't believe that happened, but there is no way to prove it one way or the other. Thus, I could never convict Zimmerman and this trial probably never should have taken place.

I was hoping that you would give me number values. What constitutes reasonable doubt (e.g. 5%)? Should you be at least 95% certain of someone's guilt to vote guilty, or should it be higher? Lower?

I can't give you that. Reasonable doubt is reasonable doubt. However, Ramsay Hunt made a post this morning that is making me rethink my position on this.

Here's what I mean by this. Juries evaluate each witness or piece of evidence independently. Each juror can give that evidence whatever weight they think is appropriate. They can find the State's witnesses credible. Or the Defense's. Or both.

Once all that evidence is weighed, then the juror should have some confidence level on every element of the crime. It's undefined in the common law, but courts make it clear that the absence of reasonable doubt is distinct from the absence of doubt. It's less than 100%. But nobody knows if it's closer to 95% or 80% (I think it's probably closer to 80%, but it's different for everyone).

Presumably the jury will have a very high confidence level on some elements of the crimes. For instance, I imagine the jury is very confident that George Zimmerman fatally shot Trayvon Martin.

And presumably the confidence level will be lower on whether Zimmerman was reasonable in fear of death or great bodily harm (and whether the judge accepts a jury instruction on this will be key, my own quick digging only finds cases applying the standard in aggravated assault (as distinguished from simple assault) cases in Florida.

 

[Zow]

Christo you are right, why should the court allow anything as evidence since everything could potentially be a lie.

Treyvon isnt around to dispute or explain said text messages.Maybe someone else was using his phone.Its hearsay at this point.

Hearsay

It's an out of court statement, not made under oath, and you want it admitted into evidence. That's textbook hearsay, idiot.

Yeah, this is the type of stuff that makes this thread so painful for lawyers. Listen, I get that it's kind of douchey to pull rank on stuff like this. But when you confidently make assertions about stuff you know absolutely nothing about, it's really frustrating to read. There are all kinds of subjects in this trial where JoJo's opinion matters every bit as much as Christo's. The credibility of witnesses, for instance. But on questions about the rules of evidence, a lay opinion based upon what you regard as "fair" is completely useless. .

I actually had a post written where I basically said the same thing, but I hate to pull rank too and frankly I hate to do it in practice. I'm a best practices kind of guy with adversaries for example. But in many ways this thread makes me fear having any jury decide my cases. And I was already someone who didn't have a lot of faith in the jury system to begin with.

And did you answer my question - where do you practice?

This is why getting good at voir dire questioning is severely underrated and why I file motions in limine on judges who try to take over voir dire.

 

[Ramsay Hunt Experience]

OK, I've looked a bit into the 3rd Degree Murder charge, which is a felony murder charge.

I think that's unlikely to be allowed through.

"Felony Murder" is a doctrine that holds that anyone who knowingly commits a felony is responsible for any death, including a death attributed to negligence, that arises out of the course of the felony. So you might imagine a defendant who committed an armed robbery who accidentally discharged his gun and killed the clerk. Even if the shooting was an accident, he'd be liable for murder, not manslaughter.

The state appears to be suggesting that if Zimmerman negligently shot Martin, Martin's status as a minor would convert that charge into child abuse (a felony), which would then prompt a felony murder charge. That's just a stretch. There's a difference between f***** around with your gun at a daycare or something, and this situation. I would be like suggesting that any vehicular manslaughter where a child was the victim is murder 3.

 

[jon_mx]

Tim if you are so sure Zimmerman is guilty of Manslaughter how much are you willing to put up (or shut up) that he gets convicted of Manslaughter?

Since (a) if I were on the jury, I would not convict him of manslaughter and (b) I don't believe he should be legally convicted of manslaughter (though I think he is guilty of manslaughter), this is not a bet I would accept either.

I asked these questions earlier, but I didn't get a response: How high must your degree of belief be in a person's guilt for you to vote guilty? What's your subjective probability that GZ is guilty of murder 2? Manslaughter? I'm mostly interested in the answer to the first question, and I hope that others will chime in.

For me personally, reasonable doubt has to be removed. Because nobody knows what happened during the fight between the two of them, there is always reasonable doubt. George Zimmerman had the right to shoot Trayvon Martin if he (Zimmerman) feared for his life. Now I don't believe that happened, but there is no way to prove it one way or the other. Thus, I could never convict Zimmerman and this trial probably never should have taken place.

