Author Topic: Stand Your Ground I  (Read 8253 times)

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Offline TalkLeft

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Stand Your Ground I
« on: July 03, 2012, 12:09:28 PM »
How do Florida's Stand Your Ground and self-defense laws fit into the George Zimmerman-Trayvon Martin case and what's the difference between them?

Read this account in the Miami Herald by Scott Hiassen and David Ovalle of the Quentin Wyche case, which is still ongoing.  It involves two FIU football players. One, Kendall Berry, is dead. The other, Quentin Wyche, has been charged with second degree murder as a result of stabbing Berry to death. Wyche raised "Stand Your Ground" as a bar to prosecution, which required the judge to hold a factual hearing. The judge said he couldn't decide between the competing evidence presented by the state and defense, so he denied the motion. It will go to a jury trial where Wyche can still raise both stand your ground and self defense.

The Judge is Miami Circuit Court Judge Milton Hirsch, whom I know and respect. He was a long time criminal defense lawyer before becoming a judge. I asked Scott Hiassen for a copy of the opinion and he graciously emailed it to me. I have uploaded it here.

While the facts are different than those involved in the George Zimmerman - Trayvon Martin shooting, after reading a dozen or so Florida court opinions on Stand Your Ground and self-defense, I think Judge Hirsch explains them and the court procedures most clearly (minus his Shakespeare and historical references, sorry Judge Hirsch.)

Judge Hirsch found the disputed evidence was "in equipoise", meaning there was equal evidence on both sides. Thus, he couldn't say Wyche met his burden of proving immunity from criminal prosecution under Stand Your Ground by a preponderance of evidence, and the case had to go to a jury. At the jury trial, his ruling cannot be used to prevent Wyche from obtaining a jury instruction of either immunity under Stand Your Ground or traditional self-defense.

Judge Hirsch's conclusion:
The record before me is silent when it most needs to speak. There is general consensus regarding a confrontation between Wyche and Berry, general consensus that Wyche ran from that confrontation and that Berry followed. It is there that the narrative ceases.

Did Berry, or Berry and his companions, hunt Wyche down and present him with no choice but to kill or be killed? Or did Wyche arm himself and then turn upon Beny at a time when Berry had broken off the chase, or was at worst offering a reprise of the chest-pounding in which the two young men had engaged at the outset of their conflict?

The record does not tell me. I can draw no conclusion. And because I can draw no conclusion, this motion must fail. The evidence is in equipoise. The defendant has not met his burden of proof.


The opinion is 16 pages and not easily cut and pasteable because it's a faxed copy. I was able to OCR much of it, and condensed the relevant legal points here. Any typos are the result of the conversion process and not Judge Hirsch. Here's my synopsis, but I suggest reading Judge Hirsch's words.

Self defense is an affirmative defense to the crime of homicide. It has the effect of legally excusing the defendant from an act that would otherwise be a crime.

Stand your ground is not a defense, but an immunity statute, providing immunity from criminal prosecution. It is a bar to prosecution (and yes, arrest.)

A defendant charged with a crime who wants to raise Stand your Ground files a motion to dismiss claiming stand your ground immunizes him from prosecution. Here is a typical motion, filed in another case in December, 2011. Here's another filed in January, 2012.

A hearing is held before trial.  The burden is on the defendant to prove by a preponderance of evidence that stand your ground immunity applies.

The judge weighs the facts. If the judge agrees the defendant has shown stand your ground immunity applies by a preponderance of evidence, the charges are dismissed. The defendant can't be prosecuted.

If the judge finds the defendant hasn't  met his burden, (including if the disputed evidence is so equal on both sides the judge can't decide one way or the other) the case goes to trial to be decided by the jury. At trial, the defendant can still argue both self-defense and stand your ground immunity  -- he only has to establish some evidence of his theory, which can be just his own testimony, that he acted in self-defense.

The prosecution must prove his guilt at the jury trial beyond a reasonable doubt. Which means, if the defendant raises self-defense or stand your ground at trial and gets the jury instruction, the state, which has the burden of proving guilt beyond a reasonable doubt, must disprove self-defense. If the jury has a doubt, the defendant must be acquitted.
If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's  ruling has no preclusive effect....

Such a defendant would still be free at trial to plead his claim of immunity to the jury. At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt.

To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.

