Zimmerman has already been proved guilty, now it's just a question of punishment.

[last1standing]

As the title states, Zimmerman has already been proved guilty by his own admission that he pulled the trigger on the gun that shot Trayvon Martin. The only question that remains is whether he will be punished by the state for his action or whether he can prove by the preponderance of the evidence that he did so with an exculpatory excuse.

An exculpatory excuse is an affirmative defense that is used by defendants who admit their guilt but belief their actions are justified by the circumstances. In this case, Zimmerman is claiming self defense. If he can prove that to the jury's satisfaction, he will be acquitted.

So has Zimmerman proved that he killed Martin in self defense or has he merely asserted a theory that is possible but not proved? From what I've heard, the single witness that allegedly saw the event has now changed his testimony to state that he did not actually see who was beating whom.

So has Zimmerman proved he acted in self defense?

[uppityperson]

1. IMO, no. eom

[The Velveteen Ocelot]

2. The jury will decide this question before much longer.

Their opinion is the only one that actually matters.

[premium]

3. He's innocent until the prosecution can prove by the preponderance of the

evidence, beyond a reasonable doubt to the jury that he's guilty and the jury convicts him.

There's still a ways to go in this trial, the prosecution is still presenting their case and then it's the defense's turn.

But, until the jury renders it's verdict, he's innocent in the eyes of the law.

[last1standing]

8. That is not true.

Zimmerman is invoking an affirmative defense. He is the one who must now prove that he is innocent by reason of self defense. Until he does so, he is guilty in the eyes of the law.

http://en.wikipedia.org/wiki/Affirmative_defense

An affirmative defense is a complete or partial defense to a civil lawsuit or criminal procedure that affirms the complaint or charges but raises facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, would defeat or reduce a claim even if the allegations alleged are all proven.

[premium]

12. Ok, that's a good point.

He is no doubt guilty of shooting Trayvon, but whether or not it was justified, well, we have to wait for the jury to render it's verdict.

[Voice for Peace]

27. thanks!

didn't know this and it's an important point.

[last1standing]

31. Glad I could help.

I kept reading posts claiming that the prosecution had to prove Zimmerman didn't act in self defense so I thought I'd start this thread to point out that wasn't true. Hopefully it will be more efficient than responding to every post claiming otherwise. So far, my plan hasn't succeeded.

[Voice for Peace]

41. maybe a different OP subject line

instead of saying he's been proven guilty,
just an explanation of the affirmative defense
and how it works.

"guilty" just brings out the kneejerk responses.

[last1standing]

45. Yeah, it does, doesn't it?

But I've found that the title can make the difference in whether a post sinks or swims. And it is technically correct. Zimmerman is guilty of killing Martin. The only question is whether he had an exculpatory excuse.

[Voice for Peace]

46. This is why the defense is so miserable and desperate. It seems truly that they've got nothing

except to try and paint a poor picture of Trayvon.

Who in the world can they have for defense
witnesses? Character witnesses? I don't know if I
will be able to take it..

[last1standing]

52. We don't know what the defense has up its sleeve.

They could present a very powerful case. I just don't know. However, they'll have to be very careful in trying to use character evidence as the Rules of Evidence are very clear about that kind of thing.

[backscatter712]

32. Exactly.

The fact of Zimmerman firing a weapon at Martin, killing him, is not in dispute. Zimmerman killed Trayvon Martin.

What is in dispute is whether Zimmerman was justified in killing Martin. Did he kill in self-defense? If he wants to use that defense, he has to prove it. He has to prove that Martin was a genuine danger to Zimmerman's life, and that Zimmerman had no other option than to kill Martin to protect his own life.

And I'm not buying Zimmerman's defense. He instigated the conflict with his creeper-stalking behavior, he was the one that was armed, and Martin was armed only with a beverage and a pack of Skittles. Zimmerman was much bigger than Martin. I'd say that Martin would be the one that could claim self-defense if he had succeeded in protecting himself against Zimmerman, which unfortunately, he didn't.

[dmr]

47. I'm not buying it either

How fortunate for Zimmerman that Trayvon isn't alive to tell his side of the story.

For all we know, Zimmerman slipped on the wet grass, fell and smacked his nose on the edge of the sidewalk.

How convenient for Zimmerman to be able to blame Trayvon for that!

We don't know when or where the grass stains on Trayvon's pants came from, either. It could've been dirtied earlier in the day or the day before. Who knows?

But they tell you that it's the last moments that determine Murder 2. Was Zimmerman in fear for his life?

This is what I have to say: Zimmerman you had a gun. You could have pointed it at Trayvon. He would have backed away.

Zimmerman, you didn't have to shoot.

[DrDan]

102. if second degree murder charges are not proven - it's all over and he walks away

[last1standing]

104. I'm not going to try to make a firm statement concerning Florida law again.

From what I've seen in the last day, Florida has very little respect for the victims of murder. Therefore I won't say that he doesn't walk, but in most states, the prosecution can ask the jury to also consider lesser offenses such as voluntary manslaughter if they don't agree with 2nd degree murder.

Again, this is Florida and from what I've read I'll be surprised if they don't give Zimmerman a state funded parade for standing his ground against an unarmed kid.

[davidn3600]

4. The defense has not even put on their case yet...

The way trials work is the prosecution calls their witnesses and puts on their case. While this is going on, the defense cross-examines and pokes holes in the testimony. THEN when the prosecution is finished, the defense calls their witnesses and puts on their own case.