I was hoping that you would give me number values. What constitutes reasonable doubt (e.g. 5%)? Should you be at least 95% certain of someone's guilt to vote guilty, or should it be higher? Lower?

I can't give you that. Reasonable doubt is reasonable doubt. However, Ramsay Hunt made a post this morning that is making me rethink my position on this.

Here's what I mean by this. Juries evaluate each witness or piece of evidence independently. Each juror can give that evidence whatever weight they think is appropriate. They can find the State's witnesses credible. Or the Defense's. Or both.

Once all that evidence is weighed, then the juror should have some confidence level on every element of the crime. It's undefined in the common law, but courts make it clear that the absence of reasonable doubt is distinct from the absence of doubt. It's less than 100%. But nobody knows if it's closer to 95% or 80% (I think it's probably closer to 80%, but it's different for everyone).

Presumably the jury will have a very high confidence level on some elements of the crimes. For instance, I imagine the jury is very confident that George Zimmerman fatally shot Trayvon Martin.

And presumably the confidence level will be lower on whether Zimmerman was reasonable in fear of death or great bodily harm (and whether the judge accepts a jury instruction on this will be key, my own quick digging only finds cases applying the standard in aggravated assault (as distinguished from simple assault) cases in Florida.

Everyone knows reasonable doubt is 87.62%.

 

[Todem]

My god the State is grasping for straws. It's embarrising.

 

[Zow]

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.

Vinny Gambini: I object to this witness being called at this time. We've been given no prior notice he'd testify. No discovery of any tests he's conducted or reports he's prepared. And as the court is aware, the defense is entitled to advance notice of any witness who will testify, particularly to those who will give scientific evidence, so that we can properly prepare for cross-examination, as well as to give the defense an opportunity to have the witness's reports reviewed by a defense expert, who might then be in a position to contradict the veracity of his conclusions.

[there is a short pause as Judge Haller appears caught off-guard by Vinny's sudden competence with knowledge of the law]

Judge Chamberlain Haller: Mr. Gambini?

Vinny Gambini: Yes, sir?

Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.

Vinny Gambini: Thank you, Your Honor.

Judge Chamberlain Haller: [firm tone] Overruled.

I'm obviously busting your chops, thanks for putting the time into responding.

So in a nutshell, the State is allowed to ask for additional (lesser) charges to be brought against the defendant and even though you are not well versed in the nuances of FL law, your basic assumption is that this is standard operating procedure? You had mentioned it is normally the Defense that offers these lesser charges as a compromise if they did not accept a plea deal and are worried their client may be on the hook for the full "penalty", but it sounds like you are not sure if the prosecutors have authority to introduce the lesser charges when they are in a less than dominant position such as they find themselves in today?

In a nutshell, I don't think you read or grasped a single concept I discussed.

1. Requests for non-charged lesser included offenses are not predominant or made in trials more often than not, but they are common enough that it is never shocking to see one requested and, frankly, a trial tactic probably at least temporarily considered by every criminal lawyer about to do a felony trial. So I'm not assuming anything about "standard operating procedure" - legally these requests can be made by either side for a multitude of strategical reasons (some of which I've discussed).

2. The prosecutors have essentially the same "authority" to request lesser included charges as the defense. Neither has the "authority" to make it happen for sure though after double jeopardy has attached, as that it is issue of law and the judge is the only one with "authority" to make a find decision/ruling on an issue of law during a trial. I keep quoting "authority" because it's a silly word choice here, as technically either side can request anything they want. But in reality what happens is that the lawyers on either side make requests (or "motions") that have some basis in law where it is possible, however slightly possible, that a judge could grant them. The lawyers decide whether to make those motions after determining whether the granting of the motion will help their side's case. Then, when they are made, the lawyers use the law to argue against one in another and a judge should consider the lawyers' arguments. This is often very ####### difficult and one of the harder points of being a trial lawyer.

3. Whether a side's motion should be granted in no way has anything to do with how "well" the trial may be going for them. The judge should not consider the potential or apparent outcome of the trial when decided whether to grant a motion. So the fact the state's case appears weak has nothing to do with the strength of their "authority" (I have no idea why you kept using this word, which leads me to believe you didn't grasp anything I said) to make a motion. Instead, in my opinion, as someone who has had the experience to debate whether to make the motion for a lesser included offense and who has been a part of or witnessed several hundred trials, I think the state's strategy in making the motion is to give the jury something to convict Zimmerman of because they fear the evidence presented at trial was not enough to attain a conviction of the already brought, more serious charges.