A few other quotes that may be helpful:
If the facts are as the defense claims they are, Mr. Wyche need not rely on "Stand Your Ground;" the common law would justify him. The common law justified a defendant who discharged his duty to retreat, but was pursued by his nemesis, in using force - even force calculated to cause death or serious bodily injury - to defend himself.

As applied to the facts of the case at bar, the only difference between the law as it existed prior to "Stand Your Ground" and the law as it presently exists is that a defendant can now seek a pretrial judicial determination as to the validity of his act of putative self-defense (which determination, if in his favor, brings the case against him to a permanent end) rather than having to await the decision of a jury of his peers.

If the facts are as the prosecution claims they are, Mr. Wyche cannot rely on "Stand Your
Ground;" the statutory law would not immunize him. The statutory scheme entitles a defendant to stand his ground. It does not entitle him to abandon his ground, then arm himself, then hunt down his nemesis and kill him, and afterward assert a claim of immunity

The Wyche case, as I said, is factually different than the Zimmerman-Martin case. But I think its explanation of the statutes, defenses, burden of proof and court procedures is quite helpful. 

I've excerpted some of the relevant statutes on self-defense, stand your ground, murder, and manslaughter here.

On the issue of bond, in case I don't get back to it soon, here's Judge Hirsch's decision in Wyche after holding an "Arthur Hearing" finding Wyche was entitled to bond.  Again, it's a good explanation of the procedure.

Offline Mr. Filexican

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Re: Stand Your Ground I
« Reply #1 on: July 03, 2012, 04:44:23 PM »
Thanks for the forum. One thing I'm not clear about is what exactly a "preponderance of the evidence" means. I realize I can look it up, but I still won't come away with the same understanding as somebody who can actually explain it to somebody else. I know reasonable suspicion, probable cause, and some other terms, but the lawyer speak has always thrown me off.

As I understand it, a preponderance of the evidence is the evidence that gives favor to an argument, and it doesn't necessarily have to be beyond a reasonable doubt. I wouldn't feel comfortable explaining it to anybody, though.

As far as Stand Your Ground, in my layman's understanding of Florida's chapter 776 statute, even if Jorge was committing an unlawful act he would have been justified in resorting to the use of lethal force so long as he attempted to withdraw from the situation first. Since Jorge was mounted and unable to withdraw, yelling for help would constitute a reasonable attempt to withdraw.

The problem that Jorge is going to have as I understand it, is that Jorge had to have legitimately been in fear for his life or he had to believe that he was about to endure great bodily harm.

I was arguing with a guy on my YouTube channel about this very subject last night. This guy is adamant that if Jorge was committing a felony then he wouldn't be entitled to a SYG defense. I told the guy he was wrong, but that was just based on my understanding of the law. I've yet to hear a legal analyst/expert talk about the circumstances of Jorge's situation. That he was mounted and unable to withdraw from the confrontation-even if he were the one to initiate it-changes the whole dynamic of the situation.

I'd like to hear from somebody who has legal expertise, but a simple, credible explanation will work just fine.

Offline TalkLeft

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Re: Stand Your Ground I
« Reply #2 on: July 03, 2012, 08:47:59 PM »
Mr.Filexican, please call George Zimmerman by the name he uses -- George  -- and not  Jorge.  Thank you.

The answers to your questions are on TalkLeft, in many places, see here, and the posts referenced in it.  More here.

Preponderance of the evidence means more likely than not.  It's more than reasonable suspicion or probable cause, and less than clearly convincing or proof beyond a reasonable doubt.

The felony exception to Stand Your Ground is inapplicable in this case because GZ is not charged with a felony independent of the one he's claiming self-defense for --  shooting Trayvon Martin. Florida case law is clear as day on that, so whoever is saying differently is wrong.

Even if  George Zimmerman was found to be the aggressor -- which is highly unlikely in my view -- he could still respond to Trayvon Martin's attack on him with deadly force if he feared serious bodily injury or death, and had no lesser means available to escape the danger. In the words of the statute, an aggressor can use deadly force when:

Quote
 Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant;

Zimmerman's fear of serious bodily injury or death from Trayvon need not be real or actual. He just has to believe it's real, and that belief has to be reasonable. Even if he was the aggressor, the jury would be instructed (relevant instructions are here) :

Quote
In deciding whether defendant was justified in the use of 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 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.


