Author Topic: The Prosecution's Burden of Proof  (Read 11741 times)

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Offline RickyJim

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Re: The Prosecution's Burden of Proof
« Reply #30 on: May 30, 2013, 10:04:58 PM »
I'll buy your definitions, cbolt.  However my bottom line is still that I think the prosecution will argue that Zimmerman was provocative and threatening (they might add DeeDee's testimony to the list I gave before) and thus Zimmerman had to make an attempt to retreat before shooting according to my 3 b) which is based on 776.041 (2).  I don't think they will be able to prove 3 BRD but what else can they try?  While you were away there was a long thread on How the Prosecution Will Present Their Case which also didn't yield a decent strategy for them. 

Offline DebFrmHell

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Re: The Prosecution's Burden of Proof
« Reply #31 on: May 30, 2013, 10:14:40 PM »
I'll buy your definitions, cbolt.  However my bottom line is still that I think the prosecution will argue that Zimmerman was provocative and threatening (they might add DeeDee's testimony to the list I gave before) and thus Zimmerman had to make an attempt to retreat before shooting according to my 3 b) which is based on 776.041 (2).  I don't think they will be able to prove 3 BRD but what else can they try?  While you were away there was a long thread on How the Prosecution Will Present Their Case which also didn't yield a decent strategy for them.

Isn't that the point of 776.032?  He couldn't retreat because he was on his back?  MOM has said over and over that the 776.032 is his plan for defending Zimmerman.

Offline Kyreth

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Re: The Prosecution's Burden of Proof
« Reply #32 on: May 30, 2013, 11:01:25 PM »
Whatever hand or hands it was, can you see a good argument that Zimmerman had not exhausted all reasonable means to escape or force Martin to back off before firing the gun?

I remember in at least one dca decision, it was decided that even being off balance from being hit was sufficient to to meet the requirement for having no reasonable options to retreat.

Offline MJW

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Re: The Prosecution's Burden of Proof
« Reply #33 on: May 31, 2013, 12:06:08 AM »
Somewhat off topic, but I think anyone who's looked at Florida's self-defense case law can't help but be amazed at how often convictions have been overturned because the trial court erroneously gave the forcible-felony instruction when there was no separate felony charge, and the defense attorney failed to object. How can it be, after case after case has been reversed for that reason, that neither the judge, nor the prosecutor, nor the defense attorney was apparently aware of that well-established principle of Florida law?

Offline MJW

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Re: The Prosecution's Burden of Proof
« Reply #34 on: May 31, 2013, 12:51:07 AM »
To my previous comment I'll add that a sly defense attorney might not object to the erroneous instruction, hoping a conviction will be reversed on appeal, giving his client two shots at acquittal. It's a risky strategy, though, since the erroneous forcible-felony instruction isn't always considered fundamental error -- meaning that it isn't preserved on appeal if not objected to.

Offline hexx

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Re: The Prosecution's Burden of Proof
« Reply #35 on: May 31, 2013, 05:33:15 AM »
The online dictionaries support my point of view, for the word "threat."

 - a declaration of an intention or determination to inflict punishment, injury, etc
 - an expression of intention to inflict evil, injury, or damage
 - Communicated intent to inflict harm or damage to a person or property

So, what about "provoke"?

 - To bring about deliberately; induce: provoke a fight
 - to stir up purposely (provoke a fight)

Can a person unintentionally provoke a fight?  Does that even make sense in the English language?

One bright day, in the middle of the night
Two dead men got up to fight
Back to back they faced each other
Drew their swords, and shot each other
The deaf policeman head the noise
And came to save the two dead boys

Edit to get rid of attempt to use html unordered list



somewhat off topic, but I am reminded how Serino asked Zimmerman "Did you follow then Mr. Martin?" and Z answered "well, I walked  in the same general direction ..."

Serino: "That's following"

it's following in one (physical movement) sense of the word, like a billiard ball can be said but "to follow" another ball, but to "follow" is ambigous,   can be used to refer to the act of going in the same direction with intent to chase or pursue etc.

Prosecution tries to deduce the intent from the physical movement - but it really doesn't "follow" (sic!)  from the momentary movement along the same path that there is an intent to keep on following and pursuing the victim in order to shoot him thru his heart.





Offline RickyJim

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Re: The Prosecution's Burden of Proof
« Reply #36 on: May 31, 2013, 05:43:56 AM »
Somewhat off topic, but I think anyone who's looked at Florida's self-defense case law can't help but be amazed at how often convictions have been overturned because the trial court erroneously gave the forcible-felony instruction when there was no separate felony charge, and the defense attorney failed to object. How can it be, after case after case has been reversed for that reason, that neither the judge, nor the prosecutor, nor the defense attorney was apparently aware of that well-established principle of Florida law?
Do you agree with NMNM that under Florida law, the prosecution can add the extra charge to cover the forcible felony during the trial?