 

[Leeroy Jenkins]

My god the State is grasping for straws. It's embarrising.

Yea, it is pretty ridiculous going for this Felony Murder based on child abuse.

 

[Zow]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

 

[avoiding injuries]

My god the State is grasping for straws. It's embarrising.

Careful. They may the judge to demand an apology from you for saying that.

 

[The Commish]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

This could be a problem for the prosecution....I don't think either side has proven anything other than a kid's dead. They've both offered various ways it could have gone down. Looks like it's going to be up to the jury as to which was more likely. Knowing this, I'm left wondering why each person's character wasn't more scrutinized in the case.

 

[Worm]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

This could be a problem for the prosecution....I don't think either side has proven anything other than a kid's dead. They've both offered various ways it could have gone down. Looks like it's going to be up to the jury as to which was more likely. Knowing this, I'm left wondering why each person's character wasn't more scrutinized in the case.

It is the state's burden. If as a juror you feel they haven't met that burden, than you cannot convict. The defense doesn't have to "prove" anything.

 

[The Commish]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

This could be a problem for the prosecution....I don't think either side has proven anything other than a kid's dead. They've both offered various ways it could have gone down. Looks like it's going to be up to the jury as to which was more likely. Knowing this, I'm left wondering why each person's character wasn't more scrutinized in the case.

It is the state's burden. If as a juror you feel they haven't met that burden, than you cannot convict. The defense doesn't have to "prove" anything.

It's my understanding that the defense has to present their evidence justifying self defense. I understand it's a fraction of the burden load, but there's a burden on both side from what I understand from the FBG LawyerGuys.

 

[Workhorse]

Good for you, judge- West is being really disrespectful here.

Objecting this strongly is part of the process in settting up the appeal, just in case Zimmerman is convicted.

 

[Leeroy Jenkins]

Good for you, judge- West is being really disrespectful here.

Objecting this strongly is part of the process in settting up the appeal, just in case Zimmerman is convicted.

Strongly objecting is no different than saying it once on the record for purposes of preservation for appeal.

 

[Phil Elliott]

FWIW - This seems to be the Florida definition of "reasonable doubt" with the instructions to the jury:

http://www.floridasupremecourt.org/jury_instructions/chapters/chapter3/p1c3s3.7.rtf

[SIZE=11pt]3.7 PLEA OF NOT GUILTY; REASONABLE DOUBT;[/SIZE]​

[SIZE=11pt]AND BURDEN OF PROOF[/SIZE]​

​

[SIZE=11pt] The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.[/SIZE]

[SIZE=11pt] To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.[/SIZE]

[SIZE=11pt] The defendant is not required to present evidence or prove anything.[/SIZE]

[SIZE=11pt] Whenever the words "reasonable doubt" are used you must consider the following:[/SIZE]

[SIZE=11pt] It is recommended that you use this instruction to define reasonable doubt during voir dire. State v. Wilson, 686 So.2d 569 (Fla. 1996).[/SIZE]

[SIZE=11pt]A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.[/SIZE]

[SIZE=11pt]It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.[/SIZE]

[SIZE=11pt]A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.[/SIZE]

[SIZE=11pt]If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.[/SIZE]

[SIZE=11pt]Comment[/SIZE]​

​

[SIZE=11pt] This instruction was adopted in 1981 and was amended in 1997.[/SIZE]

 

[jon_mx]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

This could be a problem for the prosecution....I don't think either side has proven anything other than a kid's dead. They've both offered various ways it could have gone down. Looks like it's going to be up to the jury as to which was more likely. Knowing this, I'm left wondering why each person's character wasn't more scrutinized in the case.

Yes, it has always been a problem for the prosecution.....No, the jury has to decide beyond a reasonable doubt that the (non-)story offered by the prosecution is true.

 

[tdoss]

Did they tack on illegally parking his vehicle yet?

 

[Jojo the circus boy]

Judge denies 3rd Degree Murder charge with Child Abuse

YES TIM THE JUDGE RULED IN FAVOR OF THE DEFENSE ON THIS ONE, JUST PUTTING THIS IN CAPS SO YOU SEE IT

 

[Todem]

Not trying to incite anything. One of my clients is a high ranking member of a Swat team down here (I will not even disclose which one what department) in South Florida.

They along with fire and rescue as well as all local law enforcement are bracing for the worst. Now I have learned that they are always bracing for the worst. But he was convinced we will see some serious craziness in Miami. I really hope he is wrong.