Offline Jozz

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Re: Stand Your Ground I
« Reply #3 on: July 03, 2012, 08:59:16 PM »
Thanks for the forum. One thing I'm not clear about is what exactly a "preponderance of the evidence" means. I realize I can look it up, but I still won't come away with the same understanding as somebody who can actually explain it to somebody else. I know reasonable suspicion, probable cause, and some other terms, but the lawyer speak has always thrown me off.

As I understand it, a preponderance of the evidence is the evidence that gives favor to an argument, and it doesn't necessarily have to be beyond a reasonable doubt. I wouldn't feel comfortable explaining it to anybody, though.

As far as Stand Your Ground, in my layman's understanding of Florida's chapter 776 statute, even if Jorge was committing an unlawful act he would have been justified in resorting to the use of lethal force so long as he attempted to withdraw from the situation first. Since Jorge was mounted and unable to withdraw, yelling for help would constitute a reasonable attempt to withdraw.

The problem that Jorge is going to have as I understand it, is that Jorge had to have legitimately been in fear for his life or he had to believe that he was about to endure great bodily harm.

I was arguing with a guy on my YouTube channel about this very subject last night. This guy is adamant that if Jorge was committing a felony then he wouldn't be entitled to a SYG defense. I told the guy he was wrong, but that was just based on my understanding of the law. I've yet to hear a legal analyst/expert talk about the circumstances of Jorge's situation. That he was mounted and unable to withdraw from the confrontation-even if he were the one to initiate it-changes the whole dynamic of the situation.

I'd like to hear from somebody who has legal expertise, but a simple, credible explanation will work just fine.

The media is controlling the direction of the conversations on their show. They don't want people to understand the statutes and how they apply to this case. They're still selling advertising space and right now, Supporting George doesn't look as popular to them. They're wrong though. Gun owners and defense experts support George. Don't get me wrong, they don't agree with all of his actions, but they do recognize that he was being assaulted and has a right to defend himself.

It is not illegal to watch someone, follow someone or even confront someone. It is illegal to assault someone though and there is no evidence what-so-ever that George threw the first punch. We also know from the timeline available through phone records that Trayvon had enough time to reach his residence and didn't. There is an issue there, one that we may never know the answer to.

Offline unitron

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Re: Stand Your Ground I
« Reply #4 on: July 03, 2012, 10:53:29 PM »
Perhaps Mr. Filexican can direct us to a source for a document where 2nd degree murder is charged and the defendent's name is given as "Jorge".

If he does, I'm doubtful that the defendent's middle name will be given as Michael and the last name will be given as Zimmerman, nor that the victim's name will be given as Trayvon Benjamin Martin.

Which makes me wonder about the motive for his exercise in futility, since he's obviously not speaking of the same case as the rest of us.

Offline unitron

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Re: Stand Your Ground I
« Reply #5 on: July 03, 2012, 10:55:18 PM »
Doesn't a preponderance of the evidence just mean "a great majority of it"?

As in "not 100%, but a great deal more than just 51%"?

Without regard to whether it's used to mean that the preponderance of the evidence favors or disfavors or has nothing to do with any particular theory or contention?

Offline Jozz

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Re: Stand Your Ground I
« Reply #6 on: July 03, 2012, 10:57:50 PM »
Perhaps Mr. Filexican can direct us to a source for a document where 2nd degree murder is charged and the defendent's name is given as "Jorge".

If he does, I'm doubtful that the defendent's middle name will be given as Michael and the last name will be given as Zimmerman, nor that the victim's name will be given as Trayvon Benjamin Martin.

Which makes me wonder about the motive for his exercise in futility, since he's obviously not speaking of the same case as the rest of us.

If you've seen his youtube channel, you understand why he does it.

Offline Jozz

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Re: Stand Your Ground I
« Reply #7 on: July 03, 2012, 10:58:56 PM »
Doesn't a preponderance of the evidence just mean "a great majority of it"?

As in "not 100%, but a great deal more than just 51%"?

Without regard to whether it's used to mean that the preponderance of the evidence favors or disfavors or has nothing to do with any particular theory or contention?

So far, the physical evidence we do have, which side would you suggest that the evidence supports?

Offline Mr. Filexican

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Re: Stand Your Ground I
« Reply #8 on: July 03, 2012, 11:31:18 PM »
I was posting in the two threads under the Self-Defense heading. Maybe I'm a little mixed up here.

Say Jorge attempted to kidnap Trayvon Martin without drawing his firearm. Everything else played out like it did.