[Voice for Peace]

28. and the prosecution rips them all to shreds in cross examination.

that's what I expect.

Who is the defense calling as witnesses, do you know?

[WhataKnight]

67. The prosecution witnesses have done the work for the defense already

I doubt Zimmerman even gets on the stand and as it is now I doubt he would have to. The Neighbor, John Manaolo said he saw Martin on top of Zimmerman before he heard the gunshot. Another neighbor, Johnathan Good, testified he saw somebody straddling and pummeling Zimmerman with a "ground and pound" mixed martial arts move.

This prosecution is horrible and have proven the case for the defense. If the best they can do is put on 19 year old women with a bad attitude on the stand they never stood a chance.

[HangOnKids]

87. Says Who?

Oh, you.

[ManiacJoe]

5. You seem to be jumping the gun. (Pun intended.)

The prosecution is still presenting its case. Thus the defense is just poking holes in the prosecution's case during cross examination.

[rug]

6. Thank you Professor Corey.

[oneshooter]

7. Sound to me like you are ready to strap him in and pull the switch.

Guilty without a trial. How very progressive of you.

[last1standing]

10. Not at all. I'm merely asking a question based on the evidence so far presented.

I'm sure there will be much more to examine once the defense takes over. There usually is.

[elleng]

11. He faces a maximum sentence of life in prison.

[elleng]

9. Not exactly.

We know he shot; he's not contesting that. Murder in the second degree, under Florida law, refers to a killing carried out without premeditation but with “a depraved mind regardless of human life,” so his 'intention' or state of mind must be proved by the state, beyond a reasonable doubt. That's why 'self-defense' is an important element of the case.

[last1standing]

13. I agree they might have a hard time getting 2nd degree murder.

It might be difficult to establish the mens rea for "a depraved mind."

If the prosecution has any knowledge at all, they will have included the possibility of lesser crimes. If not, this could be another Casey Anthony situation.

[elleng]

14. From what I've heard so far,

and its not a lot, I suspect jury will have 'reasonable doubt.'

[last1standing]

16. It's not a reasonable doubt standard for affirmative defenses.

It is up to Zimmerman to prove by a preponderance of the evidence that he acted in self defense. So far, I haven't heard of any actual facts showing this. On the other hand, the defense hasn't presented its case yet. We'll see how that goes.

[elleng]

19. I don't think so.

Defense does NOT have the burden you've described, imo.

[last1standing]

20. Do you have any backup for that belief?

I'm not trying to be snarky or rude but it is rather usual for a defendant who claims an affirmative defense to have to be able to prove it by a preponderance of the evidence. If a defendant could say "Sure, I killed him but I did it in self defense" and not have to prove that, no one would ever be convicted. But maybe there is something different about this case I'm unaware of.

[elleng]

38. OK, you've got it!

'Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.[6] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence.'

http://en.wikipedia.org/wiki/Affirmative_defense#Burden_of_proof

Let's watch the judge's Instructions on this one!

[last1standing]

51. Yep. That's what they taught me in Crim Law.

I won't claim to be the top expert in my class but I didn't fail, either.

[elleng]

53. I didn't fail either,

and LOVED criminal (and civil) procedure, but this one just slipped my mind!

[last1standing]

54. If you don't practice crim law it can slip away very easily I'm told.

I took the class last year so I still have it drilled into my head.

[elleng]

59. OH, you're a newbie!

Welcome! Me, MANY moons ago, and worked in a criminal practice along with senior counsel a LONG time ago; ended up with major career in administrative law.

[last1standing]

62. Lol! Yeah, I'm a returning student.

I got bored with computer work so I decided to take up an easier career.

I've been focused on environmental law but I'm told that you never know where a law degree will end up taking you.

[elleng]

65. TRUE that you never know,

and the options are INFINITE!

[last1standing]

68. Let's hope.

The job market hasn't screamed "INFINITE" to me.

[elleng]

74. Markets constantly change,

and my point is that the areas for practicing are infinite, so keep your mind and eyes open.

I surely didn't expect to find my career in regulating railroad mergers at the Interstate Commerce Commission when I began, as I'd worked (as a 'legal secretary' with high school typing!) at the Civil Legal Aid Service at the Cook County Jail in Chicago! Decided I didn't have to stay in that role (tho followed my boss to different sort of legal services program,) decided I could do what HE did, so went to law school, and after passing the Bar worked in Colorado as a VISTA Volunteer Attorney (on immigration!)

[last1standing]

76. That does give me hope.

I'm in Michigan so the economy is taking its toll on law positions but I think things will swing in the other direction soon. I'm actually hoping I get to try a few different areas of law before settling down so I'm somewhat envious of your career.

[elleng]

79. I'm happy that my story gives you hope.

What I described was shortened, AND, 'newbies,' in the right place, are sought after by 'temp' agencies 'cause they can be 'cheap,' as I was AFTER my major career ended (due to sunset of agency where I'd worked,) so I worked for a couple of temp agencies on a couple of BIG cases, where there were lots of us. Helped, of course, that I was in DC, but I suspect any large city has similar agencies. 'Check your local listings.' I was recently contacted by one of them, specialcounsel.com, after a lengthy hiatus, asking if I'd like to update my status with them.

