Author Topic: Can O'Mara Challenge Probable Cause Affidavit?  (Read 13049 times)

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Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #15 on: July 09, 2012, 11:54:20 PM »
I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?

There's always a judgment call to be made, but my guess is that those statements played a significant part in the prosecution's decision.   They clearly evidence a sense of anger and ill-will toward the class of people to which GZ seemed to assume that TM belonged (potential burglars) at the time he made the call.  Without those words, I'm not sure what circumstances the prosecution would have drawn on to support that charge.

To be clear:  I am not saying that those words are enough by themselves, or that the "sense of anger and ill-will" necessarily equates to the "depraved mind" required for murder.  They are just part of the circumstances in this case.

I also think that the significance of those words is not solely their use as to evidence of GZ's mental state. I think the prosecution also think they undermine GZ's credibility in his reporting of the encounter with TM and words used. 

I think there are other circumstances that will be argued by the prosecutor, some of which we probably are not yet aware of, that will bolster their case.  So it isn't one piece of evidence alone, but rather multiple components.

I'm not saying they will prevail at trial.  There's a huge difference between being able to frame an argument and being able to sustain a burden of proof.   


Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #16 on: July 10, 2012, 05:02:26 AM »
I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?

If so, it would be a radical departure from Florida law.  Depraved mind means there is evidence of ill will, hatred, spite, or evil intent.  Suspecting somebody might be a burglar does not establish that, nor does following, nor does confronting, nor does "a struggle ensued."

Martin screaming for his life for 30 or 40 seconds might be enough for a jury to conclude that the shooting was undertaken with ill will, hatred, spite or evil intent, and the state has Sybrina's testimony for that proposition.

Jeralyn cited a case, I don't recall what it was, that a chance meeting of strangers culminating in a fight and a death doesn't produce the state of "depraved mind."

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #17 on: July 10, 2012, 05:33:36 AM »
Jeralyn cited a case, I don't recall what it was, that a chance meeting of strangers culminating in a fight and a death doesn't produce the state of "depraved mind."

Here is a case that finds the opposite ... State of Florida v. Allen Lee Rogers (Fla. 2d DCA 1980).

I remain of the mind that some fact patterns should be insufficient, as a matter of law, to produce evidence of depraved mind; but the case law that I've found holds the opposite.  It appears the state need produce no evidence of depraved mind in order to get to trial.  ANY altercation involves a state of mind, and it appear that state of mind is always a question for the jury - supposing, of course, that the court does not find the act to taken in self defense.

Just to expand on the point, by way of hypothetical example, if there was a video of this altercation, and it showed Zimmerman calmly and politely introducing himself as the neighborhood watchman, Martin initiating the fight as Zimmerman attempted to retreat, and it showed Zimmerman yelling for help, and it showed Martin reaching for Martin's pistol, the court could NOT dismiss a 2nd degree murder charge by finding an absence of depraved mind.  It could dismiss by finding the shooting to be a justified act of self defense.

Even if Zimmerman shows no act of aggression, and even if Martin shows all the aggression, the court cannot dismiss an allegation by the state that Zimmerman acted with depraved mind.  The evidence is the ultimate act, the final blow.  The jury can reject the allegation pertaining to state of mind.  As a matter of legal process, the state is on firm ground until the case is submitted to a jury.  Similar to the absence of making any accounting for self defense in second degree murder charging instruments, the state of "depraved mind" being a freebie to the prosecutor is a quirk of Florida law (and likely other jurisdictions too).

Offline RickyJim

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #18 on: July 10, 2012, 06:24:55 AM »
What I gather from the discussion here is that there is no way to have the 2nd degree murder charge dismissed on the grounds that the Affidavit of Probable Cause didn't cite enough credible evidence that the defendant didn't act under self defense and the same would hold had the charge been only manslaughter.  I suppose that if you also believe "A Grand Jury would indict a ham sandwich." you don't find this method of indictment, leaving it up to an elected prosecutor, particularly upsetting.  I am unaware of any other civilized country where prosecutors have this much power.  How many states are there which require that nobody can be indicted for a serious offense unless a judge decides, after at least one hearing, that the evidence is strong enough to justify it?  Connecticut?