Offline Zapper

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Re: The Prosecution's Burden of Proof
« Reply #37 on: May 31, 2013, 06:03:27 AM »
I am still trying to figure out how BDLR is going to give an opening statement without relying on emotion and Martin's character.  Gilbreath stated under oath that they had no evidence that contradicts the narrative given by Zimmerman.

Gilbreath stated under oath:   "We have Mr. Zimmerman's statements, we have the shell casings and we had Mr. Martin's body."

Gilbreath never says "we have no evidence that contradicts the narrative given by Zimmerman."

Offline RickyJim

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Re: The Prosecution's Burden of Proof
« Reply #38 on: May 31, 2013, 06:33:56 AM »
Since you brought up the shell casing, I've seen claims that its position refutes Zimmerman's story.  Does anybody understand what they mean?

Offline turbo6

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Re: The Prosecution's Burden of Proof
« Reply #39 on: May 31, 2013, 07:26:56 AM »
Since you brought up the shell casing, I've seen claims that its position refutes Zimmerman's story.  Does anybody understand what they mean?

Diwataman linked a youtube video of a guy shooting a PF9, the casings were going all over the place, like with any gun, so I doubt anyone could conclusively pinpoint anything worthwhile from the location of the casing...especially considering an issue like it it being deflected, from say Martin's arm or whatever. Too many variables, IMO to say "well the casing is here so this had to happen for sure..."

Offline DiwataMan

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Re: The Prosecution's Burden of Proof
« Reply #40 on: May 31, 2013, 08:45:10 AM »
Diwataman linked a youtube video of a guy shooting a PF9, the casings were going all over the place, like with any gun, so I doubt anyone could conclusively pinpoint anything worthwhile from the location of the casing...especially considering an issue like it it being deflected, from say Martin's arm or whatever. Too many variables, IMO to say "well the casing is here so this had to happen for sure..."

An oldie but a goodie.

http://diwataman.wordpress.com/2012/07/24/the-shell-casing/

Offline RickyJim

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Re: The Prosecution's Burden of Proof
« Reply #41 on: May 31, 2013, 10:01:44 AM »
Zimmerman was only asked once which hand Martin used to grab for the gun, in the CVSA (43:45-44:08). He said it was the one that had been on his mouth, but he couldn't remember if it was the right or the left. That part of the CVSA is transcribed here.

Osterman told FDLE another story, according to his interview summary (78/284). Zimmerman grabbed one of Martin's hand in both of his, and Martin grabbed for the gun with the other hand.

The FDLE summary doesn't have anything about left hand or right hand. I don't know what Osterman may have said elsewhere.
My interlocutor thinks the following is good evidence that Zimmerman did not exhaust all reasonable means of escaping.  (I kid you not.  ::) )
Quote
Serino: Compact? And you were able to overpower him as far as holding his wrist, you gained wrist…we call it wrist control…you gained wrist control on him basically, and you were able to basically liberate both hands…
Zimmerman: Yes, sir.

Offline RickyJim

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Re: The Prosecution's Burden of Proof
« Reply #42 on: May 31, 2013, 10:45:15 AM »
At least one of the following must be proven beyond a reasonable doubt:
  • Zimmerman was committing a forcible felony at the start of the physical conflict with Martin.  For example, trying to forcibly detain him.
  • Zimmerman did not have a reasonable fear of great bodily harm at the time he shot Martin.
  • Both a) and b) below must be proven BRD.
        a)Zimmerman was the initial provoker of the conflict with Martin.
        b)Zimmerman could have safely withdrawn from the fight but chose not to do so.
Thanks to John Galt of CTH, I am changing 3.a) to “Zimmerman was the initial provoker of Martin using physical force against him.”

Offline cboldt

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Re: The Prosecution's Burden of Proof
« Reply #43 on: May 31, 2013, 10:58:25 AM »
Thanks to John Galt of CTH, I am changing 3.a) to “Zimmerman was the initial provoker of Martin using physical force against him.”

I don't think that is correct either.  I believe provocation is the intentional threat or use of unlawful (physical) force.  If you don't want to be redundant, drop "intentional," but as I cautioned yesterday, your interlocutors are unreasonable, and will find threat to exist in the eye of the beholder (for purposes of provocation).  Provocation emphatically does not require the use of force.  It includes a threat to use force.  I think "unlawful" is necessary as well, because all citizens are allowed to use and/or threaten force other than for self defense or defense of others, depending on the justification and circumstances.  Can you make a citizen's arrest? Yes, but be careful - Sun Sentinel

Edited to repair close-href html tag

Offline MJW

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Re: The Prosecution's Burden of Proof
« Reply #44 on: May 31, 2013, 12:39:03 PM »
Do you agree with NMNM that under Florida law, the prosecution can add the extra charge to cover the forcible felony during the trial?

I'm not sure, but I don't see how it matters. What independent forcible felony could GZ be charged with? Anything related to an alleged assault on TM isn't an independent felony.

 

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