[last1standing]

80. I will. Thanks.

At this stage (about a year to go), it feels like everything depends on connections which I just don't have. I'm sure I'll be fine but it's scary going into the last year and knowing you don't have anything lined up.

[elleng]

82. VOILA!

http://www.specialcounsel.com/locations/detroit/

Document review teams, discovery and eDiscovery projects are major types of work often contracted by temp agencies.

And think about trying it out when you're away from school, vacations etc.

[last1standing]

84. Thanks very much!

I'll look this over. I appreciate you looking that up for me.

[davidn3600]

23. Charge should be more like voluntary manslaughter

Manslaughter, unlike murder, does not require evidence of the defendant's premeditation or "depraved mind" with disregard for human life; instead, the state requires proof of either voluntary manslaughter or involuntary manslaughter.

Voluntary manslaughter describes a homicide intentionally committed while in the midst of a provocation. The prosecutor must show a sudden, unexpected event or circumstance serving as a provocation. As a result of the provocation, the defendant must have felt a temporary anger, heat of passion, or emotion that immediately resulted in an intent to kill or an intent to commit the act that resulted in the victim's death.

- See more at: http://statelaws.findlaw.com/florida-law/florida-voluntary-manslaughter-laws.html#sthash.Jy5GEmM7.dpuf

[last1standing]

25. I agree.

I hope that is the sentence that comes down if Zimmerman can't prove he acted in self defense as it's the one that makes the most sense.

[elleng]

26. ' Contrast second degree murder with manslaughter.

Manslaughter can be committed in one of three ways. (1) Manslaughter can by committed by an act that is neither excusable or justifies, (2) (not applicable ) and (3) engaging in “culpably negligent” conduct which leads to the death of another. Manslaughter carries a sentence of up to 15 years.

The important consideration is that under Florida law prosecutors may ask the jurors to convict the defendant of a lesser degree of killing. Thus even if the state has charged Zimmerman with Murder in the 2nd degree, the jury could find manslaughter, which would allow a determination of a lesser sentence.'

http://malialitman.wordpress.com/2013/06/28/evidence-in-the-zimmerman-case-may-not-support-a-charge-of-murder-in-the-2nd/

[last1standing]

29. Right, so long as the state does in fact ask for the lesser degree.

I believe what happened in the Anthony case is that the prosecutor was so cock-sure that he didn't bother to read the jury or to ask for a lesser conviction in the alternative.

While none of knows for sure whether Zimmerman will be able to prove self defense, if he doesn't it will still be hard to convict him on anything requiring pre-meditation.

[Voice for Peace]

33. several people have said (you can take that with a grain of salt)

that the lesser manslaughter charge is included.
So he could be not guilty of 2nd-degree, but
guilty of manslaughter.

According to one source I read today (sorry for no
link) -- manslaughter which involves a gun and
the killing of someone under 18 carries a mandatory
25 year sentence.

It's still a very serious crime, even if deemed accidental
due to carelessness.

It seems unlikely the jury will accept this as a
self-defense, with the testimony of Rachel regarding
Trayvon being stalked. Even if it was self-defense
in the moment, it was his reckless disregard that
caused the whole situation which led to Trayvon's
death, and that is MANSLAUGHTER.

at least I believe so..

[last1standing]

34. That's exactly what I think.

Even if Zimmerman does convince a jury that he acted in self defense, will he be able to convince them that pulling out a gun and shooting an unarmed teenager was a justifiable response to being punched? It will be a hard sell.

Still, let's see what the defense bring out. Stranger things have happened.

[Voice for Peace]

44. It also seems obvious -- I would be VERY surprised if the jury thought otherwise --

that it was Zimmerman who caused the whole thing
in the first place.

Had he not behaved so carelessly
with disregard for danger and risk to life
he wouldn't have needed self-defense.

[last1standing]

73. LOL! You may change your mind after hearing the defense.

I know I've been persuaded in the past.

[Azathoth]

15. This is a joke, right? n/t

[last1standing]

17. Nope. I'm just looking for some reasoned discussion on the subject.

I know the trial isn't over but when has that ever stopped anyone from talking about a case?

[Azathoth]

21. Well, your premise is simply wrong

Zimmerman has not been proved "guilty" of anything. Self-defense is not an "exculpatory excuse." Self-defense is a right. Claiming self-defense is the positive assertion of a right. Killing someone to prevent being killed or seriously injured is a justified action.

[last1standing]

24. Then my crim law professor needs to re-read his law books.

But since the book said the same thing that might not do much good. I have been posting this to help, however:

http://en.wikipedia.org/wiki/Affirmative_defense

An affirmative defense is a complete or partial defense to a civil lawsuit or criminal procedure that affirms the complaint or charges but raises facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, would defeat or reduce a claim even if the allegations alleged are all proven.

Further...

A clear illustration of an affirmative defense is self defense.[3] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another's use of force was unlawful and that the defendant's conduct was necessary to protect himself.

I know its Wikipedia but this isn't generally a controversial subject.

[Azathoth]

36. I would ask for a refund from your law school if I were you

You might want to Google the theory of justification vs. the theory of excuse.

[last1standing]

42. I was polite enough to provide you a link.

I'd rather not search the intertubes based on your suggestion that I consult a theory over the well established law. Really, this isn't a tricky subject. Self defense is a sub-section of affirmative defenses which place the burden of production on the defendant. Self defense is a right, but it is not a rebuttable defense in a criminal case. The defendant must prove to the jury that he acted in self defense, he can't merely state that he did so then sit back and force the prosecution to prove otherwise. Very few murderers would go to jail if that were the case.

