Why I don't think the Zimmerman trial is 'over'

[localroger]

It was all over the (mostly RW) radio this morning that it's been a disastrous week for the prosecution with witness meltdowns and the defense has performed solidly, and our buds at Fox declared this morning that "it's over."

Of course lots of people look at the public facts and can't figure out how it could end up anything but a conviction. I'm firmly in the Z guilty as sin camp myself.

But this trial is going to come down, more than anything else, to closing arguments and jury instructions. There's very little that can be proven about what happened that night except that Z put a bullet in TM. Everything else is he-said-he-couldn't-say-because-he's-dead.

The facts as we see them -- and this could be from either pro- or anti-Z camp -- do not always sort out the way we think they will or should in court. Exhibit A: OJ's acquittal.

Here's what I've seen nobody credibly discuss. My understanding -- though IANAL -- is that even in Stand Your Ground Florida self-defense is an affirmative defense. This means the state doesn't have a burden of proof to a certain extent; Z has admitted to putting a bullet in the now stone cold TM. That point is not in dispute. He's admitted to it.

That being the case, I believe Z now has the burden of proof to show that he had grounds to shoot TM in self defense. SYG lowered that bar quite a bit; he doesn't have to prove that he attempted retreat, but he does have to prove that a reasonable person in his situation would have feared for his life. He has to prove it, as in beyond a reasonable doubt, because he's admitted to the part where you get the benefit of the doubt and he killed a teenager. He now has to prove that his reason for doing it meets the state's standard.

But what about that "depraved mind" stuff for Second Degree? I don't know. It seems to me the prosecution might have to meet the burden of proof there to go for more than manslaughter.

So what role will doubt play in this, given that with all the conflicting testimony and unknowns the jury will enter the jury room with a mountain of it? I think it's going to come down in large measure to closing statements and jury instructions. The judge will tell the jury where to fall when there is doubt, and this is new territory with the SYG criterion. How damaging will it be when the prosecution closes with a long list of Z's own words showing a paranoid cop fetishist stalking an innocent kid, provoking an altercation which ends with the kid dead, and then contradicting himself over and over as he says whatever he thinks he needs to to save his sorry ass? Given the opening arguments I'd bet a large sum of money that's what the prosecution has on plan. Do they really need all their own witnesses to line up, or do they just need Z to be inconsistent and unbelievable?

How much damage did bullying TM's mother do, with a jury packed with mothers? It can't have helped.

Will the jury be told that if in doubt they must acquit, or that if they doubt the grounds for self-defense they must convict? If there's a lawyer around who actually knows the answer to that I'd be very curious, because I haven't seen anybody address it and I"m not sure if anyone other than the judge really knows.

If the defense doesn't rest and hope the seeds of doubt sown so far are enough it's likely to be another roller coaster ride as witnesses are cross-examined and stories either align or conflict. In this phase the prosecution has the advantage, though; the defense needs to make Z's sketchy story look credible by showing consistency in the evidence and testimony, while the prosecution has the much easier job of trying to drag inconsistencies and errors into the open.

This is why the defense badgered TM's mom so roundly. They really needed to erase that confident conflict with their story by all means possible, and they failed badly while making themselves look like asses in the bargain.

Yes I have a strong opinion and I know how I want it to end. But it's going to turn on small things often invisible to us at our end of the satellite link. We won't know how it's going to end until the verdict is read.

[demgrrrll]

1. Good post and I think you are right.

[lumpy]

6. I hope there is more testimony. The thing that is hard to believe, as argued by

the defense, that Zimmerman was in danger of losing his life. It takes more than Zimmerman,s fear to prove he actually was in a life threatening position. He had the weaponless Martin pinned on the ground straddling him and claimed holding his arms. He had the gun in his possession. He turned down needing help from a resident in subduing Martin at that time so he ends up shooting the victim,struggle over.... He had other options other than using his gun; he could have dismounted from Martin and retreated with his gun knowing that there was help nearby by more than one witness. Maybe he was in fear his quarry might flee; with police and other witnesses in the area it was doubtful Martin would have gotten far; Martin father was in the complex so he had a place to run to.
It is so tragic that a life could be taken by one man's ridiculous assumptions and selfish desire to be a hero. He should have to be made an example of the price to be paid by reckless ambition and little consideration for a human life,

[YarnAddict]

10. I don't believe so.

They don't have to "prove he actually was in a life threatenig position." He really only had to have a reasonable fear that he was, in order for self-defense to apply. Did he have that fear? Who knows? You'd have to be psychic to know what he was actually thinking.