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #19 on: July 10, 2012, 06:37:12 AM »
Thanks all,

Does the state have any burden to provide evidence of a depraved mind in order to bring charges? If so why not just charge Murder I with no evidence of malice and aforethought?

Offline cardinal

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #20 on: July 10, 2012, 07:23:15 AM »
If so why not just charge Murder I with no evidence of malice and aforethought?
Under Florida law, a grand jury indictment would be required to bring first degree murder charges.

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #21 on: July 10, 2012, 07:24:03 AM »
What I gather from the discussion here is that there is no way to have the 2nd degree murder charge dismissed on the grounds that the Affidavit of Probable Cause didn't cite enough credible evidence that the defendant didn't act under self defense and the same would hold had the charge been only manslaughter.

Look at grounds for dismissal as coming in more than one form.  One form is that the allegations don't have evidence to support them, therefore the allegation itself is deficient.  That would be a dismissal of the charge for want of certain inculpatory evidence.  What's been discussed here is that the court cannot dismiss for want of inculpatory evidence of depraved mind.  It can take the final act, and allege that this act, alone, is enough to establish depraved mind.  The jury can reject that, but the judge cannot, as a matter of law.

Another form is to assert self defense.  A judge is obliged, if asked, to conclude whether or not the preponderance of evidence supports a conclusion that the act was justified.  The case can be dismissed on self defense grounds.

As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually.

Self defense can defeat either charge, murder or manslaughter, and can do so either by the judge or by the jury.  If by the judge, the decision is based on the rationale in support of self defense.  Logically, if defendant acted in self defense, he could not have acted with depraved mind, so in a sense the judge is finding absence of depraved mind.  The only difference is the form and substance of the motion to dismiss.

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #22 on: July 10, 2012, 07:32:30 AM »
Does the state have any burden to provide evidence of a depraved mind in order to bring charges? If so why not just charge Murder I with no evidence of malice and aforethought?

Technically, yes.  It is unethical to charge a person if the prosecutor does not have evidence to support all the elements of the charged offense.

As a practical matter, the remedy for an unethical charge is unavailable, sometimes until after the trial has been concluded.  So, a prosecutor can bring a charge of Murder I with no evidence of malice aforethought, same as bringing a charge of Murder II with no evidence of depraved mind.  It;s not that the complete system of justice doesn't get around to disagreeing with the prosecutor.  The questions are how and when that disagreement is resolved.

As far as I know, because the charge originates with the prosecutor on an information, the prosecutor has complete freedom to reframe the case, at any time up until the jury is charged.  The prosecution can do this unilaterally, with no visible prompt, or in response to a pretrial order from the judge; or in response to a motion after each side has presented its case, but before the jury is charged.

Offline RickyJim

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #23 on: July 10, 2012, 08:07:26 AM »
As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually.

Does this mean that if the Affidavit of Probable Cause was for Manslaughter, O'Mara could challenge it on the grounds it didn't address the self defense element but since it was for Murder 2, which doesn't have that element, he cannot?  If so, then maybe there is some sense to the prosecution's seeming (to a layperson) madness.   :o

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #24 on: July 10, 2012, 08:25:50 AM »
Does this mean that if the Affidavit of Probable Cause was for Manslaughter, O'Mara could challenge it on the grounds it didn't address the self defense element but since it was for Murder 2, which doesn't have that element, he cannot?  If so, then maybe there is some sense to the prosecution's seeming (to a layperson) madness.   :o

If the charge had been manslaughter, then the charging instrument would have to allege that Zimmerman's actions were not in self defense under Chapter 776.  The information (the bare summary charging document) it doesn't have to do more than make that allegation.  The supporting affidavit could be sparse as to evidence that the act was not self defense, as well, but could not be totally void of evidence on that point, as the affidavit in support of murder is (and is allowed/supposed to be).

I think as a matter of subsequent action, it all ends up at the same place - a motion to dismiss because the use of deadly force was justified under Chapter 776; and if than fails, arguing self defense to the jury.