[Azathoth]

81. Are you for real?

I just googled the terms and came up with tons of freakin' hits.

Here's the crude Cliff notes version: justified acts do not harm society (in fact, they are endorsed by society) and thus are not criminal. Excused acts are essentially criminal acts for which society decides that individual defendants should not be punished or otherwise held accountable. Practically, both are affirmative defenses that can lead to the same result: "not guilty."

Self-defense is a justification. In fact, it's *the* prototypical justification. Successfully asserting self-defense means objectively that no crime was ever committed. Insanity and most types of duress are the classical examples of excuses. "Yes I shot that dude in the back, Your Honor, but I was schizophrenic at the time!" The exact dividing line between the two is slightly murky and the subject of a lot of scholarly wrangling, but the distinction is basically common-sense and well-established in legal theory.

Your OP is therefore wrong both in theory and in practice. Practically, Zimmerman is not guilty of anything yet. He also hasn't admitted anything for which he could be theoretically, philosophically, or rhetorically "guilty" because he's asserting a justification and not an excuse.

...he can't merely state that he did so then sit back and force the prosecution to prove otherwise.

That is exactly what he can do. The jury is entitled to consider any evidence that he presents of self-defense, including his own testimony. Some defendants get off simply by taking the stand and testifying that they defended themselves. I'm not versed in the nuances of Florida law, so here's a relevant Google result:

http://www.ohioverticals.com/blogs/akron_law_cafe/2012/04/zimmermans-low-burden-of-proof-on-the-issue-of-self-defense/

[last1standing]

83. I'm very much for real. Thanks.

I think it's only fair to provide a link when one has been provided for you. I didn't think it was a great deal to ask and I appreciate you doing so.

Now, the term guilty was only meant to convey that fact that it's not contested that Zimmerman did in fact kill Martin. While the prosecution still has to present the evidence, it is a fait acompli as the defense does not dispute this. If I had used a different term it would have been more confusing for everyone. If you want me to hang my head in shame for using the word, however, I will.

Other than that, nothing you've posted changes what I've written. Zimmerman has to prove by a preponderance of the evidence. The article you link to concerns the standard for receiving a jury instruction, not for actually establishing his culpability. Another poster had already brought up the case in question. Mind you, I could be reading it wrong. However, if I am then I claim a bias toward reasonable law. If a defendant must only show that they might have possibly been acting in self defense then the standard would be so low that any defendant with an attorney who's not bombed out of his skull could walk guilty or not.

On the other hand, this is Florida...

[last1standing]

85. Ah! I think I see where we're in disagreement.

In the actual case, Montijo v. State, the Court reversed a fundamental error on the part of the lower court judge who provided jury instructions stating that they should find the defendant guilty unless they found him innocent beyond a reasonable doubt. That was obviously a major flaw.

However, in adapting to the ruling, the Florida Bar News proposed a new model jury instruction that states that the defendant indeed does only need to present a defense that raises a reasonable doubt. It also looks like the standard instruction for the State of Florida has followed suit. The question is whether the court in this case will use that language and whether that is how the Fifth District Court meant for it to be read. I don't know that we have an answer on that. If it is the prevailing law in the state then I wouldn't go there for all the money in the world.

This case becomes more and more interesting.

ETA: Wow! This becomes even more bizarre. If you go to the jury instructions section of the Florida Supreme Court it pops up an alert stating that the jury instructions for self defense are under review. I don't think there's a clear answer here.

ETA II: Sorry for the second edit but this situation is fascinating to me. It looks like the burden of proof is still on Zimmerman but the standard in Florida is somewhat fuzzy. The defendant has to rise to the level of reasonable doubt to have the jury find for him while the current instructions also state that the jury must be convinced that the defendant did not act in self defense in order to convict. On one hand it seems to say that there should be real doubt as to the claim of self defense while on the other its seems to say that the level is even higher than beyond a reasonable doubt to convict. Either way, the standard is lower than anything I've ever seen but it's still not clear for the jury. this is likely why they're looking at revising the instruction.

To make it even less clear, one of the cases the alert cites when stating that instructions are under review holds:

In deciding whether the defendant was justified in the use of non-deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Talley v. State

Talley seems to imply a reasonable person standard. So all I can say for sure based on the cases and the current instructions is that Zimmerman's defense does have the burden of proof but that burden isn't as high as most other states. Exactly how high is up to the 5th District and then possibly the Supreme Court of Florida.

[Azathoth]

114. That's quite interesting. Incidently, I apologize for my initial assumptions, although

I still believe the wording of your OP title (that Zimmerman has been "proved guilty&quot is both practically and theoretically wrong. With that said, going back a day later over what you've written, I realize that the point of your post was simply to emphasize that Zimmerman has to present additional evidence and meet a minimum standard of proof, which as you stated, is usually (but apparently not in Florida) a preponderance of the evidence.

[last1standing]

118. I did use a term that was more inflamatory than I expected.

I just meant that he has admitted to the killing so that part is a done deal, although the prosecution still has to present evidence to support it.

Overall, this case has been very interesting in that Florida law is so different in this aspect. I expect it plays Hell on students trying to pass both the state and multi-state portions of the bar exam.