I'm just glad I don't have to be a juror in this case.

[localroger]

12. I think they have to prove a reasonable person would have that fear

But IANAL etc. The refusal of the motion to dismiss today suggests that there is a burden of proof on the Defense to make their self-defense claim despite doubt in the matter of some elements of the second degree murder charge. It's all very weird and likely to be decided on matters that are not strictly by the court's instruction in the end.

[PennsylvaniaMatt]

2. You're right...and I think it's funny that many in the right-wing media are saying that...

Because Michael Savage, one of the most right-wing radio hosts in America, was blasting Zimmerman the other night. He said that many in his audience wouldn't like his comments, and proceeded to call Zimmerman a "loser type, a mall cop that couldn't make it as a cop" and said that Zimmerman was out hunting looking for someone to shoot.

[localroger]

5. Wow

It is kind of obvious but it's interesting that the RW noise machine isn't marching in lockstep. Seems to be a problem for them in general lately.

[Tom Ripley]

8. I never thought I would say this, but Michael Savage is absolutely correct

[Honeycombe8]

3. Prosecution atty said that, first, they have to prove the elements of the crime.

It is only AFTER the proving of all those elements do they reach the defense's burden of proving self defense.

If the jury finds that the prosecution did NOT meet its burden of proving ALL the elements of the crime, then it does not matter whether the defense successfully proves self defense.

As for "doubt" instructions to the jury, those instructions are standard, formulaic, and already typed up somewhere, ready to be inserted in the instructions. It's "reasonable doubt," as we all know. The instructions will also define "reasonable doubt" for the jury.

The defense will be putting on its case next week. The attorneys still have a couple of depositions to take, believe it or not! That's unbelievable.

Juries can decide to discount any testimony they hear, so that's a wild card.

[localroger]

4. Yes, this too

Juries can decide to discount any testimony they hear, so that's a wild card.

Whatever the instructions are the jury can always decide to ignore them. Whether these six soccer moms will be prone to do that, who knows.

I really don't think the instructions are as cut and dried as usual in this case. They weren't in the OJ case, and that was a much more straightforward burden of proof duel. Also, if the prosecution has to meet burden of proof for "depraved mind" for second degree, do they get a pass on manslaughter as an alternative since there is no doubt that Z shot and killed TM, or have the prosecution overcharged and risked letting Z walk trying for a bigger charge instead of taking the slam-dunk?

[Honeycombe8]

9. Not legally, they can't. But they can legally discount testimony as not credible.

The instructions to them will say so. The reason is that a jury's job is that as FACT FINDER. It is the jury that decides the credible facts in a case. Not the lawyers, not the public, not the Judge. But it is the Court's job to determine what laws apply and to instruct the jury on what laws apply. The instructions will have questions for the jury to answer about each element of the crime that must be proved. The jury will have to answer "yes" or "no."

But the law parts of the instructions are, well, the law. They are not legally allowed to disregard it. If they find "guilty," for instance, despite there not being the evidence to support that, the defense can ask the trial court to set aside the verdict, and later on appeal, move for cancelling the verdict as not being based on the evidence. Some cases have been set aside, tho not often.

The "reasonable doubt" and such instructions will be formulaic and in someone's computer already. They basically just restate the legal provisions, only maybe put it in more layman's terms.

I don't know how the lesser alternative works. I only know about it because some posters here have said it exists, and the lawyers mentioned it during their arguments about the motion to dismiss.

[localroger]

11. Actually, legally, they can

They won't be told so, and the court might get quite pissed at them if they exercise a very obvious jury nullification, but they are a jury and their decision stands no matter what they base it on in the seclusion of their own deliberation. This is why things like badgering TM's mother could be so dangerous. With so little fact to go on, this jury will be likely to be guided more than most by its heart.

Edit to add: Setting aside a jury verdict is EXTREMELY rare and pretty much requires proof of something that's almost impossible to prove. It pretty much requires a juror to publicly admit some gross violation of the directed procedure.

[Honeycombe8]

16. Yes, it's called jury nullification. But any jury that doesn't follow the law...

risks having their verdict overturned. But how would you prove nullification.