I agree with your summary conclusion.  It appears that murder 2 is the most advantageous charge for the state, for insuring the process goes to trial.  It doesn't need to have any evidence (other than the final act) of depraved mind, and it doesn't need to say anything about exculpatory evidence in the nature of self defense.  IOW, if the state wants to undercut statutory immunity of 776.032, the best charge is murder 2.  That avoids the grand jury, no need for evidence of depraved mind, and the question of self defense is left to the judge on a self-defense motion.

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #25 on: July 10, 2012, 08:46:42 AM »
Is the mere fact that issues are in dispute decisive?

Conversly is the salient question 'has the state produced sufficient evidence (undisputed or not ) to:

a. Establish the requirements of the charging document?
b. Disqualify a SYG defense.

As I understand your explanation I could be charged murdering someone who was 2500 miles away from me at the time of his death based only on the fact I didn't like them ;airplanes exist and some passengers  when presented with my voice samples, have differing opinions about my possible presence on various flights.

I would have no recourse except trial?

The state has DeeDee and Sybrina, and in a pretrial motion to dismiss, all evidentiary disputes are resolved in the state's favor.  So, for a pretrial motion, Martin is the one screaming for 30-40 seconds, and Zimmerman initiated the use of physical contact.

The system operates on a presumption that the prosecutor uses good judgment, weighs competing evidence before deciding to charge, and refrains from charging when the evidence is so weak as to not be able to support a conviction.  However, and especially because the prosecutor is given a presumption of acting under these terms, the "front end" of the system is biased in favor of the prosecutor.

A prosecutor can take the testimony of a known liar, and for purposes of pretrial motion, that testimony will be presumed true.  The logic is that it is for the jury to decide the veracity and/or accuracy of witness testimony, so the case goes to trial.  The practical hurdle for charging is ZERO.  The prosecutor needs to have ZERO reliable evidence, any evidence will do, even from known liars, and even if the eyewitness testimony is contradicted by forensic evidence (or lack thereof).  You can be charged even if there is no evidence you do not like the person.

A statutory self defense claim can be settled without going all the way to trial, but the state can still charge and detain you until the judge decides your evidence for justified use of force outweighs the state's evidence against.

You could escape your dilemma with alibi, but the burden would be on you to produce it.  The prosecutor can bring a bogus charge.  It happens frequently.  Usually, the error is discovered.  There is no place to go to get your reputation back, other than thoroughly discrediting the prosecutor.  There is positively no way to recover your lost time or money.

Offline unitron

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #26 on: July 10, 2012, 09:07:00 AM »
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #27 on: July 10, 2012, 10:02:34 AM »
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?

I think that the fact that only one shot was fired speaks more directly to Zimmerman's state of mind. I doubt that many people would be overly concerned about the comfort  someone who a announced that he was going to kill you, and attempted to do the same just  a few seconds previously. My psyche would still be in survival mode

Offline unitron

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #28 on: July 10, 2012, 11:27:23 AM »
I think that the fact that only one shot was fired speaks more directly to Zimmerman's state of mind. I doubt that many people would be overly concerned about the comfort  someone who a announced that he was going to kill you, and attempted to do the same just  a few seconds previously. My psyche would still be in survival mode

I didn't offer an opinion as to whether it actually does indicate a "depraved mind", I just wondered if the state could, and/or would, argue that it does so.

Offline RickyJim

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #29 on: July 10, 2012, 01:31:39 PM »
To disprove that I have understood what has gone on previously, I'm asking if the following is correct.

At a (Florida) trial for second degree murder, the judge can, if a small amount of evidence is presented, instruct the jury that they may acquit on grounds of self defense.  If the trial is for manslaughter, such an instruction is redundant since not being self defense is an element of the definition of manslaughter which must be proven beyond a reasonable doubt.  One might argue that the element of the charge of second degree murder, that the killing was done with a depraved mind, could not have been proven if the jury finds self defense so the self defense instruction is redundant there also.  But I am getting confused.   ::)

 

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