[COLGATE4]

94. As a seasoned lawyer to a new one

I offer this piece of advice an older lawyer gave me when I first started - never argue legal issues with a non-lawyer. It's like trying to teach a pig to sing - it doesn't get you anywhere and you just irritate the pig.

[last1standing]

96. LOL! I appreciate the advice

I'm mostly doing this for practice. I'm learning while I debate the subject otherwise I would have given up ages ago. To be fair, while I was right about the burden of proof being on Zimmerman, the level of the burden was lower than I originally stated so I have learned something and it forced me to dig into the case more.

[Azathoth]

112. So you, as a seasoned lawyer, agree that Zimmerman is "already proved guilty"? n/t

[COLGATE4]

113. No - what I said is that the issue of whether he killed Trayvon has

already been decided. He has not yet proved to a jury that the killing was justified in self-defense.

[Azathoth]

115. So we are in agreement

The title of the OP is wrong. I initially assumed the OP was trying to make a more subtle theoretical argument, but looking back I think he simply went too far in trying to draw people's attention to the fact that Zimmerman needs to meet his own burden of proof.

[cherokeeprogressive]

58. The ONLY "reasoned discussion" on the subject would include the fact that the jury hasn't decided

the case, and that the entire case hasn't even been presented to the jury yet.

[last1standing]

72. Then please feel free not to join in.

I'm glad to have you hear to discuss the case but if you don't want to, I'm certainly fine with that as well.

[russspeakeasy]

18. Florida has a history of "over charging" to insure

an aquittal. i.e. Casey Anthony...First degree murder.
This is a very corrupt state. Rotten from the head down.

[last1standing]

22. That I could believe.

Who knows what the defense will bring in but so far it doesn't look good for Zimmerman (it generally never looks good for the defense before they present there case). If this holds up and we find that the state didn't include lesser offenses then it will look like a quid pro quo.

[Bluenorthwest]

119. I'm no sort of lawyer but I have been told by one who should know that the

inclusion of lesser charges for consideration by the jury is required in Florida in a case such as this one.

[Nevernose]

30. His doctor hit his self defense claims pretty hard

Says the wounds were minor, to the extent that a person with hair wouldn't have gotten his half inch scratch. Also she revealed that he'd gone to work the next day (so much for being wounded severely) and that he trained in MMA three times weekly (goes to the statement changing neighbor who described an MMA-style assailant).

Like many, I definitely think he's guilty of manslaughter, but the state will have a hell of a time proving the intent of murder.

[last1standing]

35. I didn't watch or hear the actual trial but it sound like the prosecution did its job.

They damaged the credibility of the only direct witness that I've heard about and made a strong case that Zimmerman's wounds did not rise to a level where he should have feared for his life. It'll be interesting to hear what the defense brings out.

[Nevernose]

39. Eyewitness testimony is awful

In this case it's awful, but in general it's unreliable. A lot of the case hinges on eyewitness testimony.

What I found fascinating was the prosecutor. Yesterday we assumed he was a total dipshit. Why would he bring on a witness who would testify that one guy was beating another MMA style, one who claimed that he couldn't see the faces but could see the clothing?

Today it seemed obvious, because "peactices MMA 3x weekly" was in the medical records as his exercise. The defense very well might not call any witnesses at all, so this got that testimony into the record.

[last1standing]

75. That does seem a clever move in hindsight.

Remember, the defense hasn't even warmed up yet. Things can change.

[nenagh]

90. Mark O'Meara, at the end, showed many blown up photos of Zimmerman's head taken

at the Police Station to the physician assistant.. She, i thought, diagnosed or gave medical opinions from the photo evidence...led by O'Meara's questioning she acknowledged areas affected all around Zimmerman's head...ie in 360' around Zimm's head she confirmed areas that likely could have had concrete related injuries, swelling and scraping trauma.

O'Meara was brilliant in verbalizing some medical terminology , and after that, like a lamb, I thought, this girl was led by O'Meara to diagnose from photos. The result was that Zimmerman's range of injuries made by concrete pounding was astronomically increased.

No longer did Zimmerman have just two cuts to his head...he has 360' injuries

[Voice for Peace]

40. except that he showed "depraved mind" by

1. following and stalking Trayvon, against advice
and against common sense

2. instead of turning himself in and giving an honest
account, he made up tons of confusing bullshit, trying
to make himself the victim.

3. also dealt dishonestly with the money raised from
sympathizers, and was dishonest with the court.

The defense attorney, both of them really, are not
moving or sympathetic characters. They are
super weaselly. I think they may succeed in
turning the jury against their client, simply
because they are so offensive and incredibly
boring and needlessly anal about every
ridiculous irrelevant thing they can grab hold
of

[Nevernose]

43. I agree wholeheartedly

I just think they'll have a difficult time convincing a jury.

I think 95% of their case rests on tedium. Either bore the jury into submission, or expose "lies" like "girl has nickname" or "girl left out dirty words because she didn't want to offend grieving mother" or, shocker of all shockers, "girl doesn't sound like me when she talks."

[last1standing]

49. Based on what we've heard it doesn't look good for Zimmerman.

But tomorrow is literally another day, especially for the defense.

[Voice for Peace]

50. I was just reading on the Findlaw site and

they seem to be explaining this stuff well re
Z's affirmative defense.

and more re self-defense:

http://lawbrain.com/wiki/Self-Defense

thanks for the conversation by the way.