I already know you can't kill somebody in an attempt to flee a crime.

It can't simply be that the commission of a felony is the equivalent of the forfeiture of a person's right to life in the land of life, liberty, and the pursuit of happiness. If I attempt to rob your liquor store with a firearm, drop the firearm on your side of the counter and then kneel to plead for my life you wouldn't be justified in shooting me.

I don't remember the outcome of that one pharmacist who walked up to the kid laying on the ground and continued to shoot him, but I do know he was arrested. There was no threat.

Likewise, there was no threat from a screaming, crying Jorge. At least that's my reasoning.

Offline Jozz

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Re: Stand Your Ground I
« Reply #9 on: July 03, 2012, 11:39:53 PM »
I was posting in the two threads under the Self-Defense heading. Maybe I'm a little mixed up here.

Say Jorge attempted to kidnap Trayvon Martin without drawing his firearm. Everything else played out like it did.

I already know you can't kill somebody in an attempt to flee a crime.

It can't simply be that the commission of a felony is the equivalent of the forfeiture of a person's right to life in the land of life, liberty, and the pursuit of happiness. If I attempt to rob your liquor store with a firearm, drop the firearm on your side of the counter and then kneel to plead for my life you wouldn't be justified in shooting me.

I don't remember the outcome of that one pharmacist who walked up to the kid laying on the ground and continued to shoot him, but I do know he was arrested. There was no threat.

Likewise, there was no threat from a screaming, crying Jorge. At least that's my reasoning.

Nope, George didn't appear to be a threat to Trayvon, as Trayvon seemed to make short work of him, until he was able to get to his firearm. That being said, There is no evidence of any kidnapping or attempted kidnapping or even George attempting to detain Martin until police arrived, though if he wasn't doing anything illegal telling him that police were on the way shouldn't have angered him.

Since there is no evidence of a crime and the only charge comes from the end of the altercation, With his injuries, It seems George was acting in self-defense and was within his rights. If the prosecutor had any evidence to suggest a crime prior to Trayvon being shot, George would have been charged with that crime as well.

Offline cboldt

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Re: Stand Your Ground I
« Reply #10 on: July 04, 2012, 03:36:48 AM »
Doesn't a preponderance of the evidence just mean "a great majority of it"?

As in "not 100%, but a great deal more than just 51%"?

Nope.  "Preponderance" means whichever side has greater weight.  If it's 50-50, there is no decision, but once the evidence wavers from 50-50, ever so slightly, then you give the decision to the side with more weight.  This is usually described as 51%, but could just as well be 50.0000001%

Offline Mr. Filexican

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Re: Stand Your Ground I
« Reply #11 on: July 04, 2012, 07:03:57 AM »
Nope.  "Preponderance" means whichever side has greater weight.  If it's 50-50, there is no decision, but once the evidence wavers from 50-50, ever so slightly, then you give the decision to the side with more weight.  This is usually described as 51%, but could just as well be 50.0000001%

Thanks for that explanation. Simple to understand, easy to explain.

Offline unitron

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Re: Stand Your Ground I
« Reply #12 on: July 04, 2012, 08:14:02 AM »
Nope.  "Preponderance" means whichever side has greater weight.  If it's 50-50, there is no decision, but once the evidence wavers from 50-50, ever so slightly, then you give the decision to the side with more weight.  This is usually described as 51%, but could just as well be 50.0000001%

I had always had the impression of preponderance being "heavier" than that, perhaps because of associating it with "ponderous".

Offline unitron

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Re: Stand Your Ground I
« Reply #13 on: July 04, 2012, 09:59:47 AM »
So far, the physical evidence we do have, which side would you suggest that the evidence supports?

Irrelevant to the definition of "preponderance".

Offline Jozz

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Re: Stand Your Ground I
« Reply #14 on: July 04, 2012, 10:05:37 AM »
Irrelevant to the definition of "preponderance".

So what you're really saying is that you don't want to answer the question. You should have just ignored it then. My question was rhetorical because everyone knows that as far as physical evidence goes, It all points to defense. Now if you want to talk about woulda coulda shoulda and inconsistencies, the Prosecution should have something to talk about all day long. "It's avoidable" or "He had two chances" aren't a good enough reason to charge someone with manslaughter, though the prosecution felt it necessary to charge George with Second degree murder. So what's their evidence? That question is to anyone. Does the prosecution have any evidence that isn't character based speculation?

 

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