I did see something on tv...documentary I guess....that showed parts of a man's life and a trial that resulted in jury nullification. Very sad documentary about the man's life. Jury nullification was the right thing to do. Technically, he had broken the law, but there was evidence he hadn't meant to. No harm done, but because of a prior conviction, it would've meant jail for the rest of his life. He'd already had a horrible life. The jury came in with a not guilty verdict, when it was a slam dunk for guilty. The lawyers and everyone knew the jury had nullified, but no one did anything about it. It was the right verdict for that case.

Sometimes the law has too harsh consequences for some situations.

Now that I think of it, that is part of a jury's job, too. To render the right verdict for the circumstances. But that's scary, since I can think of some people who would be glad to render a verdict based on skin color or gender or ethnicity or station in life.

[localroger]

18. Yes. Also, overturned verdict doesn't mean a walk.

It means a new trial, if the state decides to try again.

[localroger]

7. This just in

Saw the following two paras in the Yahoo News update of the day's action:

Zimmerman's defense lawyer had asked for the dismissal once prosecutors rested their "so-called case in chief," arguing that prosecutors had failed to prove a case based "at least 98 percent (on) circumstantial evidence."

Prosecutors countered that Zimmerman offered at least three different explanations for how his confrontation with Martin began, however, casting doubt on his claim of self-defense.

This suggests strongly that the prosecution is arguing that doubt about the self-defense claim is alone justification for the trial to proceed, and the judge agreed. As I said, this thing is not as clear as it might seem.

[Vattel]

13. You are mistaken about the burden of proof.

http://www.democraticunderground.com/10023148334

[localroger]

14. Very interesting

From your link: The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue.

As I said in the OP, this will partly come down to jury instructions. And this implies that those are not in fact sealed in amber. Assuming the jury follows instructions with head instead of heart, those instructions may very well determine the verdict, and this implies that there is a preponderance of evidence sort of thing going on with regard to what the judge decides to include. This is exactly the kind of dynamic I think will be very important and which nobody seems to be talking about.

[DirkGently]

15. Zimmerman's bar is lower than that.

Can't speak to exactly how it plays out in practice, but case law indicates he only has to provide the elements of self-defense. The court will decide if he has, and if so, the prosecution has to *overcome* that beyond a reasonable doubt.

I think him simply telling a story that meets the facial requirements (in fear of death or great bodily harm) is good enough to shift the burden back on the state. The state then has to in effect *disprove* it was self-defense.

That's a tough row to hoe, in my opinion.

Not on one of the "teams" here. I think Zimmerman's a bad guy who caused all this, but I also think he has a significant upper hand in terms of who has to prove what here.

[localroger]

17. 'The court will decide if he has?'

So basically the judge gets to decide whether there is a burden of proof? But there's no burden of proof on the judge? And people think they know how this is going to play out?

[DirkGently]

19. Judges determine a lot of threshold issues. I think it indicates the bar is low.

Judges do a lot of basic gatekeeping as to what is admissible and whether certain requirements have been met to argue certain things.

Sure, you can't call it with certainty, but basically what you're looking at with this type of issue is whether someone has presented enough to show they MIGHT be right.

You wouldn't want the bar to be too high on people being able to argue something like self defense.

Here, Zimmerman has a story that meets the basic requirements. If everything happened the way he said, he at least has an argument.

I see a lot of people saying he's such a terrible person, or has been untrustworthy in one aspect or another of the case that he can't be believed, but I don't think a judge is going to make that determination for the jury.

This guy knows what self-defense is -- he apparently took a class in it. Be very surprising if the judge found the jury can't even consider the possibility he's telling the truth.

[localroger]

20. I don't think it's 'can't consider possilibity he's telling the truth'

The quesiton is if you're unsure, because everything about this case is unsure, do you fall on the side of guilt or innocence? We're very sure Z shot TM and killed him, but nothing else is sure. So how sure does anybody have to be? Sounds like the judge will pretty much decide that herself and probably the verdict in direct cascade fashion.

[DirkGently]

21. This is the problem when one person is dead & another

... claims self-defense. Unless there are good witnesses, there's only one person around to tell the story.

[DemocratSinceBirth]

22. Some times the defense does more harm than good when they put on a defense

It allows the prosecution to poke holes in the defense's theory of the case.