[last1standing]

56. Thanks.

I'm genuinely interested in the case but I'm also using this as a way of boning up on the subject. It's been a great refresher.

[Voice for Peace]

95. this is another source with different info about the affirmative defense

saying in Florida, it is the prosecution who has the
burden of proof, not the person claiming self-defense.

"Self-defense is an affirmative defense.

An affirmative defense admit the act (killing another person in a murder case) but denies legal responsibility.

Usually the defendant has the burden of proving the affirmative defense, but in Florida, the prosecution has the burden of disproving the defendant’s claim of self-defense in the jury trial.

The reason for the difference is the legislature defined it that way."

http://frederickleatherman.com/2012/07/12/zimmerman-jury-instructions-for-second-degree-murder-and-self-defense/

[RudynJack]

37. Why ask us?

We're not the jury.

It astounds me that people feel the need to come down firmly one way or another on this case (or any other newsworthy trial). He's being tried, a jury will decide. None of us knows exactly what happened that night.

Why is it so difficult to withhold judgment?

[last1standing]

48. Because this is a discussion forum and I wanted to discuss the case.

Also, because I wanted to point out that the question isn't whether Zimmerman is innocent or guilty, but whether he was justified in killing Martin. I think it's an interesting question and it appears others agree. I'm sorry if you don't.

[RudynJack]

60. The discussion would be better

if it wasn't based on a false premise. He hasn't been proved (sic) guilty. Guilt is a legal concept, and one that is being tried right now before a jury. They will decide if he's guilty.

But in the bigger picture, I just don't understand the obsession with every nuance of these cases. It seems like the basest form of voyeurism and gossip.

[last1standing]

66. I'm a law student. It's my job to obsess over every nuance.

It may be voyeurism but it helps me learn to be a good lawyer.

[flvegan]

55. Back up your post. Show proven, and of what.

I'll wait.

[last1standing]

61. Ok. Zimmerman has admitted that he killed Martin.

Admission is taken as proved in a court of law. The fact that Zimmerman killed Martin is not a contested fact therefore it is proved.

Now the only question is whether Zimmerman can prove by a preponderance of the evidence that he killed Martin in self defense. The point of this thread is to point out that the burden of proof is on the defense, not the prosecution. That makes a very big difference in the likely result of the case.

[flvegan]

86. How is that "proved guilty" and please be specific, thanks.

[last1standing]

88. I was using "guilty" in the sense that he admits he did it.

I'm very sorry if that was not clear from the totality of my text or further posts in which I go into excruciating detail about how the question is whether he has an affirmative defense but I thought I made my point. If you would like to beat me up over a technicality please feel free. I'm sure I'll deserve it for far worse crimes that that.

[flvegan]

89. I love that you leverage your own "guilty" v an unknown to you affirmative defense.

Stupid lives and breathes. Technicality aside, sorry.

[last1standing]

91. Ok. Nice to meet you.

Bye now.

[Vattel]

57. Someone correct me if I am wrong, but I don't think Zimmerman has the burden of proof.

In Florida law, even though self-defense is an affirmative defense, that only means that the defendant must try to show that her actions met the standard for justifiable self-defense. The prosecution must still prove beyond a reasonable doubt that the defendant did not meet that standard. To quote a relevant Florida court opinion (Michael v Monjito):

"No, he [i.e., the defendant who claimed self-defense] did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense."

The full opinion can be found here: http://www.miami-criminal-lawyer.net/caselaw/2011/04/15/michael-v-montijo-appellant-v-state-of-florida-appellee/

[last1standing]

63. Florida could have a lesser standard.

Generally, the burden is on the defendant to prove by a preponderance of the evidence that he acted in self defense. If the state has lowered that standard, I would hate to live in Florida. Nearly any murder that hasn't been videotaped or seen by multiple witnesses who all stick to the same story could stand up to a reasonable doubt standard.

Very scary.

[last1standing]

71. Ok. I just skimmed that case and it doesn't sound as bad as I thought.

The Court held that the jury instruction placed an undue burden on the defendant to prove self defense beyond a reasonable doubt. That would conflict with the generally accepted standard of a preponderance of the evidence. I think the key holding is,

Indeed, as an affirmative defense, Montijo had the burden of coming forth with some evidence to support giving the instruction. This could have been accomplished in a variety of ways, including the direct and cross-examination of the witnesses or it may have been inherent in the presentation of the State’s case. The evidence necessary to support giving the justifiable use of force instruction, however, did not need to rise to the level of beyond a reasonable doubt.

So the defendant did have the burden of producing proof but for jury instruction purposes, this only had to rise to the level of presenting a reasonable doubt. The lower court didn't allow this and that was a fundamental error causing a reversal.

That makes more sense to me. Whew!



Edited to change "Beyond a" to "presenting a." Makes a big difference.

[Vattel]

97. I don't think you are reading the opinion correctly.

It is not particularly well-written and so I am somewhat uncertain myself how to read it, but it looks to me that the burden of proof is not on the defendant at all. I need to investigate this some more.

[last1standing]

99. I wasn't.

It was horribly written so I had to go through it deeper and look at other cases and sites to get a proper answer. It is as bad as I thought. While Zimmerman does have the burden of proof, the level is only to a reasonable doubt. After that, the prosecution must rebut his evidence beyond a reasonable doubt. I go into more detail in a post below.