Social media from The Black Panthers according to him is calling for chaos, destruction...just pure bedlam. It's nuts. I can't beleive this. here we are in 2013...and we are still dealing with third world like mentality in our country.

If indeed the violence get's crazy...President Obama better be on Air Force One bee-lining down to South Florida and calm people down. He better step up. Because if kids die...that could have been his kids.

Right Mr.President? Right?

 

[jon_mx]

As to the issue of reasonable doubt, the standard jury instruction in AZ defines "reasonable doubt" as "not proof beyond all doubt" but instead proof enough that the trier of fact can be "firmly convinced" that the state has proven each element of the crime.

This could be a problem for the prosecution....I don't think either side has proven anything other than a kid's dead. They've both offered various ways it could have gone down. Looks like it's going to be up to the jury as to which was more likely. Knowing this, I'm left wondering why each person's character wasn't more scrutinized in the case.

It is the state's burden. If as a juror you feel they haven't met that burden, than you cannot convict. The defense doesn't have to "prove" anything.

It's my understanding that the defense has to present their evidence justifying self defense. I understand it's a fraction of the burden load, but there's a burden on both side from what I understand from the FBG LawyerGuys.

By giving the instructions which includes the self-defense, the judge has ruled the burden has been met.

 

[Zow]

Good for you, judge- West is being really disrespectful here.

Objecting this strongly is part of the process in settting up the appeal, just in case Zimmerman is convicted.

Strongly objecting is no different than saying it once on the record for purposes of preservation for appeal.

"I strenuously object."

"Oh, you strenuously object? Well, then let me reconsider..."



Leeroy Jenkins is exactly right that the manner or tone of the objection has nothing to due with whether the issue was properly reserved for appeal. Instead, if a lawyer objects this hard, he either genuinely disagrees with the judge and wants to have it out with the judge or he's arguing that hard for show for his client.

 

[financewonk]

Tim if you are so sure Zimmerman is guilty of Manslaughter how much are you willing to put up (or shut up) that he gets convicted of Manslaughter?

Since (a) if I were on the jury, I would not convict him of manslaughter and (b) I don't believe he should be legally convicted of manslaughter (though I think he is guilty of manslaughter), this is not a bet I would accept either.

I asked these questions earlier, but I didn't get a response: How high must your degree of belief be in a person's guilt for you to vote guilty? What's your subjective probability that GZ is guilty of murder 2? Manslaughter? I'm mostly interested in the answer to the first question, and I hope that others will chime in.

For me personally, reasonable doubt has to be removed. Because nobody knows what happened during the fight between the two of them, there is always reasonable doubt. George Zimmerman had the right to shoot Trayvon Martin if he (Zimmerman) feared for his life. Now I don't believe that happened, but there is no way to prove it one way or the other. Thus, I could never convict Zimmerman and this trial probably never should have taken place.

I was hoping that you would give me number values. What constitutes reasonable doubt (e.g. 5%)? Should you be at least 95% certain of someone's guilt to vote guilty, or should it be higher? Lower?

I can't give you that. Reasonable doubt is reasonable doubt. However, Ramsay Hunt made a post this morning that is making me rethink my position on this.

Here's what I mean by this. Juries evaluate each witness or piece of evidence independently. Each juror can give that evidence whatever weight they think is appropriate. They can find the State's witnesses credible. Or the Defense's. Or both.

Once all that evidence is weighed, then the juror should have some confidence level on every element of the crime. It's undefined in the common law, but courts make it clear that the absence of reasonable doubt is distinct from the absence of doubt. It's less than 100%. But nobody knows if it's closer to 95% or 80% (I think it's probably closer to 80%, but it's different for everyone).

Presumably the jury will have a very high confidence level on some elements of the crimes. For instance, I imagine the jury is very confident that George Zimmerman fatally shot Trayvon Martin.

And presumably the confidence level will be lower on whether Zimmerman was reasonable in fear of death or great bodily harm (and whether the judge accepts a jury instruction on this will be key, my own quick digging only finds cases applying the standard in aggravated assault (as distinguished from simple assault) cases in Florida.

Thank you for your thoughtful reply, Ramsay. These subjective probabilities exist whether others recognize it or not, and a statistical/probabilistic model is a good way of describing what happens in a courtroom.

 

[The Commish]

Lawyers....they say "manslaughter" is included...now, does that mean any of the manslaugher types are in play or just specific ones?