Seriously, the way the law is currently being read in Florida, any murderer with a non-stoned lawyer get beat the rap. If this is what Floridians want that's fine but I would think very seriously about vacationing there. They value life too cheaply.

[customerserviceguy]

64. Acquitted or convicted

I'm sure someone will find a way to kill him. That good enough punishment for you?

[last1standing]

70. Nope.

I don't want anyone killed. Not Martin, not Zimmerman, and not even Casey Anthony. I want to see justice done whether that means Zimmerman is convicted or set free.

[customerserviceguy]

92. Come on

Even with an acquittal, George Zimmerman will have a target on his back unless he can be given a completely new identity. Even if he gets a "light" prison sentence for a conviction of second degree murder, he'll have to be kept in protective custody, or someone in prison will kill him. If he ever gets out, someone will kill him then.

He's been convicted in the media, and even his lawyer can't change that. All the lawyer is trying to do is establish that he can get an acquittal for someone who "everyone knows is guilty". Worried banksters are watching this trial with interest, they will be able to afford the tens of millions of dollars in legal fees and the security costs of staying safe after an acquittal.

[last1standing]

93. Not that I disagree with that, but I remember people saying the same about OJ Simpson.

He did alright until he tried to steal his old trophies back.

I can't say whether Zimmerman would be a target or not, only that I wouldn't want him to be. I don't believe in the death penalty under any circumstances including vigilante justice. I also don't support "teaching lessons" by rape in prison. I know it's a fantasy but I believe that prisons should focus on reform, not retribution.

[customerserviceguy]

98. OJ had enough money and fame

to avoid any consequences (other than the civil court proceedings) from his acquittal. Besides, as OJ was a sports star, white America was willing to let him alone after the trial was over. Is black America as willing to do the same with a GZ's possible exoneration? We may see.

[mindwalker_i]

69. Make him neighborhood watch dude of...

Richmond or Oakland in the Bay Area, or North Portand, OR

[Contrary1]

77. I would hate to be on this jury.

I served at a murder trial a few years back. It's rough enough not being in the spotlight.

***Edited to remove the part of my post that was incorrect.

[last1standing]

78. I've posted proof to the contrary several times in this thread.

Do you have anything that backs up the claim that the defense doesn't have the burden of proving it? I know Florida law can be a bit different but it is generally accepted that if anyone who killed another person could claim self defense without proof very few murderers would be convicted.

[ctaylors6]

100. Florida law: defense does not have burden proof

The following is a quote from one recent Florida case, summarizing the law: (I've also posted the jury instructions below the quote)

"When self-defense is asserted, the defendant has the burden of producing
enough evidence to establish a prima facie case demonstrating the justifiable use of
force. Montijo v. State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011); Fields v. State, 988
So. 2d 1185, 1188 (Fla. 5th DCA 2008); see Murray v. State, 937 So. 2d 277, 282 (Fla.
4th DCA 2006) (holding that law does not require defendant to prove self-defense to
any standard measuring assurance of truth, exigency, near certainty, or even mere
probability; defendant’s only burden is to offer facts from which his resort to force could
have been reasonable). Once the defendant makes a prima facie showing of self-
defense, the State has the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense. Fields, 988 So. 2d at 1188. The burden of proving
guilt beyond a reasonable doubt, including the burden of proving that the defendant did
not act in self-defense, never shifts from the State to the defendant. Montijo, 61 So. 3d
at 427; Fields, 988 So. 2d at 1188; see Monsansky v. State, 33 So. 3d 756 (Fla. 1st
DCA 2010) (explaining that defendant has burden to present sufficient evidence that he
acted in self-defense in order to be entitled to jury instruction on issue, but presentation
of such evidence does not change elements of offense at issue; rather, it merely
requires state to present evidence that establishes beyond reasonable doubt that
defendant did not act in self-defense); Murray, 937 So. 2d at 279 (explaining that
defendant in trial for aggravated battery was not required to prove self-defense claim
beyond reasonable doubt or by preponderance of evidence; rather, self-defense
evidence needed merely leave jury with reasonable doubt about whether he was
justified in using deadly force).


Jury Instructions from Florida sct website:

"If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved."

[last1standing]

103. The first line of your quoted text disagrees with your title.

"When self-defense is asserted, the defendant has the burden of producing
enough evidence to establish a prima facie case demonstrating the justifiable use of
force. Montijo v. State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011)"

As I've said in a few posts, it does appear that Florida's standard is lower than most other states, but the initial burden is still on the defendant. Once the defendant presents a prima facie case establishing self defense then the prosecution must rebut that case beyond a reasonable doubt. This is a very, very low standard for Zimmerman and may be what keeps him out of prison. It mostly depends on whether the jury takes this standard to heart.

I have admitted that my initial comments stating that the standard is a preponderance of the evidence was wrong. While that is the standard in the vast majority of states, Florida has lowered it to a level that I find disturbing. Even so, the Supreme Court of Florida is currently reviewing its self defense jury instructions in light of Talley v. State. I don't know what the result of that review will be but it will likely still be too low for my tastes.

[ctaylors6]

106. burden of presenting evidence

is not the same as burden of proof, in my opinion

In an earlier post, you stated, "It is up to Zimmerman to prove by a preponderance of the evidence that he acted in self defense." I just posted this case law excerpt because my reading of Florida case law is different than your reading of it. As the FL case law states, "The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did
not act in self-defense, never shifts from the State to the defendant. Montijo, 61 So. 3d at 427; Fields, 988 So. 2d at 1188; see Monsansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010)." I'm reading that as the the defense not having the burden of proof.

I'm not trying to be argumentative about anything. I'm just posting based on my reading of Florida case law, as opposed to general definitions and overviews of law that are not state specific. That is, after all, why we are licensed by individual states.

[last1standing]

108. Yes, and I stated that was wrong in my last post to you.

It is not a preponderance standard but a reasonable doubt standard - at the moment. It still means the burden is on the defense to at least present a case that a jury can consider.

I'm not trying to be argumentative, either. If I were, I wouldn't have changed my stance on the standard. I'm honestly interested in this case and the way Florida law is different than most other states. If you have information I'm not seeing or that I'm misinterpreting, I'm glad to read it. I would rather be proved wrong than to continue believing I'm right when I'm not.

[DrDan]

101. huh? so what about those second degree murder charges?

no proof necessary?

You should have informed the "state" of Florida that you have decided this so a lot of money and time could have been saved.

Would you now like to offer the punishment you have decided upon?

[last1standing]

105. I understand you wouldn't have read through every comment in this thread.

But I thought I was clear in the OP that the point was to talk about whether Zimmerman's defense had done its job in establishing a self defense pleading during the prosecution's case. I had planned on asking the same question after the defense had presented its case.

Sorry if you didn't read that in the OP, but if you take some time to read through the comments you will likely see that I've repeatedly said that the defense could change a lot of opinions.

[DrDan]

107. well - I was immediately confused when I read he was "proved guilty"

exactly who proved what?

[last1standing]

109. Again, please check out my many other posts where I explain it.

I'm not trying to be rude but I do believe that many here are merely trying to pick apart my words on technicalities so that they can win some internet points of debate. That's not why I'm here. If you want to win this 'debate' I'll concede immediately so that I can discuss issues with those who really want to discuss, not argue. If you really do want to discuss the issues, I'm very glad to do so.

Thanks.

[DrDan]

111. well- a lot of posts to read - but it is certainly my understanding

that second degree murder must still be proven. Yes, TM died. But that does not imply murder 2. State of mind must be proven.

IF that is proven to the jury, Z can still walk if the jury is convinced it was a case of self defense.

So to jump to the conclusion that only the punishment is at issue is simply not true.

then again, I am neither a lawyer nor a law student.

[last1standing]

117. You're correct that the prosecution still has to prove each element of the crime.

But Zimmerman's admission that he did in fact kill Martin goes a long way to establishing that element. As for the mens rea (intent), that is entirely a different matter and really the crux of this case. Did Zimmerman kill Martin in the midst of a fight he had started or did he get set upon and shoot out of self defense for fear of his life?

While Florida's jury instructions state that the defendant only needs to prove that he reasonably feared for his life or grievous bodily harm, it may still be difficult for Zimmerman because he still needs to present a reasonable argument that either he was attacked or that he believed Martin had a lethal weapon. I'm not sure either of those defenses will be so easy to argue.

If Zimmerman tries to say that he was minding his own business and Martin attacked him with no cause, it flies in the face of who was in that place at that time for what purpose. It has been established that Martin was on his way back home after purchasing candy and iced tea from a local shop while Zimmerman was looking for suspicious people as part of his duties in the neighborhood watch. That already sets up a predisposition that it was Zimmerman who had a reason to confront Martin, but no reason for Martin to confront Zimmerman. When we add to this that the authorities had already told him to stay in his vehicle but he left it anyway, a reasonable person will generally ask why he did so if he believed the stranger could be dangerous.

If Zimmerman argues in the alternative that even if the jury believes he put himself in a dangerous situation and did confront Martin, he then has to make them believe he reasonably thought Martin had a lethal weapon and that he was prepared to use it. Even though it was dark, I think the defense will have a hard time convincing a jury that a reasonable person would mistake an iced tea and a bag of candy for a lethal weapon, especially if any time was spent on words which would have allowed a reasonable person to assess the physical situation. And since there was a 50lb size difference in Zimmerman's favor, he isn't likely to succeed in claiming that he was in fear for his life from a smaller person.

On Zimmerman's side are his wounds. There has been much said about them on both sides but the only people who matter are on the jury. I think the entire case will boil down to whether the jury believes Zimmerman's wounds were severe enough to make him fear for his life. From the evidence I've seen, I'd be skeptical but others obviously feel differently.

So either way, both parties have a Helluva battle to prove their theory of the case. I will say that in nearly any state but Florida, Zimmerman would be in big trouble.

[DrDan]

120. Zimmerman's woulds are big points for his side - if they can explain the lack of DNA/wounds on TM's

hands. If they can explain that successfully to the jury, then I think Z walks. All of the state's witness so far have also provided evidence for the defense. Having watched a good deal of the testimony, I would say it is pretty evenly split right now. And we have yet to get into the defense's case. I think second degree murder is a huge uphill battle right now.

But . . . weeks of testimony left.

[GreenStormCloud]

116. It is premature to ask for a verdict.

The prosecution isn't through yet, and the defense hasn't had their turn yet.

Patience, grasshopper, patience.